The opinion of the court was delivered by: DAVID HERNDON, District Judge
On December 27, 2004, Plaintiffs Gerald and Rebekah Krueger
filed the present complaint in the Third Judicial Circuit,
Madison County, Illinois against Martin & Bayley, Inc. d/b/a
Huck's Convenience Store ("Huck's") and R.J. Reynolds Tobacco
Company ("Reynolds") (Doc. 2). On February 10, 2005, Defendants
removed the case based on this Court's diversity jurisdiction
arguing that Huck's was fraudulently joined and its citizenship
should be disregarded for purposes of the Court's jurisdiction
Now before the Court are Plaintiffs' Motion to Remand (Doc.
12) and Defendants' Motion to Strike (Doc. 26). For the
reasons set forth below, the Court denies Plaintiffs' Motion to
Remand and Defendants' Motion to Strike. II. Background
Defendant Reynolds manufactures and distributes tobacco
products under the brand name Salem Lights (Doc. 2, Compl. at ¶
4). Defendant Huck's is engaged in the business of selling Salem
Lights brand cigarettes (Id. at ¶ 5). Plaintiff Gerald
Krueger alleges he purchased and consumed (on average)
approximately 20-30 Salem Lights cigarettes per day for more than
24 years (Id. at ¶ 3). Plaintiff Gerald Krueger alleges that
as a result of using Salem Lights tobacco products as intended he
was diagnosed with lung cancer on December 6, 2000 (Id. at ¶
1). Among other things, Plaintiff Gerald Krueger alleges he was
without knowledge that he received higher levels of tar and
nicotine than Defendants represented or that the smoke produced
by Salem Lights cigarettes is more mutagenic than regular
cigarettes (Id. at ¶ 3).
Count I alleges that Defendant Reynolds*fn1 violated the
Illinois Consumer Fraud and Deceptive Business Practices Act
("ICFA"), 815 ILCS 505/1, et seq., by misrepresenting and/or
concealing certain facts about the tar and nicotine content and
the increased mutagenicity of Salem Lights such that Plaintiff
was induced to purchase these cigarettes (Id. at ¶¶ 8-21).
Count VII makes the same allegations against Defendant Huck's
(Id. at ¶¶ 55-68).
Count II alleges that Defendant Reynolds expressly warranted
that the Salem Lights cigarettes were "Lights" cigarettes and
contained "lowered tar and nicotine" pursuant to the Uniform Commercial Code § 2-313,
810 ILCS 5/2-313, by placing the words "Salem Lights" and/or
"lowered tar and nicotine" on each and every package sold to
Plaintiff (Id. at ¶ 25). Plaintiffs allege that Defendant
Reynolds breached the aforesaid express warranties in that the
Salem Lights cigarettes were not "Lights" and/or did not deliver
"lowered tar and nicotine" to Plaintiff (Id. at ¶ 27). Count
VIII (incorrectly labeled as Count VII) makes the same
allegations against Defendant Huck's (Id. at ¶¶ 69-77).
Count III alleges that Defendant Reynolds by virtue of § 2-314
of the Uniform Commercial Code, 810 ILCS 5/2-314, impliedly
warranted that Salem Lights cigarettes were merchantable (Id.
at ¶ 34). Plaintiffs allege that Plaintiff relied upon the
implied warranty that Salem Lights cigarettes were merchantable
and Defendant Reynolds breached the implied warranty in that the
Salem Lights cigarettes were not merchantable (Id. at ¶¶ 34,
36). Count IX makes the same allegations against Defendant
Huck's (Id. at ¶¶ 78-86).
Count IV alleges products liability against Defendant Reynolds
in that Defendant Reynolds sold Salem Lights cigarettes that were
defective in that they were unreasonably dangerous in light of
their nature and intended use (Id. at ¶ 42). Count X makes
the same allegations against Defendant Huck's (Id. at ¶¶
87-95). Plaintiffs further contend that "[d]ue to the extent of
their [sic] obligations, including judgments pending against them
[sic] and their [sic] obligations to the various states under the
Master Settlement Agreement, R.J. Reynolds, Inc., the
manufacturers [sic] of Salem Lights at issue, would not be able
to satisfy any judgment in Plaintiff's favor based upon his claims represented in Count IV of this Complaint."
(Id. at ¶ 95).
Count V alleges negligence against Defendant Reynolds (Id.
at ¶¶ 49-54). Count XI makes the same allegations against
Defendant Huck's (Id. at ¶¶ 96-101).
Count VI, brought by Rebekah Krueger, alleges loss of
consortium against Defendant Reynolds (Id. at ¶¶ 54-57).
Count XII makes the same allegations against Defendant Huck's
(Id. at ¶¶ 54-57).
The removal statute, 28 U.S.C. § 1441, is construed narrowly,
and doubts concerning removal are resolved in favor of remand.
Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir.
1993). Defendants bear the burden to present evidence of federal
jurisdiction once the existence of that jurisdiction is fairly
cast into doubt. See In re Brand Name Prescription Drugs
Antitrust Litig., 123 F.3d 599, 607 (7th Cir. 1997). "A
defendant meets this burden by supporting [its] allegations of
jurisdiction with `competent proof,' which in [the Seventh
Circuit] requires the defendant to offer evidence which proves
`to a reasonable probability that jurisdiction exists.'" Chase
v. Shop `N Save Warehouse Foods, Inc., 110 F.3d 424, 427 (7th
Cir. 1997) (citations omitted).
Here, despite the apparent lack of diversity jurisdiction (both
Plaintiffs and Huck's are Illinois citizens), Defendants argue
that Huck's was fraudulently joined in the action and that
without the presence of Huck's diversity of citizenship exists
between the parties. Assuming Defendants can meet their burden to
show fraudulent joinder, diversity jurisdiction exists because
the parties are diverse, Plaintiffs are Illinois residents and Reynolds is an ...