Schuring et al v. Cottrell, Inc. et al

Filing 30

Enter MEMORANDUM, OPINION AND ORDER: For the reasons stated herein, this Court grants Cassens Corporations motion to dismiss with respect to Counts VII, VIII, and IX and denies it with respect to Counts V-VI and X-XIII. Signed by the Honorable Virginia M. Kendall on 2/14/2014.Mailed notice(tsa, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GREGORY SCHURING and MARY
SCHURING,
Plaintiffs,
v.
COTTRELL, INC. and CASSENS
CORPORATION,
Defendants.

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13 C 7142
Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER
Plaintiffs Gregory and Mary Schuring, both Illinois citizens, filed their Complaint against
Defendants Cottrell, Inc. and Cassens Corporation in the Circuit Court of Cook County on
August 30, 2013. Each claim in the thirteen-count Complaint arises from an alleged injury Mr.
Schuring suffered while at work as a car hauler in Peoria, Illinois. According to the Complaint,
Mr. Schuring fell from a rig while maneuvering on the head ramp of a trailer. Cottrell, a Georgia
corporation with its principal place of business in Gainesville, Georgia, removed this action to
federal court on October 4, 2013. According to Cottrell, removal is proper because complete
diversity exists and because the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185,
preempts the Plaintiffs’ claims. Cottrell claims that complete diversity exists even though
Cassens Corporation is an Illinois corporation with its principal place of business in
Edwardsville, Illinois, because the Plaintiffs fraudulently joined Cassens Corporation. Cassens
Corporation subsequently moved to dismiss all counts against it. For the reasons discussed
herein, this Court finds removal proper, and grants Cassens Corporation’s motion to dismiss in
part and denies it in part.

BACKGROUND
This Court takes the following allegations from the Complaint and treats them as true for
purposes of this memorandum opinion and order. Mr. Schuring is an employee of Cassens
Transport Company, which is not a party to this action. Mr. Schuring is a car hauler who suffered
an injury when he fell from a trailer with head ramp manufactured by Cottrell. Cottrell is a
Georgia corporation with its principal place of business in Georgia. Mr. Schuring seeks relief
from Cottrell based on claims for strict liability (Count I), negligence (Count II), implied
warranty (Count III), and willful and wanton (Count IV).
Mr. Schuring also seeks relief from Cassens Corporation based on claims for negligencerespondeat superior (Count V), negligence-direct liability (Count VI), breach of contract (Count
VII), promissory estoppel (Count VIII), fraud (Count IX), willful and wanton (Count X),
assumed duty (Count XI), and in concert liability (Count XII). Cassens Corporation is an Illinois
corporation with its principal place of business in Illinois. Cassens Corporation and Cassens
Transport Company are separate entities, and the Plaintiffs do not seek to pierce the corporate
veil between the two.
Ms. Schuring’s lone claim is against all defendants for the loss of support and services of
her husband, Mr. Schuring (Count XIII). The Plaintiffs seek a sum in excess of $50,000 for each
claim.
LEGAL STANDARD
A defendant may remove a civil action filed in state court to federal court in any case in
which the plaintiff could have invoked the original jurisdiction of the federal courts. 28 U.S.C. §
1441(a). District courts have original jurisdiction of civil actions arising under the Constitution,
laws, or treaties of the United States, 28 U.S.C. § 1331, or where the amount in controversy
exceeds $75,000 and is between citizens of different states, 28 U.S.C. 1332(a). But removal
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based on diversity jurisdiction is not appropriate where a defendant is a citizen of the state in
which the plaintiff filed the action. 28 U.S.C. § 1441(b).
Yet a plaintiff cannot defeat a defendant’s right of removal through fraudulent joinder of
a non-diverse defendant. Morris v. Nuzzo, 718 F.3d 660, 666 (7th Cir. 2013). In other words, a
plaintiff cannot game the Federal Rules of Civil Procedure by joining a defendant against whom
he has no chance of success to avoid removal. Id. A defendant can show fraudulent joinder if,
“after resolving all issues of fact and law in favor of the plaintiff, the plaintiff cannot establish a
cause of action against the in-state defendant.” Id.
To establish a cause of action, a complaint must contain sufficient factual matter to state a
claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is
plausible on its face when the complaint contains factual content that supports a reasonable
inference that the defendant is liable for the harm. Id. This requires enough factual content to
create a reasonable expectation that discovery will reveal evidence of wrongdoing. See Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007). For purposes of determining whether a
complaint states a claim, this Court accepts all well-pleaded allegations in the complaint as true
and draws all reasonable inferences in the non-movant’s favor. See Yeftich v. Navistar, Inc., 722
F.3d 911, 915 (7th Cir. 2013).
DISCUSSION
The parties dispute whether removal was proper. This Court has an independent
obligation at each stage of the proceedings to ensure that it has subject matter jurisdiction over
any dispute before it. Crosby v. Cooper B-Line, Inc., 725 F.3d 795, 800 (7th Cir. 2013). One
basis for removal here is preemption by the LMRA. The “complete preemption doctrine” is an
exception to the well-pleaded complaint rule. Caterpillar Inc. v. Williams, 482 U.S. 386, 393

