       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206
    ELECTRONIC CITATION: 2000 FED App. 0181P (6th Cir.)
                File Name: 00a0181p.06


UNITED STATES COURT OF APPEALS
              FOR THE SIXTH CIRCUIT
                _________________


                                  ;
                                   
BELVA DAVIS, Individually
                                   
and as Personal
                                   
Representative of the Estate
                                   
                                      No. 98-2188
of Daniel R. Green, Deceased,
                                   
           Plaintiff-Appellant,     >
                                   
                                   
                                   
           v.

                                   
                    Defendant, 
WILLIAM JOSEPH MCCOURT,
                                   
                                   
                                   
                                   
INTERSTATE ARMS,

      Defendant/Third-Party 
INCORPORATED,

            Plaintiff-Appellee, 
                                   
                                   
CHINA NORTH INDUSTRIES             
                                   
                   Third-Party 
CORPORATION (NORINCO),

          Defendant-Appellee. 
                                   
                                   
                                  1
      Appeal from the United States District Court
     for the Eastern District of Michigan at Detroit.
      No. 98-72583—John Feikens, District Judge.


                            1
2        Davis v. McCourt, et al.                      No. 98-2188       No. 98-2188                    Davis v. McCourt, et al.     11

                   Argued: October 29, 1999                                trigger. This is precisely the operation of the product
                                                                           which, according to its function, is reasonably
                Decided and Filed: May 31, 2000                            expected. . . . In short, it performed according to its
                                                                           design. Only a defective person would fail to realize the
    Before: SUHRHEINRICH and SILER, Circuit Judges;                        obvious dangers associated with these actions. . . . A
               RUSSELL, District Judge.*                                   loaded firearm must be considered dangerous. . . . It is an
                                                                           instrument of death. That is its primary function. Yet,
                      _________________                                    only deliberative action will cause discharge. When
                                                                           properly handled, the gun can be safely used.
                           COUNSEL
                                                                         Id. quoting Taylor v. Gerry’s Ridgewood, Inc., 490 N.E.2d
ARGUED: James D. Hubbert, BENNER & BILICKI,                              987, 991 (Ill.App.Ct. 1986). Although Plaintiff argues that he
Farmington Hills, Michigan, for Appellant. William E. Clark,             did not know the gun was loaded, that fact is irrelevant. Any
CLARK & KNIGHT, Southfield, Michigan, Michael H.                         gun safety course teaches and any reasonable gun user should
Selter, FARKAS & MANELLI, Washington, D.C., for                          know that no gun, loaded or unloaded, should ever be pointed
Appellees. ON BRIEF: Brian J. Benner, BENNER &                           at another human, much less pointed and mockingly fired.
BILICKI, Farmington Hills, Michigan, for Appellant.                      Accordingly, Michigan law does not require a manufacturer
William E. Clark, CLARK & KNIGHT, Southfield,                            to design safety features to protect users from the dangers of
Michigan, Michael H. Selter, FARKAS & MANELLI,                           a simple tool when the dangers are “obvious and inherent in
Washington, D.C., for Appellees.                                         the product’s utility.” Treadway, 950 F.Supp. at 1332.
                      _________________                                    Furthermore, the defendant’s actions must be the proximate
                                                                         cause of Green’s death. Since McCourt intentionally aimed
                          OPINION                                        and fired the rifle at Green, his actions were a superseding
                      _________________                                  cause of Green’s death. See Raines, F.Supp. at 826.
                                                                         Therefore, because there were no genuine issues of material
   RUSSELL, District Judge. Plaintiff-Appellant Belva Davis              fact in dispute and there was no legal basis to support
appeals from the district court’s grant of summary judgment              Plaintiff’s claims, the district court did not err in granting
in favor of Defendant Interstate Arms Incorporated and Third-            summary judgment in favor of Interstate and NORINCO.
Party Defendant China North Industries Corporation
(NORINCO). The district court concluded that it had proper                                     CONCLUSION
jurisdiction under 28 U.S.C. § 1441(d) and granted both
Interstate’s and NORINCO’s motions for summary judgment                  AFFIRMED.
finding that guns are simple tools and that the dangers
associated with guns are open and obvious. The court
concluded that under Michigan law there is no duty on the
part of the manufacturer to warn or protect against any known

