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GARBIE v. CHRYSLER CORP.

June 18, 1998

CRAIG GARBIE, RONALD HANUS, MICHAEL and SHIRLEY WALSH, and LARRY and BEVERLY COOLEY, individually on behalf of themselves and all others similarly situated, Plaintiffs,
v.
CHRYSLER CORPORATION, Defendant.



The opinion of the court was delivered by: GETTLEMAN

MEMORANDUM OPINION AND ORDER

 On April 13, 1998, defendant Chrysler Corporation ("Chrysler"), asserting diversity jurisdiction, removed plaintiff's amended class action complaint to this court under 28 U.S.C. § 1446. On May 11, 1998, plaintiffs moved to remand, arguing that Chrysler has failed to establish that the parties are in complete diversity and that the amount in controversy exceeds $ 75,000. Plaintiffs have also moved to recover attorneys fees and costs as a result of opposing the removal. For the reasons set forth below, plaintiffs' motion is granted, including its request for costs and attorneys' fees.

 FACTS

 Plaintiffs Craig Garbie and Ronald Hanus, individually and on behalf of a putative class, filed a lawsuit against Chrysler in the Circuit Court of Cook County, Illinois on March 6, 1998. In their complaint, plaintiffs allege that Chrysler knowingly sold them and members of the putative class vehicles with paint defects, in violation of the Illinois Unfair and Deceptive Trade Practices Act. Specifically, the plaintiffs allege that the paint on their Chrysler-manufactured cars has "delaminated," a process whereby the paint peels off the car. On March 26, 1998, plaintiffs amended their complaint to include as plaintiffs Michael and Shirley Walsh and Larry and Beverly Cooley, all of whom are residents of Michigan. The amended complaint seeks declaratory relief, compensatory and punitive damages, and attorneys' fees for alleged violations of the Illinois Unfair and Deceptive Trade Practices Act, Michigan's Consumer Protection Act, breach of express warranty, and breach of contract.

 On April 13, 1998, Chrysler, asserting diversity jurisdiction, removed plaintiffs' amended complaint to this court under 28 U.S.C. § 1446. *fn1" On May 11, 1998, plaintiffs moved to remand, arguing that Chrysler has failed to establish that the parties are in complete diversity and that the amount in controversy exceeds $ 75,000. Plaintiffs have also moved to recover attorneys' fees and costs as a result of opposing the removal. The defendants have opposed this motion, which is currently before this court. *fn2"

 DISCUSSION

 To remove a case to federal court, a defendant must establish the jurisdictional requirements with "competent proof," evidence which proves to a reasonable probability that jurisdiction exists. 28 U.S.C. § 1332, 1441; Chase v. Shop ' N Save Warehouse Foods, Inc., 110 F.3d 424 (7th Cir. 1997). Removal based on diversity requires that the parties be of diverse state citizenship and that the amount in controversy exceed $ 75,000. 28 U.S.C. § 1332. The party seeking removal has the burden of establishing federal jurisdiction. Doe v. Allied Signal, 985 F.2d 908, 911 (7th Cir. 1993). Removal from state court is permitted only if federal jurisdiction existed at the time of removal. 28 U.S.C. § 1441(a). "Courts should interpret the removal statute narrowly and presume that the plaintiff may choose his or her forum." Doe, 985 F.2d at 911. Alternatively stated, there is a strong presumption in favor of remand. Jones v. General Tire and Rubber Co., 541 F.2d 660, 664 (7th Cir. 1976).

 Defendant makes two arguments in support of removal based on federal jurisdiction. First, it argues that there is diversity of citizenship between Chrysler, a Michigan corporation, and the original plaintiffs, Illinois residents. Defendant alleges that the Michigan plaintiffs who were added to the amended complaint are not necessary parties for purposes of representing the putative class and should therefore be dismissed, thereby preserving diversity of citizenship between the remaining parties. Chrysler's second argument is that the amount in controversy exceeds the jurisdictional minimum of $ 75,000.

 I. Diversity of Citizenship

 In determining whether complete diversity exists, the court will consider the citizenship of all properly joined parties and not simply the citizenship of the parties who are indispensable under Rule 19. R.W. Sawant & Co. v. Ben Kozloff, Inc., 507 F. Supp. 614, 617 (N.D. Ill. 1981); 13B Wright, Miller & Cooper, Federal Practice and Procedure, § 3606 (2d ed. 1984). However, "when the party whose presence would destroy jurisdiction is not indispensable, it may be possible for plaintiff to have the action dismissed as to that party and thereby preserve diversity of citizenship." R.W. Sawant & Co., 507 F. Supp. at 617. Chrysler argues this principal should be applied in the instant case, and that this court should dismiss the Michigan plaintiffs because they are dispensable parties under Rule 19. Chrysler contends that Rule 21 authorizes dismissal of a non-diverse party who is not indispensable to the action.

 As masters of their complaint, plaintiffs may use Rule 21 to dismiss non-diverse parties from an action to preserve diversity jurisdiction. Rule 21 has not, however, been used in the reverse ". . .to dismiss properly joined plaintiffs, despite their objections, solely to permit a defendant to acquire federal jurisdiction and remove the proceeding from the state forum in which it was originally brought." Oliva v. Chrysler Corp., 978 F. Supp. 685, 688 (S.D. Tex. 1997). In Oliva Chrysler attempted to remove the case to federal court using the identical argument it presents before this court. As the court in Oliva pointed out, "If [the plaintiff] can avoid the federal forum by the device of properly joining a nondiverse defendant or a nondiverse co-plaintiff, he is free to do so." Id. at 689, quoting Iowa Pub. Serv. Co. v. Medicine Bow Coal Co., 556 F.2d 400, 406 (8th Cir. 1997).

 If a nondiverse plaintiff is not a real party in interest, then he or she may be dropped from the case under Rule 21, and the court can thus disregard his or her citizenship in determining jurisdiction. Iowa Pub. Serv. Co., 556 F.2d at 403-406. A real party in interest is the person who, under governing substantive law, possesses the rights sought to be enforced. See Illinois v. Life of Mid-America Ins. Co., 805 F.2d 763, 764 (7th Cir. 1986); Fed. R. Civ. P. 17(a)("Every action shall be prosecuted in the name of the real party in interest"). By all accounts, the Michigan plaintiffs are real parties in interest. They are residents of Michigan who are the legal owners of vehicles manufactured by Chrysler, and they allege these vehicles were finished with a defective paint product. Like the plaintiffs in Oliva, these plaintiffs are thereby entitled under state law to enforce the rights they assert. So long as the nondiverse plaintiff is a real party in interest, "the fact that his joinder was motivated by a desire to defeat federal jurisdiction is not material." Iowa Pub. Serv. Co., 556 F.2d at 403.

 Chrysler also contends that the nature of a class action is such that the presence of one named plaintiff over another makes no difference, because a non-named plaintiff who is still representative of the class *fn3" would be afforded relief as a class member. Chrysler argues that the Michigan plaintiffs are unnecessary for bringing this action, and are merely an excuse to avoid federal jurisdiction. Again, however, as masters of their complaint, plaintiffs have the right to choose who will be the named parties in the suit. As the district court in Oliva held in ordering remand, "Chrysler conveniently overlooks the well established fact that every potential plaintiff in our dual court system has a choice between a state forum and a federal forum and that it is the plaintiff's ...


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