The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge
MEMORANDUM OPINION AND ORDER
On November 4, 2010, plaintiffs filed two complaints in state court asserting claims against, among others, defendants General Electric Company, GE Aviation Systems, LLC (together the "GE Defendants"), Honeywell International Inc. ("Honeywell"), Garrett Aviation Services, LLC, d/b/a Standard Aero ("Garrett"), MPC Products Corp. d/b/a Woodward MPC Co. ("MPC"), and Woodward Governor Co. ("Woodward") for injuries arising out of an airplane crash in Mexico on November 4, 2008.*fn1 On November 7, 2010 (and prior to any defendant being served), the GE Defendants removed the cases to federal court pursuant to 28 U.S.C. §§ 1332 and 1441. Currently before the court are plaintiffs' motions to remand and motions for leave to file amended complaints in both cases. In these motions, plaintiffs ask me to remand the cases for two reasons: (1) because of the "forum defendant rule"; and/or
(2) because the addition of a foreign defendant in their proposed amended complaints would destroy diversity. For the reasons given below, I grant plaintiffs' motions to amend their complaints. As a result, remand in both cases is necessary.*fn2
A bit of background is necessary to understand the parties' arguments regarding amendment of the complaints. In addition to the two cases before me, there is a third case, Bjorkstam, et al. v. Learjet, Inc., et al., which is pending*fn3 in the Circuit Court of Cook County. The Bjorkstam case, which also centers on the November 4, 2008 airplane crash, is apparently a bit older than the two cases before me, and the Bjorkstam plaintiffs are represented by the same counsel as the plaintiffs in the two cases before me. In Bjorkstam, plaintiffs sued, among others, GE and GE Aviation Systems, LLC. For a certain amount of time, GE Aviation Systems, LLC participated in the Bjorkstam case as a defendant, despite the fact that GE, in answering the complaint, stated that it was not sure which of its affiliates actually manufactured the allegedly defective "spoiler actuator" at issue in the case.*fn4 It is not clear how long the Bjorkstam case has gone on, but clearly long enough for the GE Defendants to answer the complaint and participate in discovery and briefing related to a motion to dismiss based on forum non conveniens. In a footnote in a reply brief to the motion to dismiss based on forum non conveniens, the GE Defendants in the Bjorkstam case stated that the spoiler actuator was not made by defendant GE Aviation Systems, LLC, a U.S. limited liability company, but rather by another General Electric entity, GE Aviation Systems Limited, which is incorporated in, and has its principal place of business in, the United Kingdom. This reply brief in Bjorkstam was filed three weeks prior to the filing of the complaints in the cases before me. The plaintiffs in the instant cases originally named GE Aviation Systems, LLC as a defendant, and now seek to file amended complaints substituting GE Aviation Systems Limited for GE Aviation Systems, LLC. Given that the plaintiffs filed their complaints exactly two years after the airplane crash, all parties recognize that the applicable two-year statute of limitations has run. All parties also agree that allowing plaintiffs to file these amended complaints would defeat diversity and mandate remand of the cases back to state court.
Turning to the arguments made in support of amendment, plaintiffs assert that: (1) substituting GE Aviation Systems Limited for GE Aviation Systems, LLC should be allowed as the correction of a "misnomer" under Illinois law; (2) even if not a misnomer, the addition of GE Aviation Systems Limited would relate back to the filing of the original complaint and thus be timely; and (3) the court-imposed requirements of 28 U.S.C. § 1447(e) are met here. Opposing any amendments as futile, defendants argue that the amendments would not merely correct a "misnomer," and should be deemed untimely as the amended complaints do not relate back to the original complaints. Finally, they argue that the requirements of § 1447(e) are not satisfied.
First, I conclude that changing "GE Aviation Systems, LLC" to "GE Aviation Systems Limited" would not merely correct a misnomer under Illinois law. Under Illinois law, "[m]isnomer of a party is not a ground for dismissal but the name of any party may be corrected at any time. . . ." 735 ILCS 5/2-401(b). However, this rule is a "narrow one" and Illinois courts have "consistently distinguished the misnomer rule from rules applicable to mistake in identity." Barbour v. Fred Berglund & Sons, Inc., 567 N.E.2d 509, 511-12 (Ill. App. Ct. 1990). "A misnomer occurs where the plaintiff brings an action and serves summons upon the party intended to be made the defendant, thus giving actual notice of the lawsuit to the real party in interest, but the process and complaint do not refer to the person by his correct name. Mistaken identity, on the other hand, occurs when the wrong person is named and served." Shaifer v. Folino, 650 N.E.2d 594, 597 (Ill. App. Ct. 1995) (citations omitted). "In distinguishing cases involving mere misnomer from those involving mistaken identity, Illinois courts have consistently held that whom the plaintiff intended to sue is the pivotal inquiry." Arendt v. Vetta Sports, Inc., 99 F.3d 231, 234 (7th Cir. 1996). "Illinois courts have found that 'the most probative evidence of whom a plaintiff intended to sue is the party named by the plaintiff in the complaint. If such party in fact exists, but is not the real party in interest, a court can conclude that the plaintiff has mistakenly sued the wrong party.'" Id. (quoting Clinton v. Avello, 434 N.E.2d 355, 356 (Ill. App. Ct. 1982)).
