Merli v. United Parcel Service, Inc. et al
Filing
13
ORDER granting 4 Motion to Remand to State Court. Because the Court lacks federal subject matter jurisdiction, the Court remands the case to the Madison County, Illinois Circuit Court. Signed by Chief Judge David R. Herndon on 8/19/11. (klh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DANIEL C. MERLI, JR.,
Plaintiff,
v.
UNITED PARCEL SERVICE, INC.,
and MARK COLLINS,
Defendants.
No. 11-0572-DRH
MEMORANDUM and ORDER
HERNDON, Chief Judge:
I. Introduction and Background
Now before the Court is plaintiff’s motion to remand (Doc. 4). Defendants
oppose the motion (Doc. 7). Based on the following, the Court grants the motion to
remand.
On June 2, 2011, plaintiff, an Illinois citizen, sued his former employer, United
Parcel Service, Inc. (“UPS”), and his former supervisor, Mark Collins, in the Madison
County, Illinois Circuit Court. His complaint contains three counts based on state
law - Count I against UPS wrongful termination; Count I against UPS for punitive
damages and Count III against Collins for tortious interference with economic
expectancy. On June 29, 2011, defendants removed the case based on diversity
jurisdiction, 28 U.S.C. § 1332, contending that defendant Collins, an Illinois citizen,
was fraudulently joined and that his citizenship should be disregarded. Shortly
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thereafter, plaintiff filed a motion to remand arguing that Collins was not fraudulently
joined, thus, this Court lacks subject matter jurisdiction.
II. Analysis
The removal statute, 28 U.S.C. § 1441, is construed narrowly, and doubts
concerning removal are resolved in favor of remand. Doe v. Allied-Signal, Inc., 985
F.2d 908, 911 (7th Cir.1993). Defendants bear the burden to present evidence of
federal jurisdiction once the existence of that jurisdiction is fairly cast into doubt. See
In re Brand Name Prescription Drugs Antitrust Litig., 123 F.3d 599, 607 (7th Cir.
1997). “A defendant meets this burden by supporting [its] allegations of jurisdiction
with ‘competent proof,’ which in [the Seventh Circuit] requires the defendant to offer
evidence which proves ‘to a reasonable probability that jurisdiction exists.’ ” Chase
v. Shop 'N Save Warehouse Foods, Inc., 110 F.3d 424, 427 (7th Cir. 1997) (citations
omitted). However, if the district court lacks subject matter jurisdiction, the action
must be remanded to state court pursuant to 28 U.S.C. § 1447(c)
The statute regarding diversity jurisdiction, 28 U.S.C. § 1332, requires
complete diversity between the parties plus an amount in controversy which exceeds
$75,000, exclusive of interest and costs. Complete diversity means that “none of the
parties on either side of the litigation may be a citizen of the state of which a party on
the other side is a citizen.” Howell v. Tribune Entertainment Co., 106 F.3d 215, 217
(7th Cir. 1997) (citations omitted). Here, the problem is that both plaintiff and
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Collins are citizens of Illinois.1 Therefore, unless Collins’ citizenship is disregarded,
the Court does not have subject matter jurisdiction over plaintiff’s claims.
“A plaintiff typically may choose its own forum, but it may not join a nondiverse
defendant simply to destroy diversity jurisdiction.” Schur v. L.A. Weight Loss
Centers, Inc. 577 F.3d 752, 763 (7th Cir. 2009). See also Gottlieb v. Westin Hotel
Co., 990 F.2d 323, 327 (7th Cir. 1993) (collecting cases). “The ‘fraudulent joinder’
doctrine, therefore, 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, 577 F.3d at 763.
In the context of jurisdiction, “fraudulent” is a term of art. See Poulos v. Naas
Foods, Inc., 959 F.2d 69, 73 (7th Cir. 1992). “Although false allegations of
jurisdictional fact may make joinder fraudulent ... in most cases fraudulent joinder
involves a claim against an in-state defendant that simply has no chance of success
whatever the plaintiff's motives.” Id. (collecting cases). To prove fraudulent joinder,
the out-of-state defendant must “show there exists no ‘reasonable possibility that a
state court would rule against the [in-state] defendant,’ ” Schwartz v. State Farm
Mutual Auto. Ins. Co., 174 F.3d 875, 878 (7th Cir. 1999) (citing Poulos, 959 F.2d at
73). The defendant bears a heavy burden in this regard. Id. See also Schur, 577 F.3d
at 764 (in a fraudulent joinder analysis, the “district court must ask whether there
1
Hypoguard is a citizen of Delaware and Minnesota; Medisys is a citizen of Delaware and
Minnesota; and Liberty is a citizen of Florida.
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is ‘any reasonable possibility’ that the plaintiff could prevail against the non-diverse
defendant”).
Here, plaintiff argues that he has alleged sufficient facts against Collins to
defeat the allegation of fraudulent joinder. Specifically, plaintiff alleges in Count III
of his complaint that Collins tortiously interfered with his right to continued
employment with UPS in October 2010 when Collins unreasonably obstructed his
return to work following a non-work related accident. Plaintiff maintains that Collins
motivation was to act with malice towards him and not in furtherance of the
legitimate corporate objectives of UPS. Plaintiff contends that Collins’ waived the
qualified privilege with regard to his actions in carrying out the goals of the
corporation. Defendants maintain that Collins, as a UPS manager, cannot tortiously
interfere with plaintiff’s employment with UPS. Defendants further maintain that any
savings achieved by firing or otherwise interfering with plaintiff’s return to work
would be realized by UPS and that plaintiff has not alleged that Collins acted for any
reason other than the interest of UPS.
Illinois courts have consistently held in tortious interference actions involving
conditional privileges that the plaintiff bears the affirmative burden of pleading and
proving the absence of the privilege. In affirming the circuit court's granting of a
motion to dismiss, the Illinois Supreme Court in Arlington Heights stated that the
plaintiff must show “actual malice” on the part of the defendant in order to sustain
a cause of action for interference with contract where the alleged wrongful conduct
is conditionally privileged. Arlington Heights National Bank v. Arlington Heights
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Federal Savings & Loan Association, 37 Ill.2d 546, 229 N.E.2d 514 (1967).
Similarly, in Swager v. Couri, 77 Ill.2d 173, 32 Ill.Dec. 540, 395 N.E.2d 921 (1979),
the Illinois Supreme Court held in a tortious interference action that the absence of
a privilege of a corporate officer to act for the corporation must be pleaded and
proven in the plaintiff's case-in-chief.
Here, the Court determines that the record does not support defendants’
contention that there is no possibility that plaintiff could ever recover against Collins.
The facts alleged by plaintiff allow for a reasonable inference that Collins’ conduct
towards plaintiff was motivated by his anger towards plaintiff for putting Collins in
the position of having to explain to UPS why he did not follow UPS rules and report
plaintiff’s original back injury in a timely manner. The allegations contained in the
complaint present a question of whether the privilege defense would survive. At this
stage in the litigation, the Court is required to resolve all issues of state law against
removal. Therefore, the Court finds that Collins was not fraudulently joined and
thus, the Court lacks subject matter jurisdiction.
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III. Conclusion
Accordingly, the Court GRANTS the motion to remand (Doc. 4). Pursuant to
28 U.S.C. § 1447(c), the Court REMANDS this case to the Madison County, Illinois
Circuit Court for lack of federal subject matter jurisdiction.
IT IS SO ORDERED.
Signed this 19th day of August, 2011.
David R.
Herndon
2011.08.19
07:12:36 -05'00'
Chief Judge
United States District Court
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