Rodas v. Seidlin

In the

United States Court of Appeals
For the Seventh Circuit

No. 09-3760

G LORIA L. R ODAS,
Plaintiff-Appellant,
v.

JOHN S EIDLIN, M.D., et al.,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 3:05-cv-50105—Frederick J. Kapala, Judge.

A RGUED JUNE 10, 2011—D ECIDED A UGUST 31, 2011

Before B AUER, F LAUM and W ILLIAMS, Circuit Judges.
F LAUM, Circuit Judge. Gloria Rodas’s appeal presents
an important question about the meaning of a provision
of the Illinois Good Samaritan Act, 745 ILCS 49/1 et seq.,
in a case that was removed to federal court under
the federal officer removal statute, 28 U.S.C. § 1442. The
state-law question is whether and under what circum-
stances the protections of the Good Samaritan Act turn
on the business model physicians use to charge patients
2 No. 09-3760

for emergency services. The law shields from liability
physicians who render certain services “without fee.”
Rodas was charged a fee for the services she received, but
two of Rodas’s physicians were not paid from that fee.
Instead, they received a salary from their medical prac-
tice. The district court agreed with the defendants that
the salary-versus-fee distinction cloaked the physicians
with statutory immunity. Rodas appeals.
The United States, a party to the underlying action but
not to this appeal, has filed a brief as amicus curiae
urging that we lack jurisdiction. The argument is that
the doctrine of derivative jurisdiction created a latent
jurisdictional defect that persists on appeal. The doctrine
provides that a federal court acquires no jurisdiction
upon removal where the state court lacked jurisdiction
over the subject matter or the parties. That principle,
the government maintains, robbed the district court
of subject matter jurisdiction and deprives us of appel-
late jurisdiction.
We disagree with both the government’s position
about our jurisdiction and the defendants’ interpretation
of the Illinois statute. As to jurisdiction, we join every
other circuit to have considered the question and hold
that the doctrine of derivative jurisdiction is cabined by
the principles announced in Grubbs v. Gen. Elec. Credit
Corp., 405 U.S. 699 (1972), and Caterpillar Inc. v. Lewis, 519
U.S. 61 (1996). As to the merits, we conclude that the
defendants’ interpretation of the Good Samaritan Act is
inconsistent with the plain language of the statute and
the case law interpreting it. Therefore, we reverse the
No. 09-3760 3

judgment of the district court and remand for further
proceedings.

I. Background
In 2001, Gloria Rodas had been receiving prenatal care
at the Crusaders Central Clinic Association (“Crusader
Clinic”) in Rockford, Illinois. The Crusader Clinic is a
community health center and recipient of federal funds
under 42 U.S.C. § 254b. Doctor William Baxter was one
of the physicians who provided care; he was a family
practice physician and clinic employee. In a limited
sense, however, Baxter had two masters: because of
the relationship between the Crusader Clinic and the
federal government, both the clinic and Baxter were
deemed to be employees of the United States for pur-
poses of medical malpractice liability. See 42 U.S.C.
§ 233(g)-(n). As a consequence of Baxter and the
Crusader Clinic’s (deemed) federal status, the United
States could be substituted as a party if either were
ever sued. 28 U.S.C. 2679(d)(1). Claims against them
would be governed by the Federal Tort Claims Act, and
neither would face liability. See 28 U.S.C. § 2679(b)(1);
Osborn v. Haley, 549 U.S. 225, 229-30 (2007) (explaining
the statutory interplay that produces this result). The
statutory scheme is designed to allow certain health
care providers serving underserved populations to save
money on malpractice insurance and direct funds
toward patient care. See H. R. Rep. No. 104-398, at 6 (1995).
Baxter was not the only physician providing care to
Rodas and other Crusader Clinic patients. For medically
4 No. 09-3760

complex situations, the Crusader Clinic contracted with
the University of Illinois College of Medicine (“UIC”)
to provide specialist services. The arrangement called
for UIC obstetrician/gynecologists to provide care at the
Crusader Clinic, to provide on-call backup to clinic doc-
tors, and to be on call when clinic patients were treated
at local hospitals. In exchange, the Crusader Clinic paid
UIC a fixed amount each year. The UIC physicians
would fill out billing forms for their work and submit
them to the Crusader Clinic; the Crusader Clinic had
the right to collect the fees.
The two salaried UIC physicians implicated in this
appeal are Doctor Ana-Maria Soleanicov and Doctor John
Seidlin. Unlike Baxter, they were not deemed to be em-
ployees of the United States, and so they generally
faced the specter of individual liability for any
medical malpractice they committed. The alleged mal-
practice in this case occurred on August 2, 2001.
During that day’s pre-dawn hours, Rodas went into
labor. Following previously provided instructions from
the Crusader Clinic, she went to the delivery floor at
Swedish American Hospital. There, she was seen by a
UIC resident until Baxter—our deemed federal em-
ployee—arrived at the hospital. Baxter took over care
for Rodas, along with another UIC resident. Baxter’s
understanding was that Soleanicov and Seidlin would
be available to assist if needed. And they were needed,
because Rodas’s delivery became an emergency. After
about eight hours of labor, the baby’s heart tones
had dropped, Rodas was not pushing effectively, and
the baby was not descending. Soleanicov and Seidlin
No. 09-3760 5

arrived to provide assistance. After multiple unsuccessful
attempts to deliver the baby using a vacuum extractor
and then forceps, Andrea Rodas was delivered via Cesar-
ean section. She would not live very long. Less than
two weeks later, she died from hypoxic ischemic
encephalopathy, a condition in which the brain does
not receive sufficient oxygen. Soleanicov prepared a bill
for her work. Seidlin, deviating from his common
practice, did not. The Crusader Clinic was reimbursed
for the services Soleanicov provided.
Gloria Rodas filed a tort suit in state court in 2003,
naming as defendants Baxter, Soleanicov, Seidlin, the
Crusader Clinic, and Swedish American Hospital. The
complaint alleged that the defendants negligently
managed Rodas’s labor in a variety of ways, resulting in
Andrea’s death. The United States removed the case to
federal court, substituting itself as a party in place of the
Crusader Clinic and Baxter. See 42 U.S.C. § 233(c) (re-
moval); 28 U.S.C. § 2679(d)(1) (substitution). Because
the action was against the United States and could
proceed only under the Federal Tort Claims Act, see 28
U.S.C. § 2679(b)(1), Rodas was required to seek relief
directly from the appropriate federal agency before filing
suit, 28 U.S.C. § 2675(a). Therefore, she voluntarily dis-
missed her claims against the United States and the
remainder of the case was remanded to state court. Rodas
v. Swedish Am. Health Sys. Corp., 3:03-cv-50483, ECF No. 4
(N.D. Ill. Nov. 19, 2003). Rodas then filed an administra-
tive claim with the United States Department of Health
and Human Services.
6 No. 09-3760

The agency denied Rodas’s claim for damages, ruling
that she had not established that the death of Andrea
was caused by a negligent act or omission of a federal
employee acting within the scope of employment. The
letter informed Rodas that, if dissatisfied with the deter-
mination, she could appeal within the agency hierarchy
or file suit against the United States “in the appropriate
federal district court within six (6) months from the date
of mailing this determination (28 U.S.C. § 2401(b)).”
Rodas, however, did not seek to return to federal court.
Instead of returning to federal court, Rodas amended
her state-court complaint against Swedish American
Hospital, Soleanicov, and Seidlin. And instead of re-adding
Baxter and the Crusader Clinic as defendants to that
complaint, she named the United States directly (along
with Soleanicov and Seidlin). The United States again
removed the case to federal court, this time invoking in
its notice of removal the federal officer removal statute,
28 U.S.C. § 1442. Section 1442(a)(1) provides that a
“civil action . . . commenced in a State court” may be
removed to federal court if the action is against “[t]he
United States or any agency thereof or any officer (or
any person acting under that officer) of the United
States or of any agency thereof, sued in an official or
individual capacity for any act under color of such
office . . . .” After removal, the case proceeded through
the motion to dismiss phase and discovery was taken.
By the time defendants Seidlin and Soleanicov
separately moved for summary judgment in June 2008,
the case’s second life in federal court was more than
three years old.
No. 09-3760 7

