The opinion of the court was delivered by: Murphy, Chief District Judge
This matter is before the Court on the "Motion to Remand, and Award Attorney Fees" brought by Plaintiff Paul Hauck (Doc. 15). For the following reasons, the motion is GRANTED in part and DENIED in part. The Court GRANTS remand of this case to the Circuit Court of the Third Judicial Circuit, Madison County, Illinois, for lack of federal subject matter jurisdiction; the Court DENIES an award of attorney fees pursuant to 28 U.S.C. § 1447(c).
Plaintiff brings this action for personal injuries he allegedly suffered while a business invitee at a refinery owned and operated by Defendant ConocoPhillips Company ("ConocoPhillips") in Hartford, Illinois, on December 17, 2003. See Complaint ("Compl.") ¶¶ 3-11.*fn1 Plaintiff alleges that on that date he drove a tanker truck to the refinery to pick up a load of odorized mineral spirits ("OMS"). See id.¶¶ 4-5. While walking on a loading dock at the refinery, Plaintiff slipped and fell, breaking his wrist. See id.¶ 4, ¶ 6, ¶ 7, ¶ 11. Plaintiff alleges that the accident was caused by inadequate lighting on the loading dock, together with a defective fuel-loading system that caused the loading dock to become oily and slippery. See id.¶ 4, ¶ 7, ¶ 10. Plaintiff alleges that at the time of the accident maintenance and safety on the loading dock were the responsibility of Defendant Washington Group International, Inc. ("WGI"), by whom Defendant William Blechinger was employed at the time as safety manager at the refinery. See id.¶¶ 12-17, ¶¶ 18-22.
Plaintiff filed this action originally in the Circuit Court of the Third Judicial Circuit, Madison County, Illinois. Thereafter the action was removed to this Court by Defendant WGI and Defendant Blechinger, with the timely consent of Defendant ConocoPhillips. Defendants WGI and Blechinger contend that the latter has been fraudulently joined to defeat federal diversity jurisdiction because Plaintiff has no possibility of establishing a claim for relief against Blechinger under Illinois law.*fn2 Plaintiff has moved for remand of this action to state court for lack of subject matter jurisdiction.
Removal based on diversity requires that the parties be of diverse state citizenship and that the amount in controversy exceed $75,000. See 28 U.S.C. § 1332; 28 U.S.C. § 1441. See also Rubel v. Pfizer Inc., 361 F.3d 1016, 1017 (7th Cir. 2004); Littleton v. Shelter Ins. Co., No. 99-912-GPM, 2000 WL 356408, at *1 (S.D. Ill. Mar. 9, 2000). The party seeking removal has the burden of establishing federal jurisdiction. See Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993). "Courts should interpret the removal statute narrowly and presume that the plaintiff may choose his or her forum." Id. Put another way, there is a strong presumption in favor of remand. See Jones v. General Tire & Rubber Co., 541 F.2d 660, 664 (7th Cir. 1976).
In evaluating diversity of citizenship, a court must disregard a defendant that has been fraudulently joined. See Schwartz v. State Farm Mut. Auto. Ins. Co., 174 F.3d 875, 878 (7th Cir. 1999). A defendant is fraudulently joined when "there is no possibility that a plaintiff can state a cause of action against [the] nondiverse defendant[ ] 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). A defendant seeking removal based on alleged fraudulent joinder has the "heavy" burden of proving that, after the court resolves all issues of law and fact in the plaintiff's favor, there is no possibility the plaintiff can establish a cause of action against the diversity-defeating defendant in a state court. Poulos v. Naas Foods, Inc., 959 F.2d 69, 73 (7th Cir. 1992).
B. Plaintiff's Motion for Remand
1. Possibility of Establishing a Claim for Relief Under Illinois Law
WGI's asserted grounds for fraudulent joinder in this case are premised on the familiar rule of agency law that an agent's breach of a duty to his or her principal, that is, a nonfeasance, is not ipso facto a breach of a duty to third persons, that is, a misfeasance, unless the agent owes a duty to an injured third person. In Adkins v. Chicago, Rock Island & Pacific Railroad Co., 274 N.E.2d 507 (Ill. App. Ct. 1971), the court set out the traditional rule as follows: "The agent is . . . personally liable to third persons for his own misfeasances and positive wrongs. But he is not, in general . . . , liable to third persons for his own nonfeasances or omissions of duty, in the course of his employment. His liability, in these latter cases, is solely to his principal." Id. at 512. WGI argues that, because the conduct by William Blechinger complained of in this case comprises only a breach of Blechinger's duty to WGI, his principal, Blechinger has been fraudulently joined to defeat diversity. The Court disagrees.
The controlling principle of law in this instance is that "[a] person is not absolved of personal liability to a third person on account of his negligence or other wrongful act merely because at the time he was acting as an employee within the scope of his employment." 17 Illinois Law and Practice Employment § 256 (collecting cases). See also Joseph J. Legat Architects, P.C. v. U.S. Development Corp., 625 F. Supp. 293, 300 (N.D. Ill. 1985) (applying Illinois law). Further, the negligence of an employee in the scope and course of employment is imputed to his or her employer. See Ferrari v. Brannock, 270 N.E.2d 281, 285 (Ill. App. Ct. 1971) ("The negligence of the servant is imputable to the master where it was committed within the scope of the employment contract."); Watson v. Taylor, 256 N.E.2d 474, 474 (Ill. App. Ct. 1970) ("As a general rule an injured party must seek his redress from the person who caused the injury. A recognized exception to the general rule is applicable where the person causing the injury is an agent or servant in which event his misconduct may be imputed to the principal or master."). In this instance, the clear import of the allegations of Plaintiff's complaint is that Blechinger, as safety manager at the refinery where Plaintiff was injured, was negligent in discharging his duties, with the proximate result that Plaintiff was injured.
The Court's conclusion that Blechinger can be liable to Plaintiff is bolstered by Restatement (Second) of Agency § 352 (1958), which has been adopted in Illinois, see Cahill v. Eastern Benefit Sys., Inc., 603 N.E.2d 788, 793 (Ill. App. Ct. 1992); People v. Community Hosp. of Evanston, 545 N.E.2d 226, 234 (Ill. App. Ct. 1989); Bescor, Inc. v. Chicago Title & Trust Co., 446 N.E.2d 1209, 1212-13 (Ill. App. Ct. 1983), and which is cited approvingly in WGI's brief in opposition to Plaintiff's motion for remand. Section 352 of the Restatement says, "An agent is not liable for harm to a person other than his principal because of his failure adequately to perform his duties to his principal, unless physical harm results from reliance upon performance of the duties by the agent, or unless the agent has taken control of land or other tangible things." Restatement (Second) of Agency § 352. Importantly, the commentary to section 352 explains, "[I]f the principal who is under a duty to keep ...