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LESHER v. ANDREOZZI

November 20, 1986

JEFFREY ALAN LESHER, a minor by his parents and natural guardians, SHERRY L. LESHER and JEFFREY LESHER, and SHERRY L. LESHER and JEFFREY LESHER in their own right, Plaintiffs
v.
ROBERT J. ANDREOZZI, M.D., ROBERT J. ANDREOZZI, M.D., P.C., ROCHE LABORATORIES, and HOFFMANN-LA ROCHE INC., Defendants



The opinion of the court was delivered by: CALDWELL

 WILLIAM W. CALDWELL, United States District Judge.

 Introduction and Background

 Plaintiffs, Jeffrey Alan Lesher, Sherry L. Lesher and Jeffrey Lesher, citizens of Pennsylvania, began this action in Lebanon County against defendants, Robert J. Andreozzi, M.D. and Robert J. Andreozzi, M.D., P.C., citizens of Pennsylvania, and Hoffmann-La Roche Inc. and Roche Laboratories ("Roche"), citizens of New Jersey. On October 9, 1986, Roche, pursuant to 28 U.S.C. § 1446(b), removed the case to federal court, basing jurisdiction on diversity of citizenship between the parties. Plaintiffs now oppose the removal and have asked us to remand the action to Lebanon County. *fn1" Plaintiffs oppose removal on the grounds that there is no diversity between the parties in that plaintiffs and the Andreozzi defendants are all citizens of Pennsylvania. Roche, however, argues that diversity is now present in the case by virtue of a settlement entered into by plaintiffs and the Andreozzi defendants, in which plaintiffs voluntarily relinquished and discontinued all their claims against the Andreozzi defendants. The issue before us is whether diversity jurisdiction was created, and thereby made removal possible and proper, when plaintiffs settled their claims against the Andreozzi defendants, the resident defendants. For the reasons set forth below, we conclude that the removal was proper and will deny plaintiffs' motion to remand.

 Discussion

 Roche removed this action pursuant to 28 U.S.C. § 1446(b) which provides in pertinent part:

 
If the case stated by the initial pleading is not removable, a petition for removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.

 This section has been interpreted to permit the removal of an action where the plaintiff voluntarily dismisses or discontinues his claims against the defendant whose presence prevents removal. See Bumgardner v. Combustion Engineering, Inc., 432 F. Supp. 1289 (D. S.C. 1977). Plaintiffs, however, argue that the resident defendant must be formally dismissed from the case before removal is permitted. *fn2" Roche, on the other hand, contends that a formal order of dismissal is not necessary.

 We are unpersuaded by plaintiffs' argument that the Andreozzi defendants must be formally dismissed from this action before removal is permissible. In Heniford v. American Motors Sales Corp., 471 F. Supp. 328 (D. S.C. 1979), the plaintiffs, residents of South Carolina, brought an action in state court against American Motors Sales Corp., a Delaware corporation, and Ralph Cooke, a resident of South Carolina. At trial counsel for plaintiffs requested that the jury not return a verdict against the resident defendant Cooke. Construing the request as a dismissal of plaintiffs' claims against defendant Cooke, American Motors removed the case to federal court. Plaintiffs argued there that removal was improper and ineffective because defendant Cooke was never formally dismissed. The court denied plaintiffs' motion to remand, finding that:

 
Even if the parties were found not to have perfected a dismissal under state court procedure, this Court determines plaintiffs' counsel's admonishment to the jury not to return a verdict against Ralph Cooke established the prerequisites for removal diversity jurisdiction under 28 U.S.C. 1441(b).

 Id. at 334.

 Similarly, in Erdey v. American Honda Co., Inc., 96 F.R.D. 593 (M.D. La.), modified, 558 F. Supp. 105 (M.D. La. 1983), the plaintiff voluntarily settled his claims against the resident defendants. Thereafter, the remaining defendants removed the case to federal court. Plaintiff, in turn, moved to remand, arguing the resident defendants were not formally dismissed from the action. The court concluded that plaintiff's settlement agreement extinguished his claims against the resident defendants and thereby rendered the case removable. The court offered the following explanation:

 
Where plaintiff, by his voluntary act has definitely indicated his intention to discontinue the action as to the non-diverse defendant, plaintiff has indicated that he no longer desires to dictate the forum and the case then becomes removable under 28 U.S.C. § 1446(b). Powers v. Chesapeake & O. Ry. Co., 169 U.S. 92, 18 S. Ct. 264, 42 L. Ed. 673 (1898). The technicality of how plaintiff's intention is expressed is of no moment -- it is the expression of the intent by plaintiff which makes the case removable.

 Id. at 599. See also Chohlis v. Cessna Aircraft Co., 760 F.2d 901 (8th Cir. 1985), DiNatale v. Subaru of America, 624 F. Supp. 340 (E.D. Mich. 1985); Bumgardner, supra. In light of these persuasive authorities we find that a formal order of dismissal is not a prerequisite to removal under 28 U.S.C. § 1446(b). But see Mertan v. E. H. Squibb & Sons, Inc., 581 ...


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