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Cochran v. Smith & Nephew, Inc.

United States District Court, C.D. Illinois

September 15, 2016



          James E. Shadid Chief United States District Judge

         This matter is now before the Court on Plaintiff's [4] Motion to Remand. For the reasons set forth below, Plaintiff's Motion [4] 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.


         On May 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 their response.”[1]

         This 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).”

         In 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.

         Legal Standard

         Federal 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 1441(a) provides:

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.

         While 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.


         (1) The Complaint Fails to Allege an Adequate Basis for this Court's Jurisdiction

         Jurisdiction 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 ...

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