In Re Iowa Manufacturing Company of Cedar Rapids, Iowa, Petitioner, 747 F.2d 462 (8th Cir. 1984)

Iowa Manufacturing Company (IMC) seeks a writ of mandamus from this Court compelling the district court¹  to rescind its order of remand and accept jurisdiction of the case for trial on its merits. We decline to issue the writ and affirm the order of remand to the state court.

Jack Gault, an Arkansan, brought a personal injury suit in Arkansas state court, suing Don Tidwell (an Arkansan) and two non-residents, IMC and Wenzel Machinery Rental and Sales. Tidwell successfully moved for summary judgment, which created complete diversity between plaintiffs and defendants. As a result, the remaining non-resident defendants removed the case to the district court. The district court declined to accept jurisdiction, however, because Tidwell's dismissal was involuntary relative to the plaintiffs, and an involuntary dismissal cannot change a previously unremovable case into a removable case.

Although our jurisdiction to hear this case is an unsettled issue,²  we assume, for purposes of this appeal, that the issue is properly before us.

In remanding the case to the state court, the district court relied upon the "voluntary-involuntary" rule announced in Powers v. Chesapeake & Ohio Ry., 169 U.S. 92, 99-101, 18 S. Ct. 264, 267, 42 L. Ed. 673 (1898), Whitcomb v. Smithson, 175 U.S. 635, 638, 20 S. Ct. 248, 250, 44 L. 303 (1900), and their progeny. The rule establishes a bright line test for evaluating removability. If the dismissal of a defendant in state court creates complete diversity between all parties so that the case may be removed to federal court, the propriety of removal is determined according to whether the dismissal was voluntary or involuntary with respect to the plaintiff. In other words, if the plaintiff voluntarily dismisses the non-diverse defendant, the case may be removed. Removal is improper, however, if the dismissal of that resident defendant was involuntary.

We join the three circuits that have previously determined that the "voluntary-involuntary" rule survived the 1949 amendment of the Judicial Code. DeBry v. Transamerica Corp., 601 F.2d 480, 488 (10th Cir. 1949); Self v. General Motors Corp., 588 F.2d 655, 658 n. 4 (9th Cir. 1978); Weems v. Louis Dreyfus Corp., 380 F.2d 545, 548 (5th Cir. 1967). The Weems Court relied on legislative history of 28 U.S.C. § 1446(b), which embodies the voluntary portion of the rule. That history suggests that the rule as announced by the Supreme Court in Powers was incorporated into the statute. See Sen.Rep. No. 303, 81st Cong., 1st Sess., reprinted in 1949 U.S.Code Cong.Serv. 1268. Lacking any clear direction to the contrary, we infer that the involuntary portion of the rule also survived the 1949 amendment. As a result, we decline to issue the writ, and affirm the district court's order of remand to the state court.