Majewski v. Dick's Sporting Goods, Inc. et al

Filing 12

MEMORANDUM Opinion and Order Signed by the Honorable Steven C. Seeger on 1/8/2021. For the foregoing reasons, plaintiff's motion to remand (Dckt. No. #6 ) is hereby granted. Mailed notice. (jjr, )

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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LAURA MAJEWSKI,

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)
Plaintiff,
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v.
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DICK’S SPORTING GOODS, INC., and )
MICHELLE JURCZAK, individually,
)
)
Defendants.
)
____________________________________)

Case No. 20-cv-6906
Hon. Steven C. Seeger

MEMORANDUM OPINION AND ORDER
Plaintiff Laura Majewski filed this slip-and-fall case in state court, and Defendant Dick’s
Sporting Goods, Inc. removed it to federal court. Plaintiff responded by filing a motion to
remand, arguing that this Court lacks subject matter jurisdiction because there is no diversity of
citizenship. The motion to remand is granted.
The case is about an injury suffered on a wintery day at a local Dick’s Sporting Goods.
Plaintiff alleges that she slipped and fell on a patch of ice outside a store in the Chicagoland
suburbs last winter. See Cplt. (Dckt. No. 1-1, at 2 of 7). According to the complaint, “ice
formed due to snow that melted and refroze from a pile of snow out side [sic] Dick’s Sporting
Good’s [sic] store, causing Ms. Majewski to slip and fall while leaving the store.” Id. at ¶ 5.
Plaintiff advances two claims against Dick’s Sporting Goods, including claims for
negligence and premises liability. But she didn’t simply sue the company. She also brings a
negligence claim against Defendant Michelle Jurczak, the store manager. Id. at ¶¶ 21–25.
The gist of the claim is that Defendant Jurczak was negligent because she failed to
maintain a safe store. Plaintiff claims that Jurczak “had a duty to operate, maintain and control

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said property in a reasonably safe manner.” Id. at ¶ 23. According to Plaintiff, Jurczak breached
that duty and acted negligently by (1) failing to inspect the property for hazards; (2) allowing ice
to form at the entrance/exit of the store; and (3) failing to warn that the slippery ice posed a
danger. Id. at ¶ 24.
The complaint isn’t very specific about the nature and extent of her injuries, or about the
amount of damages that she seeks. Plaintiff alleges that she suffered unspecified “severe and
permanent injuries,” and that she incurred “medical expenses, pain and suffering, wage loss,
scarring and disfigurement and loss of normal life.” Id. at ¶ 8. She demands more than $50,000
in damages, but beyond that, there is no other estimate. Id. The Court will assume without
deciding that the claims satisfy the amount-in-controversy requirement.
Defendant Dick’s Sporting Goods promptly removed the case to federal court, invoking
this Court’s diversity jurisdiction. See Notice of Removal (Dckt. No. 1). The notice of removal
asserts that Plaintiff is a citizen of Illinois, and that Dick’s Sporting Goods is a Delaware
corporation with a principal place of business in Pennsylvania. Id. at ¶¶ 5, 6.
But Defendant Jurczak – like Plaintiff Majewski – is a citizen of Illinois. Id. at ¶ 7. That
fact poses a potential problem of jurisdictional proportions, because federal courts have diversity
jurisdiction only if there is complete diversity. See 28 U.S.C. § 1332; see also Strawbridge v.
Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806); Fid. & Deposit Co. of Maryland v. City of
Sheboygan Falls, 713 F.2d 1261, 1264 (7th Cir. 1983) (“For a case to be within the diversity
jurisdiction of the federal courts, diversity of citizenship must be ‘complete,’ meaning that no
plaintiff may be a citizen of the same state as any defendant.”). Also, Defendant Jurczak is a
citizen of the forum state, which poses a problem even if there were complete diversity. See 28
U.S.C. § 1441(b)(2) (“A civil action otherwise removable solely on the basis of the jurisdiction

