The opinion of the court was delivered by: William D. Stiehl District Judge
Before the Court are plaintiff's motion to remand (Doc. 10), to which defendants have filed a response (Doc. 15), and defendant McFadden's motion to dismiss (Doc. 19), to which plaintiff has filed a response (Doc. 22).*fn1
Plaintiff, Robin M. Knebel, sustained injuries when she slipped and fell on water at defendant Wal-Mart's store in Highland, Illinois, on August 4, 2008. On that date, Andrew McFadden, the other named defendant in this case, was the assistant store manager of the Highland Wal-Mart store. On February 20, 2009, plaintiff filed suit in the Circuit Court for the Third Judicial Circuit in Madison County, Illinois (Doc. 2) against defendants Wal-Mart and McFadden. The complaint alleges that defendants each engaged in six (6) negligent acts that resulted in plaintiff's injuries.*fn2
Defendants removed this action to this Court pursuant to 28 U.S.C. §§ 1332, 1441, arguing that plaintiff, an Illinois resident, fraudulently joined defendant McFadden, also an Illinois resident, to defeat this Court's diversity jurisdiction. Defendants contend that defendant McFadden did not owe plaintiff a duty of care because he was not present on the day of plaintiff's injury and did not implement policy at the store. Therefore, defendants maintain that plaintiff's claims against defendant McFadden cannot succeed under Illinois law, that the Court should dismiss him from this action, and that this Court has jurisdiction over the removed action.
Plaintiff seeks remand because she and defendant McFadden are both citizens of the State of Illinois, thus destroying diversity of citizenship for the purposes of federal jurisdiction. Defendants argue that plaintiff fraudulently joined defendant McFadden in an attempt to undermine this Court's jurisdiction.
The party seeking removal has the burden of establishing federal jurisdiction. See In re Brand Name Prescription Drugs Antitrust Litig., 123 F.3d 599, 607 (7th Cir. 1997). "'Courts should interpret the removal statute narrowly and presume that the plaintiff may choose his or her forum.' Put another way, there is a strong presumption in favor of remand." Fuller v. BNSF Ry. Co., 472 F. Supp. 2d 1088, 1091 (S.D. Ill. 2007) (quoting Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993)). Removal based on federal diversity jurisdiction requires that the parties be of completely diverse citizenship and that the amount in controversy exceed $75,000. See 28 U.S.C. § 1332(a)(1); Carden v. Arkoma Assocs., 494 U.S. 185, 187 (1990); Rubel v. Pfizer Inc., 361 F.3d 1016, 1017 (7th Cir. 2004).*fn3
Even when the parties to a suit are not completely diverse, a federal court may disregard a diversity-defeating defendant's citizenship on removal when that defendant has been fraudulently joined. Fed. R. Civ. P. 21; See Schwartz v. State Farm Mut. Auto. Ins. Co., 174 F.3d 875, 878 (7th Cir. 1999). "When speaking of jurisdiction, 'fraudulent' is a term of art . . . in most cases fraudulent joinder involves a claim against an in-state defendant that simply has no chance of success, whatever the plaintiff's motives." Poulous v. Naas Foods, Inc., 959 F.2d 69, 73 (7th Cir. 1992). To succeed on a claim of fraudulent joinder, "the movant must show that there is no possibility that plaintiff could establish a cause of action against the resident defendant in state court." S.A. Auto Lube, Inc. v. Jiffy Lube Int'l Inc., 842 F.2d 946, 950 (7th Cir. 1988).
Having determined that the requirements for federal diversity jurisdiction have been met, the Court must resolve the fraudulent joinder issue. Without deciding the merits of the case, the Court must evaluate plaintiff's claims using an inquiry akin to that used on a motion brought under Fed. R. Civ. P. 12(b)(6), where the Court looks "initially at the allegations of the complaint to determine whether the complaint states a claim under state law against the in-state defendant . . . ." Hill v. Olin Corp., 2007 WL 1431865 *4 (S.D. Ill. May 14, 2007) (citation omitted). The fraudulent joinder test is more lenient than the Rule 12(b)(6) analysis because "a federal court is required to interpret both law and fact in the light most favorable to a plaintiff." Id. Any doubts arising over jurisdiction should be resolved in favor of remand. Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 2003) (citation omitted).
The Court must first determine whether plaintiff can properly bring his claims of negligence against defendant McFadden. The complaint (Doc. 2) seeks recovery against McFadden for damages resulting from six (6) allegedly negligent acts.*fn4 Defendant McFadden submitted an affidavit stating that he could not have committed many of those alleged negligent acts because he was not present on the date of the alleged incident (Doc. 4). He also maintains that, as an assistant ...