BELVA DAVIS, Individually v. William Joseph McC Ourt

1
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
of Daniel R. Green, Deceased,
Plaintiff-Appellant,
v.
W ILLIAM J OSEPH M CC OURT ,
Defendant,
INTERSTATE ARMS,
INCORPORATED ,
Defendant/Third-Party
Plaintiff-Appellee,
C HINA NORTH INDUSTRIES
C ORPORATION (NORINCO),
Third-Party
Defendant-Appellee.
;>

1
No. 98-2188
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 98-72583—John Feikens, District Judge.

-- 1 of 6 --

2 Davis v. McCourt, et al. No. 98-2188
*The Honorable Thomas B. Russell, United States District Judge for
the Western District of Kentucky, sitting by designation.
Argued: October 29, 1999
Decided and Filed: May 31, 2000
Before: SUHRHEINRICH and SILER, Circuit Judges;
RUSSELL, District Judge.*
_________________
COUNSEL
ARGUED: James D. Hubbert, BENNER & BILICKI,
Farmington Hills, Michigan, for Appellant. William E. Clark,
CLARK & KNIGHT, Southfield, Michigan, Michael H.
Selter, FARKAS & MANELLI, Washington, D.C., for
Appellees. ON BRIEF: Brian J. Benner, BENNER &
BILICKI, Farmington Hills, Michigan, for Appellant.
William E. Clark, CLARK & KNIGHT, Southfield,
Michigan, Michael H. Selter, FARKAS & MANELLI,
Washington, D.C., for Appellees.
_________________
OPINION
_________________
RUSSELL, District Judge. Plaintiff-Appellant Belva Davis
appeals from the district court’s grant of summary judgment
in favor of Defendant Interstate Arms Incorporated and Third-
Party Defendant China North Industries Corporation
(NORINCO). The district court concluded that it had proper
jurisdiction under 28 U.S.C. § 1441(d) and granted both
Interstate’s and NORINCO’s motions for summary judgment
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
No. 98-2188 Davis v. McCourt, et al. 11
trigger. This is precisely the operation of the product
which, according to its function, is reasonably
expected. . . . In short, it performed according to its
design. Only a defective person would fail to realize the
obvious dangers associated with these actions. . . . A
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.
Id. quoting Taylor v. Gerry’s Ridgewood, Inc., 490 N.E.2d
987, 991 (Ill.App.Ct. 1986). Although Plaintiff argues that he
did not know the gun was loaded, that fact is irrelevant. Any
gun safety course teaches and any reasonable gun user should
know that no gun, loaded or unloaded, should ever be pointed
at another human, much less pointed and mockingly fired.
Accordingly, Michigan law does not require a manufacturer
to design safety features to protect users from the dangers of
a simple tool when the dangers are “obvious and inherent in
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
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
fact in dispute and there was no legal basis to support
Plaintiff’s claims, the district court did not err in granting
summary judgment in favor of Interstate and NORINCO.
CONCLUSION
AFFIRMED.

