Romo et al v. Paramount Pictures Corporation et al

Filing 55

MEMORANDUM Opinion and Order Signed by the Honorable Ronald A. Guzman on 5/4/2011. Mailed notice(cjg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ADOLFO ROMO, as Guardian of the
Estate of GABRIELA CEDILLO, a
Disabled Person,
Plaintiff,

PARAMOUNT PICTURES, DW
STUDIO PRODUCTIONS LLC,
FILM INDUSTRY LOCATION
MANAGEMENT SERVICES a/k/a
“F.I.L.M.S.,” ALLEN NOLAN-COHN
NICHOLAS RAFFERTY, NICHOLAS
JAMISON, and RYERSON, INC.,
Defendants.

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10 C 6904
Judge Ronald A. Guzmán

MEMORANDUM OPINION AND ORDER
In September 2010, Gabriella Cedillo was working as an “extra” on the Transformers 3
movie location in Hammond, Indiana when she was seriously injured by a bracket that became
dislodged from a stunt car during filming. Plaintiff filed suit on her behalf in state court against
Paramount Pictures, D.W. Studio Productions, LLC, Ryerson, Inc., Allen Nolan-Cohn, Nicholas
Rafferty and Nicholas Jamison.1 Subsequently, Paramount and DW removed the suit, arguing that
plaintiff sued Ryerson, Nolan-Cohn, Rafferty and Jamison, who are Illinois citizens, to defeat

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Plaintiff also named Film Industry Location Management Services (“FILMS”), the sole
proprietorship operated by Nolan-Cohn, as a defendant. (See Am. Mem. Supp. Notice Removal,
Ex. A, Nolan-Cohn Decl. ¶ 3.) Because “a sole proprietorship has no legal identity separate
from that of the individual who owns it,” Nolan-Cohn is FILMS. Vernon v. Schuster, 688
N.E.2d 1172, 1176-77 (Ill. 1997)

diversity jurisdiction. The case is before the Court on plaintiff’s motion to remand. For the reasons
set forth below, the Court grants the motion.

Discussion
“[A]lthough a plaintiff is normally free to choose [his] own forum, [he] may not
[fraudulently] join an in-state defendant solely for the purpose of defeating federal diversity
jurisdiction.” Schwartz v. State Farm Mut. Auto. Ins. Co., 174 F.3d 875, 878 (7th Cir. 1999). A
party has been fraudulently joined if there is no reasonable possibility that the plaintiff could assert
a viable state law claim against him, even if all questions of law and fact are resolved in plaintiff’s
favor. Poulos v. Naas Foods, Inc., 959 F.2d 69, 73 (7th Cir. 1992).
To state a claim for negligence under Illinois law, plaintiff must allege that defendants had
a duty to Cedillo, they breached that duty and Cedillo was injured as a result. McLean v. Rockford
Country Club, 816 N.E.2d 403, 407 (Ill. App. Ct. 2004). Plaintiff alleges that Ryerson and the
individual defendants had a duty to protect Cedillo from harm because they managed the Hammond
location or prepared the stunt car that caused her injuries. (Compl., Parties ¶¶ 5, 7.) Plaintiff says
defendants breached that duty by failing to take adequate measures to protect Cedillo from the
dangers posed by the car crash stunt. (Compl., Count III ¶¶ 7-9, 18-24; id., Count IV ¶¶ 7-9, 18-23;
id., Count V ¶¶ 7-9, 18-23; id., Count VI ¶¶ 7-9, 18-23; id., Count VII ¶¶ 7-9, 18-23.)
Despite these allegations, defendants have established that Ryerson had no duty to protect
Cedillo from harm. Ziemba v. Mierzwa, 566 N.E.2d 1365, 1366-67 (Ill. 1991) (“Whether a duty
exists is a question of law . . . .”); see Forsythe v. Clark USA, Inc., 864 N.E.2d 227, 238 (Ill. 1997)
(“[The] touchstone of this court’s duty analysis is to ask whether a plaintiff and a defendant stood

