during the course of the state litigations. Katonah v. USAir, 868 F. Supp. at 1036 n.5. Defendants did not attempt to have Fox dismissed from any of the state actions. Therefore, USAir may only remove the McCoy, Ruzich, and Van Bortel cases a second time if some "other paper" altered the status of the case.
The commentary following § 1446 discusses the phrase "other paper." 28 U.S.C.A. § 1446 note (Commentary on 1988 Revision of Section 1446 by David D. Siegel). "The paper that reveals the phoniness of the nondiverse defendant's joinder may be, e.g., the deposition of some nonparty witness." Id. Of the cases interpreting subsection (b), courts have allowed removal for such papers as a demand letter, Central Iowa Agri-Sys. v. Old Heritage Advertising, 727 F. Supp. 1304, 1305 (S.D. Iowa 1989), or a deposition, Riggs v. Continental Baking Co., 678 F. Supp. 236, 238 (N.D. Cal. 1988). However, cases allowing removal after the initial thirty days involved "other paper" which concretely resolved the diversity issue. In this case, the paper involved is the declaration of a non-party witness, Captain William T. Jackson ("Captain Jackson"). Yet, the declaration only questions the issue of fact as to whether the noise reported to Fox was the cause of the crash. The declaration does not definitively establish that Fox was fraudulently joined. Nevertheless, this issue as to whether subsection (b) allows removal of McCoy, Ruzich, and Van Bortel on the basis of a non-party declaration need not be decided because, as discussed below, Captain Jackson's declaration does not alter the court's earlier conclusion that Plaintiffs might be able state a cause of action against Fox.
B. Fraudulent Joinder
The issue, ultimately, before the court is whether Plaintiffs fraudulently joined Fox. "'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.'" Katonah v. USAir, 868 F. Supp. 1031, 1034 (N.D. Ill. 1994) (quoting Hoosier Energy Rural Elec. Cooperative, Inc. v. Amoco Tax Leasing IV Corp., 34 F.3d 1310, 1315 (7th Cir. 1994)). As mentioned above, the court already considered whether the doctrine of fraudulent joinder applied to these facts and decided that it did not. The court wrote that it was "hard pressed to conclude that there is no possibility that Fox had a cognizable duty to the passengers of Flight 427 which he might have breached." Katonah v. USAir, 868 F. Supp. at 1036. Since that time, Captain Jackson signed a declaration attempting to explain away an errant noise which an anonymous woman reported to Fox. Therefore, the court inquires as to whether Captain Jackson's submission warrants altering the court's earlier conclusion.
Again, Plaintiffs need only plead a cause of action which might survive a motion to dismiss in the state court. Katonah v. USAir, 868 F. Supp. at 1034. One of the various causes of action is a theory of negligence, Fox's negligence in particular. Therefore, in order to circumvent the doctrine of fraudulent joinder, Plaintiffs' complaints must have pleaded that Fox had a duty to the passengers of Flight 427 and that he breached that duty which was the proximate cause of the crash. See, e.g., Wartenberg v. Dubin, Dubin & Moutoussamy, 259 Ill. App. 3d 89, 197 Ill. Dec. 47, 630 N.E.2d 1171 (Ill. App. Ct. 1994).
The court continues in its resolve that an Illinois state court might find that Fox owed a duty to the passengers of Flight 427. The basic principle is that "negligence is the failure to take a level of precaution commensurate with the likelihood and magnitude of the risk created by the defendant's conduct." Needham v. White Lab., Inc., 847 F.2d 355, 358-59 (7th Cir. 1988). Duty is an essential element of negligence and is a question of law. Homer v. Pabst Brewing Co., 806 F.2d 119, 121 (7th Cir. 1986); Barnes v. Washington, 56 Ill. 2d 22, 305 N.E.2d 535, 538 (Ill. 1973); Skyview Film & Video v. Safeco Life Ins. Co., 864 F. Supp. 755, 757 (N.D. Ill. 1994). "The imposition of a duty is an act of judicial policymaking." Homer, 806 F.2d at 121. Factors a court considers in determining whether a duty of care exists include the reasonable foreseeability of injury, the likelihood of injury, the burden of guarding against injury, and the consequences of imposing that burden on the defendant. Skyview Film & Video, 864 F. Supp. at 757. Although the foreseeability element speaks to objectively reasonable results and not any result which might occur, Watkins v. Mt. Carmel Public Utility Co., 165 Ill. App. 3d 493, 519 N.E.2d 10, 14, 116 Ill. Dec. 420 (Ill. App. Ct. 1988), duty will not be decided on that element alone. Ultimately, "in determining whether a duty exists, the trial court must consider whether a relationship existed between the parties which imposed a legal obligation upon one party for the other's benefit." Landrum v. Gonzalez, 257 Ill. App. 3d 942, 629 N.E.2d 710, 713, 196 Ill. Dec. 165 (Ill. App. Ct. 1994).
This court does not take a position as to whether Fox had a duty to the passengers of Flight 427. This court does, however, take the position that it is possible that an Illinois court would find that a relationship existed between the parties which imposed a legal obligation upon Fox for the benefit of the passengers, i.e., that a state court would find a duty. The facts demonstrate that Fox received an anonymous call about an errant noise on a plane. The court does not agree with USAir that it was not reasonably foreseeable that an accident would occur following an account of an errant noise not noted by the pilot. Moreover, the court finds the other factors concerning the duty of care are in favor of imposing a duty on Fox; specifically, the potential extent of injury resulting from a crash was so great as to outweigh all the burdens or prevention. Therefore, this court finds that an Illinois court might determine that Fox had a duty to the passengers of Flight 427.
Alternatively, even if an Illinois court would not find that Fox initially owed a duty outright stemming from the nature of his position, the state court might determine that Fox had a duty under the voluntary undertaking theory. See Decker v. Domino's Pizza, Inc., No. 5-93-379, 1994 WL 720439 (Ill. App. Ct. Dec. 30, 1994); Frye v. Medicare-Glaser Corp., 153 Ill. 2d 26, 605 N.E.2d 557, 560, 178 Ill. Dec. 763 (Ill. 1992). In Frye, the Illinois Supreme Court cited the Second Restatement of Torts with approval:
One who undertakes . . . to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm . . . .