The opinion of the court was delivered by: Murphy, Chief District Judge
This matter is before the Court on the motion for remand to state court brought by Plaintiffs Debra Mills and James Mills (Doc. 12). The stay entered in this case on March 29, 2006, is LIFTED. The motion for remand is GRANTED and this action is REMANDED to the Circuit Court of the Third Judicial Circuit, Madison County, Illinois, pursuant to 28 U.S.C. § 1447(c).
Plaintiffs filed this action originally in the Madison County circuit court against Defendants Martin & Bayley, Inc., doing business as Huck's Convenience Store ("Huck's"), Brown & Williamson Tobacco Corporation ("B & W"), and R.J. Reynolds Tobacco Company ("R.J.R.") on November 12, 2004. In their initial complaint Plaintiffs alleged that Debra Mills smoked Kool Lights cigarettes manufactured by B & W and Doral Lights Menthol cigarettes manufactured by R.J.R. over a period of approximately twenty-four years and that, as a consequence, she developed lung cancer. Plaintiffs alleged that Debra Mills was induced to smoke the cigarettes through representations that they were "light" and contained less tar and nicotine than regular "full flavor" cigarettes, when in fact the cigarettes delivered higher levels of tar and nicotine to the user than did full flavor cigarettes. Huck's was alleged to have distributed the cigarettes. Plaintiffs asserted claims for violations of the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/1-505/12, breach of warranty, strict products liability, negligence, and loss of consortium. On December 8, 2004, Plaintiffs voluntarily dismissed B & W and R.J.R. from the action without prejudice. On December 7, 2005, Plaintiffs filed an amended complaint substantially identical to their initial complaint again naming B & W and R.J.R. as Defendants.
On December 19, 2005, B & W and R.J.R. removed the case from state court to this Court, asserting federal subject matter jurisdiction on the basis of 28 U.S.C. § 1331, 28 U.S.C. § 1332, and 28 U.S.C. § 1442. On January 18, 2006, Plaintiffs moved for remand of the case to state court. On February 17, 2006, B & W and R.J.R. filed a response to the motion for remand. On March 29, 2006, the Court entered an agreed stay of proceedings pending resolution by the United States Court of Appeals for the Seventh Circuit of an interlocutory appeal from an order denying remand in Kelly v. Martin & Bayley, Inc., Civil No. 05-409-DRH (S.D. Ill. filed June 9, 2005). The Seventh Circuit Court of Appeals now has rendered its decision in the Kelly appeal. See Kelly v. Martin & Bayley, Inc., No. 06-1756, 2007 WL 2710816 (7th Cir. Sept. 19, 2007). Accordingly, the Court sua sponte lifts the stay of these proceedings. As noted, Plaintiffs' motion for remand has been fully briefed, and, having reviewed carefully the submissions of the parties regarding remand, the Court rules as follows.
A defendant seeking removal bears the burden of establishing federal subject matter jurisdiction. See Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 540 (7th Cir. 2006); Lyerla v. Amco Ins. Co.,461 F. Supp. 2d 834, 835 (S.D. Ill. 2006). Federal removal jurisdiction is statutory in nature and is to be strictly construed. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941); Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993); Fuller v. BNSF Ry. Co., 472 F. Supp. 2d 1088, 1091 (S.D. Ill. 2007). Removal is proper if it is based on permissible statutory grounds and if it is timely. See Boyd v. Phoenix Funding Corp., 366 F.3d 524, 529 (7th Cir. 2004); Davis v. Rodriguez, No. 95 C 4584, 1995 WL 758333, at *2 (N.D. Ill. Dec. 19, 1995). Doubts concerning removal must be resolved in favor of remand to the state court. See Clevenger v. Eastman Chem. Co., No. 07-cv-148-DRH, 2007 WL 2458474, at *1 (S.D. Ill. Aug. 24, 2007); Littleton v. Shelter Ins. Co., No. 99-912-GPM, 2000 WL 356408, at *1 (S.D. Ill. Mar. 9, 2000).
B. Diversity Jurisdiction
A federal court may exercise jurisdiction over a case removed from state court in federal diversity jurisdiction only if all of the parties to an action are of completely diverse citizenship, that is, no plaintiff is a citizen of the same state as any defendant, and an amount in excess of $75,000, exclusive of interest and costs, is in controversy. See 28 U.S.C. § 1332(a); Carden v. Arkoma Assocs., 494 U.S. 185, 187 (1990) (citing Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806)); F. & H.R. Farman-Farmaian Consulting Eng'rs Firm v. Harza Eng'g Co., 882 F.2d 281, 284 (7th Cir. 1989); Johns v. Johns Mitchell, No. 06-924-GPM, 2007 WL 496391, at *2 (S.D. Ill. Feb. 13, 2007); Cassens v. Cassens, 430 F. Supp. 2d 830, 833 (S.D. Ill. 2006). In this case, although it appears from the record that an amount in excess of $75,000, exclusive of interest and costs, is in controversy, complete diversity of citizenship does not exist. Plaintiffs are citizens of Illinois, as is Huck's; B & W and R.J.R. are, respectively, citizens of Delaware and North Carolina. See 28 U.S.C. § 1332(c)(1).
B & W and R.J.R. contend that complete diversity of citizenship exists in this case because Huck's has been fraudulently joined to defeat diversity jurisdiction. 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); Hoosier Energy Rural Elec. Coop., Inc. v. Amoco Tax Leasing IV Corp., 34 F.3d 1310, 1315 (7th Cir. 1994); Smith v. Shipping Utils., Inc., No. Civ. 05-500-GPM, 2005 WL 3133494, at *1 (S.D. Ill. Nov. 23, 2005). 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). See also Hauck v. ConocoPhillips Co., Civil No. 06-135-GPM, 2006 WL 1596826, at *2 (S.D. Ill. June 6, 2006); Katonah v. USAir, Inc., 868 F. Supp. 1031, 1034 (N.D. Ill. 1994). 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). See also Bavone v. Eli Lilly & Co., Civil No. 06-153-GPM, 2006 WL 1096280, at *2 (S.D. Ill. Apr. 25, 2006); Durham v. Shiley Inc., No. 91 C 7999, 1994 WL 583351, at **2-3 (N.D. Ill. Oct. 21, 1994).
Before reaching any issues of fraudulent joinder, the Court must evaluate the timeliness of the removal of this case under 28 U.S.C. § 1446, which provides, in pertinent part,
The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.
If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of ...