Dauksavage et al v. Mieldezis et al

Filing 25

ORDER OF REMAND: Court sua sponte remanded to First Judicial Circuit, Williamson County, Illinois., Denying as Moot 4 MOTION to Dismiss COUNTS II, III AND V filed by Wal-Mart Stores, Inc., 3 MOTION to Dismiss for Failure to State a Claim filed by Tim Mieldezis. Signed by Judge David R. Herndon on 01/23/2017. (kmb2, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JAMI DAUKSAVAGE and
JARED DAUKSAVAGE
Plaintiffs,
v.

No. 3:16-cv-00801-DRH-DGW

TIM MIELDEZIS and
WAL-MART STORES, INC.,
Defendants.
MEMORANDUM & ORDER
HERNDON, District Judge:
Pending before the Court are defendant’s two (2) motions to dismiss:
motion to dismiss negligence count I, and loss of consortium count IV against
defendant, Wal-Mart store general manager Tim Mieldezis (“Mieldezis”) (Doc. 3);
and, motion to dismiss negligence count II, violation of duty of care count III, and
loss of consortium count V against defendant Wal-Mart Stores, Inc. (“Wal-Mart”)
(Doc. 4). The Court is obligated to raise sua sponte subject-matter jurisdictional
issues that must be addressed prior to ruling on pending motions. See Craig v.

Ontario Corp., 543 F.3d 872, 875 (7th Cir. 2008) (explaining universally accepted
practice of federal courts to raise sua sponte subject-matter jurisdiction at any
time or stage of proceedings).

For the reasons stated below, this matter is

REMANDED to the First Judicial Circuit, Williamson County, Illinois and
defendants’ motions to dismiss are DENIED as moot.

I. INTRODUCTION AND BACKGROUND
This action was filed on June 6, 2016 in Williamson County Circuit Court.
Plaintiff Jami and Jared Dauksavage’s (“Plaintiff”) complaint arises from alleged
injuries resulting from a trip and fall occurring on the premises of a Wal-Mart
store located in Marion, Illinois. Plaintiff asserts that while shopping, she leaned
into a crate to retrieve a watermelon, and caught her toe on a pallet causing her to
trip, fall, and suffer injuries (Doc. 1.1). On July 15, 2016, defendants removed
the case to this Court asserting diversity jurisdiction under 28 U.S.C. § 1446
(Doc. 1), and moved to dismiss counts of negligence and loss of consortium
against defendant Mieldezis pursuant to Fed. R. Civ. P. 12(b)(6) (Doc. 3); and,
counts of negligence, violation of duty of care, and loss of consortium against
defendant Wal-Mart pursuant to 735 ILCS 5/2-615 (Doc. 4.).
II. LEGAL STANDARD
Defendants removed this case on the ground of diversity jurisdiction
pursuant to 28 U.S.C. § 1332 (Doc. 1), which requires complete diversity between
parties, plus an amount in controversy exceeding $75,000.00, exclusive of interest
and costs. 28 U.S.C. §1441 is the removal statute which is construed narrowly;
and as a result, doubts concerning removal are resolved in favor of remand, and
the burden of establishing federal jurisdiction falls on the party seeking removal.

See 28 U.S.C. §1441; Schur v. L.A. Weight Loss Centers, Inc., 577 F.3d 752, 758
(7th Cir. 2009).

Removal based on diversity jurisdiction requires that all parties to the
lawsuit possess fully diverse state citizenship; in other words, “no plaintiff may be
a citizen of the same state as any defendant.” Altom Transp., Inc. v. Westchester

Fire Ins. Co., 823 F.3d 416, 420 (7th Cir. 2016). Yet even when diversity of
citizenship is lacking, a district court may discount the citizenship of a nondiverse defendant on removal, when said defendant was fraudulently joined. See

Gottlieb v. Westin Hotel Co., 990 F.2d 323, 327 (7th Cir. 1993) (“Fraudulent
joinder occurs either when there is no possibility that a plaintiff can state a cause
of action against nondiverse defendants in state court, or where there has been
outright fraud in plaintiff’s pleading of jurisdictional facts”).

Therefore, a

defendant seeking removal based on allegations of fraudulent joinder bears the
burden of proving that—after all issues of law and fact are resolved in plaintiff’s
favor—there is zero likelihood that plaintiff can institute a cause of action against
a non-diverse defendant in state court. See Thornton v. M7 Aerospace LP, 796
F.3d 757, 765 (7th Cir. 2015) (explaining that standard for asserting fraudulent
joinder is demanding; party seeking removal must show opposition has “no

chance of success” in claims against the non-diverse party).
III. APPLICATION OF LEGAL STANDARD
In the instant claim, it appears from the pleadings that diversity of
citizenship is not complete.