-- 2 of 6 --

10 Davis v. McCourt, et al. No. 98-2188
In this case, the parties do not dispute any genuine issue of
material fact. Plaintiff submits that the defendants failed to
prove that the gun used was a simple product. In support,
Plaintiff contends that guns are highly mechanized because
“[t]here’s several bits and pieces” which need to be cleaned.
JA at 465. Plaintiff also points to the numerous hours army
and police men spend training with guns as evidence that
guns are not simple products. See id. Thus, Plaintiff submits,
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
precisely the factual scenario here. See id. Based on this
argument, Plaintiff asserts the defendants still had a duty to
warn McCourt about the possibility that a bullet may have
been left in the chamber after the magazine clip was removed,
or provide a safety device such as a load indicator. Caselaw
holds the opposite.
Caselaw provides that a gun is a simple product.
The gun is not highly mechanized and is not power
driven. It does not contain large, unwieldy parts that
must be serviced and cause severe injury upon mere
contact. Moreover, the normal and intended operation of
the gun does not place the user in a dangerous
position–defendant intended that users fire the gun not at
themselves or innocent individuals, but at sporting
targets, animals, or in the event of self-defense, at other
humans. Just as a manufacturer cannot produce a
hammer that will not mash, or a stove that will not burn,
it is also true that a manufacturer cannot produce a gun
that will not fire a bullet when it is, in fact, loaded and
when the firing mechanism is deliberately engaged.
Raines, 757 F.Supp. at 825. Caselaw also provides that a gun
presents an open and obvious danger to the suspecting user.
[The user] fully intended to perform the physical actions
necessary to fire the weapon. He deliberately picked it
up, inserted his finger through the trigger guard, pointed
it at the head of [the decedent] and pulled the trigger.
The loaded revolver fired when [the shooter] pulled the
No. 98-2188 Davis v. McCourt, et al. 3
dangers. Since Plaintiff failed to present any evidence to the
contrary and failed to present any evidence that Green’s death
was caused by anything other than the deliberate, criminal act
of McCourt, the district court granted summary judgment.
Defendant argues that the court erred in finding it had
jurisdiction and in granting summary judgment.
BACKGROUND
In August 1994, sixteen-year-old Daniel Green and his
friend Jimmy Ortiz stopped by Joseph McCourt’s residence
so that Ortiz could use the bathroom. McCourt, age 37,
allowed Ortiz to enter the house and use the bathroom, but
instructed Green to wait outside for his friend. While Ortiz
was inside, McCourt retrieved his loaded MAK-90
semiautomatic rifle, removed the magazine clip and emptied
out the shells. McCourt then reinserted the clip and walked
outside to Green and pointed the rifle at him, “trying to scare
him.” JA at 147. McCourt had fired the gun before and knew
how it worked. He understood that “[y]ou can’t take the
bullet . . . out by releasing the magazine once it’s in the
chamber.” JA at 151. Although McCourt claims to have
checked to make sure a bullet was not in the rifle’s chamber,
the gun discharged a bullet, striking Green in the head and
killing him. McCourt’s rifle was not equipped with a load
indicator, nor was there any type of warning with the rifle that
a bullet may still be lodged in the rifle’s chamber after the
magazine clip had been removed. A jury convicted McCourt
of involuntary manslaughter the following April.
In 1996, Green’s estate filed suit against McCourt,
Interstate, and NORINCO in Circuit Court in Wayne County,
Michigan. Plaintiff alleges that Interstate and NORINCO
were liable for designing a defective product and for failing
to warn McCourt that a bullet may still be in the rifle’s
chamber even after the magazine clip is removed. NORINCO
removed the case to District Court pursuant to 28 U.S.C.
§ 1441(d). Plaintiff and NORINCO stipulated to dismiss
NORINCO as a defendant without prejudice and the case was
subsequently remanded back to Circuit Court in Wayne

-- 3 of 6 --

4 Davis v. McCourt, et al. No. 98-2188
County. Thereafter, Interstate filed a third-party complaint
against NORINCO for contribution and indemnity.
NORINCO removed the case to district court again and both
NORINCO and Interstate filed motions for summary
judgment.
The district court, relying on case law from other circuits,
concluded that it had proper jurisdiction under 28 U.S.C.
§ 1441(d). The district court also stated 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 dangers. Since Plaintiff failed to present
any evidence to the contrary and failed to present any
evidence that Green’s death was caused by anything other
than the deliberate, criminal act of McCourt, the district court
granted both Interstate’s and NORINCO’s motions for
summary judgment. This timely appeal followed.
JURISDICTION AND REMOVAL
Removal jurisdiction is a question of law. This Court
reviews motions to remand de novo. See Michigan Affiliated
Healthcare Sys., Inc. v. CC Systems Corp. of Michigan, 139
F.3d 546, 549 (6th Cir. 1998).
Appellant argues that the district court erred in holding that
28 U.S.C. § 1441(d) allows a foreign third-party defendant to
remove an action from state court to district court and as a
result, erred in allowing removal in this case. This is an issue
of first impression in this Court. We find that the district
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
court to district court.
The Foreign Sovereign Immunity Act (“FSIA”), 28 U.S.C.
§§ 1602-1611, defines a foreign state to include a political
subdivision of a foreign state or an agency or instrumentality
of a foreign state. 28 U.S.C. § 1603(a). NORINCO is a state
owned limited liability corporation under the law of the
People’s Republic of China. On appeal, Plaintiff does not
No. 98-2188 Davis v. McCourt, et al. 9
her position, he or she must present evidence on which the
trier of fact could find for the plaintiff. See id. (citing
Anderson v. Liberty Lobby, 477 U.S. 242, 251-52, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986)).
In order to establish a prima facie case in a products
liability action, a plaintiff must demonstrate that the defendant
manufacturer owed the plaintiff a duty of care. See Raines v.
Colt Indus., Inc., 757 F.Supp. 819, 823 (6th Cir. 1991), citing
Glittenberg v. Doughboy Recreational Indus., Inc., 462
N.W.2d 348 (Mich. 1990). Whether a duty exists is a
question of law to be decided by the court. See id. Under
Michigan law, a manufacturer owes no to duty to warn of an
open and obvious danger associated with the use of a simple
product. See id.; Fisher v. Johnson Milk Co., 383 Mich. 158,
161 (Mich. 1970).
Michigan caselaw does not provide a clear test for
determining the simplicity or complexity of a product. See
Raines, 757 F.Supp. at 824. Michigan courts and the Sixth
Circuit have, however, both contributed caselaw to clarify the
status of the simple tool doctrine under Michigan law. The
courts have categorized products as simple when one or both
of the following conditions exist:
(1) The products are not highly mechanized, thus
allowing the users to maintain control over the
products;
(2) the intended use of the products does not place the
users in obviously dangerous positions.
Id. at 825. Courts have found, for example, that hammers,
knives, gas stoves, axes, buzz saws, propeller driven
airplanes, trampolines, and guns are simple products that
differ from complex products in their simplistic operation
and/or design. See id.; Treadway v. Smith & Wesson Corp.,
950 F.Supp. 1326 (E.D.Mich. 1996). The dangers presented
by a loaded gun have also been found to be open and obvious.
See id.

