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Donna Hayes-Murphy, Individually and As Administrator of the Estate v. Nitza D. Gonzalez

December 18, 2012

DONNA HAYES-MURPHY, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF RYAN MICHAEL MURPHY, DECEASED, PLAINTIFF,
v.
NITZA D. GONZALEZ, JOSE ANGEL GARAY, INC., RICHARD A. GONZALEZ, GENERAL ELECTRIC CAPITAL CORP., AND JETLAND LOGIC FREIGHTERS CO., DEFENDANTS.



The opinion of the court was delivered by: Judge Marvin E. Aspen

MEMORANDUM OPINION AND ORDER

MARVIN E. ASPEN, District Court Judge:

Plaintiff Donna Hayes-Murphy ("Plaintiff") filed a complaint in the Circuit Court of Cook County alleging negligence and wrongful death after her son died in an accident involving two tractor trailers. Three of the five defendants removed the case to this court on the basis of diversity jurisdiction under 28 U.S.C. § 1332. Presently before us is Plaintiff's motion to remand. For the reasons set forth below, we grant the motion and award costs to Plaintiffs.

BACKGROUND

On June 8, 2010, Nitza Gonzalez ("Nitza") was driving a commercial tractor trailer on Interstate 91 near North Haven, Connecticut when the vehicle ran out of gas. (Compl. ¶ 8.) Nitza pulled over to the side of the interstate and allegedly failed to put out any warning cones, activate the vehicle's flashers, or take any other steps to alert other drivers of the presence of the disabled tractor trailer. (Id. ¶ 9.) Nitza contacted Travel Centers of America, who sent out their roadside assistant Ryan Michael Murphy ("Ryan Michael"), Plaintiff's decedent. (Id. ¶ 10.) While Ryan Michael was refueling Nitza's tractor trailer another commercial vehicle crashed into it, resulting in fatal injuries to Ryan Michael. (Id.)

The complaint alleged that Defendants Nitza, Richard Gonzalez ("Richard"), Jose Angel Garay, Inc. ("Garay"), Jetland Logic Freighters, Co. ("Jetland"), and General Electric Capital Corp. ("GE") (collectively "Defendants") owned, operated, leased, maintained, or controlled the tractor trailer involved in the accident. (Compl. ¶ 5.) Defendants Richard, Nitza, and Jetland filed a notice of removal. (Dkt. No. 1.) The three removing defendants claimed that this court has jurisdiction under 28 U.S.C. § 1332, based on the following allegations: (1) Jetland is a citizen of Florida (Not. ¶ 3); (2) Nitza and Richard are "individuals who reside within the State of Florida" (Id. ¶ 4); and (3) "Plaintiff has failed to plead the basis for naming [GE] and [Garay] as Defendants in the Circuit Court case" (Id. ¶ 5).

Plaintiff moved to remand, pointing to a number of alleged deficiencies in the notice of removal. (Mem. at 1--4.) She states that she and GE are both citizens of Connecticut for the purposes of jurisdiction, so complete diversity is lacking. (Id. at 1--2.) She argues that Defendants cannot meet their burden of showing that GE was fraudulently joined, because of her allegations that GE owned or controlled the tractor trailer and that the negligence of GE's agents or employees caused the accident. (Id. at 2--3.) She further argues the notice of removal is deficient because (1) it is untimely; (2) it alleges that Nitza is a resident, rather than a citizen, of Florida; and (3) it fails to address Garay's allegedly deliberate avoidance of service. (Id. at 4.)

Finally, Plaintiff points out that all properly-served defendants must join in the removal or consent to it, but GE did neither. (Id.)

Defendants responded that GE "merely owned the trailer," and had leased it "to some other entity" at the time of the accident. (Resp. at 1.) Therefore, Defendants argue, the court should disregard GE's Connecticut citizenship, because there is "no allegation of negligence or defect involving the trailer or the lease." (Id. at 2.) Defendants further claim that Nitza is a citizen of Florida and argue that the removal was timely because Nitza had not been served when Defendants filed the notice. (Id.) Finally, they claim no knowledge of the existence or citizenship of Garay, and contend that its alleged attempts to avoid service have no bearing on the validity of the removal. (Id.)

After briefing on the motion to remand was complete, Defendants moved to supplement the record with an invoice and bill of sale purporting to show that GE had sold the tractor trailer before the accident occurred. (Dkt. No. 28.) We granted the motion and Plaintiff responded with records from the Illinois Secretary of State Vehicle Services Department indicating that GE owned the tractor trailer during the relevant time period. (Dkt. No. 31.)

STANDARD OF REVIEW

A defendant may remove an action to federal court "when a plaintiff files suit in state court but could have invoked the original jurisdiction of the federal courts." Schur v. L.A. Weight Loss Centers, Inc., 577 F.3d 752, 758 (7th Cir. 2009); 28 U.S.C. § 1441(a). A defendant seeking removal on the basis of federal diversity jurisdiction "bears the burden of demonstrating that the complete diversity and amount in controversy requirements were met at the time of removal." Tylka v. Gerber Prods. Co., 211 F.3d 445, 448 (7th Cir. 2000); Halperin v. Merck, Sharpe & Dohme Corp., No. 11 C 9076, 2012 WL 1204728, at *1 (N.D. Ill. April 10, 2012). The federal courts "should interpret the removal statute narrowly, resolving any doubt in favor of the plaintiff's choice of forum in state court." Schur, 577 F.3d at 758; Doe v. Allied-Signal Inc., 985 F.2d 908, 911 (7th Cir. 1993) ("Any doubt regarding diversity jurisdiction should be resolved in favor of the states.").

ANALYSIS

I. Fraudulent ...


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