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

Filing 25

ORDER OF REMAND: Case remanded to Twentieth Judicial Circuit, St. Clair County, Illinois. Granting 14 MOTION to Remand by Michael L Lambert. Signed by Judge David R. Herndon on 1/20/15. (lmp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MICHAEL L. LAMBERT,
Plaintiff,
v.
WAL-MART STORES, INC., and
DONNA THOMASON,
Defendants.

Case No. 14-cv-1124-DRH-SCW
MEMORANDUM & ORDER

HERNDON, District Judge:
I.

INTRODUCTION

Pending before the Court is plaintiff’s motion to remand this action to the
Circuit Court for the Twentieth Judicial Circuit, St. Clair County, Illinois, for lack
of subject matter jurisdiction (Doc. 14). Plaintiff Michael L. Lambert argues that
defendant Donna Thomason was properly joined and plaintiff is not seeking to
fraudulently add Cheryl Deathrow as a defendant in its pending motion (Doc. 13).
Defendants responded arguing that plaintiff fraudulently joined Thomason as a
party to this suit to defeat diversity jurisdiction (Doc. 24). For the following
reasons, the Court GRANTS plaintiff’s motion to remand.
II.

BACKGROUND

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Plaintiff originally filed an action arising from the same operative facts as
the instant case on August 22, 2014, in the Circuit Court of St. Clair County,
Illinois (2-2). Plaintiff’s initial complaint named Wal-Mart Stores, Inc., and Donna
Thomason as defendants for injuries allegedly resulting from a fall in the Sparta,
Illinois Wal-Mart, owned by defendant Wal-Mart Stores, Inc., which occurred on
January 1, 2014 (Doc. 2-2).
On October 20, 2014, defendants removed this case to the United States
District Court for the Southern District of Illinois asserting this Court has
diversity jurisdiction under 28 U.S.C. § 1446 (Doc. 2). Defendants argued that
plaintiff fraudulently joined Thomason as a party to this suit to defeat diversity
jurisdiction. For purposes of 28 U.S.C. § 1332, defendant Thomason, as well as
plaintiff, are citizens of the state of Illinois. Wal-Mart Stores, Inc., is a citizen of
Delaware, the place of its incorporation, and is also a citizen of Arkansas, its
principal place of business (Doc. 2). In support of removal, Thomason provided a
sworn affidavit stating that she was not at the store at the time alleged fall and
coupled with her duties, she did not owe a duty to plaintiff (Doc. 2-3). Thomason
stated that she left the store at 5:00 p.m. on the date in question, roughly thirty
minutes prior to the alleged fall.
On December 15, 2014, plaintiff filed a motion to remand (Doc. 14). In
support of the motion, plaintiff argues that he and defendant Thomason are both
Illinois citizens, and thus complete diversity does not exist. Defendants oppose

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remand, arguing plaintiff fraudulently joined Thomason to defeat federal diversity
jurisdiction.
III.

LAW AND APPLICATION

a. Removal
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 exceeding
$75,000, exclusive of interest and costs. See 28 U.S.C. § 1332(a)(1); LM Ins.

Corp. v. Spaulding Enters. Inc., 533 F.3d 542, 547 (7th Cir. 2008). 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.
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Tribune Entertainment Co., 106 F.3d 215, 217 (7th Cir. 1997) (citations omitted).
The monetary threshold is undisputed. The issue is whether complete diversity
exists between the parties. Defendants assert that Thomason has been
fraudulently joined.
b. Fraudulent Joinder
To establish fraudulent joinder, “there is no possibility that a plaintiff can
state a cause of action against [the] non-diverse defendant[ ] in state court, or
where there has been outright fraud in plaintiff's pleading of jurisdictional
facts.” Gottlieb v. Westin Hotel Co., 990 F.2d 323, 327 (7th Cir.1993). See

also Hoosier Energy Rural Elec. Coop., Inc. v. Amoco Tax Leasing IV Corp., 34
F.3d 1310, 1315 (7th Cir.1994); Smith v. Merck & Co.,472 F.Supp.2d 1096,
1098 (S.D. Ill. 2007).The defendant bears a heavy burden in this regard. If the
removing defendant establishes fraudulent joinder, “the federal district court
considering removal may ‘disregard, for jurisdictional purposes, the citizenship of
certain non-diverse defendants, assume jurisdiction over a case, dismiss the nondiverse defendants, and thereby retain jurisdiction.’” Morris v. Nuzzo, 718 F.3d
660, 666 (7th Cir.2013)(quoting Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d
752, 763 (7th Cir. 2009)).
c. Motion to Remand
In this instance, it is clear that the issue of whether defendant Thomason
was fraudulently joined to this action rests on whether Plaintiff can properly bring
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a claim for negligence against defendant Donna Thomason. Defendants assert that
the only proper party that plaintiff may bring suit against in this instance is WalMart Stores, Inc, and that Thomason did not owe plaintiff a duty of care
independent of the duty owed to her employer.
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 Wal-Mart, Thomason was the
company's agent. 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
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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). Thomason will not be held liable simply for being a manager
at the Wal-Mart store on the date in question, but she may be liable for breaching
an independent duty owed to directly 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 v. L.A. Weight Loss Centers, Inc., 577 F.3d 752, 766 (7th Cir.
2009).
The Seventh Circuit directs this Court to use a “reasonable possibility”
standard to determine if plaintiff could prevail against Thomason. 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 Thomason on an independent state
tort claim. Thomason was managing the store close in time to plaintiff’s injury. A
question of fact inferentially remains as to how long the subject matter substance
lay on the floor before the plaintiff allegedly slipped. This, coupled with her
subordinate’s alleged knowledge of the leaking cooler prior to the accident and
Thomason’s duty to remain “responsible for the overall operation of the store”,
generate a reasonable probability that plaintiff will prevail against Thomason on
an independent negligence claim (Doc. 15).
Therefore, defendant Thomason was not fraudulently joined to plaintiff's
suit. As such, the parties are not diverse, and this Court has no subject matter
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jurisdiction. Accordingly, the case shall be remanded to the Circuit Court of St.
Clair County, Illinois.
IV.

CONCLUSION

For the reasons stated above, the Clarks’ motion to remand is GRANTED
(Doc. 14).

This action is REMANDED to the Circuit Court for the Twentieth

Judicial Circuit, St. Clair County, Illinois for lack of federal subject matter
jurisdiction. Defendants' motion to dismiss for lack of personal jurisdiction (Doc.
4) and plaintiff’s motion to amend (Doc. 13) are DENIED as moot.
IT IS SO ORDERED.
Signed this 20th day of January, 2015.

Digitally signed by
David R. Herndon
Date: 2015.01.20
13:24:32 -06'00'
District Judge
United States District Court

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