-- 4 of 6 --

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

-- 5 of 6 --

6 Davis v. McCourt, et al. No. 98-2188
2“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
state to the district court of the United States for the district and division
embracing the place where such action is pending.”
dicta noted that if removal by a foreign defendant is proper
under 1441(d), then “the entire action against all defendants
is removed to federal court.” In re Delta America Re Ins.,
Co., 900 F.2d 890, 891 n.1 (6th Cir. 1990), citing Arango v.
Guzman Travel Advisors Corp., 621 F.2d 1371, 1375 (5th
Cir. 1980).
Plaintiff urges this Court to break from the other circuits
and adopt the position that 28 U.S.C. § 1441(d) does not
permit foreign parties who are brought in as third-party
defendants to remove the case to federal court. To reach this
holding, Plaintiff asserts that this Court should interpret 28
U.S.C. § 1441(d) in light of the well-pleaded complaint
doctrine. The well-pleaded complaint doctrine provides that
“federal jurisdiction exists only when a federal question is
presented on the face of the plaintiff’s properly pleaded
complaint.” See Her Majesty the Queen v. City of Detroit,
874 F.2d 332, 338 (6th Cir. 1989). Accordingly, Plaintiff
asserts that only a voluntary act of the plaintiff can remove a
suit. See Great Northern Ry Co. v. Alexander, 246 U.S. 276,
282, 38 S.Ct. 237, 62 L.Ed 713 (1918). Since the plaintiff
here did not bring suit directly against NORINCO, Plaintiff
argues that this case should be remanded to state court.
Plaintiff notes that 28 U.S.C. § 1441(d) partially departs
from the traditional well-pleaded complaint rule as it
specifically allows for removal by a foreign state rather than
by the allegation of a plaintiff’s complaint.2 The Plaintiff
argues that the control over the action remains with the
plaintiff under his interpretation of § 1441(d), because the
plaintiff chooses the defendants. Plaintiff argues that
§ 1441(d) does not apply here, however, because the statute
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
No. 98-2188 Davis v. McCourt, et al. 7
3The 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
(E.D.Mich. 1987).
4Plaintiff notes that 1441(d) contains no mention of an exception to
the well-pleaded complaint rule.
defendant, there is no right of removal. Any other decision,
Plaintiff asserts, would violate the well-pleaded complaint
rule and allow removal of an action that was not a voluntary
act3 of the plaintiff.4
Both the statutory interpretation of “civil action” and
history behind the FSIA lead this Court to follow the other
circuits in holding that 28 U.S.C. § 1441(d) not only
authorizes the removal of an action involving a foreign third-
party defendant, but also that it authorizes the removal of the
entire case, even if there are nonforeign defendants.
According to the Revision Note of § 1441, the words “civil
action” have replaced the words “case,” “cause,” “suit,” and
the like in accordance with Federal Rules of Procedure 2 and
81(c). See Nolan, 919 F.2d at 1066. Rule 2 unequivocally
states, “[t]here shall be one form of action known as a ‘civil
action.’” Accordingly, the words “civil action” must
encompass an entire civil case including claims filed by
plaintiffs and claims filed by third-party defendants. See
Surinam, 974 F.2d at 1260.
The purpose and legislative history behind FSIA reinforce
the position that a foreign third-party defendant may remove
the entire case to district court under 28 U.S.C. § 1441(d).
FSIA seeks to provide uniformity in the treatment of foreign
sovereigns and to remove any local bias that might be present
at a jury trial in a state court. See Nolan, 919 F.2d at 1065;
Delta 900 F.2d at 893; H.R. No. 94-1487, 94th Cong., 2d
Sess. 32, reprinted in 1976 U.S.Code Cong. & Admin. News
6604, 6631. Since foreign third-party defendants would face
the same types of prejudices as foreign defendants, it follows
that 1441(d) authorizes the removal of the entire case, even if

-- 6 of 6 --