Stigleman v. Wal-Mart Stores, Inc.
Filing
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OPINION: Plaintiff's Motion for Leave to File an Amended Complaint Naming Additional Parties and to Remand 17 is GRANTED. Because the Second Amended Complaint names an additional party who destroys complete diversity, this cause is remanded to the Circuit Court of Sangamon County pursuant to 28 U.S.C. § 1447(e). (SEE WRITTEN OPINION). Entered by Judge Sue E. Myerscough on 2/11/2015. (GL, ilcd)
E-FILED
Wednesday, 11 February, 2015 08:51:08 AM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
DIANE STIGLEMAN, as Special
Administrator of the Estate of
Matthew McClain, deceased,
Plaintiff,
v.
WAL-MART STORES, INC.,
Defendant.
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No. 13-3370
OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
This cause is before the Court on the Motion for Leave to File
an Amended Complaint Naming Additional Parties and to Remand
(d/e 17) filed by Plaintiff Diane Stigleman, as Special Administrator
of the Estate of Matthew McClain, deceased. Because the relevant
factors weigh in favor of permitting the post-removal joinder of a
nondiverse party, the Motion is GRANTED.
I. BACKGROUND
In September 2013, Plaintiff filed a Complaint in the Circuit
Court for the Seventh Judicial Circuit, Sangamon County,
Springfield, Illinois against Defendant Wal-Mart Stores, Inc. The
Complaint alleged negligence and willful and wanton misconduct
in Defendant’s provision and maintenance of a private drive as a
means of ingress and egress to its business invitees. See Compl.
(d/e 1-1). Plaintiff alleged that, as a direct and proximate result of
Defendant’s allegedly defective private drive, McClain was killed on
May 24, 2013 when William Davis exited the Wal-Mart store via
the private drive and his vehicle collided with McClain’s motorcycle
on North Dirksen Parkway in Springfield, Illinois.
On October 30, 2013, Defendant filed a Notice of Removal
asserting that this Court has jurisdiction over the litigation
pursuant to 28 U.S.C § 1332 because the parties are diverse and
the amount in controversy exceeds $75,000. See Notice of
Removal (d/e 1).
In November 2013, Defendant filed a Motion to Dismiss on
the basis that the Complaint failed to state a claim upon which
relief may be granted. See Mot. (d/e 4). Defendant argued that
Plaintiff’s allegations did not give rise to a duty on Defendant’s part
to operate, control, or manage the intersection of its private drive
with North Dirksen Parkway or a duty to ensure the safety of
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motorists traveling on North Dirksen Parkway. Defendant also
claimed it did not owe McClain any duty to protect him from
injuries occurring off of Defendant’s premises or from injuries
resulting from the negligence of a third party.
In April 2014, United States Magistrate Judge Jonathan E.
Hawley entered a Report and Recommendation (d/e 12)
recommending that the Motion to Dismiss be denied. Defendant
filed objections (d/e 13).
In September 2014, this Court rejected the Report and
Recommendation, with the exception of the statement of facts in
Part I, granted Defendant’s Motion to Dismiss, and dismissed the
complaint without prejudice and with leave to replead. Opinion
(d/e 15). Specifically, this Court found that Plaintiff failed to allege
that Defendant owed a duty to McClain because Plaintiff did not
allege facts that demonstrated that McClain’s injuries were
foreseeable to Defendant. Plaintiff did not sufficiently allege that
the intersection was unsafe or that Defendant caused a nonnatural condition on the land that created an unreasonable risk of
harm. Id. at 13. In addition, this Court found the allegations in
the Complaint concerning other accidents too conclusory or vague
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to meet the plausibility threshold. Id. at 16. Finally, this Court
found that Plaintiff did not plausibly allege that Defendant had
control over the intersection construction, signage, and design. Id.
at 16.
On October 14, 2014, Plaintiff filed an Amended Complaint
(d/e 16). The Amended Complaint contains additional allegations
regarding the allegedly dangerous condition of the intersection and
Defendant’s control over the intersection. Specifically, Plaintiff
alleges that Defendant designed, constructed, built, and erected
the private drive in approximately 2001, when North Dirksen
Parkway was a two-lane road. Am. Compl. ¶ 259. In 2005, North
Dirksen Parkway was widened to five lanes. Id. ¶ 261. The traffic
control device at the intersection remained a stop sign and allowed
business invitees exiting Defendant’s property via the private road
to turn left onto North Dirksen Parkway. Id. ¶ 262, 263.
Plaintiff alleges that, notwithstanding the widening of North
Dirksen Parkway, Defendant failed to conduct a traffic safety
study, analysis, or investigation concerning the intersection of the
private driveway and North Dirksen Parkway from 2005 to the
present. Id. ¶ 265. Plaintiff also alleges the many different ways
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that the intersection is dangerous, unsafe, and defective, including
that the intersection presents business invitees “with too large of
an area to cover in order to make a successful left hand turn” or to
“successfully travel across five lanes of high-speed traffic.” Id. ¶
326(c), (d).
