United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. ROSENSTENGET United States District Judge.
matter comes before the Court on the Motion to Remand (Doc.
16) filed by Plaintiffs Brian Farmer and Connie Farmer.
Northern Insurance Co. issued a policy of insurance to
Plaintiffs covering property damage to Plaintiffs'
motorhome (Doc. 1-1). On November 2, 2014, the
motorhome's front left tire burst, causing the motorhome
to run off the road and into a ditch (Id.).
Plaintiffs reported the claim to Progressive, and the
motorhome eventually was sent to Duncan RV Repair, LLC, a
Progressive-authorized repair center, to be repaired.
Plaintiffs allege that Duncan RV repaired their motorhome in
a negligent, careless, and unworkmanlike manner and used
inferior parts that were wholly inadequate for the normal
operation of the motorhome (Id., p. 5).
Specifically, Plaintiffs claim that-after the motorhome was
supposedly repaired -it still had issues with its batteries,
wiring, tires, wipers, king pin, delaminated siding, frame,
ladder, exhaust system, and skid plate fasteners
(Id.). Plaintiffs further allege that Defendants
concealed facts, switched or removed components, jerry-rigged
repairs, destroyed or secreted evidence, and misrepresented
facts about the motorhome's preexisting conditions, the
storage conditions of the motorhome, and the availability of
other qualified RV repair shops (Id. at 7).
Plaintiffs were unable to recover their motorhome until March
21, 2016 -more than a year and four months after the accident
occurred (Id., p. 4).
filed a Complaint in the Circuit Court of Madison County,
Illinois, on May 26, 2016, naming Progressive, Progressive
employees Jeffrey Clark, Mathew Owen, and Collette Crowder,
and Duncan RV as defendants (Doc. 1-1). Plaintiffs allege
claims for breach of contract against Progressive (Count I),
negligence against Progressive (Count II), negligence against
Duncan RV (Count III), negligence against Clark, Owen, and
Crowder (Count VI), in concert activity against all
defendants (Count V), fraud against Progressive, Clark, Owen,
and Crowder (Count VI), civil conspiracy against Progressive
and Duncan RV (Count VII), and breach of contract against
Duncan RV (Count VIII).
August 1, 2016, Progressive, Clark, and Owen ("the
Progressive Defendants") removed the case to this
district court. The Progressive Defendants assert that
removal is proper because complete diversity of citizenship
exists between the parties, giving the Court original subject
matter jurisdiction pursuant to 28 U.S.C. § 1332 (Doc.
13). Plaintiffs are citizens of Illinois. Progressive is a
Wisconsin corporation with its principal place of business in
Ohio (Doc. 13, p. 2). Duncan RV is an LLC whose sole member
is a citizen of Indiana. Duncan RV, therefore, is a citizen
of Indiana. Collette Crowder is also a citizen of Indiana.
Jeffrey Clark and Matthew Owen ("the Progressive
employees"), however, are citizens of Illinois. Although
their Illinois citizenship would normally destroy diversity
jurisdiction, the Progressive Defendants assert that
Plaintiffs fraudulently joined the Progressive employees in
an effort to defeat diversity jurisdiction. The Progressive
Defendants also note the amount in controversy requirement
(in excess of $75, 000, exclusive of interest and costs) is
satisfied, as Plaintiffs seek compensatory damages in excess
of $50, 000 for each of their claims, in addition to punitive
damages and attorney fees.
August 10, 2016, Plaintiffs filed a Motion to Remand
asserting the Progressive employees were not fraudulently
joined (Doc. 16). On September 9, 2016, Progressive and the
Progressive employees filed a memorandum in opposition to
Plaintiffs' Motion to Remand (Doc. 28). Plaintiffs filed
a reply brief on September 23, 2016. (Doc. 30).
is governed by 28 U.S.C. § 1441, which provides, in
pertinent part, that "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(a); see
also Pooter v. Janus Inv. Fund, 483 F.Supp.2d 692,
694-95 (S.D. 111. 2007). In other words, "[a] defendant
may remove a case to federal court only if the federal
district court would have original subject matter
jurisdiction over the action." Kitson v. Bank of
Edwardsville, No. 06-528, 2006 WL 3392752, at *1 (S.D.
111. Nov. 22, 2006). The party seeking removal, as the
proponent of federal subject matter jurisdiction, has the
burden of proof as to the existence of jurisdiction. See
Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 540
(7th Cir. 2006); see also Anglin v. Bristol-Myers Squibb
Co., No. 12-60, 2012 WL1268143, at *1 (S.D. 111. April
should interpret the removal statute narrowly and presume
that the plaintiff may choose his or her forum/ Put another
way, there is a strong presumption in favor of remand."
Fuller v. BNSF Ry. Co., 472 F.Supp.2d 1088, 1091
(S.D. 111. 2007) (quoting Doe v. Allied-Signal,
Inc., 985 F.2d 908, 911 (7th Cir. 1993));
Kalbfleisch ex rel. Kalbfleisch v. Columbia Community
Unit School Dist. Unit No. 4, 644 F.Supp.2d 1084, 1087
(S.D. 111. 2009). "Doubts concerning removal must be
resolved in favor of remand to the state court."
Alsup v. 3-Day Blinds, Inc., 435 F.Supp.2d 838, 841
(S.D. 111. 2006).
their Motion to Remand, Plaintiffs argue that the Progressive
employees, who are citizens of Illinois, were not
fraudulently joined. Thus, there is no complete diversity of
citizenship, and the case must be remanded to state court.
plaintiff may not join a non-diverse defendant in an action
simply to destroy diversity jurisdiction. Schwartz v.
State Farm Mut. Auto. Ins. Co., 174 F.3d 875, 878 (7th
Cir. 1999); Gottlieb v. Westin Hotel Co., 990 F.2d
323, 327 (7th Cir. 1993). The "fraudulent joinder"
doctrine, therefore, permits a district court considering
removal "to disregard, for jurisdictional purposes, the
citizenship of certain nondiverse defendants, assume
jurisdiction over a case, dismiss the nondiverse defendants,
and thereby retain jurisdiction." Schur v. L.A.
Weight Loss Centers, Inc., 577 F.3d 752, 763 (7th Cir.
establish fraudulent joinder, a removing defendant must show
that, after resolving all issues of fact and law in
favor of the plaintiff, the plaintiff cannot establish a
cause of action against the in-state defendant."
Morris v. Nuzzo,718 F.3d 660, 666 (7th Cir. 2013).
Put differently, the defendant has the "heavy
burden" of showing that the plaintiff's claim has
"no chance of success" against the non-diverse
defendant. Poulos v. Naas Foods, Inc.,959 F.2d 69,
73 (7th Cir. 1992). The Court's role in evaluating
allegations of fraudulent joinder is "to determine
whether Plaintiff's complaint provides a reasonable basis
for predicting that the plaintiff might be able to recover
against an instate defendant... not to ascertain the merits
of [the] claim." Asperger v. Shop Vac Corp.,524 F.Supp.2d 1088, 1096 (S.D. 111. 2007). Even if a state
court might ultimately find that a plaintiff has failed to
state a claim against a defendant, joinder of the claim is
not "fraudulent" for purposes of this court's
jurisdiction so long as the issue of state law is subject to