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under section 1332(a) of this title may not be removed if any of the parties in interest properly
joined and served as defendants is a citizen of the State in which such action is brought.”); see
also Morris v. Nuzzo, 718 F.3d 660, 664–65 (7th Cir. 2013) (discussing the “forum defendant
rule”).
Defendant Jurczak apparently did not consent to removal in a timely manner, either. The
removal statute provides that “[w]hen a civil action is removed solely under section 1441(a), all
defendants who have been properly joined and served must join in or consent to the removal of
the action.” See 28 U.S.C. § 1446(b)(2)(A); see also Gossmeyer v. McDonald, 128 F.3d 481,
489 (7th Cir.1997) (“A petition for removal is deficient if not all defendants join in it. To ‘join’
a motion is to support it in writing.”) (cleaned up). Jurczak was served with process on October
13, 2020 (Dckt. No. 6-3), meaning 38 days before the filing of the notice of removal on
November 20, 2020 (Dckt. No. 1). So Jurczak needed to join in or consent to removal (if she
was “properly joined” as a party, that is).
But only Dick’s Sporting Goods filed the notice of removal. The first paragraph states
that “Defendant, DICK’S SPORTING GOODS, INC. . . . submits this Notice of Removal.” See
Notice of Removal, at 1 (Dckt. No. 1); see also id. (“In support of this petition and grounds for
removal, Dick’s Sporting Goods states as follows: . . . .”). The last paragraph and the signature
block confirm the same point – only Dick’s Sporting Goods filed the notice of removal. Id. at 4.
The notice of removal did not include a consent form by Defendant Jurczak, either.
Weeks later, on December 18, 2020, Dick’s Sporting Goods filed a consent form signed by
Defendant Jurczak in its response to the motion to remand (Dckt. Nos. 9, 10-1). But the consent
form is undated. There is no indication that Defendant Jurczak consented on the day of removal.
The statute requires consent by all defendants who were served and properly joined, but does not

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specify when a defendant must consent.1 See 28 U.S.C. § 1446(b)(2). Suffice it to say that the
case arrived in the federal courthouse without any indication that Defendant Jurczak was on
board.