Seidlin and Soleanicov filed their summary judgment
motions in late May and early June 2008. Both con-
tended that they were shielded from liability by the
Illinois Good Samaritan Act provision governing emer-
gency care. The Act shields from liability physicians
“who, in good faith, provide[] emergency care without
fee to a person.” 745 ILCS 49/25. The district court
agreed that Soleanicov and Seidlin fell within the Act’s
ambit because fees from Crusader Clinic patients
did not go directly to them. Expanding on dicta from the
Illinois Appellate Court’s decision in Estate of Heanue
v. Edgcomb, 823 N.E.2d 1123 (Ill. App. Ct. 2005), the
district court reasoned that Soleanicov and Seidlin
could not possibly have provided services for a fee
within the contemplation of the Good Samaritan Act.
Rodas v. Swedish Am. Health Sys. Corp., 594 F. Supp. 2d
1033, 1042 (N.D. Ill. 2009) (“Put simply, a doctor’s act
of submitting documentation of the services rendered
to the billing department for Crusader Clinic differs
drastically from, and does not equate with, what the
Illinois appellate courts consider charging a ‘fee’ for
purposes of the Good Samaritan Act.”). The district
court entered judgment under Rule 54(b) of the Federal
Rules of Civil Procedure. Rodas filed a notice of appeal
with us.
After judgment in favor of Soleanicov and Seidlin was
entered, the United States moved to dismiss the case,
contending that the doctrine of derivative jurisdiction
deprived the court of subject matter jurisdiction over
the case. The district court entered an indicative ruling,
Fed. R. Civ. P. 62.1(a), denying the government’s motion.
8 No. 09-3760

(The case against the United States proceeds below.)
The district court reasoned that although the doctrine
of derivative jurisdiction applies to removals under the
federal officer removal statute, the government had not
properly removed on that basis. In fact, removal had
been effected under 28 U.S.C. § 2679(d)(2) and 42 U.S.C.
§ 233(c). Rodas v. Swedish Am. Health Sys. Corp., 2010
WL 4386678, at *3-4 (N.D. Ill. Oct. 29, 2010). The
district court assumed that the doctrine of derivative
jurisdiction would not ordinarily sap a court of jurisdic-
tion for removals under those provisions, but held in
a footnote that the Supreme Court’s decision in
Grubbs would shield its judgment even if the doctrine
applied. Id. at *4 & n.2.
In response to the district court’s ruling, the United
States filed a brief with us as a friend of the court, raising
the alleged jurisdictional defect. The parties have re-
sponded to the government’s arguments in their merits
briefs, generally echoing the district court’s reasoning.

II. Discussion
Summary judgment rulings, like matters of subject
matter jurisdiction, are subject to de novo review. Kaplan
v. United States, 133 F.3d 469, 472-73 (7th Cir. 1998). We
reach the jurisdictional issue first, as “[w]ithout jurisdic-
tion the court cannot proceed at all in any cause. Juris-
diction is the power to declare the law, and when it
ceases to exist, the only function remaining to the court
is that of announcing the fact and dismissing the cause.”
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83,
No. 09-3760 9

94 (1998) (quoting Ex parte McCardle, 74 U.S. (7 Wall.) 506,
514 (1868). These are our conclusions: the criteria for
removal under 28 U.S.C. § 1442(a)(1) were satisfied and
no one has questioned that the doctrine of derivative
jurisdiction applies to such removals. Although the
doctrine applies to removals under Section 1442(a)(1), the
teachings from the Supreme Court’s decisions in Grubbs
and Caterpillar limit the doctrine’s application. Every
circuit to have considered the question has so held, and
we decline the government’s implicit invitation to create
a circuit split.
Proceeding to the merits, the defendants misread the
language of the Illinois Good Samaritan Act and
overstate the implications of the Illinois Appellate
Court’s decision in Heanue. Doctor Soleanicov rendered
her emergency services for a fee and thus does not
enjoy statutory immunity under the Good Samaritan
Act. Although Seidlin did not charge a fee, there is a
genuine issue of material fact about whether he did so in
“good faith,” a predicate to the Act’s liability shield. See
745 ILCS 49/25; Heanue, 823 N.E.2d at 1129 (a doctor
who has not billed in order to trigger the Act has not
acted in good faith and does not enjoy the Act’s
protections).

A. (Derivative) Jurisdiction
Before reaching the merits of this appeal, we must
address a jurisdictional issue the United States has raised.
When a case is removed from state to federal court, the
jurisdiction of the latter is said “in a limited sense” to
10 No. 09-3760

derive from the former. Edwards v. United States Dep’t
of Justice, 43 F.3d 312, 316 (7th Cir. 1994) (quoting
Minnesota v. United States, 305 U.S. 382, 389 (1939)). Ac-
cordingly, “[w]here the state court lacks jurisdiction of
the subject matter or of the parties, the federal court
acquires none, although in a like suit originally brought
in federal court it would have had jurisdiction.” Id.; see
also Gen. Inv. Co. v. Lake Shore & M.S. Ry. Co., 260 U.S. 261,
288 (1922) (“When a cause is removed from a state court
into a federal court, the latter takes it as it stood in the
former. A want of jurisdiction in the state court is not
cured by the removal, but may be asserted after it is
consummated.”); Lambert Run Coal Co. v. Baltimore & O.R.
Co., 258 U.S. 377, 382 (1922) (reciting the same language
as appears in Edwards and Minnesota above). This
doctrine has been referred to as the doctrine of deriva-
tive jurisdiction. E.g., Palmer v. City Nat’l Bank, of West
Virginia, 498 F.3d 236, 239 (4th Cir. 2007). More than
one commentator has observed that the justification
for the rule is hardly obvious, but that makes it no less
entrenched—or binding on us. Compare, e.g., Erwin
Chemerinsky, F EDERAL JURISDICTION § 5.5, at 288 (1989)
(“This rule has little justification, but has long existed.”),
with Arizona v. Manypenny, 451 U.S. 232, 242 n.17 (1981)
(characterizing the doctrine as “well settled”).
The government’s argument can be succinctly summa-
rized: By its terms the doctrine of derivative jurisdiction
applies to this case. Rodas commenced her action against
the United States in state court, but federal sovereign
immunity deprived the state court of subject matter
jurisdiction. See Hercules, Inc. v. United States, 516 U.S. 417,
No. 09-3760 11

422 (1996) (“The United States, as sovereign, is immune
from suit save as it consents to be sued.”) (alterations and
quotation marks omitted). The United States has waived
its sovereign immunity to tort liability only under the
Federal Tort Claims Act, which vests exclusive juris-
diction over such claims in federal court. 28 U.S.C.
§ 1346(b)(1). Moreover, the doctrine of derivative juris-
diction has been abrogated in the general removal
statute, see 28 U.S.C. § 1441(f), but not the federal officer
removal statute, 28 U.S.C. § 1442(a)(1), which was
invoked in this case. Contrary to the district court’s
ruling, removal under Section 1442(a)(1) was proper.
Therefore, the doctrine of derivative jurisdiction de-
prived the district court of subject matter jurisdiction
over the case, and we should vacate the judgment
and instruct the district court to dismiss the United
States and remand the claims against Soleanicov and
Seidlin to state court. 16 M OORE’S F EDERAL P RACTICE
§ 107.15[1][b], at 107-130.21-130.22 (Matthew Bender 3d
ed. 2009) (describing the proper procedure). The course is
appropriate because pendent party supplemental juris-
diction, see 28 U.S.C. § 1367(a), provides the only basis
for hearing the claims at issue in this appeal. Powerex
Corp. v. Reliant Energy Servs., 551 U.S. 224, 234-35
(2007) (stating that it is “far from clear” that federal courts
would have subject matter jurisdiction on these facts);
Rifkin v. Bear Stearns & Co., Inc., 248 F.3d 628, 634 (7th
Cir. 2001) (no subject matter jurisdiction over supple-
mental claims that were not attached to claims over
which the federal court has original jurisdiction). More-
over, the judgment should not be spared by the Supreme
12 No. 09-3760

Court’s teachings in Grubbs and Caterpillar, because those
cases do not apply to jurisdictional defects. See Grupo
Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 574 (2004)
(“The resulting holding of Caterpillar . . . is only that a
statutory defect . . . did not require dismissal once there
was no longer any jurisdictional defect.”).
The government’s argument has considerable surface
appeal, and most of it is without flaw. For our purposes,
the only questions are (1) whether removal was proper
under Section 1442, such that the doctrine of derivative
jurisdiction applies; and (2) whether the doctrine of
derivative jurisdiction creates a defect in subject matter
jurisdiction that evades the teachings of Grubbs and
Caterpillar. We take up each question in turn.

