United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
PHIL GILBERT, DISTRICT JUDGE
matter comes before the Court on the motion to remand filed
by plaintiff Edward Holmes (Doc. 24). Defendants Aaron May,
Construction & Turnaround Services, LLC
(“CTS”; misnamed in the complaint as Construction
Turnaround Services) and Don Schexnider have responded to the
motion (Docs. 31 & 32). This motion involves important
issues regarding the Court's subject matter jurisdiction
to hear this case and arises from a multifaceted
filed this case in October 2016 in the Circuit Court for the
Third Judicial Circuit, Madison County, Illinois (Doc. 1-1).
He complains that CTS, his employer, terminated him in
October 2015 in retaliation for seeking workers'
compensation benefits following a workplace injury (Count I).
He also claims that defendants Schexnider and Grant Dalton,
two of his supervisors, were responsible for his wrongful
termination because, motivated by personal animus, they
inadequately investigated the situation and gave incomplete
and inaccurate information to CTS about Holmes' injury.
He has sued each of them for intentional interference with
economic advantage (Counts II and III, respectively). In
addition, Holmes alleges that defendant Aaron May, the union
steward for Boilermakers Local 363, failed to give CTS
information regarding Holmes' injury, which led to
CTS's decision to fire Holmes. Holmes claims this also
amounts to intentional interference with economic advantage
December 2016, May timely removed this case to federal court,
claiming that Count IV against him was completely preempted
because it presented a claim for breach of the federal duty
of fair labor representation, a federal question.
See 28 U.S.C. §§ 1331 & 1441. He
believes Count IV was actually a duty of fair representation
claim because the tasks Holmes claimed May performed
improperly were tasks governed by May's duty to fairly
represent Holmes as his union representative in labor
negotiations and enforcement. .
days later, CTS filed its own notice of removal. In its
notice, CTS claims removal was proper based on original
diversity jurisdiction. See 28 U.S.C. §§
1332(a) & 1441. CTS alleges that Holmes and Schexnider
are citizens of Louisiana, Dalton is a citizen of Arkansas,
and May is a citizen of Oklahoma. CTS, a limited liability
company, also states that it has five individual members, all
of whom reside in Arkansas and are “[t]herefore . . .
citizens of Oklahoma.” Notice of Removal at 2 (Doc. 8).
CTS does not mention the citizenship of Integrated Services,
LLC, which it states in its corporate disclosure statement
(Doc. 12) wholly owns CTS. Realizing that Holmes' and
Schexnider's shared Louisiana citizenship destroys
complete diversity, CTS alleges that Holmes has fraudulently
joined Schexnider, against whom he cannot make out a case for
intentional interference with economic advantage, so the
Court should ignore Schexnider's citizenship for the
purposes of determining whether it has diversity subject
later, CTS asked for leave to amend its notice of removal to
make two substantive changes (Doc. 19). First, it realized it
had inadvertently alleged that May is a citizen of Oklahoma
when in reality he is a citizen of Illinois. However, the
acknowledgement that May is a citizen of Illinois runs CTS
smack into the forum defendant rule, which prohibits removal
based exclusively on the Court's original diversity
jurisdiction if one of the defendants is a citizen of the
forum state. See 28 U.S.C. § 1441(b)(2). For
this reason, CTS sought its second change: to add the
argument that May also was fraudulently joined since, for the
same reason Holmes has no claim against Schexnider, he cannot
make out a case against May for intentional interference with
economic advantage. Therefore, CTS urges the Court to
disregard May's citizenship for the purposes of applying
the forum defendant rule.
January 2017, Holmes filed the pending motion to remand (Doc.
24). He argues that this Court does not have original federal
diversity jurisdiction over this case under 28 U.S.C. §
1332(a) because he and Schexnider are not completely diverse
and because CTS has not properly alleged its own citizenship.
He also argues that the forum defendant rule prevents removal
in light of May's Illinois citizenship. Holmes further
argues that the Court does not have original federal question
jurisdiction under 28 U.S.C. § 1331 because he has
alleged a bona fide state tort claim against May,
not a claim for breach of the federal duty of fair
representation. May, CTS and Schexnider have responded to the
motion (Docs. 31 & 32).
April 2017, Holmes filed a motion to voluntarily dismiss
Count IV, the only count against defendant May, without
prejudice, which the Court construed as a notice of dismissal
of Count IV pursuant to Federal Rule of Civil Procedure
41(a)(1)(A)(i). The Court found the claim against May to be
addition, at various times throughout this case, each
defendant has moved to dismiss for failure to plead
sufficient facts to state a claim (Docs. 14, 18 & 37).
Court now turns to the question of its jurisdiction to hear
Federal Question Jurisdiction
December 12, 2016, May removed this case based on the
Court's original federal question jurisdiction. A
defendant may remove to federal court a case filed in state
court if the federal court would have had jurisdiction to
hear the case when the plaintiff originally filed it. 28
U.S.C. § 1441(a); Schur v. L.A. Weight Loss Ctrs.,
Inc., 577 F.3d 752, 758 (7th Cir. 2009). “The
party seeking removal has the burden of establishing federal
jurisdiction, and federal courts should interpret the removal
statute narrowly, resolving any doubt in favor of the
plaintiff's choice of forum in state court.”
Schur, 577 F.3d at 758 (citing Doe v.
Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993)).
Here, May asserted that the Court had original federal
question jurisdiction over Count IV pursuant to 28 U.S.C.
§ 1331. He ...