The opinion of the court was delivered by: Stiehl, District Judge
Before the Court are several pending motions. Initially, the Court notes that defendant Rasi's motion to dismiss Counts 23 and 24 of the First Amended Complaint is moot. Rather than filing a response, the plaintiff filed a Second Amended Complaint (Doc. 65) which rendered moot Rasi's motion to dismiss, and it is, therefore, DENIED.
Plaintiff has filed a motion to remand this action to the Circuit Court for the Third Judicial Circuit, Madison County, Illinois, pursuant to 28 U.S.C. § 1447(e) (Doc. 71), to which defendants have filed responses: L.A. Weight Loss Centers, Inc. ("L.A. Weight Loss")(Doc. 96-1), Lang Naturals, Inc. ("Lang") (Doc. 99), and Rasi Laboratories, Inc. ("Rasi") (Doc. 102). In a related motion, plaintiff seeks to strike the affidavit of Shani Poole ("Poole") pursuant to Fed. R. Evid. 602 (Doc. 123-1), to which none of the defendants have filed a response. Jurisdiction in this Court is proper under 28 U.S.C. §1332.
Plaintiff brings this wrongful death action as special administrator of the estate of her sister Pamela Hoppe, deceased. The second amended complaint alleges that Hoppe became a customer of defendant L.A. Weight Loss Centers, Inc. (LA. Weight Loss) on April 27, 2004. To supplement the weight loss regime recommended by L.A. Weight Loss, the company sold Hoppe non-Food and Drug Administration (FDA) approved "diet supplements," including Essential Fatty Acids, Tri-Max, Vita-Max, FB500, and chewable calcium. L.A. Weight Loss instructed Hoppe to take a certain amount of each supplement daily.
On August 5, 2004, Hoppe went to Gateway Regional Medical Center in Granite City, Illinois, complaining of worsening nausea, abdominal fullness, and jaundice. Upon transfer to Saint Louis University Hospital, Hoppe was admitted and diagnosed with acute hepatic injury. After performing tests that ruled out Hepatitis A, B, and C and Acetaminophen toxicity, doctors diagnosed Hoppe with acute liver injury secondary to herbal/diet weight loss supplements. A liver biopsy performed on August 13, 2004, indicated that Hoppe had an AIH/drug induced acute liver injury. On August 17 or 18, 2004, Hoppe went into fulminant hepatic failure. She was transferred to the intensive care unit on August 19, 2004. On August 20, 2004, Hoppe was placed on the liver transplant list. She died nine days later on August 29, 2004, survived by her adult son, William Hoppe, and a minor daughter, Christian Hoppe.
This suit was originally filed in the Circuit Court for Third Judicial Circuit, Madison County, Illinois. L.A. Weight Loss removed the action to this Court pursuant to 28 U.S.C. § 1441. L.A. Weight Loss filed a third party action against Lang and Rasi (Doc.21), alleging that they manufactured and supplied the diet supplements purportedly provided by L.A. Weight Loss to Hoppe.
In the Second Amended Complaint (Doc. 64), plaintiff attempted to join NutraMed, Inc. and two Illinois residents, Poole and Courtney Morr ("Morr"), to the action (Doc. 65). Because adding two Illinois residents would destroy complete diversity, plaintiff has now filed a Motion to Remand the action to the Circuit Court for the Third Judicial Circuit, Madison County, Illinois, pursuant to 28 U.S.C. § 1447(e) (Doc. 71). Moreover, the plaintiff has filed a Motion to Strike the Affidavit of Shani Poole, in which Poole claimed that she "followed-and did not deviate from-L.A. Weight Loss policies and procedure in dealing with [Hoppe]." (Doc. 123-1 at para. 2). The two motions are related, and the Court will consider each motion in turn.
In considering a motion to remand, the amended complaint supersedes the original one, and the original complaint has "no function in the case." Wellness Cmty -- Nat'l v. Wellness House, 70 F.3d 46, 49 (7th Cir. 1995). The Court is to determine federal jurisdiction solely based on the amended complaint. Jass v. Prudential Healthcare Plan, Inc., 88 F.3d 1482, 1492 (7th Cir. 1996).
Plaintiff seeks to remand the action to the Circuit Court for the Third Judicial Circuit, Madison Country, Illinois, arguing that the joinder of additional defendants in the Second Amended Complaint destroyed complete diversity of the parties in the action. As a result, plaintiff argues that the Court is now devoid of subject matter jurisdiction over the complete action.
Under federal law, a plaintiff is normally free to choose her own forum; however, she "may not join an in-state defendant solely for the purpose of defeating federal jurisdiction." Schwartz v. Comte, 174 F.3d 875, 878 (7th Cir. 1999). Such joinder is considered fraudulent if "there exists no 'reasonable possibility that a state court would rule against the [in-state] defendant.'" Id. (quoting Poulos v. Naas Foods Inc., 959 F.2d 69, 73 (7th Cir. 1992)); see also Poulos, 959 F.2d at 73 ("When speaking of jurisdiction, 'fraudulent' is a term of art.") In such a scenario, the Court should deny joinder, as residency of an improperly joined defendant cannot destroy federal diversity jurisdiction.
In determining whether joinder is proper, the Court is to balance several factors: (1) the plaintiff's motivation in seeking to join the additional parties; (2) the timeliness of the request, (3) the potential prejudice to the parties; and (4) the defendant's interest in a federal forum. Sanders v. U-Haul of Ariz. 20006 U.S. Dist. LEXIS 52143 (S.D. Ill.2006) (citing Perez v. Arcobaleno Past Machs., Inc., 261 F. Supp. 2d, 997, 1001 (N.D. Ill. 2003)). In the case at bar, the balance weighs against the plaintiff and her desire to amend this action.
First, the plaintiff has little motivation to join these additional parties, other than to destroy the Court's subject matter jurisdiction. Under applicable Illinois law, a principal is vicariously liable for the torts of its agent when the agent is acting within the scope of her employment. Payne v. Witmer, 129 Ill.2d 351 (Ill. 1989). In this vein, Poole and Morr, as agents of LA Weight Loss, would not be personally liable for any tort they may have performed while working within the scope of their employment. Although this certainly leaves open the possibility that Poole and Morr did not act within the scope of their employment, plaintiff makes no such averment in her Second Amended Complaint. ...