United States District Court, S.D. Illinois
May 9, 2005.
AARON MEYER, Plaintiff,
UNION ELECTRIC COMPANY d/b/a AMERENUE, AARON BAGLEY, and CHERYL DICKERSON, Defendants.
The opinion of the court was delivered by: MICHAEL J. REAGAN, District Judge
MEMORANDUM and ORDER
Plaintiff Aaron Meyer filed suit in the Circuit Court of
Madison County, Illinois against Defendants Union Electric
Company doing business as AmerenUE (hereafter Ameren), Aaron
Bagley and Cheryl Dickerson (Doc. 2). In his three-count
complaint, Meyer alleges that on July 11, 2002, while working as
a lineman for SBC/Ameritech, he was injured when descending a
power pole owned and maintained by Ameren as a portion of the
pole was shell rotted. In Count One, Meyer brings a claim for
negligent maintenance of the pole against Ameren. In Counts Two
and Three, Meyer brings negligence claims against Bagley and
Dickerson, respectively, as the onwers of the property upon which
the power pole was located.
Ameren then removed the action to this United States District
Court, invoking subject matter jurisdiction under the federal
diversity statute, 28 U.S.C. § 1332 (Doc. 1). While both
diversity of citizenship amongst the parties and the requisite
amount in controversy needs to be present in order to invoke
removal pursuant to Section 1332, Ameren argues in its notice of
removal that it properly invoked Section 1332 in spite of diversity of
citizenship not being complete between the parties Meyer,
Bagley and Dickerson are all citizens of Illinois*fn1 as
Meyer fraudulently joined Bagley and Dickerson to defeat
diversity jurisdiction. Ameren asserts that Meyer cannot state a
negligence claim against Bagley and Dickerson as neither owed a
duty to Meyer as they did not have ownership or control over
Ameren's power pole, and as such, were fraudulently joined.
Ameren states that as the two were fraudulently joined, diversity
jurisdiction applies as diversity of citizenship is complete
amongst the remaining parties Meyer is an Illinois citizen and
Ameren is a Missouri citizen and the amount in controversy
exceeds $75,000. See 28 U.S.C. § 1332.
Unsurprisingly, now before the Court is Meyer's motion to
remand (Doc. 11) and objections to Ameren's notice of removal
(Doc. 9). Ameren responded in opposition to Meyer's motion to
remand (Doc. 12). This matter being fully briefed, the Court
finds as follows.
Because Ameren is the party seeking removal, it bears the
burden of establishing that it complied with the requirements of
the removal statute. P.P. Farmers' Elevator Co. v. Farmers
Elevator Mutual Insur. Co., 395 F.2d 546, 548 (7th Cir. 1968)
("The burden of proof as to any controverted material issue is
upon the party who removed to show that the suit was properly
removed."); London v. Accufix Research Institute, Inc.,
953 F.Supp. 255, 256 (N.D. Ill. 1997) ("[T]he party petitioning for
removal bears the burden of establishing compliance with the
removal statute's requirements."). Ameren must meet its burden
by a preponderance of the evidence. Cf. Shaw v. Dow Brands,
Inc., 994 F.2d 364, 366 (7th Cir. 1993) (removing defendants must establish jurisdiction by a preponderance of the
evidence). The United States Court of Appeals for the Seventh
Circuit has directed district courts to resolve doubts regarding
jurisdiction "in favor of the states." Doe v. Allied-Signal,
Inc., 985 F.2d 908, 911 (7th Cir. 1993).
As Bagley and Dickerson are Illinois citizens, this Court lacks
subject matter jurisdiction over this matter unless both parties
were fraudulently joined. A party is fraudulently joined 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." Gottlieb v. Westin Hotel Co.,
990 F.2d 323, 327 (7th Cir. 1993). As no outright fraud exists in Meyer's
pleading of jurisdictional facts, Ameren must clear a high hurdle
to demonstrate fraudulent joinder. Ameren must show that, after
resolving all issues of fact and law in favor of Meyer, Meyer
cannot establish a cause of action against the in-state
defendants. See Poulos v. Naas Foods, Inc., 959 F.2d 69, 73
(7th Cir. 1992).
