                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                         AUG 30 1999
                                TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk
 LORENE GOODMAN,

           Plaintiff - Appellant,
 vs.                                                   No. 98-6437
                                                  (D.C. No. 95-CV-1619)
 MEDICAL ENGINEERING                                   (W.D. Okla.)
 CORPORATION; BRISTOL-MYERS
 SQUIBB COMPANY; AESTHETECH
 CORPORATION; THE COOPER
 COMPANIES, INC.;
 COOPERVISION INC.; CV SUB 1987
 INC.; INAMED CORPORATION;
 SIROD CORPORATION; CVI
 MERGER CORPORATION;
 MINNESOTA MINING AND
 MANUFACTURING
 CORPORATION, d/b/a 3M Company;
 J. DAN METCALF,

           Defendants - Appellees.


                              ORDER AND JUDGMENT *


Before ANDERSON, KELLY, Circuit Judges, and BROWN, ** District Judge. ***


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       **
         Hon. Wesley E. Brown, Senior United States District Judge for the
District of Kansas, sitting by designation.

         After examining the briefs and the appellate record, this three-judge
       ***

panel has determined unanimously that oral argument would not be of material
      Plaintiff-appellant Lorene Goodman appeals from the dismissal with

prejudice of her suit against the above-named defendants. The district court

dismissed plaintiff’s suit for failure to comply with the court’s orders. Because

we conclude that the district court lacked subject matter jurisdiction over this

action, we direct the district court to vacate its judgment and remand to the

Oklahoma state district court.

      In August 1992, plaintiff, a Texas citizen, filed a breast implant suit in

Oklahoma state district court alleging medical malpractice and products liability

against various defendants and Dow Corning Corporation (DCC). Defendants did

not attempt to exercise any right of removal under 28 U.S.C. § 1441. Three years

later, on May 15, 1995, DCC filed for bankruptcy in the United States Bankruptcy

Court for the Eastern District of Michigan. In October 1995,   DCC unilaterally

removed Ms. Goodman’s claims against it to the federal district court for the

Western District of Oklahoma, with the objective of having those claims

transferred to the Michigan bankruptcy court. See 28 U.S.C. §§ 1334(b); Fed. R.

Bankr. Proc. 9027; Appellee Metcalf’s App. at 17-21. Metcalf, the

defendant/physician who had performed plaintiff’s implants, timely asked for

clarification in regard to the removal of defendants other than DCC, and if the



assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument.

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whole case had been removed, objected to the removal and sought remand of the

claims not involving DCC.        See R. tab 2, Metcalf’s motion for clarifying order or,

alternatively, for remand and abstention. DCC responded that it only intended to

remove “those personal injury/breast implant claims asserted against it” and it

“did not, and it was not its intention, to remove any claims pertaining to the

Physician Defendants.”     See Appellee Metcalf’s App. at 25.

       In February 1996, before the Oklahoma federal district court ruled on

Metcalf’s motion for clarification or remand, the case was transferred into federal

multi-district litigation (MDL) proceedings in Alabama, along with 127 other

cases from eight other states.     See id. at 28-30. The MDL Panel summarily

rejected arguments that some cases had been improperly removed to federal court

or that the motions to remand should be decided prior to transfer to Alabama.       See

id. at 28. Both plaintiff and defendant Metcalf again unsuccessfully sought an

order of clarification and remand in the Alabama proceedings, asserting that

plaintiff’s claims against the remaining defendants had never been removed to

federal court.   See id. at 36-44 (Oklahoma plaintiffs’ joint motion to sever and

remand); id. at 31-35 (Metcalf’s motion for clarification order regarding removed

claims); id. at 73-74 (letter to Northern District of Alabama requesting decision

on motions for remand). None of the remaining defendants opposed the motions

for remand.


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      The question before us is whether, after DCC removed the claims against it

to the Oklahoma federal district court, the cause of action against the remaining

defendants stayed in state court or was also removed to the Oklahoma federal

district court automatically or by some other means. In their joint answer brief,

the manufacturing appellees candidly state that DCC’s removal “did not result in

the removal of Plaintiff’s claims against any of the remaining Defendants”

because the remaining defendants failed to file a notice of removal in this case.

See Joint Br. of Manufacturing Appellees at 2. Metcalf contends that removal of

plaintiff’s claims against the remaining defendants never occurred, a position

shared by the plaintiff, although she now seeks transfer of the case to the United

States District Court for the Northern District of Texas.

