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JEFFREY M. GOLDBERG & ASSOCS. v. COLLINS

June 5, 1990

JEFFREY M. GOLDBERG & ASSOCIATES, et al., Plaintiffs,
v.
COLLINS, TUTTLE & COMPANY, INC. et al., Defendants


James F. Holderman, United States District Judge.


The opinion of the court was delivered by: HOLDERMAN

JAMES F. HOLDERMAN, UNITED STATES DISTRICT JUDGE

 Presently before the court is plaintiffs' motion pursuant to 28 U.S.C. § 1447(c) to remand these related cases to the state court from which they were removed. For the reasons set forth below, plaintiffs' motion will be granted.

 Background Facts

 Plaintiff Jeffrey M. Goldberg & Associates, Ltd. is a professional corporation engaged in the practice of law in Chicago, Illinois. (Amendment to Complaint, para. 18.) Jeffrey M. Goldberg is the sole shareholder of Jeffrey M. Goldberg & Associates, Ltd. (Id., para. 17.) (Hereinafter plaintiffs will collectively be referred to as "Goldberg.") On August 27, 1987 Goldberg filed suit in the Circuit Court of Cook County, Chancery Division against defendants Collins, Tuttle & Company, Inc. ("Collins") and Harris Trust & Savings Bank.

 According to Goldberg's original state court complaint, the parties had agreed to all of the principal terms of a lease for a suite of offices on the 31st floor of the building located at 20 North Clark Street in Chicago (the "building"). Relying on this meeting of the minds, Goldberg expended significant sums of money contracting for, among other things, custom designed millwork, cabinetry and furniture. (Complaint, para. 15.) In late August of 1987, however, Goldberg was informed that a potential buyer of the building had indicated that it would not approve the lease agreement negotiated between Goldberg and Collins. (Complaint, para. 22.) Concerned over the effect of the proposed sale of the building on the authority of Collins "to cause compliance with the agreement between the parties," Goldberg filed suit. (Complaint, para. 23.) The original complaint sought an injunction compelling defendants to "enter and complete a written lease" prior to the sale of the building and to pay any damages incurred by Goldberg as a result of defendants' delay in completing construction of the proposed suite of offices. (Complaint, p. 6, paras. A-C.)

 On September 14, 1987 Judge Sklodowski of the Circuit Court of Cook County issued an order compelling Collins and Harris Bank to "present a lease with all its subparts" to plaintiff by September 16, 1987. (Amended Complaint, Ex. 1.)

 On September 15, 1988 Goldberg filed an amended complaint in state court which added Hiro Real Estate Co. ("Hiro") as a defendant. Hiro is a general partnership, the general partners of which are corporations incorporated under the laws of the State of New York and whose principal places of business are in that state. (Hiro Notice of Removal, para. 5.) Hiro purchased the building on or before September 3, 1987. (Amended Complaint, para. 23.)

 Count I of the amended complaint sought from all of the defendants an injunction compelling the execution of a written lease and delay damages. Count II sought a declaratory judgment that a lease allegedly tendered to Goldberg by Collins and Hiro had been accepted by Goldberg and was valid, binding and in full force. Count III of the amended complaint sought specific performance of the alleged September 15, 1987 lease by Collins and Hiro.

 During the following year, plaintiffs successfully defended a motion to dismiss; Hiro and Collins filed answers and counterclaims; and extensive discovery ensued. (Plaintiffs' Mem. in Support of Motion to Remand, p. 3.)

 On November 16, 1989 Judge Sklodowski granted plaintiffs leave to file an amendment to the amended complaint (the "Amendment"). Count I of the Amendment contains factual allegations only and nowhere requests any relief against any party. In the subsequent counts, however, the Amendment seeks: (1) specific performance of the lease agreement of July 13, 1987 against Collins (Count II); (2) specific performance of the same lease agreement against Hiro (Count III); (3) $ 15,000 in damages suffered as a result of the breach of the lease agreement by all of the defendants (including Hiro) (Count IV); (4) $ 15,000 in actual damages and $ 5 million in punitive damages suffered as a result of certain defendants' (not including Hiro) misrepresentations regarding the lease agreement (Count V); (5) $ 15,000 in actual damages and $ 5 million in punitive damages against Hiro for its alleged tortious interference with Goldberg's business expectancy, i.e. its lease agreement of July 13, 1987 (Count VI); and (6) $ 15,000 in actual damages and $ 5 million in punitive damages for certain defendants' (not including Hiro) conspiracy to defraud Goldberg (Count VII).

 On December 13, 1989 defendants Collins, 20 North Clark Limited Partnership, Wiley Tuttle and Herbert Papock (collectively referred to as the "Collins defendants") filed a Notice to Remove the state court action from the Circuit Court of Cook County on the basis of this court's diversity jurisdiction. This case (No. 89 C 9210) was assigned to the undersigned Judge Holderman. On the same date defendant Hiro filed a separate Notice of Removal, also pursuant to the court's diversity jurisdiction under 28 U.S.C. § 1331. Hiro's case (No. 89 C 9235) was assigned to Judge Lindberg. The only defendant who has not moved for removal, therefore, is Jutta Stone, an Illinois citizen who, the other defendants contend, was fraudulently joined as a party defendant. Pursuant to 28 U.S.C. § 1447(c) plaintiffs timely moved to remand both cases to the Circuit Court of Cook County.

 Discussion

 After the Supreme Court's decision in Carden v. Arkoma Associates, 494 U.S. 185, 108 L. Ed. 2d 157, 110 S. Ct. 1015 (1990), the Collins defendants acknowledged that complete diversity does not exist between them and the plaintiffs. (See Supplemental Suggestions of Certain Defendants Relating to the Jurisdiction of this Court, p. 3.) Nevertheless, these defendants contend that jurisdiction is still proper pursuant to 28 U.S.C. § 1441(c) because "certain of plaintiffs' claims against Hiro are separate and independent from the claims against ...


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