The opinion of the court was delivered by: Honorable Edmond E. Chang
MEMORANDUM OPINION AND ORDER
Defendant Ford Motor Company, with the consent of the other then-pending defendants, removed this personal injury case from state court, invoking diversity jurisdiction. Plaintiffs wish to return to state court and have moved to remand, R. 15, arguing that diversity jurisdiction does not apply because of the presence of a non-diverse defendant at the time of the complaint's filing in state court. After reviewing the parties' submissions, the Court denies the motion to remand because, at least based on the current record, there is no reasonable possibility that the non-diverse defendant will return to the case.
In January 2010, Pierre Steel and Demarco Whitley were in a car accident which resulted in the death of Steel and injuries to Whitley. R. 15, Exh. A (Compl.) ¶¶ 15-16, 19. The complaint alleges that the front and side air-bags did not deploy. Id. ¶ 18. In Illinois state court, Steel's mother and Whitley sued the maker of the car, Ford Motor Company, as well as the manufacturer of the air-bag "modules," TK Holdings, Inc. (also known as Takata), and the manufacturer of the "sensor assemblies" and the "restraints control module," Autoliv ASP, Inc. Id. ¶¶ 6-8. Plaintiffs also sued the local car dealership that sold the car, Al Piemonte Ford Sales. Id. ¶¶ 9, 14.
Ford removed the case to federal court. The notice of removal alleged that Plaintiffs are Illinois citizens and specified the citizenships of Ford, Takata, and Autoliv, none of which are Illinois citizens. R. 1 ¶¶ 3-6.*fn1 The notice did acknowledge, however, that the principal place of business of Piemonte Ford (the local car dealership) was located in Illinois. Id. ¶ 7.
In light of Piemonte Ford's initial presence in the state-court complaint, Plaintiffs moved to remand, arguing that removability must be examined not only at the time of removal, but also at the time of the complaint's filing. See Thomas v. Guardsmark, Inc., 381 F.3d 701, 704 (7th Cir. 2004) (diversity must exist at both times); see also Wright & Miller, Federal Practice & Procedure § 3723 at 696 (4th ed. 2009). Ford contends that Piemonte Ford, like a jurisdictional null set, must be disregarded for purposes of determining diversity jurisdiction because Plaintiffs voluntarily dismissed Piemonte Ford. Whether the dismissal was voluntary or involuntary is important because if a non-diverse defendant was voluntarily dismissed from a state-court complaint, then the case is thereafter "removable," as that term is used in 28 U.S.C. § 1446(b), to federal court after the order dismissing the non-diverse defendant. Poulos v. Naas Foods, 959 F.2d 69, 72 (7th Cir. 1992). But if the dismissal was involuntary, then the case is not, absent some other route, removable. Id.
Poulos explained the rationale for the distinction: federal courts fear that an involuntary dismissal "may be only temporary: the plaintiff may appeal the dismissal in state court, and success on appeal would lead to reinstatement of the non-diverse party, destroying federal jurisdiction and compelling remand to the state court." Id. at 72. (Denying joinder in that situation is a possibility, 28 U.S.C. § 1447(e), but could result in splitting claims and defendants that should otherwise be joined across the federal and state court systems.) In addition to avoiding the "yo-yo effect" of remanding a case to federal court after the re-appearance of a non-diverse defendant, the voluntary-involuntary distinction also is consistent with the general deference given to a plaintiff's choice of forum. Poulos, 969 F.2d at 72. The Seventh Circuit noted that there is some tension between forum-choice deference and the apparent purpose of removal, namely, to allow a defendant "to escape the plaintiff's hometown forum," but the deference was consistent with the "general desire to limit federal jurisdiction." Id.
Here, Ford argues that the dismissal of the local car dealership, Piemonte Ford, was voluntary because Plaintiffs did not object to Piemonte Ford's motion to dismiss and did not appeal the dismissal. To understand this issue, it is necessary to examine the statute that Piemonte Ford invoked to win the dismissal. In an Illinois product liability action, a defendant that did not manufacture the product may file an affidavit certifying the correct identity of the manufacturer. 735 ILCS 5/2-621(a). Once the plaintiff has sued the manufacturer and the manufacturer is ordered to answer or otherwise plead, then the court "shall" order the dismissal of the certifying defendant. § 2-621(b). The exceptions to dismissal are based on some level of culpability on the certifying defendant's part:
(c) A court shall not enter a dismissal order relative to any certifying defendant . . . other than the manufacturer even though full compliance with subsection
(a) of this Section has been made where the plaintiff can show one or more of the following:
(1) That the defendant has exercised some significant control over the design or manufacture of the product, or has provided instructions or warnings to the manufacturer relative to the alleged defect in the product which caused the injury, death or damage; or
(2) That the defendant had actual knowledge of the defect in the product which caused the ...