1. Federal officer removal and the doctrine of deriva-
tive jurisdiction.
Removal under 28 U.S.C. § 1442(a)(1) was proper.
Section 1442 is known as the federal officer removal
statute. Section 1442(a)(1) provides that “[a] civil action
commenced in a State court against . . . [t]he United States
or any agency thereof or any officer (or any person
acting under that officer) of the United States or of
agency thereof, sued in an official or individual
capacity for any act under color of such office” may be
removed to federal court. The provision is an exception
to the “well-pleaded complaint” rule, which provides
that for non-diversity cases to be removable, the com-
plaint must establish that the case arises under federal
law. Kircher v. Putnam Funds Trust, 547 U.S. 633, 644 n.12
No. 09-3760 13

(2006). The forebear of Section 1442(a)(1) was enacted near
the end of the War of 1812, in “an attempt to protect
federal officers from interference by hostile state courts.”
Watson v. Philip Morris Companies, Inc., 551 U.S. 142, 147
(2007). One of its primary purposes, the history “clearly
demonstrates,” was to have federal officers’ defenses to
state-law actions litigated in federal courts. Willingham v.
Morgan, 395 U.S. 402, 407 (1969). “In cases like this one,
Congress has decided that federal officers, and indeed
the Federal Government itself, require the protection of
a federal forum.” Id. at 407.
At the outset, we observe that the United States gen-
erally has the authority to invoke Section 1442(a)(1). When
the modern version of the statute was enacted in 1948,
it originally allowed for removal only by federal officers
themselves. That was the holding of Int’l Primate Protec-
tion League v. Admins. of Tulane Educ. Fund, 500 U.S. 72, 79-
80 (1991), and in response Congress amended the law
to its current form, which allows the United States or
one of its agencies to remove to federal court. See also
S. Rep. 104-366, at 24 (1996) (commenting on the change
and stating that it “fulfills Congress’ intent that ques-
tions concerning the exercise of Federal authority, the
scope of Federal immunity and Federal-State conflicts
be adjudicated in Federal court”). The only question
is whether the federal officer removal statute does not
apply because the government was not originally
named in Rodas’s state-court complaint.
The district court concluded that timing is everything
under Section 1442 and that the United States could not
14 No. 09-3760

invoke the provision because it was not originally
named as a defendant in the state-court complaint. We
disagree with the district court’s analysis. The district
court attached temporal significance to the proviso that
Section 1442(a)(1) applies to a “civil action . . . commenced
in a State court against” the United States (emphasis
added). Here, the case was filed in state court, naming
only individuals, removed to federal court, and then
remanded to state court. Only then was the complaint
amended to add the United States as a defendant.
We do not accept the district courts’s construction of
Section 1442(a)(1) for several reasons. First, it requires
an unorthodox reading of the provision to conclude
that Congress was focused on the identity of named
defendants at the time the state suit was commenced;
the most natural reading of Section 1442 is that Congress
was concerned where the civil action originated. Several
other removal provisions also indicate, sensibly if not
always in consistent language, that they apply to actions
that start out in state court. See 28 U.S.C. §§ 1441(a), 1443,
1444. Had Congress intended to focus on the identity
of parties at the time the suit was filed, it would have
been simple enough for it to do so. Hamilton v. Lanning,
130 S. Ct. 2464, 2474 (2010) (“[W]e would expect that,
had Congress intended . . . a specialized—and indeed,
unusual—meaning . . ., Congress would have said so
expressly.”). The plain language of the statute, the best
indication of Congressional intent, counsels against
the district court’s interpretation. E.g., Smith v. City of
Jackson, Mississippi, 544 U.S. 228, 249 (2005) (discussing
the plain language of a statute in terms of its “natural
reading”).
No. 09-3760 15

The district court’s interpretation of Section 1442 is
further weakened by the structure of Chapter 89 of Title
28, United States Code, which contains Section 1442
and several other provisions relating to removal. A sepa-
rate provision in Chapter 89 already specifies the
proper course to follow when an action that is not
initially removable subsequently satisfies the criteria
for removability. Specifically, 28 U.S.C. § 1446(b)
provides: “If the case stated by the initial pleading is
not removable, a notice of removal may be filed within
thirty days after receipt by the defendant . . . of a copy
of an amended pleading . . . .” See also Caterpillar, 519
U.S. at 69 (stating the timing rules governing removal of
amended complaints). Given that Section 1446 sets out
the procedures to follow when a civil action does not
at first meet the criteria for removal, there are scant
grounds to conclude that Congress included a different
trigger to govern removals under Section 1442 and that
it did so in such a cryptic manner. “Congress, we
have held, does not alter the fundamental details of a
regulatory scheme in vague terms or ancillary provi-
sions—it does not, one might say, hide elephants in
mouseholes.” Whitman v. Am. Trucking Ass’ns, Inc., 531
U.S. 457, 468 (2001).
Finally, our reading of the text and structure of the
Act are confirmed by Section 1442’s purpose and his-
tory. The Supreme Court has often stated that the
policy behind the federal removal statute—ensuring
that federal defenses raised by federal actors are
evaluated in a federal forum—“should not be frustrated
by a narrow, grudging interpretation” of the provision.
16 No. 09-3760

Willingham, 395 U.S. at 407; see also Jefferson County,
Alabama v. Acker, 527 U.S. 423, 431 (1999). Under the
district court’s interpretation of the statute, a person
could file suit in state court against private actors.
Shortly thereafter, the person could amend the com-
plaint to add the federal officer (or agency, or the United
States). It is unlikely that Congress, animated by an
approximately 200-year-old concern that the contours
of federal power be determined by federal courts,
would have intended such an obvious end-around.
Judge Friendly reminds us that “Section 1442 . . .
vindicates . . . the interest of government itself; upon the
principle that it embodies ‘may depend the possibility of
the general government’s preserving its own exis-
tence.’ ” Bradford v. Harding, 284 F.2d 307, 310 (2d Cir. 1960)
(quoting State of Tennessee v. Davis, 100 U.S. 257 (1880)).
Nothing about the federal interest turns on whether
the plaintiff names a federal actor in his first complaint
or in an amended pleading.
In sum, the purpose and history of the statute
confirm what its text and structure tell us and counsel
against the district court’s interpretation of Section 1442.
As to the doctrine of derivative jurisdiction, the parties
agree that it applies to removals under this provision.
The doctrine provides a background rule against which
all of the removal statutes operate; it applies unless
abrogated. See Palmer, 498 F.3d at 239. Congress has
specifically abrogated the doctrine only with respect to
removals under the general removal statute. See 28 U.S.C.
No. 09-3760 17

