United States District Court, S.D. Illinois
MICHAEL L. LAMBERT, Plaintiff,
WAL-MART STORES, INC., and DONNA THOMASON, Defendants.
MEMORANDUM & ORDER
DAVID R. HERNDON, District Judge.
Pending before the Court is plaintiff's motion to remand this action to the Circuit Court for the Twentieth Judicial Circuit, St. Clair County, Illinois, for lack of subject matter jurisdiction (Doc. 14). Plaintiff Michael L. Lambert argues that defendant Donna Thomason was properly joined and plaintiff is not seeking to fraudulently add Cheryl Deathrow as a defendant in its pending motion (Doc. 13). Defendants responded arguing that plaintiff fraudulently joined Thomason as a party to this suit to defeat diversity jurisdiction (Doc. 24). For the following reasons, the Court GRANTS plaintiff's motion to remand.
Plaintiff originally filed an action arising from the same operative facts as the instant case on August 22, 2014, in the Circuit Court of St. Clair County, Illinois (2-2). Plaintiff's initial complaint named Wal-Mart Stores, Inc., and Donna Thomason as defendants for injuries allegedly resulting from a fall in the Sparta, Illinois Wal-Mart, owned by defendant Wal-Mart Stores, Inc., which occurred on January 1, 2014 (Doc. 2-2).
On October 20, 2014, defendants removed this case to the United States District Court for the Southern District of Illinois asserting this Court has diversity jurisdiction under 28 U.S.C. § 1446 (Doc. 2). Defendants argued that plaintiff fraudulently joined Thomason as a party to this suit to defeat diversity jurisdiction. For purposes of 28 U.S.C. § 1332, defendant Thomason, as well as plaintiff, are citizens of the state of Illinois. Wal-Mart Stores, Inc., is a citizen of Delaware, the place of its incorporation, and is also a citizen of Arkansas, its principal place of business (Doc. 2). In support of removal, Thomason provided a sworn affidavit stating that she was not at the store at the time alleged fall and coupled with her duties, she did not owe a duty to plaintiff (Doc. 2-3). Thomason stated that she left the store at 5:00 p.m. on the date in question, roughly thirty minutes prior to the alleged fall.
On December 15, 2014, plaintiff filed a motion to remand (Doc. 14). In support of the motion, plaintiff argues that he and defendant Thomason are both Illinois citizens, and thus complete diversity does not exist. Defendants oppose remand, arguing plaintiff fraudulently joined Thomason to defeat federal diversity jurisdiction.
III. LAW AND APPLICATION
The removal statute, 28 U.S.C. § 1441, is construed narrowly, and doubts concerning removal are resolved in favor of remand. Doe v. Allied-Signal, Inc ., 985 F.2d 908, 911 (7th Cir. 1993). Defendants bear the burden to present evidence of federal jurisdiction once the existence of that jurisdiction is fairly cast into doubt. See In re Brand Name Prescription Drugs Antitrust Litig ., 123 F.3d 599, 607 (7th Cir. 1997). "A defendant meets this burden by supporting [its] allegations of jurisdiction with competent proof, ' which in [the Seventh Circuit] requires the defendant to offer evidence which proves to a reasonable probability that jurisdiction exists.'" Chase v. Shop N Save Warehouse Foods, Inc ., 110 F.3d 424, 427 (7th Cir. 1997)(citations omitted). However, if the district court lacks subject matter jurisdiction, the action must be remanded to state court pursuant to 28 U.S.C. § 1447(c).
The statute regarding diversity jurisdiction, 28 U.S.C. § 1332, requires complete diversity between the parties plus an amount in controversy exceeding $75, 000, exclusive of interest and costs. See 28 U.S.C. § 1332(a)(1); LM Ins. Corp. v. Spaulding Enters. Inc., 533 F.3d 542, 547 (7th Cir. 2008). Complete diversity means that "none of the parties on either side of the litigation may be a citizen of the state of which a party on the other side is a citizen." Howell v. Tribune Entertainment Co., 106 F.3d 215, 217 (7th Cir. 1997) (citations omitted). The monetary threshold is undisputed. The issue is whether complete diversity exists between the parties. Defendants assert that Thomason has been fraudulently joined.
b. Fraudulent Joinder
To establish fraudulent joinder, "there is no possibility that a plaintiff can state a cause of action against [the] non-diverse defendant[ ] in state court, or where there has been outright fraud in plaintiff's pleading of jurisdictional facts." Gottlieb v. Westin Hotel Co., 990 F.2d 323, 327 (7th Cir.1993). See also Hoosier Energy Rural Elec. Coop., Inc. v. Amoco Tax Leasing IV Corp., 34 F.3d 1310, 1315 (7th Cir.1994); Smith v. Merck & Co., 472 F.Supp.2d 1096, 1098 (S.D. Ill. 2007).The defendant bears a heavy burden in this regard. If the removing defendant establishes fraudulent joinder, "the federal district court considering removal may disregard, for jurisdictional purposes, the citizenship of certain non-diverse defendants, assume jurisdiction over a case, dismiss ...