Applying this guidance to the facts of these cases, there was no misnomer. Plaintiffs mistakenly sued GE Aviation Systems, LLC, believing it to be the entity that manufactured the allegedly defective part. As they now know, the actual manufacturer was another GE entity, GE Aviation Systems Limited. Had service been completed, plaintiffs would have served GE Aviation Services, LLC, not GE Aviation Services Limited. Plaintiffs did not, as they claim, sue the correct entity just under the wrong name. Nor did they merely misspell the defendant's name. Plaintiffs, in fact, mistakenly sued the wrong corporate entity. Because GE Aviation Systems, LLC is an existing corporate entity there is no misnomer here. See Arendt, 99 F.3d at 234.*fn5
Turning then to whether or not the amended complaints relate back to the timely-filed original complaints, I note that the Illinois and federal relation-back rules are the same. See Springman v. AIG Marketing, Inc., 523 F.3d 685, 688 (7th Cir. 2008). A claim against a new party does not relate back unless the claim arises out of the same conduct, transaction, or occurrence as the act that served as the basis for the original claim. Fed. R. Civ. P. 15(c)(1)(B). Further, both rules provide that "a party may be changed if, within the deadline for service of the complaint on it, (1) the new party had received enough notice of the original suit that it would not be 'prejudiced in maintaining a defense on the merits' if it were brought into the case belatedly, and (2) it 'knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against' it." Springman, 523 F.3d at 688 (quoting 735 ILCS 5/2-616(d)(2) and Fed. R. Civ. P. 15(c)(1)(C)).
Plaintiffs argue that all of the requirements of relation back are met. In response, defendants' only argument*fn6 is that there was no "mistake" here, asserting that the GE Defendants "clearly and unambiguously informed" the plaintiffs that they had sued the wrong entity. Defendants overstate their position. The statement that GE Aviation Systems, LLC was not the manufacturer of the allegedly defective part was in a footnote in a reply brief in a separate case (with a different set of plaintiffs). Therefore, the GE Defendants notified the Bjorkstam plaintiffs, but there is no evidence that they notified the plaintiffs in the cases before me. While I acknowledge that these groups of plaintiffs had the same counsel, I do not conclude that this means that plaintiffs could not, nonetheless, have been mistaken when they included GE Aviation Systems, LLC. Defendants speculate that plaintiffs made a deliberate strategic choice to omit GE Aviation Systems Limited "to strengthen their forum non conveniens argument." Defs.' Resp. To Mot. to Amend at 8, n. 10. Defendants provide no explanation of this theory, and do not even identify what other forum (Texas, Mexico, or somewhere else) is arguably at play here. Given the importance of GE Aviation Systems Limited as the party responsible for the allegedly defective part which caused the airplane to crash, the most logical explanation is that plaintiffs made a mistake in naming GE Aviation Systems, LLC instead of GE Aviation Systems Limited. The amended complaints relate back to the original complaints and thus are timely.
The parties agree that the addition of GE Aviation Services Limited, a UK company, would defeat diversity. See Salton, Inc. v. Philips Domestic Appliances and Personal Care B.V., 391 F.3d 871, 875 (7th Cir. 2004) ("[T]here is no diversity jurisdiction over a case in which there are foreign parties on both sides of the suit and a U.S. citizen on only one side."). Thus, the final issue is whether the amendments are proper under 28 U.S.C. § 1447(e). Section 1447(e) governs amendments that would destroy diversity in a post-removal case, and provides that "[i]f after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the State court." 28 U.S.C. § 1447(e). Thus, although permitting the joinder is discretionary, once the court has done so, it must remand the case to the state court. See Kortum v. Raffles Holdings Ltd., No. 01 C 9236, 2002 WL 31455994, at *3 (N.D. Ill. Oct. 30, 2002).
In Schur v. L.A. Weight Loss Centers, Inc., 577 F.3d 752, 759 (7th Cir. 2009), the Seventh Circuit articulated a framework for determining whether post-removal joinder of a non-diverse party is appropriate. I must consider the following factors: "(1) the plaintiff's motive for seeking joinder, particularly whether the purpose is to defeat federal jurisdiction; (2) the timeliness of the request to amend; (3) whether the plaintiff will be significantly injured if joinder is not allowed; and (4) any other equitable considerations." Id.
Defendants argue that the first factor - plaintiffs' motivation for joining GE Aviation Systems Limited - weighs against removal, pointing to the fact, as noted above, that three weeks before plaintiffs filed their complaints the GE Defendants stated in a footnote in a reply brief in the Bjorkstam case that GE Aviation Systems Limited (and not GE Aviation Systems, LLC) was the actual manufacturer of the allegedly defective part. Defendants state that plaintiffs purposely did not include GE Aviation Systems Limited as a defendant in these actions to strengthen a future forum non conveniens argument. In addition, defendants point to a report issued by Mexican authorities to argue that the spoiler actuator did not, in fact, cause the airplane to crash. Defendants seek to rely on the findings in this report to argue that GE Aviation Services Limited is not a proper defendant, and is only being included in these cases to defeat this court's federal jurisdiction.
Having considered defendants' arguments, I do not see strong evidence of gamesmanship here. First, I decline to delve into the factual and legal issues raised by the Mexican report. It would be premature at this stage to engage in what is sure to be a highly disputed inquiry. Further, I find defendants' arguments concerning plaintiffs' alleged motives to be based on speculation. As I explained earlier, defendants do not explain how having an Connecticut defendant (GE Aviation Systems, LLC) over a UK defendant (GE Aviation Systems Limited) would impact a forum non conveniens analysis, nor do they even identify which alternate forum is at issue.
Given the importance of GE Aviation Systems Limited as the manufacturer of the allegedly defective part, the most logical explanation is that plaintiffs made a mistake in naming GE Aviation Systems, LLC instead of GE Aviation Systems Limited. When plaintiffs realized their mistake, they sought leave to file complaints*fn7 in both cases. Defendants have failed to convince ...