The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Trans World Airlines, Inc. ("TWA") has just purported to remove
this action from the Circuit Court of Cook County, Illinois,
relying on two asserted grounds of federal jurisdiction:
1. According to TWA's petition, this action "arises
under a treaty of the United States, to wit, the
Warsaw Convention. . . ." Count II of the Complaint
filed by William and Violette Darras ("Darrases")
does in fact rely on the Warsaw Convention.
2. TWA also asserts diversity of citizenship
exists, despite the fact Darrases and TWA's co
defendant Cove Travel, Inc. ("Cove") are both
Illinois citizens. TWA's theory is that "upon
information and belief" Cove was joined "solely for
purposes of defeating removal to federal court."
Because TWA's removal petition is insufficient on its face, this
case is remanded sua sponte.
Even on its Count II federal-question jurisdictional predicate,
TWA must still be unsuccessful in its removal effort unless it
also prevails on its fraudulent-joinder proposition as to Cove.
That is so because 28 U.S.C. § 1446(a) ("Section 1446(a)")
requires all defendants to join in or consent to the removal
petition, Hardesty v. General Foods Corp., 608 F. Supp. 992
(N.D.Ill. 1985), with limited exceptions — one of them being a
plaintiff's joinder of a defendant simply to keep the case out of
the federal courts (see the extensive discussion in 1A Moore's
Federal Practice ¶ 0.161 (2d ed. 1985)). And here Cove has not
joined with TWA in the removal petition.
On that fraudulent-joinder issue, TWA must fail. Darrases were
among the passengers on the TWA plane hijacked at the Athens
airport and held hostage by terrorists. They have sued Cove on
the theory it — their travel agent — sold the air travel ticket
in conjunction with TWA. Among other things Cove, like TWA, is
charged with negligence in (Complaint ¶ 8(e)):
Failing to advise passengers that the security
precautions and procedures in effect at the Athens
Airport were inadequate and unsatisfactory for the
safety of passengers.
This Court need not try (or even pretry) this case to determine
that allegation is non-frivolous. People look to their travel
agents to make plans for them — recommending (if not indeed
selecting) airlines, routes, places to stop, places to stay. It
is at least tenable for Darrases to urge Cove should be charged
with negligence in scheduling Darrases for a flight that went
through Athens. Indeed if TWA is chargeable on that theory — a
matter this Court need not decide — it is hard to see why Cove
might not be as well. There is thus no way Darrases can be argued
to have run afoul of the principle so well stated in B., Inc. v.
Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981) (footnote
omitted, emphasis in original):
The burden of persuasion placed upon those who cry
"fraudulent joinder" is indeed a heavy one. In order
to establish that an in-state defendant has been
fraudulently joined, the removing party must show
either that there is no possibility that the
plaintiff would be able to establish a cause of
action against the in-state defendant in state court;
or that there has been outright fraud in the
plaintiff's pleadings of jurisdictional facts.
Accordingly Cove cannot be deemed as a matter of law to have
been joined as a co-defendant as a sham to defeat federal
jurisdiction. Because Cove has not joined in the removal
petition, this action has been "removed improvidently and without
jurisdiction" within the meaning of 28 U.S.C. § 1447(c). This
Court therefore sua sponte remands this action to the Circuit
Court of Cook County. TWA is ordered to pay any
costs and disbursements that may have been incurred by reason of
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