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(1987). Under this doctrine, federal courts treat state-law claims that require interpretation of a
collective bargaining agreement (“CBA”) as federal claims. Crosby, 725 F.3d at 800.
Here, Mr. Schuring is a member of a union that entered a CBA with his employer,
Cassens Transport Company. Cassens Corporation entered a Work Preservation Agreement, as
parent, with employer Cassens Transport Company and Mr. Schuring’s union. (Ex. K to Dkt. No.
13.) The Work Preservation Agreement is part of the collective bargaining agreement. (Id. at ¶
11.) Whether the Work Preservation Agreement makes Cassens Corporation a party to the entire
CBA and whether the CBA imposes any duties with respect to Mr. Schuring on Cassens
Corporation require interpretation and application of the CBA. For example, the CBA requires a
committee to “review safety considerations relating to the feasibility of handrails and cables on
head rack ramps, swing decks, and upper decks of tractors and trailers.” (Ex. L. to Dkt. No. 13 at
72.) The extent to which this applies to Cassens Corporation requires interpretation and
application of the CBA. Therefore, this Court will treat Mr. Schuring’s state-law claims as
federal claims. Consequently, removal was appropriate.
With the dispute concerning removal resolved, this Court turns to Cassens Corporation’s
motion to dismiss all claims against it. The Plaintiffs opposed Cassens Corporation’s motion
with respect to Counts V and VI. Because they failed to oppose Cassens Corporation’s motion
with respect to Counts VII-XIII, the Plaintiffs have waived any arguments in support of these
claims. See Alioto v. Town of Lisbon, 651 F.3d 715, 719 (7th Cir. 2011) (plaintiff waived right to
contest dismissal by failing to oppose motion to dismiss). Therefore, this Court grants Cassens
Corporation’s motion to dismiss Counts VII, VIII, and IX because Cassens Corporation
presented plausible reasons for dismissing these claims to which the Plaintiffs failed to respond.
See Kirksey v. R.J. Reynolds Tobacco Co., 168 F.3d 1039, 1041 (7th Cir. 1999) (“Our system of

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justice is adversarial, and our judges are busy people. If they are given plausible reasons for
dismissing a complaint, they are not going to do the plaintiff's research and try to discover
whether there might be something to say against the defendants' reasoning.”) Consequently, only
Counts V, VI, and X-XIII remain.
Count V alleges that Cassens Corporation is liable for the negligence of its agents, to
include its directors, officers, and shareholders, who participated in and exercised control over
the design of the trailer on which Mr. Schuring suffered his injury. Count VI alleges that Cassens
Corporation is directly liable for the same. Under Illinois law, a parent company may be liable as
a direct participant where it “mandated an overall business and budgetary strategy and carried
that strategy out by its own specific direction or authorization.” Forsythe v. Clark USA, Inc., 864
N.E.2d 227, 237 (Ill. 2007). The key elements of direct participant liability are (1) parent
company specifically directs an activity and (2) the injury is foreseeable. Id.
Here, the Plaintiffs allege that Cassens Corporation and its agents “participated in and
exercised control over the design and testing process of Cottrell trailers, and provided
instructions and warnings to the manufacturers.” (Ex. A to Dkt. No. 2 at 10 and 12.) The
Plaintiffs further allege that the trailers were unsafe and had caused several injuries to drivers.
(Id. at 10 and 12.) These allegations are sufficient to state a claim for direct participant liability.
Therefore, this Court denies Cassens Corporation’s motion to dismiss with respect to Counts V
and VI.
This Court also denies Cassens Corporation’s motion to dismiss with respect to Count XXIII. Cassens Corporation adopts its argument with respect to Counts V and VI as its argument
with respect to Counts X-XII. Cassens Corporation also refers to arguments that the LMRA
preempts Counts X-XII made by Cottrell in its reply to the Plaintiffs’ opposition to removal

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(Dkt. No. 13). These arguments are premature in that they require legal and factual
determinations concerning the extent to which the CBA applies to Cassens Corporation. Cassens
Corporation is not Mr. Schuring’s employer and there is a question as to the whether the Work
Preservation Agreement makes Cassens Corporation a party to the entire CBA or just the Work
Preservation Agreement. Consequently, Cassens Corporation has not presented a plausible
reason for dismissal of Counts X-XII. Therefore, these Counts remain.
The only argument Cassens Corporation makes with respect to Count XIII is that this
Count fails because all of the other Counts alleged against Cassens Corporation fail. As
discussed above, Counts V and VI survive. Therefore, Count XIII also survives, as Cassens
Corporation has not presented a plausible reason for dismissal of this Count.
CONCLUSION
For the reasons stated herein, this Court grants Cassens Corporation’s motion to dismiss
with respect to Counts VII, VIII, and IX and denies it with respect to Counts V-VI and X-XIII.

Dated: February 14, 2014

____________________________
Virginia M. Kendall, U.S. District Judge

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