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The Court assumes without deciding that a party can cure a deficient notice of removal that lacks a
consent form signed by a defendant. Consent of all defendants is a procedural requirement, not a
jurisdictional requirement. Even if a party can cure an incomplete notice of removal, there is an issue
about when the consent must take place. The statutory text sets a fixed deadline for the filing of a notice
of removal (i.e., 30 days after service of process). See 28 U.S.C. § 1446(b)(2)(B). The statute provides
that “[e]ach defendant shall have 30 days after receipt by or service on that defendant of the initial
pleading or summons . . . to file the notice of removal.” See 28 U.S.C. § 1446(b)(2)(B). And the statute
allows an earlier-served defendant to “consent to the removal” by a later-served defendant, even if the
earlier-served defendant did not previously consent to removal. See 28 U.S.C. § 1446(b)(2)(C). But the
statute does not set a fixed deadline for when, exactly, an earlier-served defendant must consent to
removal by a later-served defendant. The text arguably suggests that all defendants must consent at the
time of removal, if they were properly joined and served at that time. “When a civil action is removed
solely under section 1441(a), all defendants who have been properly joined and served must join in or
consent to the removal of the action.” See 28 U.S.C. § 1446(b)(2)(A) (emphasis added); see also Alston
v. Wells Fargo Bank, N.A., 2017 WL 2839629, at *2 (D. Md. 2017) (“This temporal language suggests
that all defendants must consent to removal, if not within their own 30-day window under
§ 1446(b)(2)(B), then when the case is actually removed, not at some undetermined point afterwards.”)
(emphasis in original). Some courts have held that the period for consent extends after the filing of the
notice of removal if an earlier-served defendant removes the case and a later-served defendant is served
less than 30 days before the filing of the notice of removal. (Imagine if Defendant A was served on
September 1, and removed the case on September 30, but Defendant B was served on September 29.) See
Alston, 2017 WL 2839629, at *2 (holding that a “removing defendant must secure the consent of other
served defendants by the time of the filing of the notice of removal, or within 30 days of when the
consenting defendant was first served, whichever is later”). Courts in this District have addressed
whether the filing of a consent form after removal must occur within the 30-day period for removal. See,
e.g., Compassionate Pain Mgmt., LLC v. Frontier Payments, LLC, 2017 WL 4423409, at *4 (N.D. Ill.
2017) (holding that an untimely filing of a co-defendant’s consent did not cure its failure to “actually
consent[] to removal within the thirty-day period for removal”); Denton v. Universal Am-Can, Ltd., 2012
WL 3779315, at *3 (N.D. Ill. 2012) (“Courts in this circuit have held that the failure to include a written
consent in a removal petition may only be cured by filing the written consent within the 30–day time
period.”) (emphasis in original); Detrick v. Home Depot, U.S.A., Inc., 2013 WL 3836257, at *2 (N.D. Ill.
2013) (holding that when a defendant orally consented to removal within the 30-day period, but filed an
untimely written consent form after the 30-day period, the untimely consent was sufficient to cure the
defect); see also Couzens v. Donohue, 854 F.3d 508, 513–15 (8th Cir. 2017) (discussing the timeliness of
consent); Pietrangelo v. Alvas Corp., 686 F.3d 62, 66 (2d Cir. 2012); Palmeira v. CIT Bank, N.A., 2017
WL 4797515, at *3–6 (D. Hawai’i 2017) (same). Here, Dick’s Sporting Goods filed Jurczak’s consent on
December 18, 2020, which is 28 days after the filing of the notice of removal on November 20, 2020, and
53 days after Dick’s Sporting Goods (the last-served defendant) was served with process on October 26,
2020. See Dckt. No. 6-2. The Court does not need to resolve whether the belated consent cured the
defect because there is no jurisdiction even if Defendant Jurczak consented to removal.

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Dick’s Sporting Goods contends that it can get around all of those problems because the
complaint suffers from fraudulent joinder. “Fraudulent joinder occurs when a nondiverse party
is added solely to deprive the federal courts of diversity jurisdiction. The citizenship of
fraudulently joined, nondiverse parties is disregarded for the purpose of determining diversity.”
See 16 James Wm. Moore et al., Moore’s Federal Practice § 107.52[4][a] (3d ed. 2020).
“Fraudulent-joinder doctrine tries to strike a reasonable balance among the policies to permit
plaintiffs the tactical prerogatives to select the forum and the defendants they wish to sue, but not
to reward abusive pleading by plaintiffs, and to protect defendants’ statutory right to remove.”
See 14C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3723.1 (4th
ed. 2020).
The fraudulent joinder doctrine provides that an “out-of-state defendant’s right of
removal premised on diversity cannot be defeated by joinder of a nondiverse defendant against
whom the plaintiff’s claim has no chance of success.” See Morris, 718 F.3d at 666 (cleaned up).
The doctrine “permits a district court considering removal ‘to disregard, for jurisdictional
purposes, the citizenship of certain nondiverse defendants, assume jurisdiction over a case,
dismiss the nondiverse defendants, and thereby retain jurisdiction.’” Schur v. L.A. Weight Loss
Ctrs., Inc., 577 F.3d 752, 763 (7th Cir. 2009) (citation omitted). The idea is that defendants who
didn’t belong here in the first place don’t count.
Fraudulent, in this context, is a term of art. It is a bit of a misnomer. It does not suggest
malfeasance or call into question the subjective intent of the plaintiff. See Poulos v. Naas Foods,
Inc., 959 F.2d 69, 73 (7th Cir. 1992) (citing 14A Charles Alan Wright, et al., Federal Practice
and Procedure § 3723 (2d ed. 1985)); see also 14C Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 3723.1 (4th ed. 2020) (“Thus, the plaintiff’s intention that the