The Amended Complaint further alleges that, between 2005
and May 2013, 18 accidents have occurred at the intersection and
all were caused by Defendant’s business invitees turning left
across multiple lanes of high speed traffic to enter or exit
Defendant’s property via the private road. Am. Compl. ¶ 266.
Plaintiff also identifies 28 other accidents at the intersection but
does not indicate the cause of or circumstances involved in those
accidents. See Id. ¶¶ 99-221. On information and belief, the
Springfield Police Department, Springfield Fire Department, and/or
emergency personnel were called to the accident scene for each of
those accidents. In one instance, the accident involved an officer,
agent, servant, and/or employee of Defendant. Id. ¶ 120. On two
occasions, police officers entered Defendant’s store and viewed
security footage of the collision. Id. ¶¶ 196, 201.
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Plaintiff alleges that from 2001 until 2013, Defendant had
security cameras mounted on the exterior of the store that
recorded the intersection of the private driveway and North
Dirksen Parkway 24 hours per day, 365 days per year. Id. ¶ 102.
After being sued in 2013 for a collision that occurred in 2011
(Mikus v. Wal-Mart Stores, Inc., Sangamon County Case No. 12 L
0079), Defendant altered the position of the camera so that it no
longer captures the intersection. Id. ¶ 104.
Plaintiff also alleges that, prior to the accident in this case,
Defendant has been sued four times nationwide for connecting
private drives to public roadways and then negligently directing its
invitees to use the drives to turn left across multiple lanes of highspeed traffic to exit its property. Id. ¶¶ 13-67. One of those
lawsuits resulted in the decision by the Supreme Court of Appeals
of West Virginia, which held that Wal-Mart (Defendant herein) had
a duty to maintain its premises in a reasonably safe condition and
finding that a jury may conclude it was foreseeable that Wal-Mart
could expect more accidents to occur at the intersection. Louk v.
Isuzu Motors, 479 S.E.2d 911 (W.Va. 1996) (wherein the decedent
was in the car exiting the private driveway). Plaintiff alleges that a
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jury ultimately issued a verdict from Wal-Mart guilty of proximately
causing the wrongful death. Am. Compl. ¶ 27. Another of those
nationwide lawsuits resulted in a decision by the New Mexico
Appellate Court, which held that a question of fact remained
whether Wal-Mart (Defendant herein) failed to take reasonable
steps to protect its invitees from harm. Luevano v. Wal-Mart, Case
No. 19, 146 (wherein the decedent was attempting a left-hand
turn from the Wal-Mart driveway onto the highway) (opinion
attached to the Amended Complaint as Exhibit B). Plaintiff alleges
that a jury in New Mexico issued a verdict finding Wal-Mart guilty
of proximately causing the wrongful death of Selena Luevano. Id.
¶ 43.
According to the allegations of the Amended Complaint, the
National Cooperative Highway Research Report 659 titled “NCHRP
Report 659-Guide for the Geometric Design of Driveways”
describes the dangers posed by intersections of public roadways
and private property, the considerations that must be made when
locating such intersections and determining the proper signage for
such intersections, and the potential for increased traffic crashes.
Am. Compl. ¶¶ 274-297. Plaintiff alleges Defendant knew about
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such literature, its findings, conclusions, and recommendations.
Id. ¶ 298. Moreover, Plaintiff alleges that Tracy L. Rosser, Vice
President of Corporate Traffic for Defendant, was part of the
Transportation Research Board 2010 Executive Committee
responsible for publishing National Cooperative Highway Research
Report 659. Id. ¶¶ 274, 275.
On the same day Plaintiff filed the Amended Complaint,
Plaintiff filed the Motion for Leave to File an Amended Complaint
Naming Additional Parties and to Remand (d/e 17) at issue herein.
On October 21, 2014, Defendant filed a Motion to Dismiss (d/e 18)
for failure to state a claim and a response in opposition to
Plaintiff’s Motion for Leave (d/e 19).
In the Motion for Leave to File An Amended Complaint
Naming Additional Parties and to Remand, Plaintiff seeks to file a
Second Amended Complaint adding as additional parties Woolpert,
Inc. (Woolpert), the firm that designed the Illinois Department of
Transportation and City of Springfield project to widen Dirksen
Parkway from two lanes to five lanes, and Truman L. Flatt & Sons
Company, Inc. (Truman), the contractor for the project. Plaintiff
seeks to bring a negligence claim alleging that Truman and
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Woolpert negligently constructed, engineered, and/or designed the
intersection of Defendant’s private driveway and North Dirksen
Parkway. Proposed Second Am. Compl. Counts III and IV, ¶ 20
(d/e 17-2).