     *
     The Honorable Thomas B. Russell, United States District Judge for
the Western District of Kentucky, sitting by designation.
10   Davis v. McCourt, et al.                     No. 98-2188      No. 98-2188                     Davis v. McCourt, et al.      3

  In this case, the parties do not dispute any genuine issue of    dangers. Since Plaintiff failed to present any evidence to the
material fact. Plaintiff submits that the defendants failed to     contrary and failed to present any evidence that Green’s death
prove that the gun used was a simple product. In support,          was caused by anything other than the deliberate, criminal act
Plaintiff contends that guns are highly mechanized because         of McCourt, the district court granted summary judgment.
“[t]here’s several bits and pieces” which need to be cleaned.      Defendant argues that the court erred in finding it had
JA at 465. Plaintiff also points to the numerous hours army        jurisdiction and in granting summary judgment.
and police men spend training with guns as evidence that
guns are not simple products. See id. Thus, Plaintiff submits,                           BACKGROUND
a gun is “not a simple tool that you just put on the shelf and
you take it out, and you fire it,” despite the fact that this is      In August 1994, sixteen-year-old Daniel Green and his
precisely the factual scenario here. See id. Based on this         friend Jimmy Ortiz stopped by Joseph McCourt’s residence
argument, Plaintiff asserts the defendants still had a duty to     so that Ortiz could use the bathroom. McCourt, age 37,
warn McCourt about the possibility that a bullet may have          allowed Ortiz to enter the house and use the bathroom, but
been left in the chamber after the magazine clip was removed,      instructed Green to wait outside for his friend. While Ortiz
or provide a safety device such as a load indicator. Caselaw       was inside, McCourt retrieved his loaded MAK-90
holds the opposite.                                                semiautomatic rifle, removed the magazine clip and emptied
                                                                   out the shells. McCourt then reinserted the clip and walked
  Caselaw provides that a gun is a simple product.                 outside to Green and pointed the rifle at him, “trying to scare
                                                                   him.” JA at 147. McCourt had fired the gun before and knew
  The gun is not highly mechanized and is not power                how it worked. He understood that “[y]ou can’t take the
  driven. It does not contain large, unwieldy parts that           bullet . . . out by releasing the magazine once it’s in the
  must be serviced and cause severe injury upon mere               chamber.” JA at 151. Although McCourt claims to have
  contact. Moreover, the normal and intended operation of          checked to make sure a bullet was not in the rifle’s chamber,
  the gun does not place the user in a dangerous                   the gun discharged a bullet, striking Green in the head and
  position–defendant intended that users fire the gun not at       killing him. McCourt’s rifle was not equipped with a load
  themselves or innocent individuals, but at sporting              indicator, nor was there any type of warning with the rifle that
  targets, animals, or in the event of self-defense, at other      a bullet may still be lodged in the rifle’s chamber after the
  humans. Just as a manufacturer cannot produce a                  magazine clip had been removed. A jury convicted McCourt
  hammer that will not mash, or a stove that will not burn,        of involuntary manslaughter the following April.
  it is also true that a manufacturer cannot produce a gun
  that will not fire a bullet when it is, in fact, loaded and        In 1996, Green’s estate filed suit against McCourt,
  when the firing mechanism is deliberately engaged.               Interstate, and NORINCO in Circuit Court in Wayne County,
                                                                   Michigan. Plaintiff alleges that Interstate and NORINCO
Raines, 757 F.Supp. at 825. Caselaw also provides that a gun       were liable for designing a defective product and for failing
presents an open and obvious danger to the suspecting user.        to warn McCourt that a bullet may still be in the rifle’s
                                                                   chamber even after the magazine clip is removed. NORINCO
  [The user] fully intended to perform the physical actions        removed the case to District Court pursuant to 28 U.S.C.
  necessary to fire the weapon. He deliberately picked it          § 1441(d). Plaintiff and NORINCO stipulated to dismiss
  up, inserted his finger through the trigger guard, pointed       NORINCO as a defendant without prejudice and the case was
  it at the head of [the decedent] and pulled the trigger.         subsequently remanded back to Circuit Court in Wayne
  The loaded revolver fired when [the shooter] pulled the
4    Davis v. McCourt, et al.                     No. 98-2188      No. 98-2188                     Davis v. McCourt, et al.       9