It is undisputed that Mieldezis and plaintiffs are

citizens of the State of Illinois.

Defendants contend that the citizenship of

Mieldezis may be disregarded because he has been fraudulently joined in order to

destroy diversity. In support, defendants point to “the basic test for fraudulent
joinder” in Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97 (1927). Under
this rationale “[i]f in such a case a resident defendant is joined, the joinder,
although fair upon its face, may be shown by a petition for removal to be only a
sham or fraudulent device to prevent a removal; but the showing must consist of a

statement of facts rightly leading to that conclusion apart from the pleader’s
deductions.”

Id. (emphasis added).

Put differently, “[m]erely to traverse the

allegations upon which the liability of the resident defendant is rested, or to apply
the epithet ‘fraudulent’ to the joinder, will not suffice: the showing must be such
as compels the conclusion that the joinder is without right and made in bad
faith.” Chesapeake & O.R. Co. v. Cockrell, 232 U.S. 146, 152 (1914); see also

Wecker v. Nat’l Enameling & Stamping Co., 204 U.S. 176, (1907) (explaining that
remand of case to state court is proper where testimony shows that real purpose
of plaintiff’s suit of resident employee and non-resident employer was to prevent
exercise of right of removal by nonresident defendant).
Seventh Circuit instruction is clear on whether the “heavy” burden
establishing fraudulent joinder is met; “the district court must engage in an act of
prediction” to determine if there is “any reasonable possibility that a state court
would rule against the non-diverse defendant.” Poulous v. Naas Foods, Inc., 959
F.2d 69, 73 (1992).

Defendants claim that “no reasonable possibility” exists

where plaintiff would have success in a premises liability claim against Mieldezis
because—merely being a store manager at the time of the incident is not enough.

Defendants also contend that under Illinois law no strict liability is imposed
on an employee who is “merely the supervisor.” Northrop v. Lopatka, 242 Ill.
App. 3d 1, 5, 610 N.E.2d 806, 810 (Ill. App. Ct. 1993). And they further argue
that under Northrop, a general manager—as an agent—cannot be held liable for a
customer’s injuries unless the agent is an active tortfeasor. These assertions are
correct, assuming they are applied to facts where an agent is subject to liability of
the acts of other agents.

See id. (explaining that an agent cannot be held

responsible for negligence of another agent unless he is guilty of fraud or gross
negligence in selection of such other agent or improperly cooperated with other
agent in his acts or omissions).

However, this is not the case in the present

action. The facts indicate that Mieldezis, as general manager, is the one and only
agent being sued along with his employer.
Under the general principles of agency, an agent’s alleged breach of duty to
the principal is not itself a basis for holding the agent liable in tort to a third
party. However, “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 of employment,” RESTATEMENT (THIRD)

OF

AGENCY § 7.01 (2006)

(emphasis added), “an agent’s individual tort liability extends to negligent actions
and omissions as well as to intentional conduct.” Id. at cmt. b.
“In a premises liability cause of action, one of the essential elements is the
existence of a duty owed by the defendant to plaintiff.”

Strahs v. Tovar’s

Snowplowing, Inc., 349 Ill. App. 3d 634, 640, 812 N.E.2d 441, 447 (Ill. App. Ct.
2004). And whether a duty exists in a particular case, is a question of law to be
determined by the court, Ward v. K Mart Corp., 136 Ill. 2d 132, 140, 554 N.E.2d
223, 226 (1990), and in this case, the state court. As pled, this Court lacks the
subject-matter jurisdiction to determine whether a duty existed between
Mieldezis—as employee store general manager—and plaintiff, because the party’s
citizenship is non-diverse.
IV. CONCLUSION
Defendants

have

not

satisfied

the

requirements

under

Wilson in

determining whether Mieldezis was fraudulently joined in the instant claim.
Based on the allegations within the complaint, the case is REMANDED to state
court based on lack of subject-matter jurisdiction, and defendant’s motions to
dismiss are DENIED as moot.
IT IS SO ORDERED.
Signed this 23rd day of January, 2017.

Digitally signed by
Judge David R. Herndon
Date: 2017.01.23
14:48:37 -06'00'
UNITED STATES DISTRICT JUDGE