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Snyder v. Wal-Mart Stores, Inc.

United States District Court, N.D. Illinois, Eastern Division

April 2, 2018

SNYDER, et al., Plaintiff,
v.
WAL-MART STORES, INC., et al., Defendant.

          MEMORANDUM OPINION AND ORDER

          HON, VIRGINIA M. KENDALL UNITED STATES DISTRICT JUDGE.

         On 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 [29] is denied, Plaintiffs' Motion to Remand [18] is granted, and Defendants' Motion to Dismiss Michael Zakaras [6] is denied as moot.

         STATEMENT OF THE FACTS

         On 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. at 2).

         On 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 Illinois)).

         Upon 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).

         In 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.

         DISCUSISON

         I. Defendants' removal was procedurally sound.

         Plaintiffs 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.

         II. Plaintiffs' Amended Complaint is the operative pleading.

         Title 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 ...

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