Lakin v. Casey's Retail Company

Filing 42

ORDER OF REMAND: Case remanded to Third Judicial Circuit Court, Madison County, Illinois for lack of diversity, denying as moot 26 Joint MOTION to Dismiss Tanya Powell and Count II of Plaintiff's First Amended Complaint. Signed by Judge David R. Herndon on 9/4/15. (lmp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JAMES LAKIN,
Plaintiff,
v.
CASEY’S RETAIL d/b/a/
CASEY’S GENERAL STORE, INC. #1972
an Iowa Corporation, and
TANYA POWELL

Case No. 14-cv-648-DRH-DGW

Defendants.
MEMORANDUM & ORDER
HERNDON, District Judge:
The issue before the Court is the determination of whether federal diversity
jurisdiction under 28 U.S.C. § 1332 exists following the addition of Defendant
Tanya Powell. As the Court is obligated to raise sua sponte whether it has subject
matter jurisdiction over this case, this matter must be addressed prior to ruling
on the pending motion to dismiss. See Craig v. Ontario Corp., 543 F.3d 872, 875
(7th Cir. 2008) (citing Sadat v. Mertes, 615 F.2d 1176, 1188 (7th Cir. 1980)
(stating, “it has been the virtually universally accepted practice of the federal
courts to permit any party to challenge or, indeed, raise sua sponte the subjectmatter jurisdiction of the court at any time and at any stage of the proceedings”)).
For the reasons stated below, this matter is REMANDED to the Third Judicial
Circuit Court, Madison County, Illinois and defendants’ motion to dismiss is
DENIED as moot.

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I.

INTRODUCTION AND BACKGROUND

This action was filed on May 1, 2014 in Madison County Circuit Court.
Plaintiff’s complaint arises from alleged injuries resulting from a slip and fall
occurring on the premises of a Casey’s store located in Highland, IL. Plaintiff
asserts that he fell on the wet floor of the Casey’s and suffered injuries, the most
severe of which being injuries to his right shoulder (Doc. 22).
On June 5, 2014, Casey’s removed the case to this Court asserting diversity
jurisdiction under 28 U.S.C. § 1446 (Doc. 2).

Thereafter, plaintiff’s sought leave

to file a first amended complaint and to add an additional party defendant.
Plaintiff filed the first amended complaint on March 27, 2015, adding Tanya
Powell, the Casey’s store manager, as a party (Doc 22). Subsequently, defendants
moved to dismiss Tanya Powell and Count II of plaintiff’s complaint pursuant to
pursuant to FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6) arguing that the complaint
fails to establish a duty on the part of defendant Powell separate from that of
Casey’s (Doc. 26).
Plaintiff asserted that “Defendant owed Plaintiff, a business invitee and
patron, a duty of care insofar that Defendant had a duty to keep the premises in a
reasonably safe condition, and to properly train her employees.” (Id. at p. 4, ¶4).
However, before considering the motion to dismiss, the Court must raise sua

sponte whether subject matter jurisdiction exists over this case. See Craig v.
Ontario Corp., 543 F.3d 872, 875 (7th Cir. 2008) (citing Sadat v. Mertes, 615
F.2d 1176, 1188 (7th Cir. 1980) (stating, “it has been the virtually universally
accepted practice of the federal courts to permit any party to challenge or, indeed,
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raise sua sponte the subject-matter jurisdiction of the court at any time and at any
stage of the proceedings”)).
II.

LAW AND APPLICATION

Defendants removed this case on the basis of diversity jurisdiction (Doc. 2).
The statute regarding diversity jurisdiction, 28 U.S.C. § 1332, requires complete
diversity between the parties plus an amount in controversy exceeding $75,000,
exclusive of interest and costs.

The removal statute, 28 U.S.C. § 1441, is

construed narrowly; thus, doubts concerning removal are resolved in favor of
remand. Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993).
Joinder of non-diverse parties after an action has been removed to federal
court is governed by 28 U.S.C. § 1447(e). 28 U.S.C. § 1447(e) provides that “[i]f
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.” “A district court has discretion to
permit or deny post-removal joinder of a nondiverse party, and the court should
balance the equities to make the determination.” Schur v. L.A. Weight Loss

Centers, Inc., 577 F.3d 752, 759 (7th Cir. 2009). In exercising its discretion, a
district court should consider the following factors: (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
considerations. Id.
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Here, the Court previously granted plaintiff’s motion to amend. Upon review
of the record, for purposes of 28 U.S.C. § 1332, defendant Powell, as well as
plaintiff, are citizens of the state of Illinois. Defendant Casey’s is a citizen of
Iowa—the place of its incorporation and principal place of business (Doc. 2 at
¶4). Therefore, the issue of jurisdiction requires a determination as to whether
Plaintiff's claim against defendant Tanya Powell satisfies the Schur factors.
i. Plaintiff’s Motive for Seeking Joinder
A plaintiff may not join a non-diverse defendant simply to destroy diversity
jurisdiction. Schwartz v. State Farm Mut. Auto. Ins. Co., 174 F.3d 875, 878 (7th
Cir.1999); Gottlieb v. Westin Hotel Co., 990 F.2d 323, 327 (7th Cir.1993).
Specifically, the Court must determine whether “there [is] any reasonable
possibility” that the plaintiff could prevail against the non-diverse party. Schur,
577 F.3d at 764.
In plaintiff’s amended complaint, he asserts that defendant Powell “owed
Plaintiff, a business invitee and patron, a duty of care insofar that Defendant had
a duty to keep the premises in a reasonably safe condition and to properly train
her employees” (Doc. 22). Plaintiff went on to allege that Powell specifically “failed
to train her employees to clean up liquid spills on the floor, in a timely manner.”
Further, plaintiff maintains that Powell had specific responsibilities to this
plaintiff, a store patron, since Powell “controlled and/or managed and operated a
gas station/general store located at 315 Broadway, in the City of Highland, County