In support of the Motion, Plaintiff states that on August 21,
2014, Defendant sought leave to file third-party pleadings against
Woolpert and Truman in a different case pending in Sangamon
County Circuit Court, namely Mikus v. Wal-Mart Stores, Inc., Case
No. 12-L-79. See Mot., Exhibit 1 (d/e 17-1). The Mikus case
involves a factually similar motorcycle/vehicle collision that
occurred at the intersection of Defendant’s private drive and North
Dirksen Parkway. Defendant’s proposed third-party complaint in
the Mikus case alleged that, if Defendant breached any duty to
plaintiffs which proximately caused the claimed injuries to
plaintiffs, then Defendant is entitled to contribution from Woolpert
for Woolpert’s negligent engineering and design of the connection
between the private driveway and North Dirksen Parkway. See
Motion for Leave to File Third-Party Complaints Against Woolpert,
Inc. and Truman L. Flatt & Sons Company, Inc. filed in the Mikus
case, attached to Plaintiff’s Motion at d/e 17-1; see also proposed
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third-party complaint against Woolpert Inc. filed in the Mikus case
(d/e 17-1). Plaintiff did not attach the proposed third-party
complaint against Truman, but Defendant’s motion for leave to file
in the Mikus case indicates Defendant also sought leave to file a
third-party complaint against Truman. See Motion (d/e 17-1).
In this case, Plaintiff seeks to add Woolpert and Truman as
defendants pursuant to Federal Rule of Civil Procedure 15(a)(2).
However, joinder of Truman as a party defendant would destroy
diversity jurisdiction because both Truman and decedent are
Illinois citizens. See 28 U.S.C. § 1332(c) (“[A] corporation shall be
deemed to be a citizen of every State and foreign state by which it
has been incorporated and of the State or foreign state where it
has its principal place of business”); 28 U.S.C. § 1332(c)(2) (“the
legal representative of the estate of a decedent shall be deemed to
be a citizen only of the same State as the decedent”). Truman is a
corporation incorporated in Delaware with its principle place of
business in Springfield, Illinois. Mot., Ex. 3 (d/e 17-4). McClain,
the decedent, was a citizen of Illinois. Am. Notice of Removal ¶ 6
(d/e 8).
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II. ANALYSIS
Generally, a court should “freely give leave [to amend] when
justice so requires.” Fed. R. Civ. P. 15(a)(2). However, when a
party seeks leave to amend to join a nondiverse party who would
destroy complete diversity, section 1447(e) of 28 United States
Code applies. Section 1447(e) provides:
If after removal the plaintiff seeks to join additional
defendants whose joinder would destroy subject matter
jurisdiction, the court may deny joinder, or permit
joinder and remand the action to the State court.
28 U.S.C. § 1447(e). In making this determination, the court
considers: “(1) the plaintiff’s motive for seeking joinder, particularly
whether the purpose is to defeat federal jurisdiction; (2) the
timeliness of the request to amend; (3) whether the plaintiff will be
significantly injured if joinder is not allowed; and (4) any other
relevant equitable consideration." Schur v. L.A. Weight Loss
Centers, Inc., 577 F.3d 752, 759 (7th Cir. 2009). The court has
discretion whether to permit or deny post-removal joinder of a
nondiverse party. Id.
Addressing each of the relevant factors, the Court will, in its
discretion, allow joinder and remand the action to the state court.
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Defendant does not suggest that Plaintiff’s motivation in
seeking to join the additional parties is to destroy diversity, nor
does the Court find any such motivation on Plaintiff’s part.
Plaintiff’s request is also timely. Plaintiff states that she learned of
the two additional defendants when, August 2014, Defendant
sought to add them as third-party defendants in Mikus, the similar
lawsuit pending in Sangamon County Circuit Court. Plaintiff
sought leave in this case on October 14, 2014, and the Court finds
that timely. See, e.g., Stuart v. Chin, 835 F.Supp.2d 680, 683
(S.D. Ind. 2011) (finding seven weeks was not untimely).
Plaintiff will be prejudiced if joinder is not allowed. Plaintiff
would otherwise have to bring a state lawsuit against Truman and
Woolpert, which would result in parallel proceedings. See Schur,
577 F.3d at 768 (“we must also consider Schur’s interest in
avoiding the cost and inconvenience of parallel lawsuits in state
and federal court”).
Defendant asserts that it will suffer prejudice if joinder is
allowed because the amendment is futile as to the claims against
Defendant. Defendant asks that the Court rule on Defendant’s
Motion to Dismiss before allowing amendment of the Amended
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Complaint. While granting Plaintiff leave to add the two additional
defendants would require remand and pose some delay to
Defendant, Defendant remains capable of pursuing its Motion to
Dismiss in state court. In weighing the competing prejudice, the
Court finds this factor weighs in favor of granting Plaintiff leave to
amend.
Because the factors favor granting Plaintiff leave to amend,
the Court will grant Plaintiff’s motion to amend and remand the
cause to State court.
III. CONCLUSION
For the reasons stated, Plaintiff’s Motion for Leave to File an
Amended Complaint Naming Additional Parties and to Remand
(d/e 17) is GRANTED. Because the Second Amended Complaint
names an additional party who destroys complete diversity, this
cause is remanded to the Circuit Court of Sangamon County
pursuant to 28 U.S.C. § 1447(e).
ENTER: February 11, 2015
FOR THE COURT:
s/Sue E Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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