§ 1441(f).1 Yet, the doctrine has been criticized a great
deal over the course of many years. E.g., Washington v.
Am. League of Prof’l Baseball Clubs, 460 F.2d 654, 658-59
(9th Cir. 1972) (“This is the kind of legal tour de force
that most laymen cannot understand, particularly in
a case where the federal court not only has subject
matter jurisdiction, but has exclusive subject matter juris-
diction.”); 14B Charles Alan Wright, et al., FEDERAL P RAC-
TICE AND P ROCEDURE § 3722, at 339-42 (4th ed. 2009)
(recounting some of the criticism and characterizing it
as “deserved”). Given that Congress explicitly abrogated
the doctrine of derivative jurisdiction only with respect
to removals under Section 1441, it supports the
notion that—for whatever reasons—Congress intended
to keep the doctrine in place with regard to other
removal provisions. See Bob Jones Univ. v. United States,
461 U.S. 574, 599 (1983) (failure of Congress to amend
a statute, despite the fact that “adherents advocating
contrary views [to an agency’s interpretation of a statute
had] ventilated the subject for well over three decades”
supported the conclusion that Congress acquiesced to
the agency’s interpretation); Palmer, 498 F.3d at 245. For
that reason, the district court’s hypothecated alternative
grounds for removal do not escape the doctrine of deriva-
tive jurisdiction. The district court did not predicate

1
The provision provides: “The court to which a civil action is
removed under this section is not precluded from hearing and
determining any claim in such civil action because the State
court from which such civil action is removed did not have
jurisdiction over that claim.”
18 No. 09-3760

its jurisdiction on Section 1441, nor did either of the
statutes it relied on contain language abrogating the
doctrine of derivative jurisdiction.
Having determined that the preconditions for removal
under Section 1442(a)(1) were satisfied and that the
doctrine of derivative jurisdiction applies to such
removals, the next question is whether the doctrine is
subject to limiting principles.

2. Limitations on the doctrine derivative jurisdiction.
The doctrine of derivative jurisdiction, despite its
perhaps improvident name, is best understood as a
procedural bar to the exercise of federal judicial power.
That is, the doctrine creates a defect in removal, but is
not an essential ingredient to federal subject matter
jurisdiction. Because the district court would have had
jurisdiction over a hypothetical complaint filed at the
time it entered the judgment now under review, the
fact that the state court lacked jurisdiction over the
case when it was removed has no significance. To explain
these conclusions, a word about the principles announced
in Grubbs and Caterpillar is in order.
In Grubbs, the Supreme Court held that where a
district court had “jurisdiction of the parties at the time
it entered judgment . . . the validity of the removal pro-
cedure followed may not be raised for the first time on
appeal.” 405 U.S. at 700. The General Electric Credit Corp.
had initiated suit against Grubbs in Texas state court,
seeking recovery on a promissory note. Grubbs filed a
No. 09-3760 19

“cross-action” against General Electric Credit Corp. and
also brought the United States, which had a judgment
lien against Grubbs, into the case by adding it as a
party defendant. The United States removed the case to
federal district court, relying on 28 U.S.C. § 1444, which
provides for removal of certain foreclosure actions where
the United States is a defendant, and added claims of
its own. See also 28 U.S.C. § 2410(a) (providing that the
United States may be named as a defendant in certain
state-law property actions where the United States “has
or claims a mortgage or other lien” on the property).
All parties litigated the case as if jurisdiction in the
district court were proper, and the case proceeded to
a bench trial. At the conclusion of the trial, the district
court ruled against General Electric Credit Corp. on the
promissory note claim and in favor of Grubbs on his
counter-claim. The district court dismissed the claims
brought by and against the United States. Grubbs, 405
U.S. at 701-02.
On appeal, the Fifth Circuit held that the priority of the
United States’ judgment lien against Grubbs provided
a “spurious” basis for removal under 28 U.S.C. § 1444.
Because removal had not been authorized, the Fifth
Circuit concluded that there was no other basis for the
district court’s jurisdiction over the action and the cause
had to be remanded to state court. The Supreme
Court reversed. It did not take issue with the appellate
court’s fix on the removal provision at issue but
concluded that it had no bearing on the appeal. “Long-
standing decisions of this Court make clear . . . that
where after removal a case is tried on the merits with-
20 No. 09-3760

out objection and the federal court enters judgment,
the issue in subsequent proceedings on appeal is not
whether the case was properly removed, but whether
the federal district court would have had original juris-
diction of the case had it been filed in that court.” Grubbs,
405 U.S. at 702.
In concluding that jurisdiction was proper on appeal,
the court relied on its earlier teachings from Baggs v.
Martin, 179 U.S. 206 (1900), and Mackay v. Uinta Dev. Co.,
229 U.S. 173 (1913). In both of those cases, removal had
been improperly effected, but the district court could
have exercised original jurisdiction had the case been
filed in federal court. In Baggs, the lower court would
have exercised federal question jurisdiction; in Mackay,
the lower court would have exercised diversity juris-
diction. See 179 U.S. at 209; 229 U.S. at 176-77. Applying
the teachings to the facts of the case, the Grubbs Court
observed that Grubbs and General Electric Credit Corp.
were of diverse citizenship. “There was thus diversity
jurisdiction in the Federal District Court under 28 U.S.C.
§ 1332 if the action had been brought in that court origi-
nally.” Grubbs, 405 U.S. at 704. Our Circuit and others
have since applied the teachings of Grubbs to cases
decided at summary judgment. Gentek Bldg. Prods., Inc. v.
Sherwin-Williams Co., 491 F.3d 320, 327 (6th Cir. 2007)
(equating summary judgment with a trial on the merits);
Lively v. Wild Oats Mkts., Inc., 456 F.3d 933, 941 n.11 (9th
Cir. 2006) (Grubbs applies to decisions on the merits
reached at summary judgment); Hartford Accident & Indem.
Co. v. Costa Lines Cargo Servs., Inc., 903 F.2d 352, 359 (5th
Cir. 1990) (same); Vantine v. Elkhart Brass Mfg. Co., Inc., 762
No. 09-3760 21

F.2d 511, 518 (7th Cir. 1985) (applying Grubbs); see also
Moffit v. Residential Funding Co., LLC, 604 F.3d 156, 159-60
(4th Cir. 2010) (applying Grubbs in the context of an
interlocutory appeal).
The Supreme Court subsequently extended the rule in
Grubbs to a situation in which the district court lacked
subject matter jurisdiction at the time of removal because
the parties were not completely diverse. Caterpillar Inc. v.
Lewis, 519 U.S. 61 (1996). In Caterpillar, the lower court
would have had jurisdiction over a hypothetical suit
filed at the time of judgment—the party who rendered
diversity incomplete when the suit was first filed had
dropped out of the case. The Court held that “a district
court’s error in failing to remand a case improperly
removed is not fatal to the ensuing adjudication if
federal jurisdictional requirements are met at the time
judgment is entered.” Caterpillar, 519 U.S. at 64. The
result obtained even though the plaintiff opposed
removal by filing a timely motion to remand. Id. at 70.
Although the Court acknowledged that its ruling
risked frustrating the rules Congress had imposed for
removing cases, the argument ran “up against an over-
riding consideration.” Id. at 75. “Once a diversity case
has been tried in federal court, with the rules of
decision supplied by state law . . . considerations of
finality, efficiency, and economy become overwhelming.”
Id.
Like Grubbs, the Court’s opinion in Caterpillar distin-
guishes between procedural defects in removal on the
one hand, which generally must be raised within 30 days,
22 No. 09-3760

see 28 U.S.C. § 1447(c) (motion to remand on basis other
than lack of subject matter jurisdiction must be made
within 30 days), and defects related to the Court’s
subject matter jurisdiction. If a procedural defect in
removal is cured by the time a judgment is entered, then
practical concerns—finality, efficiency, and econ-
omy—militate in favor of retaining jurisdiction on
appeal. See also Korea Exch. Bank, New York Branch v.
Trackwise Sales Corp., 66 F.3d 46, 50 (3d Cir. 1995) (“[T]he
Supreme Court clearly suggested, even if it did not
directly hold, that it does not view the removal statutes
as imposing independent jurisdictional restrictions on
the federal courts. Rather . . . the relevant [jurisdictional]
inquiry is whether the case could have been filed orig-
inally in federal court.”).
Put simply, if the doctrine of derivative jurisdiction
constitutes a mere defect in the process by which a case
reaches federal court, then this court may continue to
exercise jurisdiction on appeal because the district court
would have had original jurisdiction.2 If, on the other
hand, the derivative jurisdiction doctrine creates a latent
and persistent defect in the subject matter jurisdiction
of federal courts, then the issue can be raised at any time

