Summary
concluding that a third-party defendant does not have the power to remove a case
Summary of this case from Ciolino v. RyanOpinion
NO. C-02-04346-SC
October 28, 2002
ORDER REMANDING CASE TO STATE COURT
I. INTRODUCTION
Cross-defendant Ampro Industries, Inc. ("Ampro") filed a notice removing this case from state to federal court. This Court concludes that as a third party defendant Ampro lacked the power to remove the case, and remands the case to state court.
II. BACKGROUND
Plaintiffs Gartec A.G. et al. ("Plaintiffs") filed a state court lawsuit alleging that defendant Joseph Enterprises, Inc. ("Joseph") breached a warranty in connection with Joseph's sales of seeds to Plaintiffs. Joseph then cross-claimed against Ampro, which originally sold those same seeds to Joseph. On September 10, 2002, Ampro filed a notice of removal to federal court. The notice purported to remove only Joseph's cross-claim against Ampro.
III. LEGAL STANDARD
Although the Ninth Circuit has reserved decision on the "interesting question" of whether a third party defendant may remove a case to federal court, district courts generally have concluded that third party defendants lack such power. O'Halloran v. University of Washington, 856 F.2d 1375, 1381 (9th Cir. 1988); see, e.g., Orosco v. Royal Roofing Co., 1997 WL 724456, *1 (N.D. Cal. 1997); Cross v. Kaiser Hospitals, 1998 WL 737998, *1 (N.D. Cal. 1998) ("Although courts in other circuits are split on the issue, the majority hold that cross-defendants and third-party defendants are not allowed to remove. District Courts within the Ninth Circuit have generally followed the majority rule.") (citations omitted). A minority of courts have allowed removal where the third-party claim is separate and distinct from other claims in the case, reasoning that such a removal does not interfere with the original plaintiff's choice of forum, but others have criticized such removals as compromising judicial economy. Schmidt v. Association of Apartment Owners of Marco Polo Condominium, 780 F. Supp. 699, 702-05 (D. Hawaii 1991).
IV. DISCUSSION
Following the precedents set by other district courts, this Court finds that Ampro, as a third party defendant, lacks the power of removal. Moreover, Ampro has made no effort to demonstrate that its claim is separate and independent, and therefore this Court has no reason to decide whether to follow the minority in allowing an exception to the non-removal rule for separate and independent claims.
V. CONCLUSION
For the foregoing reasons, the case is remanded to the Superior Court of California in San Francisco County.