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joinder of a particular party or a claim assignment should defeat federal subject-matter
jurisdiction is immaterial to the propriety of the removal, as long as the use of one of those
devices is not merely colorable or made in bad faith.”); 16 James Wm. Moore et al., Moore’s
Federal Practice § 107.52[4][a] (3d ed. 2020) (“The term ‘fraudulent joinder’ is a bit misleading
because the doctrine requires neither a showing of fraud nor joinder.”). “[I]n most cases
fraudulent joinder involves a claim against an in-state defendant that simply has no chance of
success, whatever the plaintiff’s motives.” Poulos, 959 F.2d at 73.
Dick’s Sporting Goods seeks to litigate in federal court, so it has the burden to show that
jurisdiction exists and that joinder was fraudulent. Id. “[A] plaintiff’s choice of forum is
presumed valid, and the Court must resolve any doubts about jurisdiction in favor of remand.”
D.C. by and through Cheatham v. Abbott Laboratories Inc., 323 F. Supp. 3d 991, 993 (N.D. Ill.
2018); see also Schur, 577 F.3d at 758. If in doubt, the case will go back to state court.
The climb is steep, and the burden is heavy. The standard is even more plaintiff-friendly
than the standard for a motion to dismiss under Rule 12(b)(6). See Creation Supply, Inc. v.
Hahn, 2020 WL 4815905, at *7 (N.D. Ill. 2020). “An out-of-state defendant who wants to
remove must bear a heavy burden to establish fraudulent joinder. The defendant must show that,
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.” Poulos, 959 F.2d at 73 (emphasis in original).
At the end of the day, a district court must “engage in an act of prediction: is there any
reasonable possibility that a state court would rule against the non-diverse defendant? If a state
court has come to judgment, is there any reasonable possibility that the judgment will be
reversed on appeal?” Id. (citation omitted).

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Dick’s Sporting Goods argues that there was no legitimate basis to rope Defendant
Jurczak (again, the store manager) into the lawsuit in the first place. In its view, Plaintiff sued
Jurczak solely to defeat diversity jurisdiction, and not because Plaintiff has a plausible claim
against her. So the store manager’s citizenship doesn’t count. See 28 U.S.C. § 1441(b)(2)
(referring to defendants from the forum state who were “properly joined”); 28 U.S.C. §
1446(b)(2)(A) (requiring consent from “all defendants who have been properly joined”).
Dick’s Sporting Goods has not carried its burden to show that Plaintiff’s claim against the
store manager has no reasonable chance of success. Plaintiff has an arguable claim against the
store manager, so the store manager’s citizenship counts.
Dick’s Sporting Goods does not argue that a store manager cannot be liable for injuries to
customers in stores. That quiet concession was unavoidable. The fact that a person was working
may give rise to vicarious liability of the employer. But it does not immunize the employee from
personal liability. “A person is not absolved of personal liability to a third person on account of
his or her negligence or other wrongful act merely because at the time such person was acting as
an employee within the scope of the employment.” Schur, 577 F.3d at 765 (quoting Romualdo
P. Eclaea, Christine M. Gimeo & Thomas Muskus, Employment § 202, in 17 Illinois Law and
Practice (2008)). Being on the clock does not mean that an employee is off the hook.
That is, “[w]hether the employer is held vicariously liable for the agent’s conduct . . .
does not affect the agent’s independent tort liability. . . . Thus, an agent can be individually
liable even where his employer is also vicariously liable.” Schur, 577 F.3d at 765 (emphasis in
original); see also Restatement (Third) of Agency § 7.01 (2006) (“An agent is subject to liability
to a third party harmed by the agent’s tortious conduct. Unless an applicable statute provides
otherwise, an actor remains subject to liability although the actor acts as an agent or an