In Schwartz v. State Farm Mutual Auto Ins. Co.,
174 F.3d 875, 878 (7th Cir. 1999), the Seventh Circuit held that joinder
is fraudulent "and is therefore disregarded, if the out-of-state
defendant can show there exists no `reasonable possibility that a
state court would rule against the [in-state] defendant.'" Id.,
quoting Poulos, 959 F.2d at 73. In addition to the allegations
contained in the parties' pleadings, the court may consider
"summary judgement-type evidence," including depositions and
affidavits, in determining whether a party has been fraudulently
joined. CC Indus., Inc. v. Ing/Reliastar Life Ins. Co.,
266 F.Supp.2d 813, 815-16 (N.D. Ill. 2003).
Ameren contends that Meyer has no reasonable probability of
recovery against Bagley and Dickerson as neither owed a duty to
Meyer because they did have ownership or control over Ameren's
power pole. See Doc. 1, p. 3. Having carefully considered the
record before the Court, resolving all issues of fact and law in Plaintiff's favor,
the Court finds that there is "no reasonable probability that a
state court would rule against the in-state defendants" Bagley
In Counts Three and Four, Meyer alleges that Bagley and
Dickerson are the registered property owners of lot 10 of the
McClure Subdivision, 211 Dorris Avenue, Alton, Illinois 62002.
Meyer states that while working as a lineman on a power pole
identified as "Ameren Outdoor lighting AME030970" located on
Bagley and Dickerson's property at 211 Dorris Avenue, he was
injured as he descended the power pole after losing his footing
on a portion of the pole which was shell rotted. Meyer claims
Bagley and Dickerson were negligent in the maintenance of their
premises in allowing the power pole to exist on their property in
a defective and dangerous condition, and was negligent in failing
to warn Meyer and other forseeable users of the dangerous
condition existing on their premises.
Under Illinois law, the uncontested controlling law in this
matter, to state a cause of action for negligence, a plaintiff
must establish "the existence of a duty of care owed by the
defendant to the plaintiff, a breach of that duty, and an injury
proximately caused by that breach." Ward v. K Mart Corp.,
554 N.E.2d 223, 226 (Ill. 1990). Ameren contends that neither Bagley
nor Dickerson owed a duty to Meyer as they did not have ownership
or control over Ameren's power pole. Ameren asserts that nowhere
in Meyer's complaint did he make an allegation that any condition
of Bagley or Dickerson's property caused Ameren's power pole to
became shell rotted. The Court agrees with Ameren.
It is not in dispute that Ameren owns the pole on which Meyer
was injured. Plaintiff states in his complaint that the pole was
identified as belonging to Ameren by a bar code stating "Ameren Outdoor lighting AME030970". Doc. 1, p. 2. Ameren admits
in its notice of removal that it in fact owns the power pole at
issue, not Bagley and Dickerson. Doc. 1, p. 3. Further, Bagley
and Dickerson do not own this power pole even though it may
appear to be located on their lot as Ameren has an easement on
their property so as to have their power pole there. See Duresa
v. Commonwealth Edison Co., 807 N.E.2d 1054 (Ill.App.Ct.
2004) (stating that "actual, open and obvious possession is
constructive notice to all the world of whatever right the
occupant has in the land . . .). Cf. Longnecker v. Illinois
Power Co., 381 N.E.2d 709 (Ill.App.Ct. 1978).
An easement is a right or privilege in the land of another.
Seymour v. Harris Trust & Sav. Bank of Chicago,
636 N.E.2d 985, 993 (Ill.App.Ct. 1994). Two tenements are necessary to
the creation of an easement the dominant to which the right
belongs, and the servient upon which the obligations rests. Id.
In the case at bar, the dominant estate is that of Ameren and the
servient estate is that of Bagley and Dickerson's. As for the
relative rights and obligations of the owners of the dominant and
the servient estates, "in the absence of an agreement to the
contrary, the owner of the easement has not only the right but
the duty to keep the easement in repair while the owner of the
servient tenement has no duty to either put or keep the easement
in repair." Id. at 994. As a result, Bagley and Dickerson
have no duty to either put or keep Ameren's easement, the power
pole in question, in repair.
Having reviewed the parties' pleadings, after resolving all
issues of fact and law in favor of Meyer, the Court concludes
that Meyer fraudulently joined Defendants Bagley and Dickerson
(Illinois citizens). Bagley and Dickerson had no duty under the
law to keep the power pole at issue in repair, and as such, there
is no possibility that Meyer can state a cause of action for
negligence against them. For this reason, the Court DISMISSES
with prejudice Defendants Bagley and Dickerson from this action as fraudulently joined.
The Court FINDS that diversity between the remaining parties
is complete, and subject matter jurisdiction lies under
28 U.S.C. 1332. Accordingly, the Court DENIES Meyer's motion to
remand (Doc. 11). This case is now ready to be tracked.
IT IS SO ORDERED.