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in such a relationship to one another that the law imposed upon the defendant an obligation of
reasonable conduct for the benefit of the plaintiff.” (quotation omitted)). Ryerson asserts, without
contradiction by plaintiff, that: (1) its subsidiary, Joseph T. Ryerson & Son, Inc. (“JTR”) rented
space to defendant D.W. Studio Productions, LLC; (2) Ryerson and JTR are separate corporate
entities; and (3) Ryerson is not a party to the lease between JTR and DW or involved in any other
way with the Transformers 3 film. (See Am. Mem. Supp. Notice Removal, Ex. D, Rohde Decl. ¶¶
3-14; id., Ex. D1, Rental Agreement JTR & DW.) Thus, even if the lease somehow exposed JTR
to liability in this suit, a dubious proposition, that exposure would not, given the undisputed
evidence before the Court, extend to Ryerson. Forsythe, 864 N.E.2d at 237 (holding that a parent
company can be held liable for an injury caused by its subsidiary only if the parent “specifically
direct[ed]” the subsidiary to take the tortious action and “[the] injury [was] foreseeable”).
The same is true for Rafferty and Jamison. Rafferty, who was the Key Assistant Location
Manager, went on one scouting trip to Hammond in December 2009 and helped get a permit to film
there. (Am. Mem. Supp. Notice Removal, Ex. B, Rafferty Decl. ¶¶ 4-6.) But he did not manage the
location, prepare the stunt car, design or execute the stunt, was not on site during filming and did
not give direction to anyone who was. (Id. ¶¶ 4-8.) Jamison, who was the Assistant Location
Manager, worked primarily on obtaining permits for aerial stunts, which were not filmed in
Hammond. (Id., Ex. C, Jamison Decl. ¶¶ 4-6.) As a result, he did not scout the Hammond site, work
on the permits for it or attend the filming there, let alone prepare, design, execute or give direction
to anyone involved in the stunt that injured Cedillo. (Id. ¶¶ 4-8.) Given these unrebutted statements,
there is no reasonable possibility that Rafferty or Jamison could be held liable in this suit. See
Ziemba, 566 N.E.2d at 1366-67 (stating that a court determines whether a duty exists “by weigh[ing]

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the foreseeability that defendant’s conduct will result in injury to another and the likelihood of an
injury occurring, against the burden to defendant of imposing a duty, and the consequences of
imposing this burden”).
The situation is different for Nolan-Cohn. He was the Chicago Location Manager and, as
such, “identif[ied and managed] suitable locations . . . for filming,” including the one in Hammond.
(See Am. Mem. Supp. Notice Removal, Ex. A, Nolan-Cohn Decl. ¶¶ 5-6.) One factor Nolan-Cohn
says he considers in evaluating a location is whether it has “preexisting hazards such as the presence
of asbestos, lead paint, hazardous waste, unmarked exits or other conditions.” (Defs.’ Opp’n Mot.
Remand, Ex. A, Nolan-Cohn Aff. ¶ 4.) Nolan-Cohn does not, however, say what other factors he
considered before selecting the Hammond site or describe the factors that he or other location
managers typically consider in making such selections. Without such evidence, the Court cannot
say as a matter of law that Nolan-Cohn had no duty to Cedillo, and thus cannot reasonably be held
liable in this suit. Ziemba, 566 N.E.2d at 1366-67; see Cincinnati Ins. Co. v. Prod. Design Prods.
Inc., No. 06- CV-915 JPG, 2007 WL 1021975, at *4 (S.D. Ill. Apr. 3, 2007) (noting the “factdriven” nature of the duty determination).
In short, defendants have not shown that plaintiff fraudulently joined Nolan-Cohn to this suit.
Because his presence as a defendant destroys complete diversity, the Court grants plaintiff’s motion
to remand.

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Conclusion
For the reasons set forth above, the Court grants plaintiff’s motion to remand [doc. no. 38]
and orders the Clerk of the Court to remand this suit to the Circuit Court of Cook County. This case
is terminated.
SO ORDERED.

ENTERED:

May 4, 2011
________________________________
HON. RONALD A. GUZMAN
United States District Judge

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