This case deals with the removal of lawsuits to federal court. The plaintiffs were represented by the defendant lawyers in the trial of a personal injury case. After a $32 million verdict was entered against them, they sued their former lawyers for legal malpractice. Plaintiffs filed their case in the Circuit Court of Cook County.
Defendants removed the case. To remove they had to show that there was complete diversity of citizenship between the parties. The problem was that two defendants were citizens of Illinois. This would have defeated removal and required that the case be remanded to State Court. Defendants sought to overcome this burden by arguing that the plaintiffs fraudulently joined the two local defendants.
The district court disagreed and remanded the case to the Circuit Court of Cook County. The law is as follows:
The Seventh Circuit directs federal courts to interpret the removal statute narrowly, resolving any doubts in favor of the plaintiff’s choice of forum in the state court. Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 758 (7th Cir. 2009). Under the fraudulent joinder doctrine, a court considering removal may “disregard, for jurisdictional purposes, the citizenship of certain non-diverse defendants, assume jurisdiction over a case, dismiss the non-diverse defendants, and thereby retain jurisdiction.” Id. at 763 (quoting Mayes v. Rapoport, 198 F.3d 457, 461 (4th Cir. 1999)). Fraudulent joinder exists if the plaintiff has made false allegations of jurisdictional fact, or if a claim against a non-diverse defendant has no chance of success. Poulos v. Naas Foods, Inc., 959 F.2d 69, 73 (7th Cir. 1992). Here, the defendants argue that the plaintiffs’ claims against Tannen and TLG have no chance of success.
Defendants seeking to remove a case from state court to federal court based on fraudulent joinder of a non-diverse defendant bear “a heavy burden.” Id. The test for fraudulent joinder is even more favorable to the plaintiff than the standard for deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Livingston v. Hoffmann-La Roche, Inc., No. 09 C 2611, 2009 WL 2448804, at *4 (N.D. Ill. Aug. 6, 2009). Warren must show that, after resolving all issues of fact and law in favor of the plaintiffs, the plaintiffs cannot establish a cause of action against Tannen or TLG. Poulos, 959 F.2d at 73. The Court must determine whether there is “any reasonable possibility” that a state court would rule against Tannen or TLG. Id. Warren, however, need not negate “any possible theory” that the plaintiffs might allege in the future; “only [the] present allegations count.” Id. at 74.
The ruling is as follows:
As stated at the outset, defendants seeking removal that depends on a finding of fraudulent joinder face the very high burden of showing that the plaintiff’s case against the non-diverse defendants has no chance of success. The plaintiffs’ prospects for success against Tannen may well be dubious, but that is not enough to warrant disregarding those claims in assessing the Court’s jurisdiction. Because defendants Tannen and TLG and plaintiffs Dillon Transport and Dillon are all citizens of Illinois, complete diversity as required by Section 1332 does not exist. This Court, therefore, lacks jurisdiction over the case and grants the plaintiffs’ motion to remand. Because the Court lacks jurisdiction over this case, it will not address the Warren defendants’ motion to dismiss for lack of personal jurisdiction. This case is remanded to the Circuit Court of Cook County.
The court essentially ruled that there was a valid basis to include Tannen as a defendant in the case. Therefore, he was not fraudulently joined. Therefore, the court had no subject matter jurisdiction. Therefore, removal was improper and another foray into federal court proved shortlived.
Edward X. Clinton, Jr.