2
The conclusion that the court would have had original
jurisdiction is easily reached. Claims against the United States
under the Federal Tort Claims Act must be raised in federal
court. 28 U.S.C. § 1346(b). Supplemental jurisdiction over the
pendent party claims against Soleanicov and Seidlin would
have been authorized by 28 U.S.C. § 1367(a).
No. 09-3760 23

by any one. E.g., Capron v. Van Noorden, 6 U.S. (2 Cranch)
126, 127 (1804).
Admittedly, grappling with the procedure-versus-
subject-matter-jurisdiction question is challenging be-
cause the doctrine of derivative jurisdiction is itself dif-
ficult to explain as a matter of first principles. The argu-
ment is also difficult to evaluate because the doctrine
does not fit cleanly into the classifications that Grubbs
and Caterpillar discuss. Both cases anticipate that proce-
dural defects will relate to statutory requirements for
removal. See 405 U.S. at 702 (tacitly accepting the Fifth
Circuit’s determination that there was a statutory defect
in the United States’ removal petition); 519 U.S. at 73
(discussing the statutory flaw in Caterpillar’s notice of
removal). And while Caterpillar in particular phrases
the jurisdictional inquiry as turning on whether original
jurisdiction could have been exercised at the time of
judgment, that does not answer the antecedent question
of whether the doctrine of derivative jurisdiction is essen-
tial to a court’s subject matter jurisdiction such that it
cannot be cured. That notion brings us to the Supreme
Court’s decision in Grupo Dataflux, 541 U.S. 567. There,
the parties on appeal were diverse at the time of judgment
because the citizenship of one of the parties changed
during the litigation, but were non-diverse at the time
the suit was filed. The Supreme Court ruled that jurisdic-
tional defect was not cured at the time of judgment,
because the jurisdictional defect was that there was no
diversity jurisdiction at the time of filing. The “time-of-
filing rule . . . measures all challenges to subject-matter
24 No. 09-3760

jurisdiction premised upon diversity of citizenship
against the state of facts that existed at the time of
filing” regardless of when raised. Id. at 570-71 (charac-
terizing the rule as hornbook law). 3 Implicit in the gov-
ernment’s position is the argument that, like the time-of-
filing rule that controls a party’s citizenship for diversity
purposes, the presence of subject matter jurisdiction
in the state court simply is a prerequisite to federal
subject matter jurisdiction over removed actions.
After examining the issue, we reject the argument that
the doctrine of derivative jurisdiction constitutes an
essential ingredient of federal subject matter jurisdiction
over removed actions. To be sure, the argument enjoys
superficial appeal based on the name and language
of the doctrine, and at least a handful of authorities
explicitly describe derivative jurisdiction in subject
matter jurisdiction terms. Philadelphia & Reading Ry. Co. v.
Sherman, 230 F. 814, 816 (2d Cir. 1916); Crowley v. S. Ry. Co.,
139 F. 851, 853 (C.C. Ala. 1905); see also Nordlicht v. New
York Telephone Co., 799 F.2d 859, 863 n.1 (2d Cir. 1986)
(assuming that derivative jurisdiction presents a defect
in subject matter jurisdiction that may be raised at any
time, but concluding that the defect was not present);
Daley v. Town of New Durham, 733 F.2d 4, 6-7 (1st Cir. 1984).

3
In Caterpillar, too, the citizenship of the parties was deter-
mined at the time of filing. Although the parties were incom-
pletely diverse at the time of removal, the party who created
the defect in diversity dropped out of the case by the time
of judgment. The feature is important, as it allows Caterpillar
and Grupo Dataflux to be harmonized.
No. 09-3760 25

Nonetheless, it would be too easy to unquestioningly
accept a handful of lower court authorities as conclusive
merely because they incant the words “subject matter
jurisdiction.” The Supreme Court has long warned, even
as it confesses occasional complicity, that courts are
too quick to affix the “jurisdiction” label. Compare
Henderson ex rel. Henderson v. Shinseki, 131 S. Ct. 1197, 1202
(2011) (“Because the consequences that attach to the
jurisdictional label may be so dramatic, we have tried in
recent cases to bring some discipline to the use of this
term.”), with Ayers v. Watson, 113 U.S. 594, 599 (1885)
(courts have used the concept of jurisdiction upon
removal “somewhat loosely”). As Judge Randolph of the
D.C. Circuit has aptly observed, “ ‘Jurisdiction’ is a word
of many, too many, meanings.” United States v. Vanness,
85 F.3d 661, 663 n.2 (D.C. Cir. 1996). And “[n]ot all manda-
tory prescriptions, however emphatic, are . . . properly
typed jurisdictional.” Union Pacific R.R. Co. v. Bhd. of
Locomotive Eng’rs & Trainmen Gen. Comm. of Adjustment, C.
Region, 120 S. Ct. 584, 596 (2009) (quotation marks omitted).
Rather, “[s]ubject-matter jurisdiction properly compre-
hended . . . refers to a tribunal’s ‘power to hear a case,’
a matter that ‘can never be forfeited or waived.’ ” Id.
(quoting Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006)).
The argument that the doctrine of derivative jurisdic-
tion strikes at the heart of subject matter jurisdiction
suffers from numerous flaws. At the outset, the textual
allure of the jurisdictional argument is not so strong as
it at first appears. While the doctrine says federal juris-
diction is derived from state courts, it in the same
breath delivers its caveat that this is true only “in a
26 No. 09-3760

limited sense.” Lambert Run, 258 U.S. at 382. Moreover, the
doctrine is expressly concerned with the acquisition of
jurisdiction upon removal—“If the state court lacks
jurisdiction of the subject-matter or of the parties, the
federal court acquires none . . . .” Id. (emphasis added).
The acquisition of jurisdiction upon removal speaks to so-
called “removal jurisdiction,” Kircher v. Putnam Funds
Trust, 547 U.S. 633, 641 (2006); Wis. Dep’t of Corrections v.
Schacht, 524 U.S. 381, 385 (1998), not to the distinct
concept of federal subject matter jurisdiction. Indeed, the
modern instinct (in keeping with Henderson’s call for
discipline in the use of the word jurisdiction) is to
eschew the term removal jurisdiction, “because removal
is not a kind of jurisdiction—analogous to federal
question jurisdiction and diversity of citizenship juris-
diction. Rather it is a means of bringing cases within
federal courts’ original jurisdiction into those courts.”
Wright, supra, § 3721, at 27 (emphasis added). See also
Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 808
(1986) (implicitly recognizing the distinction).
Therefore, it is not surprising that federal courts have
regularly considered the doctrine of derivative jurisdic-
tion as relating to “removal jurisdiction.” Palmer, 498
F.3d at 248 (“removal jurisdiction is derivative of state
court jurisdiction prior to removal”); In re Miles, 430
F.3d 1083, 1087 (9th Cir. 2005) (considering derivative
jurisdiction in removal-jurisdiction terms); Hollis v.
Florida State Univ., 259 F.3d 1295, 1298 (11th Cir. 2001)
(same); North Dakota v. Fredericks, 940 F.2d 333, 337
(8th Cir. 1991) (same); Nishimoto v. Federman-Bachrach &
Assocs., 903 F.2d 709, 714 n.11 (9th Cir. 1990) (same);
No. 09-3760 27

