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Likens v. Menard, Inc.

United States District Court, N.D. Illinois, Eastern Division

June 26, 2015



JOAN H. LEFKOW, District Judge.

Daniel Likens filed suit against Menard, Inc. d/b/a Menards ("Menards") and an unknown Menards employee for negligence in the Circuit Court of Will County, Illinois on April 2, 2015. (Dkt. 1-1 ("Compl.").) Menards removed the suit to this court the following day. (Dkt. 1.) Likens has moved to remand the case to state court. (Dkt. 9.) For the reasons stated below, Likens's motion is granted.


Likens visited the Menards facility in Plainfield, Illinois on February 22, 2015. (Compl. ¶ 2.) There, he entered into an agreement with Menards to rent a MK-VTS/50 floor scraper. ( Id. ¶ 6.) Menards assembled the scraper, complete with counterweight and blade, and directed an employee to transport the scraper to Likens's car. ( Id. ¶¶ 7-8.) The employee, however, failed to remove the counterweight and blade from the scraper before doing so. ( Id. ¶ 10.) Then, the employee dropped the scraper on Likens's hand, causing severe injury. ( Id. ¶ 11.)

Likens filed suit against Menards and the unknown Menards employee in the Circuit Court of Will County, Illinois on April 2, 2015. ( See generally id. ) Likens also named MK Diamond Products, Inc., the manufacturer of the scraper, as a respondent in discovery. ( Id. ) Likens brought separate claims for negligence against Menards and the unknown employee. ( Id. )

Menards removed the action to this court on April 3, 2015. (Dkt. 1.) The notice of removal provides that the court has subject-matter jurisdiction under 28 U.S.C. § 1332(a)(1) because the parties are of diverse citizenship and the amount in controversy exceeds $75, 000. ( Id. ¶ 1.) Specifically, the notice states that Menards is a Wisconsin corporation with its principal place of business in Wisconsin and that Likens is a citizen of Illinois. ( Id. ¶¶ 9, 10.) Likens does not dispute his citizenship or that of Menards, or that the amount-in-controversy requirement is satisfied.

Likens, however, has filed a motion to remand this action to state court. (Dkt. 9.) Likens argues that the court lacks subject-matter jurisdiction because the unknown employee is, like Likens, a citizen of Illinois, thereby destroying complete diversity. ( Id. ) Menards does not dispute that the employee is an Illinois citizen. Instead, it argues (1) that the citizenship of defendants sued under fictitious names must be disregarded for purposes of diversity, and (2) that, in any event, the unknown employee must be dismissed from the case under Federal Rule of Civil Procedure 21 because Likens's naming of the unknown employee "is nothing more than a calculated and inappropriate attempt to deny [Menards] its right to remove cases." (Dkt. 13 ¶ 12.)


Under 28 U.S.C. § 1441(a), a defendant may remove a case from state court to federal court if the district court would have original subject-matter jurisdiction over the action. Disher v. Citigroup Global Mkts. Inc., 419 F.3d 649, 653 (7th Cir. 2005), vacated and remanded on other grounds, 548 U.S. 901, 126 S.Ct. 2964, 165 L.Ed.2d 947 (2006). The party seeking to invoke federal jurisdiction bears the burden of proof to show that removal is proper. Boyd v. Phoenix Funding Corp., 366 F.3d 524, 529 (7th Cir. 2004). "Courts should interpret the removal statute narrowly and presume that the plaintiff may choose his or her forum, " and "[a]ny doubt regarding jurisdiction should be resolved in favor" of remand. Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993) (citations omitted).


Federal district courts have original jurisdiction over all civil actions between citizens of different states where the matter in controversy exceeds $75, 000. 28 U.S.C. § 1332(a)(1). When suing multiple defendants in a diversity action, a plaintiff "must meet the requirements of the diversity statute for each defendant or face dismissal." Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 829, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989) (emphasis omitted) (citation omitted). The parties do not dispute that if the unknown employee's Illinois citizenship is considered, complete diversity is lacking and the case must be remanded. Instead, Menards raises two arguments as to why the court should disregard the employee's citizenship.

Menards first argues that the citizenship of the unknown employee should be ignored under 28 U.S.C. § 1441(b)(1). That section provides, "In determining whether a civil action is removable on the basis of the jurisdiction under section 1332(a) of this title, the citizenship of defendants sued under fictitious names shall be disregarded." Nevertheless, when a plaintiff's allegations "give a definite clue about the identity of a fictitious defendant by specifically referring to an individual who acted as a company's agent, the court should consider the citizenship of the fictitious defendant." Tompkins v. Lowe's Home Ctr., Inc., 847 F.Supp. 462, 464 (E.D. La. 1994) (citation omitted); see also generally Sousa v. Astra Zeneca Pharm. Inc., No. 10 C 6040, 2010 WL 3834013 (N.D. Ill. Sept. 24, 2010).

In Tompkins, the plaintiff sued Lowe's and an unknown employee for injuries sustained when the employee knocked a steel pipe from a shelf onto the plaintiff's toe. 847 F.Supp. at 463. After Lowe's removed the action to federal court, the plaintiff moved to remand, arguing that the unknown employee's citizenship destroyed complete diversity. Id. In granting the motion and remanding the case, the court rejected the argument that the employee's citizenship should be disregarded. The court reasoned that the citizenship of the unknown employee was established at the time the plaintiff filed suit because no other Lowe's employees were involved in the accident. Id. at 464. Further, "Lowe's knew or should have known of John Doe's identity because [the employee] told his supervisor of the incident immediately after it happened and an accident report apparently was completed." Id. (citation omitted). The court concluded that it "would be unfair to plaintiffs to force them from their chosen state court forum into federal court by allowing Lowe's to plead ignorance about the defendant employee's identity." Id.

Similarly, in Sousa, the plaintiff filed suit against Astra Zeneca Pharmaceutical Inc. and several of its employees (whose identities were unknown) in Illinois state court. 2010 WL 3834013, at *1. The defendants removed the action to the Central District of Illinois, which then transferred the suit to the Northern District. Id. In a sua sponte consideration of jurisdiction, the court found complete diversity lacking and remanded the case to state court. Id. at *3. In doing so, the court rejected the argument that the citizenship of the unknown employees should be ignored. Specifically, the court looked at the purpose and history of 28 U.S.C. § 1441(b)(1) and drew a distinction between "fictitious defendants" and "real defendants about whom everything is known except their names." Id. at **1-2. The court reasoned, "There is no question from Sousa's allegations that real persons are involved, though spoken of ...

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