County. Thereafter, Interstate filed a third-party complaint       her position, he or she must present evidence on which the
against NORINCO for contribution and indemnity.                    trier of fact could find for the plaintiff. See id. (citing
NORINCO removed the case to district court again and both          Anderson v. Liberty Lobby, 477 U.S. 242, 251-52, 106 S.Ct.
NORINCO and Interstate filed motions for summary                   2505, 91 L.Ed.2d 202 (1986)).
judgment.
                                                                      In order to establish a prima facie case in a products
   The district court, relying on case law from other circuits,    liability action, a plaintiff must demonstrate that the defendant
concluded that it had proper jurisdiction under 28 U.S.C.          manufacturer owed the plaintiff a duty of care. See Raines v.
§ 1441(d). The district court also stated that guns are simple     Colt Indus., Inc., 757 F.Supp. 819, 823 (6th Cir. 1991), citing
tools and that the dangers associated with guns are open and       Glittenberg v. Doughboy Recreational Indus., Inc., 462
obvious. The court concluded that under Michigan law there         N.W.2d 348 (Mich. 1990). Whether a duty exists is a
is no duty on the part of the manufacturer to warn or protect      question of law to be decided by the court. See id. Under
against any known dangers. Since Plaintiff failed to present       Michigan law, a manufacturer owes no to duty to warn of an
any evidence to the contrary and failed to present any             open and obvious danger associated with the use of a simple
evidence that Green’s death was caused by anything other           product. See id.; Fisher v. Johnson Milk Co., 383 Mich. 158,
than the deliberate, criminal act of McCourt, the district court   161 (Mich. 1970).
granted both Interstate’s and NORINCO’s motions for
summary judgment. This timely appeal followed.                        Michigan caselaw does not provide a clear test for
                                                                   determining the simplicity or complexity of a product. See
           JURISDICTION AND REMOVAL                                Raines, 757 F.Supp. at 824. Michigan courts and the Sixth
                                                                   Circuit have, however, both contributed caselaw to clarify the
  Removal jurisdiction is a question of law. This Court            status of the simple tool doctrine under Michigan law. The
reviews motions to remand de novo. See Michigan Affiliated         courts have categorized products as simple when one or both
Healthcare Sys., Inc. v. CC Systems Corp. of Michigan, 139         of the following conditions exist:
F.3d 546, 549 (6th Cir. 1998).
                                                                     (1) The products are not highly mechanized, thus
  Appellant argues that the district court erred in holding that         allowing the users to maintain control over the
28 U.S.C. § 1441(d) allows a foreign third-party defendant to            products;
remove an action from state court to district court and as a
result, erred in allowing removal in this case. This is an issue     (2) the intended use of the products does not place the
of first impression in this Court. We find that the district             users in obviously dangerous positions.
court did not err and that 28 U.S.C. § 1441(d) allows a foreign
third-party defendant to remove an entire action from state        Id. at 825. Courts have found, for example, that hammers,
court to district court.                                           knives, gas stoves, axes, buzz saws, propeller driven
                                                                   airplanes, trampolines, and guns are simple products that
  The Foreign Sovereign Immunity Act (“FSIA”), 28 U.S.C.           differ from complex products in their simplistic operation
§§ 1602-1611, defines a foreign state to include a political       and/or design. See id.; Treadway v. Smith & Wesson Corp.,
subdivision of a foreign state or an agency or instrumentality     950 F.Supp. 1326 (E.D.Mich. 1996). The dangers presented
of a foreign state. 28 U.S.C. § 1603(a). NORINCO is a state        by a loaded gun have also been found to be open and obvious.
owned limited liability corporation under the law of the           See id.
People’s Republic of China. On appeal, Plaintiff does not
8     Davis v. McCourt, et al.                      No. 98-2188       No. 98-2188                        Davis v. McCourt, et al.          5