Morda v. Klein, 865 F.2d 782, 784 (6th Cir. 1989) (same);
W. & S. Life Ins. Co. v. Smith, 859 F.2d 407, 409 n.4 (6th Cir.
1988) (same); Patriot Cinemas, Inc. v. Gen. Cinemas Corp., 834
F.2d 208, 210 (1st Cir. 1987) (same); Sorosky v. Burroughs
Corp., 826 F.2d 794, 801 (9th Cir. 1987) (same); Leach v.
Fed. Crop Ins. Corp., 741 F.2d 200, 201 (8th Cir. 1984)
(same); Witherow v. Firestone Tire & Rubber Co., 530 F.2d
160, 167-68 (3d Cir. 1976) (same); see also In re Dutile,
935 F.2d 61, 63 (5th Cir. 1991) (characterizing the
doctrine as “a judicial gloss on the removal statutes”);
Brandon v. Interfirst Corp., 858 F.2d 266, 269 n.* (5th Cir.
1988) (characterizing derivative jurisdiction as a bar
to removal rather than a substantive limit on federal
authority); Dep’t of Revenue of State of Iowa v. Inv. Fin.
Mgt. Co., 831 F.2d 790, 792 (8th Cir. 1987) (same);
Chemerinksy, supra, § 5.5 at 288 (same). And the legisla-
tive history of Section 1441 indicates that Congress,
too, has conceived of the doctrine merely as a “caselaw
gloss” barring proper removal. See H.R. Rep. 99-423, at
8 (1985).
Thus, the received understanding of the doctrine
seems to place it on the procedural side of the Grubbs
line. “[A] ‘procedural’ defect is any defect that does not
go to the question of whether the case originally could
have been brought in federal district court.” Baris v.
Sulpico Lines, Inc., 932 F.2d 1540, 1544 (5th Cir. 1991).
Courts of Appeals should disregard procedural defects
in the removal process, Grubbs and Caterpillar teach, so
long as subject matter jurisdiction properly lies at the
time the order of judgment under review was entered.
Grupo Dataflux, 541 U.S. at 574 (distinguishing a require-
28 No. 09-3760

ment in the removal statute that a case “be fit for
federal adjudication at the time the removal petition is
filed” from the concept of subject matter jurisdiction). A
procedural defect in removal is waivable. Baris, 932 F.2d
at 1543-44.
More critically, subject matter jurisdiction is unyielding,
Arbaugh, 546 U.S. at 514 (subject matter jurisdiction
can never be waived), and the earliest cases confirm
that the doctrine of derivative jurisdiction is not. The
formulation of the rule cited in Lambert Run is an almost
verbatim quotation from the Circuit Court of Ohio’s
decision in Fidelity Trust Co. v. Gill Car Co., 25 F. 737 (C.C.
Ohio 1885). See also Lambert Run, 258 U.S. at 382 n.3 (citing
Fidelity Trust). Indeed, the Fidelity Trust case provides
the lengthiest, if at times tortured, exposition on deriva-
tive jurisdiction that we have located. In explaining the
rule, the court was careful to specify that the rule is not
without limits: “I do not mean to say that we measure
our jurisdiction wholly by that of the state court, and
that nothing can be adjudged here which could not
have been adjudged there; for cases can be well imagined
where this rule should be subject to qualification . . . .”
25 F.3d at 739; see also id. (“[A]nd it may be that we
should, as the case required, extend or restrict our ad-
judication, as by our own rule of judgment we should
be compelled to do”). If that sort of flexibility inheres
in the rule, it is not a matter of subject matter jurisdic-
tion—plain and simple. In that vein, it seems noteworthy
that in every case we located in which the Supreme
Court discussed the matter of derivative jurisdiction,
the matter appears to have been raised promptly
No. 09-3760 29

upon removal, prior to adjudication on the merits. See
Minnesota, 305 U.S. at 384 (government filed motion to
dismiss the action after removal); Gen. Inv. Co., 260 U.S.
at 284-86, 288 (matter was raised after an initial appeal
that did not involve a merits determination; dismissal
should have been without prejudice); Lambert Run, 258
U.S. at 380, 382 (matter raised in a motion to dismiss
the action after removal); Am. Well Works Co. v. Layne &
Bowler Co., 241 U.S. 257, 258 (1916) (matter raised in a
remand motion filed by the plaintiff); Cain v. Commercial
Publ’g Co., 232 U.S. 124, 129, 132-34 (1914) (defect in
personal jurisdiction in the state court raised upon re-
moval, seemingly within 30 days); De Lima v. Bidwell,
182 U.S. 1, 1-2, 174 (1901) (understanding a demurrer
filed after removal to raise the matter of derivative juris-
diction).
The discussion in Fidelity Trust also shows that, unlike
the time-of-filing rule at issue in Grupo Dataflux, the
derivative jurisdiction rule is not based on the court’s
constitutional authority to adjudicate a claim. See also
Bidwell, 182 U.S. at 174 (distinguishing the question of
derivative jurisdiction from “the jurisdiction of the
circuit court as a Federal court”). The Fidelity Trust
Court roots its understanding of the doctrine based on
whether a lawsuit, brought in the wrong forum, has been
properly constructed. Fidelity Trust, 25 F. at 739-40; see
also Note, The Supreme Court of the United States During
the October Term, 1942: I, 43 C OLUM . L. R EV. 837, 868-69
(1943) (characterizing the principle as forum regit actum,
or “the act of the forum rules”). Unwavering adherence
to that notion, even once the case has been brought into
30 No. 09-3760

the proper forum and judgment has been entered there,
strikes us as akin to the common law forms of action,
under which a person’s effort to recover for a wrong
might have been stymied if he invoked the incorrect
writ. E.g., Guille v. Swan, 19 Johns 381 (N.Y. 1822)
(action successfully characterized as trespass (direct
injury), rather than trespass on the case (indirect injury),
when a balloonist landed in plaintiff’s land and was
rescued by a crowd of onlookers who “beat[] down
his vegetables and flowers”); Scott v. Shepherd, 96 E.R.
525 (K.B. 1773). But the key point is this: subject matter
jurisdiction concerns the power of a court to hear a
case; the doctrine of derivative jurisdiction is rooted in
the idea that there is no case at all. The law has
generally jettisoned such artificial notions, and in any
event constitutional requirements are distinct from com-
mon law precepts, even old ones. E.g., Williams v. Florida,
399 U.S. 78, 86 (1970) (concluding that the 12-person
jury requirement was “a historical accident” and finding
no support for the notion that the Framers intended
to preserve it).
Conceiving of derivative jurisdiction as a procedural
defect rather than a subject matter jurisdiction in-
gredient is consonant with Freeman v. Bee Mach. Co., 319
U.S. 448, 449-52 (1943). There, a case was filed in state
court for breach of contract. Upon removal, the
plaintiff amended its complaint to add a claim for
treble damages under the Clayton Act. If the derivative
jurisdiction rule truly defined subject matter jurisdic-
tion, then the amendment should not have been
allowed: the limits of the federal court’s subject matter
No. 09-3760 31

jurisdiction should have been derived from the state
court’s jurisdiction, and the state court would have
lacked jurisdiction over the Clayton Act claim. Instead,
the Court allowed the amendment, reasoning that (by
statute) once the case was properly in federal court the
action could proceed as if it originated there. Id. at 452;
see also People of Illinois ex rel. Barra v. Archer Daniels
Midland Co., 704 F.2d 935, 939 (7th Cir. 1983) (citing
Grubbs and stating that filing an amended complaint
in federal court cured any problem with removal
brought on by the fact that the original state-court com-
plaint was not removable).
The foregoing analysis demonstrates that the doctrine
of derivative jurisdiction, notwithstanding its perhaps
improvident name, is a procedural bar to the exercise
of federal judicial power. It is not an essential ingredient
for a court’s subject matter jurisdiction. Therefore the
principles of Grubbs apply. Unfortunately, the govern-
ment’s brief did not wrestle with the questions we
have considered, instead merely asserting that Grubbs
does not apply to jurisdictional defects. That presumably
is why the government did not inform us that circuits
appear to be unanimous in holding that the doctrine of
derivative jurisdiction is cabined by the principles an-
nounced in Grubbs. See Morda, 865 F.2d at 784 (“Because
the District Court would have had jurisdiction had
this case originally been filed there, because there was
no other bar to federal jurisdiction at the time of
judgment, and because plaintiff never objected to
subject matter jurisdiction at any time before or during
the three-week trial below, the lack of derivative juris-
32 No. 09-3760

diction at the time of removal is irrelevant.”); Foval v.
First Nat’l Bank of Commerce in New Orleans, 841 F.2d
126, 129 (5th Cir. 1988) (discussing and applying the
court’s earlier holding in Lirette v. N.L. Sperry Sun, Inc.,
820 F.2d 116 (5th Cir. 1987) (en banc)); Sorosky, 826 F.2d
at 800-01.
We conclude that because the district court would
have had jurisdiction over a hypothetical complaint filed
at the time it entered the judgment now under review,
the fact that the state court lacked jurisdiction over the
case when it was removed has no significance. We
proceed to the merits.

