United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
VIRGINIA M. KENDALL UNITED STATES DISTRICT JUDGE.
January 26, 2018, Defendants Wal-Mart Stores, Inc. and
Michael Zakaras removed Plaintiffs' state court action to
this Court and subsequently filed a Motion to Dismiss Michael
Zakaras pursuant to Fed.R.Civ.P. 21 under the doctrine of
fraudulent joinder. (Dkt. No. 1). On February 15, 2018,
Plaintiffs Betsy and Jack Snyder filed a Motion to Remand
their case back to state court. (Dkt. No. 18). Defendants
responded to Plaintiffs' Motion to Remand, attaching
affidavits of individually named defendants Zakaras and
Jerome Davis in support of their fraudulent joinder theory.
(Dkt. No. 26). Plaintiffs then moved to strike Davis'
affidavit. (Dkt. No. 29). For the reasons stated below,
Plaintiffs' Motion to Strike the Declaration of Jerome
Davis  is denied, Plaintiffs' Motion to Remand 
is granted, and Defendants' Motion to Dismiss Michael
Zakaras  is denied as moot.
OF THE FACTS
December 18, 2017, Plaintiffs Betsy and Jack Snyder, both
Illinois citizens, filed suit in the Circuit Court of Cook
County Law Division against Defendants Wal-Mart Stores, Inc.
and Michael Zakaras, individually and as an agent/employee of
Wal-Mart. See Snyder, et al. v. Wal- Mart
Stores, Inc., No. 2017 L 12954 (Ill. Cir. Ct.).
Plaintiffs' claims arise out of a slip and fall incident
at a Wal-Mart store in Illinois. Plaintiffs believed Zakaras
to be the manager of the store where the incident occurred.
(Dkt. No. 18 at 1). Wal-Mart is a citizen of Delaware and
Arkansas, and Zakaras is a citizen of Illinois. (Id.
January 26, 2018, Plaintiffs sought and were granted leave to
file their Amended Complaint instanter to add Jerome
Davis, an Illinois citizen, as a defendant and to issue
summons for Davis. (Id. at Ex. C). That same day,
January 26, 2018, Defendants removed the case to federal
court, attaching Plaintiffs' Original Complaint. (Dkt.
No. 1). Defendants' Notice of Removal was filed with the
Northern District of Illinois at 11:55 a.m. (See
Dkt. No. 26, Ex. E (CM/ECF Notice of Electronic Filing)).
Plaintiffs then properly filed their Amended Complaint in
state court at 12:16 p.m., commenced service on Davis and
served Defendants Wal-Mart and Zakaras via email at
approximately 1:40 p.m. that afternoon. (Dkt. No. 18, Ex. D).
Defendants' state court removal notice was file-stamped
at 3:16 p.m. (Dkt. No. 18, Ex. H). On January 29, 2018, the
Clerk of the Northern District of Illinois notified
Plaintiffs that a notice of removal had been filed in federal
court. (Dkt. No. 27 at 7, Ex. B (1/29/18 Letter from Thomas
G. Burton, Clerk's Office for the Northern District of
removing the case, Defendant filed a Motion to Dismiss
Zakaras, an Illinois citizen, pursuant to Rule 21 under the
doctrine of fraudulent joinder. (Dkt. No. 6.) In lieu of
responding to Defendants' Motion to Dismiss, Plaintiffs
filed a Motion to Remand the case for lack of complete
diversity based on the addition of Jerome Davis in their
Amended Complaint. (Dkt. No. 12; Dkt. No. 27 at 1, n.1).
Plaintiffs argued alternatively that the Court should remand
because Defendants' removal was procedurally deficient
for attaching the original and not amended state-court
pleading. (Dkt. No. 12). Defendants argued in their Response
to Plaintiffs' Motion to Remand that Davis was not a
party to the case because he was not added until after the
case was removed and, even if he were a party, both Zakaras
and Davis should be dismissed for fraudulent joinder because
neither can be held personally liable to Plaintiffs for
actions beyond the scope of their employment as Wal-Mart
managers. (Dkt. No. 26). Defendants attached to their
Response affidavits of Michael Zakaras and Jerome Davis
declaring under penalty of perjury that they did not have any
personal knowledge of the facts and circumstances concerning
Plaintiffs' alleged accident. (Dkt. No. 26, Ex. B-C).
Plaintiffs filed a Motion to Strike the Declaration of Jerome
Davis as an unsworn declaration because it was not properly
notarized and failed to otherwise qualify as an unsworn
declaration under penalty of perjury pursuant to 18 U.S.C.
§ 1746. (Dkt .No. 29).
summary, the parties dispute the following issues in their
motions: (1) whether Defendants' removal was procedurally
deficient; (2) when removal became effective and, relatedly,
which of Plaintiffs' complaints is the operative
complaint to be considered by this Court in deciding
Plaintiffs' Motion for Remand; and (3) if the Amended
Complaint is the operative complaint, whether Davis'
affidavit qualifies as an unsworn declaration under penalty
of perjury pursuant to 18 U.S.C. § 1746 or should be
stricken; and (4) whether Zakaras or, if applicable, Davis
should be dismissed under the doctrine of fraudulent joinder.
Defendants' removal was procedurally sound.
contend that Defendants' Notice of Removal was deficient
because Defendants failed to attach Plaintiffs' Amended
Complaint. Under 28 U.S.C. §1446(a), a removing
defendant is required to provide the district court with
“a copy of all process, pleadings and orders served
upon [him] in such action.” A defendant's failure
to attach the operative complaint can constitute independent
grounds for remand, as “a defect in the removal
procedure means failure to comply with §1446.”
In re Continental Casualty Co., 29 F.3d 292, 294
(7th Cir. 1994). When an amended complaint is filed,
“it is well established that the amended pleading
supersedes the original pleading.” Wellness Cmty.
v. Wellness House, 70 F.3d 46, 49 (7th Cir. 1995)
(citations omitted). In this case, however, Plaintiffs'
Amended Complaint was not filed until after Defendants filed
their Notice of Removal in federal court. Defendants did not
attach Plaintiffs' Amended Complaint because it did not
yet exist. Thus, Defendants' Notice of Removal was not
defective as filed.
Plaintiffs' Amended Complaint is the operative
28 U.S.C. §1446(d) provides that, after filing a notice
of removal in federal court, a defendant “must promptly
. . . give written notice thereof to all adverse parties and
shall file a copy of the notice with the clerk of such State
court, which shall effect the removal and the State court
shall proceed no further unless and until the case is
remanded.” Courts differ in how they interpret this
statutory provision in determining when removal becomes
effective. As the Eighth Circuit explained:
Most courts hold that removal is effected by filing a copy of
the notice of removal in the state court. Some courts
… have held that removal is effected simply by filing
the notice of removal in the federal court. Finally, a few
courts have held that the state and federal courts have