the foreign party is brought in as a third-party defendant by         challenge NORINCO’s status as an instrumentality of a
another defendant. See Surinam, 974 F.2d at 1259. “Making             foreign state.
a federal forum available to a foreign state furthers this goal,
whether the foreign state is a defendant or a third-party               The FSIA gives federal courts jurisdiction over actions
defendant.” Id.                                                       against foreign parties.1 Congress enacted the FSIA in part to
                                                                      create a uniform body of law by establishing federal courts as
  Based on the history and purpose of 28 U.S.C. § 1441(d),            the preferred forum for cases involving foreign states. See
as well as the persuasive case law found in other circuits,           H.R. No. 94-1487, 94th Cong., 2d Sess. 32, reprinted in 1976
foreign third-party defendants should be allowed to remove an         U.S.Code Cong. & Admin.News 6604, 6631; In re Air Crash
entire case from state court to district court. Accordingly, the      Disaster Near Roselawn, Indiana, 96 F.3d 932, 942 (7th Cir.
district court here did not err in finding that it had jurisdiction   1996). The FSIA includes Title 28 U.S.C. § 1441(d), which
pursuant to 28 U.S.C. § 1441(d).                                      provides in relevant part:
                 SUMMARY JUDGMENT                                       Any civil action brought in a State court against a foreign
                                                                        state as defined in section 1603(a) of this title may be
  This Court reviews a district court’s grant of summary                removed by the foreign state to the district court of the
judgment de novo. Thus, this Court examines the record in               United States for the district and division embracing the
the same manner as the district court. See Estate of Mills v.           place where such action is pending. Upon removal the
Trizec Properties, 965 F.2d 113, 115 (6th Cir. 1992), citing            action shall be tried by the court without jury.
Qualicare-Walsh, Inc. v. Ward, 947 F.2d 823, 825 (6th Cir.
1991).                                                                  Four circuits have addressed the issue of whether 28 U.S.C.
                                                                      § 1441(d) allows a foreign third-party defendant to remove an
   Summary Judgment is available under Fed.R.Civ.P. 56(c)             action from state court to district court. See In re Air Crash
if the moving party can establish that the “pleadings,                Disaster Near Roselawn, Indiana, 96 F.3d 932 (7th Cir.
depositions, answers to interrogatories, and admissions on            1996); In re Surinam Airways Holding Co., 974 F.2d 1255
file, together with the affidavits, if any, show that there is no     (11th Cir. 1992); Chuidian v. Philippine Nat’l Bank, 912 F.2d
genuine issue as to any material fact and that the moving party       1095 (9th Cir. 1990); Nolan v. Boeing Co., 919 F.2d 1058
is entitled to a judgment as a matter of law.” In determining         (5th Cir. 1990). In each case, the circuit courts have agreed
whether summary judgment is appropriate, a court must                 that § 1441(d) not only authorizes the removal of an action
resolve all ambiguities and draw all reasonable inferences            involving a foreign third-party defendant, but also that it
against the moving party. See Matsushita Electrical Indus.            authorizes “the removal of the entire case, even if there are
Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348,         nonforeign defendants.” Alonzi v. Budget Constr. Co., 55
89 L.Ed.2d 538 (1986).                                                F.3d 331, 333 (7th Cir. 1995); see Chuidian, 912 F.2d at
                                                                      1098; Surinam, 974 F.2d at 1260; Nolan, 919 F.2d at 1066.
  “[N]ot every issue of fact or conflicting inference presents        The Sixth Circuit has not directly addressed this issue, but in
a genuine issue of material fact.” Street v. Bradford & Co.,
886 F.2d 1472, 1477 (6th Cir. 1989). The test is “whether the
party bearing the burden of proof has presented a jury                    1
question as to each element in the case.” Hartsel v. Keys, 87               The Sixth Circuit has recognized that FSIA provides an “absolute
                                                                      right of removal to the federal courts by the foreign state” under
F.3d 795, 799 (6th Cir. 1996). The plaintiff must present             § 1441(d). In re Delta America Re Ins. Co., 900 F.2d 890, 892 (6th Cir.
more than a mere scintilla of the evidence. To support his or         1990).
6       Davis v. McCourt, et al.                             No. 98-2188         No. 98-2188                          Davis v. McCourt, et al.           7

