Dallape v. Wal-Mart Stores, Inc. et al

Filing 21

ORDER. The respective motions to dismiss filed by Defendants Brower (Doc. 19 ) and Masterson (Doc. 20 ) are GRANTED. It is clear from the contents of the First Amended Complaint that Sharon Wadlow is NOT a target of this lawsuit, so the Clerk is DIRECTED to terminate her from the docket. Now that complete diversity is established, the Court assigns CJRA Track B to the case. A trial date will be assigned by separate order. Signed by Chief Judge Michael J. Reagan on 1/20/2015. (jls)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOSEPH DALLAPE, as Independent
Administrator of the Estate of LEVO
DALLAPE, deceased,
Plaintiff,
vs.
WAL-MART STORES, INC., d/b/a
WAL-MART SUPERCENTER,
GLENN MASTERSON, and
CHRISTI BROWER,
Defendants.

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Case No. 14–cv–0872–MJR–SCW

MEMORANDUM & ORDER
REAGAN, Chief Judge:
Defendants removed this slip-and-fall tort case from state court in August 2014.
It is undisputed that Levo Dallape, who has passed away, possessed Illinois citizenship
for the purposes of diversity jurisdiction, and that Wal-Mart possesses Arkansas and
Delaware citizenship. Though Defendants Masterson and Brower are Illinois citizens,
and their presence would typically destroy this Court's jurisdiction, Defendants raised
the issue of fraudulent joinder in their notice of removal. (Under the fraudulent joinder
doctrine, 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. Morris v. Nuzzo, 718 F.3d 660, 666 (7th Cir. 2013)).

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The administrator of Plaintiff's estate 1 substituted for the deceased pursuant to
Federal Rule 25, and an Amended Complaint was filed in late October 2014.

Now

Defendants Brower and Masterson have moved for dismissal pursuant to Federal Rule of
Civil Procedure 12 (b)(6). To survive a (12)(b)(6) motion, a complaint must allege facts
that state a claim to relief that is plausible on its face. Fuqua v. SVOX AG, 754 F.3d
397, 400 (7th Cir. 2014) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
All well-pled facts are taken as true. Id.
Plaintiff has failed to respond to the motions in timely fashion. They were filed in
November 2014, and a response was due in December 2014. SDIL–LR 7.1(c). In this
district, failure to file a response to a motion may be, in the presiding judge's discretion,
considered an admission of the merits of the motion. Id.
Acting within that discretion, the undersigned construes Plaintiff's failure to
respond to the respective motions to dismiss (Doc. 19, Doc. 20) as an admission of their
merits.

Accordingly, Christi Brower's Motion to Dismiss (Doc. 19) and Glenn

Masterson's Motion to Dismiss (Doc. 20) are GRANTED.
When the first Defendant appeared in the case, the undersigned indicated that a
trial date and CJRA track would be withheld until the fraudulent joinder issue was
settled. (Doc. 7). Now that complete diversity is established, the Court assigns CJRA
Track B to the case. A trial date will be assigned by separate order.
s/ Michael J. Reagan
MICHAEL J. REAGAN
Chief Judge
UNITED STATES DISTRICT COURT

IT IS SO ORDERED.
DATE: January 20, 2015

The legal representative of a decedent's estate is, for the purposes of the federal diversity statute, a
citizen of the same state as the decedent. Gustafson v. zumBrunnen, 546 F.3d 398, 400 (7th Cir. 2008).

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