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Herron v. Graco, Inc.

United States District Court, S.D. Illinois

December 15, 2016

GEORGE HERRON, Plaintiff,
v.
GRACO, INC., THE SHERWIN-WILLIAMS COMPANY, CAMPBELL HAUSFELD, A-1 BUILDINGS, INC., NORMAL BROWN, ROBERT DEVOUS, and A. SCOTT FETZER COMPANY, Defendants.

          MEMORANDUM AND ORDER

          NANCY J. ROSENSTENGEL United States District Judge

         This matter comes before the Court on the issue of subject matter jurisdiction and Plaintiff George Herron's motion to remand (Doc. 22). On September 7, 2016, the Court sua sponte raised the issue of subject matter jurisdiction, as the Notice of Removal filed by Defendant Graco, Inc. (Doc. 1), did not adequately demonstrate that jurisdiction is proper in this Court. On September 21, 2016, Graco provided a jurisdictional memorandum that fully addressed its reasons for removing the case to federal court (Doc. 19). Defendant Campbell Hausfeld joined in Graco's memorandum (Doc. 21). In response, Herron filed a motion to remand to state court (Doc. 22). On November 7, 2016, Graco filed a response in opposition to Herron's motion to remand (Doc. 23). For the following reasons, the Court remands this action to Illinois state court.

         Factual and Procedural Background

         Herron initiated this action on February 9, 2015, by filing a complaint in the Circuit Court of St. Clair County, Illinois (Doc. 1-1). Graco was served on June 19, 2015 (Doc. 19, p. 4). The complaint alleges that Herron, an employee of Caterpillar, was cleaning an airless spray paint assembly by running solvent through a pump, hose, and spray gun into a 55-gallon metal drum when an explosion occurred, causing Herron to suffer extensive burns (Id.). At the time of the accident, Herron was working in an expansion to an existing building at Caterpillar's mining plant in Carrier Mills, Illinois (Doc. 19, p. 4; Doc. 1-3, p. 5). The facility where the accident occurred straddles both Saline County and Williamson County, Illinois (Doc. 1-3, p. 5).

         Herron sued Graco, a Minnesota corporation that manufactured the pump; Campbell Hausfeld, an Ohio corporation that manufactured the spray gun; The Sherwin-Williams Company, an Ohio corporation that sold the pump and spray gun; and A-1 Buildings, an Illinois corporation that designed and constructed the building addition for Caterpillar that was used for spray painting with various paints and solvents. Herron also sued two individual Illinois citizens, Norman Brown and Robert Devous, the electricians responsible for installing the electrical system in the building addition designed and constructed by A-1 Buildings (Id.). All defendants moved for a change of venue to Williamson County, which led to limited discovery on the issue of venue (Id.).

         The Illinois Circuit Court scheduled several case management conferences throughout 2015 and three separate hearings on Defendants' motions to transfer venue for forum non conveniens. Plaintiff failed to appear at the first hearing on the motion to transfer venue, scheduled for February 17, 2016 (Doc. 1-1, p. 47). That same day, just more than a year after the action commenced, counsel for Brown and Devous faxed a letter to counsel for Campbell Hausfeld stating that Brown and Devous would be withdrawing their motions to transfer venue (Doc. 1-2). The letter explained that counsel for Brown and Devous had spoken with Herron's counsel regarding his clients' lack of insurance. Herron's counsel agreed “not [] to pursue any action against them or seek to enforce any Judgment against them in exchange for [Brown and Devous] withdrawing [their] motions regarding venue as well as mak[ing] each of the Defendants available for a deposition and Trial in St. Clair County” (Id.).

         On May 18, 2016, at the rescheduled venue hearing, Plaintiff's counsel stated that Brown and Devous may not have insurance coverage and “the only agreement we made is that we would not collect personally against them for their agreement to come to St. Clair County. They both agreed.” (Doc. 20-1, p. 26). Prior to the hearing, Plaintiff voluntarily dismissed A-1 Buildings, the other Illinois defendant, without prejudice (Doc. 20-5).

         With A-1 Buildings dismissed and an agreement by Plaintiff not to pursue any action against Brown and Devous or to seek to enforce any judgment against them personally, on June 15, 2016, Graco removed the case to this Court on the basis of diversity jurisdiction. Graco asserts this Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1332 because the parties are diverse citizens and the amount in controversy exceeds $75, 000. Graco claims that this case falls under the bad faith exception to the removal deadline provided in 28 U.S.C. § 1446. Graco also asserts that Brown and Devous were fraudulently joined.

         Graco admits that there is no bad faith “smoking gun” in this case, but points to circumstantial evidence that it claims is proof of Herron's bad faith. For example, while the complaint was filed on February 9, 2015, Graco was not served until June 19, 2015 - more than three months later (and one-fourth of the way through the one-year removal deadline). Graco further notes that Herron did not conduct any case-related activities during the year after filing the complaint. Graco also claims that Herron prevented Defendants' forum motions from being heard until the one-year period had lapsed. Finally, Graco argues that after one year, Herron dismissed A-1 Buildings and agreed not to pursue his claims or enforce any judgment against Brown and Devous because he never intended to pursue the Illinois Defendants anyway. Graco claims this demonstrates both bad faith and foul play.

         Graco also asserts that fraudulent joinder is a separate basis for removal. Graco claims that Herron's alleged agreement not to recover against Brown and Devous in exchange for withdrawing their venue motions is evidence that Herron has abandoned his claims against the individual defendants, and they are now fraudulently joined. Accordingly, since A-1 Buildings has been dismissed, the case is now removable.

         On October 4, 2016, Herron filed a motion to remand and response to Graco's jurisdictional memorandum (Doc. 22) asserting that he has diligently litigated the case, and Defendants share responsibility for the pacing of the case. He also argues that he properly and sufficiently pleaded negligence claims against Brown and Devous, the agreement with Brown and Devous was not executed or signed, Brown and Devous have not withdrawn their forum motions per the proposal, and no settlement agreement has been reached. Accordingly, he has not abandoned his claims against the individual Illinois defendants, and diversity does not exist. Herron also seeks reasonable costs and attorney fees in seeking remand to state court.

         Graco filed a response to Herron's motion to remand on November 7, 2016 (Doc. 23). In its response, Graco notes that Herron failed to address its bad faith arguments. Graco further argues that, signed or not, the agreement between Herron, Brown, and Devous was that Brown and Devous would withdraw their motion to transfer venue in exchange for Herron's agreement not to pursue any action against them or seek to enforce any judgment against them. Once Brown and Devous withdrew their motion, [1]Plaintiff was bound by his promise not to pursue any action against those Defendants.

         Legal Standard

         Removal 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 Potter v. Janus Inv. Fund, 483 F.Supp.2d 692, 694-95 (S.D. Ill. 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. Ill. Nov. 22, 2006). The party seeking removal, as the proponent of federal subject matter jurisdiction, has the ...


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