dicta noted that if removal by a foreign defendant is proper                     defendant, there is no right of removal. Any other decision,
under 1441(d), then “the entire action against all defendants                    Plaintiff asserts, would violate the well-pleaded complaint
is removed to federal court.” In re Delta America Re Ins.,                       rule3 and allow removal  of an action that was not a voluntary
Co., 900 F.2d 890, 891 n.1 (6th Cir. 1990), citing Arango v.                     act of the plaintiff.4
Guzman Travel Advisors Corp., 621 F.2d 1371, 1375 (5th
Cir. 1980).                                                                         Both the statutory interpretation of “civil action” and
                                                                                 history behind the FSIA lead this Court to follow the other
  Plaintiff urges this Court to break from the other circuits                    circuits in holding that 28 U.S.C. § 1441(d) not only
and adopt the position that 28 U.S.C. § 1441(d) does not                         authorizes the removal of an action involving a foreign third-
permit foreign parties who are brought in as third-party                         party defendant, but also that it authorizes the removal of the
defendants to remove the case to federal court. To reach this                    entire case, even if there are nonforeign defendants.
holding, Plaintiff asserts that this Court should interpret 28                   According to the Revision Note of § 1441, the words “civil
U.S.C. § 1441(d) in light of the well-pleaded complaint                          action” have replaced the words “case,” “cause,” “suit,” and
doctrine. The well-pleaded complaint doctrine provides that                      the like in accordance with Federal Rules of Procedure 2 and
“federal jurisdiction exists only when a federal question is                     81(c). See Nolan, 919 F.2d at 1066. Rule 2 unequivocally
presented on the face of the plaintiff’s properly pleaded                        states, “[t]here shall be one form of action known as a ‘civil
complaint.” See Her Majesty the Queen v. City of Detroit,                        action.’” Accordingly, the words “civil action” must
874 F.2d 332, 338 (6th Cir. 1989). Accordingly, Plaintiff                        encompass an entire civil case including claims filed by
asserts that only a voluntary act of the plaintiff can remove a                  plaintiffs and claims filed by third-party defendants. See
suit. See Great Northern Ry Co. v. Alexander, 246 U.S. 276,                      Surinam, 974 F.2d at 1260.
282, 38 S.Ct. 237, 62 L.Ed 713 (1918). Since the plaintiff
here did not bring suit directly against NORINCO, Plaintiff                         The purpose and legislative history behind FSIA reinforce
argues that this case should be remanded to state court.                         the position that a foreign third-party defendant may remove
                                                                                 the entire case to district court under 28 U.S.C. § 1441(d).
  Plaintiff notes that 28 U.S.C. § 1441(d) partially departs                     FSIA seeks to provide uniformity in the treatment of foreign
from the traditional well-pleaded complaint rule as it                           sovereigns and to remove any local bias that might be present
specifically allows for removal by a foreign state  rather than                  at a jury trial in a state court. See Nolan, 919 F.2d at 1065;
by the allegation of a plaintiff’s complaint.2 The Plaintiff                     Delta 900 F.2d at 893; H.R. No. 94-1487, 94th Cong., 2d
argues that the control over the action remains with the                         Sess. 32, reprinted in 1976 U.S.Code Cong. & Admin. News
plaintiff under his interpretation of § 1441(d), because the                     6604, 6631. Since foreign third-party defendants would face
plaintiff chooses the defendants. Plaintiff argues that                          the same types of prejudices as foreign defendants, it follows
§ 1441(d) does not apply here, however, because the statute                      that 1441(d) authorizes the removal of the entire case, even if
limits itself to actions brought “against a foreign state.”
According to Plaintiff’s analysis, because the plaintiff did not
directly bring the case against the foreign third-party                              3
                                                                                      The voluntary-involuntary rule “conditions removability on
                                                                                 voluntary actions of a plaintiff, rather than factors beyond a plaintiff’s
                                                                                 control.” Hollenbeck v. Burroughs Corp., 664 F.Supp. 280, 281
    2                                                                            (E.D.Mich. 1987).
       “Any civil action brought in a State Court against a foreign state as
defined by Section 1603(a) of this title may be removed by the foreign               4
state to the district court of the United States for the district and division        Plaintiff notes that 1441(d) contains no mention of an exception to
embracing the place where such action is pending.”                               the well-pleaded complaint rule.
