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In the United States District Court Pauline Lester Washington v. Wal Mart Stores

FOR THE SOUTHERN DISTRICT OF ILLINOIS


October 7, 2011

IN THE UNITED STATES DISTRICT COURT PAULINE LESTER WASHINGTON, PLAINTIFF,
v.
WAL MART STORES, INC., AND DAVID W. ROPER, DEFENDANTS.

The opinion of the court was delivered by: Reagan, District Judge:

MEMORANDUM and ORDER

A. Factual and Procedural Background

Clair County, Illinois against

In May 2011, Pauline Lester-Washington filed suit in the Circuit Court of St. claimed that she was Wal up a broken bottle and its contents in the liquor aisle at the store. injured when she was -Mart Stores, Inc., and David W. Roper. caused to fall where Defendants failed to clean Lester-Washington She claimed that her injuries proximately resulted from Defendants' negligence ( warn, etc.).

e.g., failure to inspect, failure to

The state court complaint sought damages over $50,000 action to this United States District Court on Served with the complaint on June 8, 2011 June 29, 2011

, Defendants on each of two counts.

, invoking subject matter timely removed the jurisdiction under the federal diversity statute, 28 U.S.C. jurisdiction if the lawsuit is between "citizens controversy is over $75,000, exclusive of interest and costs. of different States" and the amount in § 1332. Section 1332 supplies

Hukic v. Aurora Loan Services, 588 F.3d 420, 427 (7th Cir. 2009), citing 28 U.S.C. 1332.

The parties do not diversity of citizenship jurisdictional minimum is met. Defendants dispute that the amount in controversy is satisfied, and the Court However, finds that the dispute the presence of complete , and the record removal notice, Illinois citizen and that Wal Defendants' does not establish that -Mart is a citizen of Delaware, its state of incorporation they alleged that Lester this requirement is met. -Washington is an

In Arkansas, the location of its principal place of business. Washington, Roper is a Lester , and

citizen of Illinois, fraudulently joined which, if correct, Like that Roper was for this very purpose. would defeat diversity, but Defendants complete judgment on Count 2, the sole Count against him, asserting that he Defendant Roper moves to dismiss assert or, in the alternative, for summary Lester incident and is improperly named as a defendant in this lawsuit manager of the store at the time of -Washington's fall, had no involvement in the was no longer the Washington that Roper is properly joined and moves for remand of the case for

(Docs. 5, 6). -

Lester

lack of subject matter jurisdiction contends issue, and t

Court framed the issue, "dismiss[ing] the party whose citizenship was alleged to he Court's decision on either is a decision on both. Or, as the United States (Doc. 18). Essentially, the motions address the same supply the requisite diversity, Supreme being remanded for lack of jurisdiction. finding that party's joinder improper," will result in th e case Osborn v. Haley, 549 U.S. 225, 266 ( 2007)

B.

(citations omitted)

Analysis Where diversity of citizenship is not complete, a federal court may disregard been fraudulently joined, that is, "there is no possibility that a plaintiff can state a caus the citizenship of a diversity-defeating defendant on removal when that defendant has e of action against [the] nondiverse defendant . in state court, or where there has been Elec. Coop., Inc. v. Amoco Tax Leasing IV Corp., outright fraud in [the] plaintiff's pleading of jurisdictional facts."

Hoosier Energy Rural

34 F.3d 1310, 1315 (7th Cir. 1994); removal based on alleged fraudulent joinder has the "heavy" burden of proving that, after Smith v. Merck & Co., 472 F.Supp.2d 1096, 1098 (S.D.Ill. 2007)

. A defendant seeking the court resolves all issues of law and fact in the plaintiff's favor, plaintiff can establish a cause of action against a diversity there is no possibility the court.

-defeating defendant in a state Once the question of lack of jurisdiction is raised by a party, Poulos v. Naas 959 F.2d 69, 73 (7th Cir. Foods, Inc., 1992). party must be given an opportunity to be heard before dismissal is ordered. the opposing Frey v.

E.P.A., 270 F.3d 1129, 1132 (7th Cir. 2001) (the district court should allow amendment of the complaint, argument on the jurisdictional issue, or an for Seventh Circuit did not suggest that a district court must "conduct an inquest on discovery to establish jurisdiction . While the United States C

jurisdiction, jurisdiction," it reasoned that if certain facts "fairly shriek that t the district judge must conduct whatever supplementary factual proceedings here is no federal are necessary to resolve the doubt. court of Appeals for the opportunity" Kanzelberger v. Kanzelberger, 782 F.2d 774, 777 (7th Cir. Roper's 1986)

motion to dismiss is a factual attack upon the jurisdictional submitted on the issue, such as affidavits and deposition testimony allegations of the complaint. In deciding this motion, the Court may review any evidence whether it has the power to hear the case.

determine (7th Cir. 1982) (citations omitted); Parkside

, in order to

Western Transp. Co. v. Couzens Warehouse &

Distributors, Inc., 695 F.2d 1033, 1038

Medical Services Corp. v. Lincoln West Hosp., Inc. , 1989 WL 75430, at *1 (N.D.Ill. 1989), quoting Majd--Pour v. Georgianna Comm. Hosp., Inc., 724 F.2d 901, 903 (11th Cir. 1984) ("reasonable discovery for purposes of demonstrating that jurisdiction does exist should be allowed, and . failure to permit such discovery would be treated as alleging federal reversible error jurisdiction ") (emphasis ad ded in Parkside their allegation with competent proof of .

Defendants, as the parties Consistent with these principles, t jurisdictional facts.

, must support

memorandum of law, Doc. 17, p. 4, and may be expanded upon as discovery dictates. should be addressed are raised in Lester he will allow discovery to resolve the -Washington's Western Transp., 695 F.2d at 1038 (citations omitted) jurisdictional issue. Questions that Court the questions relevant to this Court's outside the scope of Among remained in effect and which employment and implemented determination are (1) whether acted Roper departure which his whether the aisle where the injury occurred had similar problems prior to the date in contrary to Wal-Mart policies and (2) negligent question, were improper procedures prior to his and that remained effective after he and Roper made decisions on proper and adequate inspection that were Defendants may offer evidence to show that Roper merely effectuated Wal left his position at the store. In other words, and had no individual duty to Lester-Washington, and Lester -Mart's policies evidence to show that Roper's own acts were negligent and - offer Washington may duty to her. Chemical Co., The Court will then weigh the evidence that he is not relieved of his United Phosphorus, Ltd. v. Angus

C. Conclusion

322 F.3d 942, 946( 7th Cir. 2003) to pursue reasonable For the foregoing reasons, the subject matter jurisdiction discovery to resolve Court issues fundamental to

ORDERS

that the parties are permitted parties shall file lies. Discovery on the merits of the case determining whether briefs with supporting documentation by is not The jurisdictional allowed. , November 18

IT IS SO ORDERED.

MICHAEL J. REAGAN United States District Judge

20111007

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