United States District Court, N.D. Indiana, Fort Wayne Division
OPINION & ORDER
P. SIMON, JUDGE, UNITED STATES DISTRICT COURT
Barbara Allen has moved for remand of this personal injury
action to state court on grounds that, although the parties
are completely diverse, defendant Steve Witzman is domiciled
in Indiana, the forum in which the matter was originally
filed. (DE 14.) This case arises from an incident where Allen
tripped over a curb that she says was improperly marked on
the property of Love's Travel Stops & Country Stores
in Woodburn, Indiana, and fell, sustaining physical injuries.
(DE 6.) The complaint alleges a single negligence claim
against the store and its manager, Steve Witzman.
(See DE 6.) Defendants oppose remand and argue that
Witzman should be ignored as a defendant because he was only
named in the case to prevent removal to federal court. (DE
15.) Because the defendants have not carried their burden of
showing fraudulent joinder, the Motion to Remand will be
defendant may remove an action only if none of the defendants
is a citizen in the State in which the matter was brought.
See 28 U.S.C. § 1441(b)(2). “In other
words, the forum defendant rule disallows federal removal
premised on diversity in cases where the primary rationale
for diversity jurisdiction-to protect defendants against
presumed bias of local courts-is not a concern because at
least one defendant is a citizen of the forum state.”
Morris v. Nuzzo, 718 F.3d 660, 665 (7th Cir. 2013).
that's not the end of the matter. “While the
plaintiff, in good faith, may proceed in the state courts
upon a cause of action which he alleges to be joint, . . .
the federal courts should not sanction devices intended to
prevent removal to a Federal court[.]” Morris v.
Nuzzo, 718 F.3d 660, 670 (7th Cir. 2013) (quoting
Wecker v. Nat'l Enameling & Stamping Co.,
204 U.S. 176, 186 (1907)). That means that the forum
defendant rule does not prevent removal where a defendant was
joined “solely for the purpose of defeating federal
diversity jurisdiction.” Schwartz v. State Farm
Mut. Auto. Ins. Co., 174 F.3d 875, 878 (7th Cir. 1999)
(citing Gottlieb v. Westin Hotel, 990 F.2d 323, 327
(7th Cir. 1993)). To establish fraudulent joinder, a removing
defendant must show that, after resolving all issues of fact
and law in favor of the plaintiff, the plaintiff cannot
establish a cause of action against the in-state
defendant.” Id. In other words, a defendant
must show that the plaintiff's claim has “no chance
of success[.]” Poulos v. Naas Foods, Inc., 959
F.2d 69, 73 (7th Cir. 1992). This is a “heavy
defendants claim Witzman has been fraudulently joined here to
prevent removal. Specifically, the defendants argue that,
because Witzman was just a manager of the Love's store,
he had no ability or duty to construct sidewalk curbs or
handrails and owed no duty to business invitees. (DE 15 at
3-4.) They also note that the complaint fails to demand
specific relief from Witzman. (Id.) But that's
just not enough to carry the heavy burden of showing that
Witzman is not a properly joined party in interest, as
required for operation of the forum defendant rule.
See 28 U.S.C. § 1441(a)(2). The defendants
acknowledge that Witzman was responsible for
“overseeing general maintenance and cleaning[, ]”
and the complaint alleges that Witzman was “negligent
and careless” in those duties. (See DE 15 at
4; DE 6 at 1-2.) What if, for example, the condition that
caused Allen's injury was obvious and Witzman blithely
ignored it? What if there were signs made by the corporate
office and sent to the local store in Woodburn that warned
patrons of the danger, but Witzman decided that putting up
the signs was too much of a bother? These are instances (and
others come to mind) in which Witzman might be found
negligent. In short, it's a stretch to say that Allen has
“no chance of success” against Witzman.
worth pointing out that the rationale for allowing a
defendant to remove an action to federal court doesn't
exist here, making remand even more appropriate. The
rationale is the possibility that a state court would favor
an in-state plaintiff in an action against an out-of-state
defendant, but such bias is unlikely here because the
plaintiff is not a resident or citizen of Indiana.
Allen makes no request for attorneys fees pursuant to 18
U.S.C. § 1447(c). Therefore, fees will not be awarded.
In any event, I would not have awarded them even if they had
been requested. While I disagree that removal was
appropriate, the defendants did not act in an objectively
unreasonable way when they sought removal. See Martin v.
Franklin Capital Corp., 546 U.S. 132, 140 (2005).
foregoing reasons, Plaintiff's Motion to Remand (DE 14)
is GRANTED, and this matter is REMANDED to the Allen County
Superior Court for all further proceedings. The Clerk of
Court shall treat this civil action as ...