B. The Illinois Good Samaritan Act
We review de novo the district court’s decision to
grant summary judgment as well as the interpretation of
state law on which that decision rests. Salve Regina Coll.
v. Russell, 499 U.S. 225, 231 (1991). Summary judgment
should not have been granted in this case. The chief
question presented is whether Soleanicov charged a fee
for emergency services within the contemplation of the
Illinois Good Samaritan Act. We reject as unsound
the argument that she did not charge a fee because she
was paid a salary and because an entity other than her
employer derived direct economic benefit from the
billing form she prepared and submitted. Likewise,
although Seidlin did not submit a billing form for his
services, and therefore did not charge a fee, there is a
genuine issue of material fact about whether that deci-
No. 09-3760 33

sion was made in good faith, a predicate for the Act’s
protections.
When interpreting state law, a federal court’s task is
to determine how the state’s highest court would rule.
Konradi v. United States, 919 F.2d 1207, 1213 (7th Cir.
1990). Generally, we defer to interpretations offered by
state appellate courts unless there is a “persuasive indica-
tion[] that the state supreme court would decide the
issue differently.” Allstate Ins. Co. v. Tozer, 392 F.3d 950, 952
(7th Cir. 2004). And no indication is more persuasive
than plain language: the Illinois rule is that plain
language of a statute is the best evidence of legislative
intent. Metzger v. DaRosa, 805 N.E.2d 1165, 1167 (Ill. 2004).
The Illinois Good Samaritan Act spans some 27 sections
and applies in a variety of settings. See, e.g., 745 ILCS 49/65
(“choking victim at food-service establishment”); 745 ILCS
49/15 (emergency dental care). Our analysis centers on
745 ILCS 49/25. The provision provides, with omissions
not relevant here: “Any . . . [physician] who, in good
faith, provides emergency care without fee to a person,
shall not, as a result of his or her acts or omissions,
except willful or wanton misconduct on the part of the
person, in providing the care, be liable for civil damages.”
The Act immunizes physicians from liability if they
(1) provide emergency care, (2) without fee, and (3) do
so in good faith. Hernandez v. Alexian Bros. Health Sys., 893
N.E.2d 934, 941 (Ill. App. Ct. 2008); Heanue, 823 N.E.2d at
1127. Rodas argues that Soleanicov cannot satisfy the
second requirement and that Seidlin cannot satisfy the
third requirement.
34 No. 09-3760

The parties’ primary dispute turns on what it means to
provide emergency care without fee. Soleanicov argues
that the Illinois Appellate Court answered the question
in Heanue and that the interpretive linchpin is the word
“fee.” The argument is that the relationship between
UIC and the Crusader Clinic, combined with the fact
that Soleanicov and Seidlin each drew a salary, means
that they could not have charged a fee for their work
within the meaning of the Good Samaritan Act. Em-
ploying a liberal use of brackets, Soleanicov says that the
Heanue Court determined that a fee is “a very specific
sort of relationship where the economic benefit is
derived [by the physician providing emergency care]
directly from the service performed.” Soleanicov Brief at
10 (brackets in original) (quoting Heanue, 823 N.E.2d
at 1128-29). Seidlin adopts that understanding as well.
Seidlin Brief at 12. Unfortunately, the bracketed text does
more to advance the argument than the Illinois Appellate
Court. With the addition of different bracketed text, the
matter is less clear. Observe: a fee is “a very specific sort
of relationship where the economic benefit is derived
[by a medical practice or its third-party beneficiary]
directly from the service performed.” Soleanicov’s brief
overstates what Heanue stands for, although we do agree
that the court’s use of the word “relationship” in that
case did leave some room for confusion.
We read the Heanue Court to say something slightly
different than what the defendants assert, and the case’s
discussion leaves us confident in that conclusion: a fee,
as the term is used in the Good Samaritan Act, is simply
a charge for medical services. In Heanue, a patient’s
No. 09-3760 35

estate brought suit against a physician who furnished
emergency care. The defendant physician was a part-
ner of the medical group who provided treatment for
Heanue, but was not the treating physician. After Heanue
underwent an elective medical procedure, her post-opera-
tive medication was not working adequately. A nurse
tried unsuccessfully to locate the treating physician
and then paged the defendant physician’s medical prac-
tice. The defendant physician stepped in to provide
treatment. 823 N.E.2d at 1126. The complaint alleged
that he did so negligently. The defendant physician’s
practice billed for medical services provided to Heanue,
but not for the emergency services rendered by the de-
fendant physician. That does not mean he was not
paid, however; the compensation structure of the
practice ensured that the defendant physician derived
economic benefit from the other services that were pro-
vided Heanue (and for which charges were issued). Id.
at 1128. Nonetheless, the Heanue Court concluded that,
on these facts, the defendant physician did not charge
a fee for his emergency services. The court still reversed
the trial court’s decision dismissing the case, because
it was not clear that the defendant doctor’s decision
not to bill for emergency services was made in good faith.
Id. at 1130 (“The record in this case allows an inference
that the reason no bill was sent for the emergency care
was that defendant sought to trigger the Act.”).
In concluding that the defendant physician had not
charged a fee for his services, Heanue relies on and quotes
the B LACK’S L AW D ICTIONARY definition. (Along with
one other dictionary. There is no real difference between
36 No. 09-3760

the two.). Here is the definition of the word fee, which
mirrors its ordinary meaning: “A charge for labor or
services, esp. professional services.” B LACK’S L AW D ICTIO -
NARY 629 (7th ed. 1999) (def. 1). After providing the
definition, the court then made the statement that
Soleanicov excerpts in her brief: “These definitions
do not encompass all relationships where some
financial benefit flows to an individual; rather, they
envision a very specific sort of relationship where the
economic benefit is derived directly from the service
performed. In other words, a fee is generated by and tied
to the service performed.” Heanue, 823 N.E.2d at 1128-29.
The use of the word relationship is perhaps a touch
misleading. The best reading of the case is that the rela-
tionship the Heanue Court was speaking of is the relation-
ship between charges and services.
That charge-for-services understanding of the word fee
is the best read of Heanue for several reasons. First, im-
mediately after speaking of “fee” in terms of “relation-
ships,” the Heanue Court said this: “In other words, a fee
is generated by and tied to the service performed.”
823 N.E.2d at 1129. That is our understanding of the
term, too. Second, and more importantly, the charge-for-
services definition comports with the ordinary meaning
of the term, the best indication of how the Illinois
Supreme Court would rule on the question. Metzger, 805
N.E.2d at 1167. The defendants make the interpretive
mistake of concluding, if only implicitly, that services
have been provided without fee simply because the
doctor was not compensated from that fee. In fact, the
word encompasses both the amount paid in exchange
No. 09-3760 37

for services and the amount charged for those services.
See W EBSTER’S T HIRD N EW INTERNATIONAL D ICTIONARY
833 (2002). There is no reason to conclude that the legisla-
ture adopted a halfway understanding of the term. Third,
the discussion in Heanue bears out our understanding
of the case. Recall, the Illinois Appellate Court reversed
the case because it was unclear if the decision not to bill
was made in good faith. If Heanue stood for the proposi-
tion that Soleanicov and Seidlin urge, then the analysis
should have started and ended with the question of
how the defendant physician was compensated for the
services he provided. Instead of standing for the pro-
position that salaried physicians who provide emergency
care automatically enjoy the protections of the Good
Samaritan Act, Heanue stands only for the proposition
that receiving compensation is not by itself sufficient
to vitiate the Act’s protections.4
Put simply, a fee ties labor to services. The identity of
the entity responsible for paying for the services after
they have been rendered, like the identity of the entity
who has a right to collect on the bill, does not tell