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employee, with actual or apparent authority, or within the scope of employment.”). Defendant
Jurczak cannot be liable simply for being the store manager – her managerial status does not give
rise to strict liability. But she can be held liable if she breached an independent duty running to
Plaintiff. See Behr v. Club Med, Inc., 190 Ill. App. 3d 396, 408, 137 Ill. Dec. 806, 546 N.E.2d
751 (1989) (“[A]n agent’s liability is based on the duty which he himself owes to the third
person.”) (internal quotation marks omitted).
A number of cases have recognized the potential liability of managers and employees,
and thus granted motions to remand. See, e.g., Brady v. Menard, Inc., 2017 WL 201375, at *2
(N.D. Ill. 2017) (concluding that the store manager was not fraudulently joined, and granting a
motion to remand); Imber v. Home Depot USA, Inc., 2018 WL 5977923, at *2–3 (N.D. Ill. 2018)
(finding that an employee was not fraudulently joined, and granting a motion to remand); Lakin
v. Casey’s Retail, 2015 WL 5182751, at *2–3 (S.D. Ill. 2015) (concluding that the store manager
was not fraudulently joined, and granting a motion to remand); Knebel v. Wal-Mart Stores, Inc.,
2009 WL 3124769, at *2–3 (S.D. Ill. 2009) (concluding that the store manager was not
fraudulently joined, and granting a motion to remand).
Instead, Dick’s Sporting Goods tries a different route. The company argues that Plaintiff
has no claim because Defendants weren’t responsible for the ice and snow. The argument comes
in three varieties.
First, Dick’s Sporting Goods argues that the injury did not take place on store property.
See Mem. at 4 (Dckt. No. 10) (“The Complaint alleges that Plaintiff slipped and fell on an icy
sidewalk outside the leased premises.”). That is, the company argues that Defendants cannot be
liable for a fall on property that they didn’t control.

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The precise location of the accident is not clear in the complaint. But the allegations
suggest that Plaintiff fell in an area controlled by Dick’s Sporting Goods. Specifically, Plaintiff
alleges that she was “lawfully upon defendant’s property Dick’s Sporting Good’s [sic] store.”
See Cplt., at ¶ 4 (Dckt. No. 1-1); id. at ¶ 15 (alleging that she was “lawfully upon defendant’s
premises”). Ice formed “out side [sic] Dick’s Sporting Good’s [sic] store,” causing Plaintiff to
fall “while leaving the store.” Id. at ¶ 5. The injury happened at the “store entrance/exit.” Id. at
¶ 7(a); see also id. at ¶ 7(d) (alleging that the injury took place “in an area where patrons are
known to walk”). In sum, she fell “on defendant’s property.” Id. at ¶ 17.
Viewed as a whole, those allegations are more than enough to raise the possibility that
Plaintiff suffered an injury while on the property leased by Dick’s Sporting Goods. Maybe
discovery someday will show otherwise. But that’s a merits question for a later day, for another
court.
Second, Dick’s Sporting Goods contends that snow removal was the responsibility of the
property manager, not Dick’s Sporting Goods. The company points to a provision in its lease
requiring the property manager to “keep such Common Areas within Landlord’s Portion of the
Shopping Center reasonably . . . free of snow and ice.” See Lease, at ¶ 14.2(d) (Dckt. No. 10-5).
But as discussed above, Plaintiff has alleged that she slipped in an area controlled by Dick’s
Sporting Goods, not a common area controlled by the property manager. Dick’s Sporting Goods
has not demonstrated that Plaintiff fell on property that Dick’s Sporting Goods didn’t control.
Maybe the property manager had a contractual duty to shovel all of the snow on the
leased property, including the walkways outside Dick’s Sporting Goods. But if so, it would not
prevent a claim by an injured customer. Plaintiff was not a party to that contract, so the
contractual allocation of responsibility between the lessor and the lessee does not impair the tort

