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KRUEGER v. R.J. REYNOLDS TOBACCO COMPANY

August 3, 2005.

GERALD KRUEGER AND REBEKAH KRUEGER, Plaintiffs,
v.
R.J. REYNOLDS TOBACCO COMPANY, a corporation & MARTIN & BAYLEY, INC., d/b/a HUCK'S CONVENIENCE STORE, Defendants.



The opinion of the court was delivered by: DAVID HERNDON, District Judge

MEMORANDUM & ORDER

I. Introduction

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 (Doc. 1).

  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).

  III. Analysis

  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 ...


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