The opinion of the court was delivered by: HARRY LEINENWEBER, District Judge
MEMORANDUM OPINION AND ORDER
Defendant, Kohl's Department Store, Inc. (hereinafter,
"Kohl's"), removed this action to federal court under
28 U.S.C. §§ 1441 and 1446. The parties are now before the Court on
Plaintiff Joan Daly's Motion to Remand this action to the Circuit
Court of Cook County. Plaintiff argues that because the diversity
of citizenship requirement has not been satisfied, the Court
lacks subject matter jurisdiction. For the reasons that follow,
the Plaintiff's motion to remand is granted.
Plaintiff originally brought this action in the Circuit Court
of Cook County on November 19, 2003. In her complaint, Plaintiff
alleges she sustained personal bodily injuries at Kohl's as a
result of being struck by a merchandise cart operated by a Kohl's
employee at its store in Illinois. (Motion to Remand, ¶ 1).
Plaintiff further alleges that she did not learn the identity of
the employee who struck her with the cart until March 22, 2004, at which time
Kohl's identified the employee as Mary Francis Trzaskus
(hereinafter, "Trzaskus"), an Illinois resident. Kohl's provided
such information in response to Plaintiff's emergency
interrogatories of February 10, 2004. On May 5, 2004, the Circuit
Court granted Plaintiff leave to file her First Amended Complaint
adding Trzaskus as an additional party defendant, and Plaintiff
filed her First Amended Complaint (the "Amended Complaint") on
the same date.
In the Amended Complaint, Plaintiff seeks a judgment against
Kohl's and Trzaskus, and "each of them jointly and severally, in
an amount in excess of Fifty Thousand Dollars ($50,000), plus the
costs of th[e] suit." (Amended Complaint, p. 4). However, on
February 4, 2004, Kohl's filed a request to admit that the amount
in controversy exceeded $75,000, to which Plaintiff filed no
response. (Notice of Removal, at ¶ 2). Subsequently, on May 13,
2004, Kohl's filed a notice of removal to federal court pursuant
to 28 U.S.C. §§ 1441 and 1446.
Section 1441(a) permits a defendant to remove to federal court
any civil action originally brought in state court if the federal
court has original jurisdiction over the matter. 28 U.S.C. § 1441
(a). Pursuant to 28 U.S.C. § 1332, a district court has such
original jurisdiction of "all civil actions where the matter in
controversy exceeds the sum or value of $75,000, exclusive of
interest or costs" and where the parties have diverse
citizenship. 28 U.S.C. § 1332. Kohl's, as the removing party, bears the burden
of showing that the removal jurisdiction is proper and "they must
present evidence of federal jurisdiction once the existence is
fairly cast into doubt." In re Brand Name Prescription Drugs
Antitrust Litig., 123 F.3d 599, 607 (7th Cir. 1997).
Here, the Plaintiff disputes that there is complete diversity
of jurisdiction in this case. Both Plaintiff and Defendant
Trzaskus are presently and were at the time of the incident and
at the time the Complaint and Amended Complaint were filed
citizens and residents of Illinois. Kohl's was a Delaware
Corporation with its principal place of business in Wisconsin at
the time of the incident and the time the Complaint was filed.
Thus, after the filing of Plaintiff's Complaint on May 5, 2004,
the parties had non-diverse citizenship.
Because the parties are of non-diverse citizenship, Plaintiff
contends that the only issue to be decided by the Court is
"whether the Complaint, on its face, states a valid cause of
action against Ms. Trzaskus." (Motion to Remand, ¶ 9). The
Plaintiff notes that "Kohl's has not alleged in its notice of
removal, any deficiencies in the Plaintiff's Complaint, nor has
it alleged that the Plaintiff's First Amended Complaint can not
[sic] allege a valid cause of action against Ms. Trzaskus for the
incidents alleged to have caused injury to the Plaintiff." Id.
Kohl's argues that it had no knowledge of the Amended Complaint
when it filed the Notice of Removal on May 14, 2004. Further,
Kohl's alleges that Plaintiff added Trzaskus "solely to defeat
Kohl's right to diversity jurisdiction." (Defendant's Response to Plaintiff's Motion to Remand, at ¶ 6). Finally,
Kohl's contends that Trzaskus is not an indispensable party and
there is "no reason to name Ms. Trzaskus as a personal defendant
because plaintiff has an adequate remedy in pursuing the action
against Kohl's." Id.
First, the Court notes that Kohl's does not provide any
evidence to substantiate its claim that Plaintiff added Trzaskus
for an improper purpose. In fact, both parties acknowledge that
prior to March 22, 2004, Kohl's had not provided Plaintiff with
any information regarding Trzaskus's identity or citizenship.
Plaintiff filed the Amended Complaint less than six weeks after
receiving such information on May 5, 2004.
Plaintiff alleges that she suffered personal injuries as a
direct result of Trzaskus's actions and negligence while employed
by Kohl's. Kohl's identifies Trzaskus as the "Kohl's employee who
was operating the merchandise cart which struck the Plaintiff on
September 11, 2002, as alleged in Plaintiff's complaint."
(Defendant's Answers to Plaintiff's Emergency Interrogatories, ¶
1). In its Response to Plaintiff's Motion to Remand, Defendant
has not presented evidence to suggest that Plaintiff would not
have named Trzaskus as part of her initial complaint had she
known her identity at such time, or that she could not maintain
an action against Trzaskus.
Despite Kohl's contention that it was unaware that Plaintiff
had filed the Amended Complaint, the date stamp on such Amended
Complaint verifies that it was filed on May 5, 2004 at 8:44 a.m.
Kohl's filed its Notice of Remand on May 13, 2004. Thus, at the time that
Kohl's filed its notice of removal to federal court, there was
not complete diversity of citizenship between the parties as both
Plaintiff and Trzaskus are citizens and residents of Illinois.
Kohl's has not met its burden of showing that the removal
jurisdiction was proper. See In re Brand Name Prescription Drugs
Antitrust Litig., 123 F.3d 599, ...