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KATONAH v. USAIR

November 17, 1994

JANINE KATONAH, Plaintiff,
v.
USAIR, INC., et al., Defendants. SARAH McCOY, Plaintiff, v. USAIR, INC., et al., Defendants. CAROLE GRIFFIN RUZICH, Plaintiff, v. USAIR, INC., et al., Defendants. BRETT VAN BORTEL, Plaintiff, v. USAIR, INC., et al., Defendants.



The opinion of the court was delivered by: CHARLES RONALD NORGLE, SR.

 CHARLES R. NORGLE, SR., District Judge:

 Before the court are the motions of plaintiffs Sarah McCoy, Carole Griffin Ruzich, and Brett Van Bortel (collectively "Plaintiffs") to remand their cases to the Circuit Court of Cook County, Illinois, where the cases were initially filed. *fn1" For the foregoing reasons, the motions are granted.

 USAir's Flight 427 crashed on September 8, 1994, en route from Chicago, Illinois, to Pittsburgh, Pennsylvania. All 132 passengers and crew aboard the USAir's Boeing 737 were killed. Plaintiffs' cases arise from that tragedy.

 On October 6, 1994, Plaintiffs filed their cases in the Circuit Court of Cook County, Illinois. Plaintiffs named as defendants USAir, Inc. ("USAir"), The Boeing Company ("Boeing"), and Gerald E. Fox ("Fox"). USAir is a Delaware corporation with its principal place of business in Virginia. *fn2" Boeing is a Delaware corporation with its principal place of business in the state of Washington. Gerald Fox is a citizen of the state of Illinois. After learning of Plaintiffs state actions, USAir filed notices of removal, to which Fox and Boeing consented, on October 18, 1994, for the McCoy matter, then again on October 26, 1994, for the Ruzich and Van Bortel matters. The three cases were then reassigned to this court based on relatedness pursuant to Northern District of Illinois Local Rule 2.31. In response, Plaintiffs filed their motions to remand on October 31, 1994. *fn3"

 DISCUSSION

 Plaintiffs have filed motions to remand their cases back to the Illinois Circuit Court, County of Cook. This court has addressed the standard for dealing with whether a case, once removed, may remain in the federal courts in Navarro v. Subaru of Am. Operations, Inc., 802 F. Supp. 191, 194 (N.D. Ill. 1992) and again in Stemmons v. Toyota Tsusho Am. Inc., 802 F. Supp. 195, 197 (N.D. Ill. 1992):

 
The propriety of removal depends on whether the suit, as plaintiff framed or easily could have framed it in the complaint, would have been within this court's jurisdiction at the time of removal. [citations omitted.]
 
The district court must jealously guard its jurisdiction against abuse by parties who may not comprehend the constitutional importance of federal jurisdiction. See In Re Shell Oil Co., 966 F.2d at 1133 (28 U.S.C. ┬ž 1447(c) requires district courts to "remain vigilant to ensure the presence of jurisdiction even though the parities may disregard the subject (or, worse, try to sneak one by the judge)"). Questions on removal are accordingly strictly construed against federal jurisdiction. Hess v. Great Atlantic & Pac. Tea Co., 520 F. Supp. 373 (N.D. Ill. 1981); see also Holly Farms Corp. v. Taylor, 722 F. Supp. 1152, 1156 (D. Del. 1989) (removal strictly construed; federal court should remand if doubt exists as to right of removal). And ambiguities are resolved against removal when doubt exists as to jurisdiction. Jones v. General Tire & Rubber Co., 541 F.2d 660, 633 (7th Cir. 1976).

 Navarro, 802 F. Supp. at 192-93; Stemmons, 802 F. Supp. at 197.

 The central issue presently before the court is whether Plaintiffs named as defendant a party, who has the same citizenship as Plaintiffs, against whom recovery is not possible. *fn4" In an effort to retain their cases on a state court's docket, litigants will name parties with the same citizenship as a defendant to destroy diversity jurisdiction. To limit this type of strategy, the courts developed the doctrine of fraudulent joinder. "'Diversity jurisdiction cannot be destroyed by joinder of nondiverse parties if such joinder is fraudulent.'" Hoosier Energy Rural Elec. Cooperative, Inc. v. Amoco Tax Leasing IV Corp., 34 F.3d 1310, 1315 (7th Cir. 1994) (quoting Gottlieb v. Westin Hotel Co., 990 F.2d 323, 327 (7th Cir. 1993)); Faucett v. Ingersoll-Rand Min. & Machinery Co., 960 F.2d 653, 654-55 (7th Cir. 1992). That is, where joinder of a defendant, that otherwise would destroy diversity, is found to be fraudulent, then removal is proper. Hoosier Energy Rural Elec. Cooperative, Inc., 34 F.3d at 1315. "'Fraudulent joinder occurs either when there is no possibility that a plaintiff can state a cause of action against nondiverse defendants in state court, or where there has been outright fraud in plaintiff's pleading of jurisdictional facts.'" Id. (quoting Gottlieb, 990 F.2d at 327). Litigants should be aware, though, the term "fraudulent" has no connection to the plaintiff's motive when filing his case. Poulos v. Naas Foods, Inc., 959 F.2d 69, 73 (7th Cir. 1992). Rather, "in most cases fraudulent joinder involves a claim against an in-state defendant that simply has no chance of success, whatever the plaintiff's motives." Id. The motives for adding an in-state defendant are irrelevant.

 The burden of establishing the applicability of the fraudulent joinder doctrine is substantial and is born by the party seeking federal diversity jurisdiction. Id. All issues of law and fact are resolved in favor of the plaintiff. Under this light, the court must ask both whether jurisdictional facts were fraudulently pled and whether any reasonable possibility exists that a state court would find a cause of action against the non-diverse defendant. Id.

 Defendants do not argue that Plaintiffs fraudulently pled jurisdictional facts. (See Boeing Resp. to Remand at 3.) Hence, the court questions whether Fox is a defendant against whom Plaintiffs could possibly secure a judgment. The court determines whether the claim against Fox could stand in an Illinois court construing all ambiguities in favor of finding a cause of action. Id. If Illinois law recognizes the cause of ...


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