4
Rodas and the United States urge that receiving compensation
for medical services is by itself sufficient to fall outside of the
Good Samaritan Act’s protections. Henslee v. Provena Hosps., 373
F. Supp. 2d 802, 812 (N.D. Ill. 2005) (“This Court proposes
that a reasonable definition of “fee” would be a situation in
which either a doctor is paid for his services or the client pays
a bill for those services.”). The Illinois Appellate Court re-
jected that proposition in Heanue. This appeal does not require
us to provide a (necessarily tentative) resolution of the conflict.
38 No. 09-3760

us whether there has been a “charge for labor or ser-
vices.” B LACK’S, supra, at 629. After all, individuals often
contract with insurance companies to reimburse their
health care providers. The contract between the insurer
and the insured will determine whether the insured
must contribute a co-payment. In this case, actual
payment was made on the bill from Medicaid, but for
others private insurers will provide direct payment to a
hospital, medical group, or solo practitioner. See also
Villamil v. Benages, 628 N.E.2d 568, 575 (Ill. App. Ct. 1993)
(suggesting that a doctor would have charged a fee if
there had been evidence he submitted a bill to public
aid). And on the physician side of things, the fees
collected may be carved up in a variety of ways. A physi-
cian who is hired into a medical practice may receive
a salary, a guaranteed percentage of net proceeds,
bonuses based on productivity, and so forth. See also
225 ILCS 60/22.2 (permitting fee-splitting arrange-
ments among physicians). We see no evidence that the
legislature, with its use of the unassuming word “fee”
intended anything to turn on how a fee is processed or
the compensation structures of the physicians who
provide treatment. For good reason. The moment
the General Assembly makes the coverage of the Good
Samaritan Act turn on the business model used to collect
physicians’ fees is the moment every medical practice
restructures so that every doctor can be a good Samari-
tan. That outcome would do nothing to advance
the enacted purpose of the Good Samaritan Act, which
is to promote volunteerism and shield from liability
“the generous and compassionate acts” of Illinois citi-
zens. 745 ILCS 49/2.
No. 09-3760 39

Multiple cases from the Illinois Appellate Court, though
not addressing the question we face here, have framed
the inquiry in terms of whether a doctor charged a fee
for his or her services, evincing agnosticism on the ques-
tion of how the physician was ultimately compensated.
E.g., Hernandez, 893 N.E.2d at 936, 942 (physician
described as part of a physician’s group); Heanue, 823
N.E.2d at 1126 (physician described as a partner in a
medical practice); Neal v. Yang, 816 N.E.2d 853, 855 (Ill.
App. Ct. 2004) (physician described as an employee of a
medical practice). Thus, we have little trouble con-
cluding that Soleanicov charged a fee for her work: when
UIC physicians provided services to a Crusader Clinic
patient, they prepared specialized billing forms and
submitted them to the Crusader Clinic. After performing
the delivery of Andrea Rodas, Soleanicov submitted a
billing form for the procedure. The form was initialed
by Soleanicov, and circled on the form was billing code
59515, “Cesarean delivery with postpartum care.” There
is no serious question that she charged a fee for her
emergency services.
That addresses the issues related to Soleanicov. The
analysis works slightly differently for Seidlin. According
to Seidlin, he was in the hospital in street clothes and
“just happened to be in the hallway” when Dr. Baxter
asked for advice about Rodas. After finding Soleanicov,
he provided assistance because there was no time to
procure the help of a surgical assistant. Unlike, Soleanicov,
he never submitted a billing form for the work he per-
formed. “These facts alone establish beyond question
that Dr. Seidlin is entitled to the protection afforded
40 No. 09-3760

under the Good Samaritan Act.” Seidlin Brief at 16. Incor-
rect. Seidlin’s conclusion would be sound only if Rodas
had not marshaled evidence of her own at summary
judgment. Rodas points out that Seidlin’s explanation
for why he did not charge for his services was that his
services in assisting the delivery were minimal. However,
he did not recall ever waiving a fee on that basis in
the past. The decision to deviate from his ordinary practice
creates a genuine issue of material fact about whether
his decision not to bill was made in good faith. Hernandez,
893 N.E.2d at 942-43. The matter is best left to a jury.
In sum, there is sufficient record evidence to survive
summary judgment that Soleanicov billed for the emer-
gency services she provided Rodas and that Seidlin
made a bad faith decision not to bill. Therefore, the grant
of summary judgment was not appropriate.

C. Remand
One final matter merits brief attention, and that is the
course of proceedings upon remand. Our conclusion
that the doctrine of derivative jurisdiction creates a pro-
cedural defect in removal suggests that derivative juris-
diction should ordinarily be raised within 30 days, 28
U.S.C. § 1447(c), but by its terms that provision applies
only to plaintiffs who seek to remand a case. Likewise,
Grubbs and Caterpillar by their terms speak only to the
question of whether a court of appeals has power to
review the judgment in a case that lands in federal court
despite a defect in the removal process. See Grubbs, 405
U.S. at 702 (original jurisdiction is “the issue in subse-
No. 09-3760 41

quent proceedings on appeal”) (emphasis added). The
cases provide no direct guidance on the proper course
to follow on remand.
The Fourth Circuit considered the problem in a case
in which removal was improper but the district court
did not pass on the legal merits of a controversy. In that
case, the appeals court reversed a district court’s con-
clusion that a plaintiff’s claim was time-barred. After
reversing, the Fourth Circuit noted that no headway
had been made on the merits and instructed the district
court to remand the case to state court. Marshall v.
Manville Sales Corp., 6 F.3d 229, 232-33 (4th Cir. 1993).
Relying on Marshall, the Ninth Circuit has stated simply
that “[t]he Grubbs doctrine does not apply, though, where
a circuit court reverses a district court’s grant of sum-
mary judgment such that there has been no judgment
on the merits.” Emard v. Hughes Aircraft Co., 153 F.3d 949,
962 (9th Cir. 1998).
We conclude that “considerations of finality, efficiency,
and economy,” Caterpillar, 519 U.S. at 75, warrant the
continued exercise of jurisdiction over this case on re-
mand. There is no question that, if this case had been
instituted in the proper court, subject matter jurisdiction
over the case would have been proper. Moreover, our
decision in Barra, 704 F.2d at 939, suggests that any
defect in removal created by the doctrine of derivative
jurisdiction would be cured if Rodas simply filed an
amended complaint. We recently faced a similar issue
in City of Joliet v. New West, L.P., 562 F.3d 830 (7th Cir.
2009), where an action was improperly removed to
42 No. 09-3760

federal court, but removal under a different provision
would have been proper. In satisfying ourselves that
there was no jurisdictional defect, we observed that “[i]t
would be pointless to order this suit remanded, only to
have [one of the parties] re-remove it in a trice.” Id. at 833.
Similarly, it would be pointless for Rodas to file an
amended complaint at this point. What is more, if the
government could continue to assert the defect in the
removal process, the district court would be required to
remand to state court the claims against Soleanicov and
Seidlin. Our opinion would, in effect, be rendered advi-
sory. Federal courts are not in that business. Hayburn’s
Case, 2 U.S. 408 (1792). Accordingly, the district court
on remand shall continue to exercise jurisdiction over
the case.

III. Conclusion
For the reasons set forth above, we R EVERSE the judg-
ment of the district court and R EMAND for further pro-
ceedings.

8-31-11