      Federal removal jurisdiction is statutory in nature and is to be strictly

construed. See Shamrock Oil & Gas v. Sheets , 313 U.S. 100, 108-09 (1941).

“There is a presumption against removal jurisdiction,” and doubtful cases must

be resolved in favor of remand.   Laughlin v. Kmart Corp ., 50 F.3d 871, 873

(10th Cir. 1995); see also American Fire & Cas. Co. v. Finn    , 341 U.S. 6, 17-18

(1951) (stating that “[t]he [removal] jurisdiction of the federal courts is carefully

guarded against expansion by judicial interpretation or by prior action or consent

of the parties”).

      DCC is not a party to this appeal, the Eastern District of Michigan having


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taken bankruptcy jurisdiction over the claims against DCC. In our search for

federal jurisdiction, the manufacturing appellees state that “[a]rguably, the entire

case fell within the [Oklahoma] federal district court’s original (but not

exclusive) jurisdiction as a result of [DCC’s] bankruptcy filing.” Joint Br. of

Manufacturing Def. at 2 (citing 28 U.S.C. § 1334(b)).      Even if plaintiff’s claims

against DCC were properly removed to the Oklahoma district court under 28

U.S.C. § 1452(a) and Fed. R. Bankr. Proc. 9027,      see Maritime Elec. Co., Inc. v.

United Jersey Bank , 959 F.2d 1194, 1211-12 & 1212 n.6 (3rd Cir. 1992);          National

Developers, Inc. v. Ciba-Geigy Corp. (In re Nat’l Developers, Inc.)        , 803 F.2d

616, 620 (11th Cir. 1986), the notice of removal expressly removed only the

claims against DCC; the other defendants did not join in removal. Thus, this case

is distinguishable from   Lindsey v. O’Brien , Tanski, Tanzer & Young Health Care

Providers (In re Dow Corning Corp.)      , 86 F.3d 482, 486, 494 (6th Cir. 1996),

where the Sixth Circuit held that Eastern District of Michigan had “related-to”

jurisdiction under 28 U.S.C. § 1334(b) of claims against removing non-DCC

defendants.

       Although removal in the bankruptcy context is theoretically possible under

28 U.S.C. § 1441(a), see Things Remembered, Inc. v. Petrarca          , 516 U.S. 124,

128-29 (1995), that cannot be the basis for removal jurisdiction in this case.

First, no timely notice of removal was filed.     See 28 U.S.C. § 1446(b). Second,


                                            -5-
only DCC sought to remove; the removal petition was not joined by all

defendants, another prerequisite.    See Cornwall v. Robinson , 654 F.2d 685, 686

(10th Cir. 1991).

       We conclude that because (1) only those claims against DCC were

expressly removed to the Oklahoma federal district court in DCC’s notice of

removal; (2) the remaining defendants did not join in the removal; and (3) the

Oklahoma federal district court does not have jurisdiction over the remaining

claims under any other statute brought to our attention, the Oklahoma federal

district court had no subject matter jurisdiction to issue its order dismissing

plaintiff’s claims against the remaining defendants and its judgment is void.      See

United States v. 51 Pieces of Real Property      , 17 F.3d 1306, 1309 (10th Cir. 1994)

(stating that “a judgment is void if the court that enters it lacks jurisdiction over

either the subject matter of the action or the parties to the action”). In these

circumstances, the case against the remaining defendants should be remanded to

state court. See 28 U.S.C. §§ 1447(c); Owens-Illinois, Inc. v. Rapid American

Corp. (In re Celotex Corp.) , 124 F.3d 619, 625 (4th Cir. 1997) (proper bankruptcy

removal requires subject matter jurisdiction).

       Defendant INAMED’s motion to adopt the manufacturing appellees’ brief

is GRANTED .

       The manufacturing appellees’ motion for an order striking appellant’s brief


                                            -6-
and requiring appellant to disclose the identity of all counsel who provided legal

assistance in drafting her brief is   DENIED .

       The case is REMANDED to the United States District Court for the

Western District of Oklahoma with instructions to vacate its judgment and to

remand the case to the Oklahoma County state district court from whence it was

allegedly removed for further proceedings.

                                                 Entered for the Court


                                                 Paul J. Kelly, Jr.
                                                 Circuit Judge




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