The opinion of the court was delivered by: Gerry, Chief Judge:
On February 23, 1990, plaintiff, Kaye Associates ("Kaye"),
filed a Complaint against defendant, Board of Chosen
Free-holders-Gloucester County ("Gloucester County"), in the
Superior Court of Camden County, New Jersey. The Complaint
alleged that Gloucester County breached a contract to pay Kaye
for consulting services in connection with the installation of
a telecommunications system.
Thereafter, having obtained leave of court, Gloucester County
filed a two count third-party complaint against Honeywell Inc.
("Honeywell"). The first count alleges that Gloucester County
is entitled to recover contribution from Honeywell for any
damages owed to Kaye which are attributable to Honeywell's
failure to timely complete work under a separate contract with
Gloucester County regarding the same telecommunications system.
The second count seeks to recover damages from Honeywell on the
basis of a liquidated damages clause in the contract between
Gloucester County and Honeywell.
Pursuant to 28 U.S.C. § 1441(a) and (c), Honeywell filed a
Notice of Removal with this court. In that pleading, Honeywell
asserted that this court has original jurisdiction over the
third-party claim because there is diversity of citizenship
between Gloucester County and Honeywell and because the amount
in controversy exceeds $50,000. See 28 U.S.C. § 1332. The
parties are presently before the court upon plaintiff's motion
to remand its claim to the Superior Court of New Jersey.
Honeywell removed the case pursuant to 28 U.S.C. § 1441(a)
and (c). Those sections provide that:
(a) . . . any civil action brought in a State
court of which the district courts of the United
States have original jurisdiction, may be removed
by the defendant or the defendants, to the
district court of the United States for the
district and division embracing the place where
such action is pending.
(c) Whenever a separate and independent claim or
cause of action, which would be removable if sued
upon alone, is joined with one or more otherwise
non-removable claims or causes of action, the
entire case may be removed and the district court
may determine all issues therein, or, in its
discretion, may remand all matters not otherwise
within its original jurisdiction.*fn1
There is a widespread difference of opinion among courts as to
whether or not third-party defendants are entitled under these
provisions to remove cases to federal courts.
Numerous courts have held that third-party defendants can
remove actions under § 1441(c), so long as the third-party
complaint is a "separate and independent claim or cause of
action, which would be removable if sued upon alone." See,
e.g., Carl Heck Engineers, Inc. v. Lafourche Parish Police
Jury, 622 F.2d 133 (5th Cir. 1980); Columbia Casualty Co., Inc.
v. Statewide Hi-Way Safety, Inc., 94 F.R.D. 182 (D.N.J. 1982);
Marsh Investment Corp. v. Langford, 494 F. Supp. 344 (E.D.La.
1980); Bond v. Doig, 433 F. Supp. 243 (D.N.J. 1977); Ted Lokey
Real Estate Co. v. Gentry, 336 F. Supp. 741 (N.D.Tex. 1972).
However, several commentators and numerous other courts have
rejected that view. Those authorities have argued that
third-party defendants are not proper parties for removal
because they are not "defendants" under § 1441(a) and/or
because § 1441(c) only applies to claims joined by plaintiffs.
See, e.g., 1A Moore's Federal Practice ¶ 0.167 (2nd Ed.
1990); Luebbe v. Presbyterian Hospital, 526 F. Supp. 1162
(S.D.N.Y. 1981); Chase v. North American Systems, Inc.,
523 F. Supp. 378 (W.D.Pa. 1981); Hopkins Erecting Co. v. Briarwood
Apartments of Lexington, 517 F. Supp. 243 (E.D.Ky. 1981); White
v. Baltic Conveyor Co., 209 F. Supp. 716 (D.N.J. 1962).*fn2
As the cited cases illustrate, not only are the courts across
the country extremely divided, but our own district is also
divided. Compare Columbia Casualty, supra, and Bond, supra,
with White, supra. Unfortunately, neither the Supreme Court nor
the Third Circuit has provided guidance with regard to this
issue. See Bond, 433 F. Supp., at 249 (the district court
certified the issue to the Third Circuit but no subsequent
opinion is reported). Having considered the arguments on both
sides of the issue, ...