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Michael Nasca v. Swissport Cargo Services

December 8, 2011

MICHAEL NASCA, PLAINTIFF,
v.
SWISSPORT CARGO SERVICES, INC., AIR FRANCE CARGO SERVICE, AIR FRANCE CARGO, AIR FRANCE, AFL-CARGO, SKY TEAM CARGO, AND LAIRD TECHNOLOGIES, DEFENDANTS.



The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge:

MEMORANDUM OPINION AND ORDER

Before the Court is Plaintiff's Renewed Motion for Leave to File a Second Amended Complaint. For the following reasons, the Court grants Plaintiff's motion and remands this case to the Circuit Court of Cook County, Illinois.

BACKGROUND

On March 9, 2011, Plaintiff filed his First Amended Complaint against Defendants Swissport USA, Inc., Swissport Corporation, Swissport Cargo Services, Inc., Swissport Fueling Inc., Swissport CFE, Inc., Air France Cargo Service, Air France Cargo, Air France, AF-KL Cargo, Sky Team Cargo and Laird Technologies in the Circuit Court of Cook County, Law Division. (R. 1.1, State Court Complaint.) Count I of that Complaint alleges a negligence claim against the Swissport, Air France and Sky Team Defendants arising out of a forklift accident that occurred on or around February 4, 2009 at O'Hare airport. (Id.) Count II of that Complaint alleges a negligence claim against Laird Technologies related to an alleged slip and fall incident at 1743 West Wilkens, Schaumburg, Illinois on September 3, 2009.*fn1 (Id. at 5-7.)

On April 27, 2011, Defendants removed the case to federal court based on federal diversity jurisdiction pursuant to 28 U.S.C. § 1332(a)(1). (R. 1, Notice of Removal.) On May 4, 2011, Defendant Laird Technologies ("Laird") answered the Complaint and also filed a counterclaim against Defendants Swissport CFE, Inc., Swissport Cargo Services, LP, Swissport Corporation, Swissport Fueling, Inc., and Swissport USA, Inc. for contributory negligence. (R. 8 and 9.) On June 7, 2011, Swissport Cargo Services, LP filed an Amended Notice of Removal.

(R. 19.) On July 18, 2011, the Court entered an agreed order dismissing Swissport, USA, Inc., Swissport Corporation, Swissport Fueling, Inc., and Swissport CFE, Inc. (R. 20.)

On August 23, 2011, Plaintiff filed a one-page motion for leave to file a second amended Complaint. (R. 25.) Specifically, Plaintiff sought to amend the complaint to 1) join Wilkening Court, L.L.C. ("Wilkening"), the alleged owner of the premises where Plaintiff was injured on September 3, 2009, as a defendant in this matter; 2) properly name Swissport Cargo Services L.P. as a defendant instead of Swissport Cargo Services, Inc.; and 3) properly name Societe Air France as a defendant. (Id.) On August 26, 2011, Laird, the lessee of the property where Plaintiff was injured on September 3, 2009, filed a three-page objection and response to Plaintiff's motion, in which it argued that the Court should deny Plaintiff's request to join Wilkening because 1) Plaintiff's motion was vague and improper as certain portions of the motion and the proposed Second Amended Complaint sought to add Dock & Door National, LLC as a defendant instead of Wilkening; and 2) based on the lease between Laird and Wilkening, which contains an indemnification clause and provides that Laird had responsibility for maintenance of the premises, Plaintiff does not have a cause of action against Wilkening. (Id.) On October 11, 2011, the Court denied Plaintiff's Motion for Leave to File a Second Amended Complaint without prejudice because the parties failed to provide sufficient information to allow the Court to conduct the required analysis. (R. 31.)

On October 21, 2011, Plaintiff filed a Renewed Motion for Leave to File a Second Amended Complaint, along with his proposed Second Amended Complaint ("SAC"). (R. 32, 32-1.) Plaintiff seeks to name the correct defendants (Swissport Cargo Services L.P., Societe Air France and Laird Technologies, Inc.) and to join Wilkening as a defendant. (R. 32.) Plaintiff also seeks leave to amend the address of Plaintiff's September 3, 2009 injury to 1751 Wilkening Court, Schaumburg, Illinois, in order to correct a typographical error. (Id.)

LEGAL STANDARD

Complete diversity of citizenship is required for proper federal diversity jurisdiction, and a plaintiff may not join a non-diverse defendant simply to destroy diversity jurisdiction. Schur v. Weight Loss Ctrs., Inc., 577 F.3d 752, 758, 763 (7th Cir. 2009). District courts have discretion to permit or deny post-removal joinder of a non-diverse party, and they should balance the equities to make this determination. Id. at 759. In considering whether to allow a plaintiff to join a non-diverse defendant after removal to federal court, courts 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 relevant equitable considerations. Id. at 763, n.10.*fn2

"When joinder of a non-diverse party would destroy subject matter jurisdiction, 28 U.S.C. § 1447(e) applies and provides the district court two options: (1) deny joinder, or (2) permit joinder and remand the action to state court." Schur, 577 F.3d at 759 (citing 28 U.S.C. § 1447(e)). The court cannot permit joinder and retain jurisdiction. Id.

ANALYSIS

In his motion,Plaintiff seeks leave to join Wilkening, a non-diverse entity,*fn3 as a Defendant in this matter. Plaintiff's proposed SAC alleges that Wilkening is the owner, operator and manager of the property where Plaintiff was injured on September 3, 2009 (the "Property") and that Wilkening was negligent by failing to keep the loading dock on the Property in a reasonably safe condition. (SAC Count IV, ΒΆΒΆ 4-17.) Laird objects to Plaintiff's motion on three grounds: 1) Plaintiff's proposed SAC is futile and improper based on the fraudulent joinder ...


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