United States District Court, C.D. Illinois
ORDER AND OPINION
E. Shadid Chief United States District Judge
matter is now before the Court on Plaintiff's  Motion
to Remand. For the reasons set forth below, Plaintiff's
Motion  to Remand is Denied. The Plaintiff is granted 14
days from this Order to amend the Complaint or otherwise
remedy the jurisdictional defects identified below.
8, 2014, Plaintiff Doris Cochran filed a products liability
action against Defendant Smith & Nephew, Inc.
(“SNI”) and four other affiliates in the Circuit
Court of the Tenth Judicial Circuit in Tazewell County,
Illinois. On June 30, 2014, Defendants removed the action to
this Court pursuant to 28 U.S.C. §§ 1441 and 1446.
See Cochran v. Smith & Nephew, Inc., No. 14-1264
(C.D. Ill. 2014). This Court had subject matter jurisdiction
over the action because there was complete diversity of
citizenship among the parties. See 28 U.S.C. § 1332. On
August 15, 2014, Plaintiff voluntarily dismissed all
Defendants except SNI, and on April 29, 2015, this Court
granted Plaintiff's motion to voluntarily dismiss
“in accordance with the record made by Defendants in
action was filed by Plaintiff on April 21, 2016, naming SNI
and Neubauer Perkins, Inc. (“NPI”) as Defendants.
Counts 1 and 2 of the Complaint state claims of strict and
negligent product liability against SNI; Counts 3 and 4
assert the same against NPI. Counts 5 and 6 claim breaches of
implied and express warranties by both SNI and NPI. The
Complaint alleges that Plaintiff is a citizen of Illinois,
SNI is a citizen of Tennessee, and NPI is a citizen of
Illinois. Because Plaintiff and NPI were both alleged to be
citizens of Illinois, the Court ordered Plaintiff to file an
amended complaint alleging an adequate basis for this
Court's jurisdiction. See 28 U.S.C. § 1332(a); ECF
Doc. 2. On May 4, 2015, instead of amending the Complaint,
Plaintiff filed a motion to remand. Plaintiff's motion
argues that SNI, as “[t]he party seeking to invoke
Federal jurisdiction . . . bears the burden of proof to show
that removal is proper.” Plaintiff then concludes that
complete diversity of citizenship is absent due to NPI's
presence and therefore the case “should be remanded to
the Circuit Court of Tazewell County pursuant to 28 U.S.C.
§ 1447(c) and 28 U.S.C. § 1447(e).”
response, SNI argues that Plaintiff knew she had a claim
against SNI as early as July 4, 2010. Thus, SNI claims that
under the applicable statutes of limitation, Plaintiff's
products liability claims expired on July 4, 2012, and
Plaintiff's warranty claims expired in September 2013.
SNI also argues that the addition of NPI as a Defendant
should be disregarded in the jurisdictional analysis because
NPI was fraudulently joined in order to defeat diversity
jurisdiction. Defendants request that the Court deny
Plaintiff's motion to remand, order Plaintiff to address
the statute of limitations issue, and dismiss NPI.
courts are courts of limited jurisdiction. Section 1332(a)(1)
confers upon district courts jurisdiction to hear state law
claims when complete diversity of citizenship exists between
the parties: “The district courts shall have original
jurisdiction of all civil actions where the matter in
controversy exceeds the sum or value of $75, 000, exclusive
of interest and costs, and is between . . . citizens of
different States.” 28 U.S.C. § 1332. Thus,
“§ 1332 allows plaintiffs to invoke the
federal courts' diversity jurisdiction.”
Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005)
(emphasis added). When a plaintiff files a civil action in
state court, “§ 1441 gives defendants a
corresponding opportunity.” Id. Section
Except as otherwise expressly provided by Act of Congress,
any civil action brought in a State court of which the
district courts of the United States have original
jurisdiction, may be removed by the defendant or the
defendants, to the district court of the United States for
the district and division embracing the place where such
action is pending.
28 U.S.C. § 1441.
both § 1332 and § 1441 allow parties to invoke a
federal court's diversity jurisdiction, “[t]he
scales are not evenly balanced.” Id. at 89-90.
This is so because an in-state plaintiff may use § 1332
to establish diversity jurisdiction, but § 1441(b) bars
defendants from removing an action to federal court on the
basis of diversity if they are citizens of the state in which
the action is brought. Id. at 90. Additionally,
§ 1446 places several procedural restrictions on
removal. See 28 U.S.C. § 1446.
The Complaint Fails to Allege an Adequate Basis for this
of the Court depends upon the state of things at the time the
action is brought. Grupo Dataflux v. Atlas Global Group,
L.P., 541 U.S. 567, 570 (2004). Plaintiff, a citizen of
Illinois, initiated this products liability action in federal
court against SNI and NPI. SNI is a Tennessee corporation
with its principal place of business in Memphis, Tennessee.
NPI is an Illinois corporation with its principal place of
business in Northbrook, Illinois. Thus, Plaintiff's
Complaint is insufficient to establish compete diversity
under § 1332 because Plaintiff and NPI are not
“citizens of different states.” 28 U.S.C. §
1332(a). Although Plaintiff attempts to shift the burden of
establishing jurisdiction to Defendants, she acknowledges
that “the required total diversity of ...