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rights of the customer. A contract between X and Y does not prevent a tort claim by Z against X.
A contract might give Dick’s Sporting Goods the right to seek indemnification from the property
manager, but it does not take away the right of a shopper to recover for her injuries.
Third, Dick’s Sporting Goods contends that there is no duty to remove snow or ice due to
a natural accumulation. See Mem. at 5 (Dckt. No. 10). But the complaint does not allege that
there was only a natural accumulation. In fact, it says the opposite. The complaint alleges that
Dick’s Sporting Goods “carelessly and negligently plowed snow in such a way that an unnatural
accumulation of ice was allowed to form.” See Cplt., at ¶ 7(d) (Dckt. No. 1-1); see also id. at ¶ 8
(alleging an “unnatural accumulation of ice”); id. at ¶ 16(a) (same); id. at ¶ 16(b) (same); id. at
¶ 17 (same). The complaint also alleges that there was a “pile” of snow. Id. at ¶ 5. Maybe
someone piled the snow with a shovel.
Dick’s Sporting Goods also makes the related argument that the store manager is a
nominal party. See Northern Illinois Gas Co. v. Airco Indus. Gases, 676 F.2d 270, 272 (7th Cir.
1982) (“Nominal parties, however, are disregarded for removal purposes and need not join in the
petition.”); see also Selfix, Inc. v. Bisk, 867 F. Supp. 1333, 1336 (N.D. Ill. 1994) (“If a party to a
suit is merely a nominal party, its presence in the suit will not defeat removal. A nominal party
need not join in the removal petition.”); 16 James Wm. Moore et al., Moore’s Federal Practice
§ 107.42[3][a] (3d ed. 2020) (“Although generally all defendants must join in the notice of
removal . . . nominal or formal parties are excepted from this rule. This nominal-party exception
ensures that only parties with a palpable interest in the outcome determine whether the case will
be heard in federal court.”).

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“A defendant is nominal if there is no reasonable basis for predicting that it will be held
liable.” Shaw v. Dow Brands, Inc., 994 F.2d 364, 369 (7th Cir. 1993). A defendant also is a
nominal party if the plaintiff seeks no real relief against that party, or if the defendant is merely
a depository or stakeholder (say, a person who did not commit securities fraud, but yet is holding
the proceeds of a fraud, in an SEC case). See Legal Helpers Debt Resolution, LLC v. Global
Client Solutions, 2012 WL 3017886, at *2 (N.D. Ill. 2012) (“A nominal party is a party without a
real interest in the subject matter being litigated and can be joined merely as a means of
facilitating collection of the disputed subject matter.”); 16 James Wm. Moore et al., Moore’s
Federal Practice § 107.42[3][a] (3d ed. 2020) (“Those against whom no real relief is sought
have also been considered nominal. A party who serves only as a depository or stakeholder may
also be considered nominal.”).
Dick’s Sporting Goods contends Defendant Jurczak is a nominal party because an agent’s
breach of duty to the principal cannot give rise to a claim by a third party. See Mem. at 3 (Dckt.
No. 10). But Plaintiff isn’t arguing that the store manager breached a duty to Dick’s Sporting
Goods. Instead, Plaintiff squarely alleges that the store manager breached a duty to her
personally. See Schur, 577 F.3d at 766 (“An agent is liable in tort to a third party harmed by the
agent’s conduct when the agent breaches an independent duty that she owes to the third party.”)
(emphasis added). She alleges that the store manager breached a duty to her as a customer – that
is, a duty to inspect the store, prevent hazards, and warn of dangers. That claim may or may not
pan out, but it is a bridge too far to argue that Plaintiff has no reasonable chance of success.
In sum, Dick’s Sporting Goods has failed to carry its heavy burden that Plaintiff
fraudulently joined the store manager as a party. The company hasn’t shown that the store
manager is a nominal party, either. Defendant Jurczak’s citizenship counts, which means that

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there is no complete diversity of citizenship. This Court therefore lacks subject matter
jurisdiction. The motion to remand is granted.

Date: January 8, 2021
Steven C. Seeger
United States District Judge

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