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of Madison, and in the State of Illinois, for the corporate Defendant.” (Doc. 22, p.
4).
Plaintiff's claims are governed by Illinois substantive law. Accordingly, the
Court need not undertake a lengthy choice-of-law analysis and may presume that
the claims are governed by the substantive law of Illinois. See Employers Mut.

Cas. Co. v. Skoutaris, 453 F.3d 915, 923 (7th Cir.2006) (where neither party
raised conflict of law issue in diversity action, law of forum state governed).
Illinois law allows a plaintiff to maintain a cause of action against a store, a store’s
manager, or both, on the grounds that they can be found jointly and severally
liable. Lasko v. Meier, 394 Ill. 71, 67 N.E.2d 162, 166 (Ill.1946)). A person is not
absolved of personal liability to a third party merely because he or she was acting
as an employee within the scope of employment at the time of the incident. As
store manager of Casey’s, Powell served as an agent of Casey’s.
Under general principles of agency, an agent's breach of a duty to the
principal is not itself a basis for holding the agent liable in tort to a third party.
However, the Restatement (Third) of Agency § 7.01 states that “an agent is subject
to liability to a third party harmed by the agent's tortious conduct… An actor
remains subject to liability although the actor acts as an agent or an employee,
with actual or apparent authority, or within the scope employment.” Restatement
(Third) of Agency § 7.01 (2006). The comments to § 7.01 go on to state that “an
agent's individual tort liability extends to negligent acts and omissions as well as
to intentional conduct.” Restatement (Third) of Agency § 7.01, cmt. b (2006).
Powell will not be held liable simply for being a manager at the Casey’s store, but
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she may be held liable for breaching an independent duty owed to plaintiff. Bovan

v. Am. Family Life Ins. Co., 897 N.E.2d 288, 295 (quoting Restatement (Third) of
Agency § 7.02, at 138 (2006)); Schur, 577 F.3d at 766.
The Seventh Circuit directs this Court to use a “reasonable possibility”
standard to determine if plaintiff could prevail against Powell. Poulos v. Naas

Foods, Inc., 959 F.2d 69, 73 (7th Cir. 1992). When construing the facts and law
in a light most favorable to the plaintiff, the Court finds a reasonable possibility
that an Illinois state court could rule against Powell on an independent state tort
claim. Plaintiff alleges that his injury was caused by Powell's negligent failure to
train her employees, specifically stating that Powell breached a duty of care owed
to the plaintiff (Doc. 22, pg 4). The Court cannot determine whether that duty to
plaintiff existed on such a limited factual record. For the purposes of deciding if
remand is necessary, it is enough to note that Illinois law may establish an
independent duty based on a delegation of the premise owner's duties toward
invitees in the case of negligence against a store manager.
Therefore, the Court finds that plaintiff’s purpose was not to defeat
jurisdiction and that plaintiff timely moved to add the parties. Thus, under 28
U.S.C. § 1447(e), the Court finds that remand is proper. See e.g., Knebel v. Wal-

Mart Stores, Inc., No. 09-CV-262-WDS, 2009 WL 3124769, at *3 (S.D. Ill. Sept.
24, 2009); Chuffo v. Ramsey, 55 F.Supp.2d 860, 867 (N.D.Ill.1999).
ii. Remaining Factors
The remaining factors under Schur also permit joinder of Powell. First, the
Plaintiff's request for leave to amend was not untimely. In submitting an amended
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Scheduling Order, the parties agreed to March 9, 2015 as the last date to seek
leave to join additional parties or to amend the pleadings— the date plaintiff
actually sought leave to amend (Doc. 20).
Second, the work accomplished in the gathering of discovery by each side
in this case can easily be applied to the state action.

Defendants are not

prejudiced by remanding this action to the forum in which it belongs. However,
Plaintiff would be hampered if joinder is not permitted to allow him to pursue his
claims against the recently added defendant.
Accordingly, because the Court lacks subject matter jurisdiction over
plaintiff’s first amended complaint, the Court, pursuant to 28 U.S.C. § 1447(e),
REMANDS this matter to the Third Judicial Circuit Court, Madison County,
Illinois. Lastly, the Court DENIES as moot the pending motion to dismiss (Doc.
26).
IT IS SO ORDERED.
Signed this 4th day of September, 2015.

Digitally signed by
David R. Herndon
Date: 2015.09.04
15:43:39 -05'00'
United States District Judge

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