Mitchell v. Philip Morris USA Inc.
| Decision Date | 24 April 2019 |
| Docket Number | Case No. 18-cv-7739 |
| Parties | SYDNEY M. MITCHELL, Plaintiff, v. PHILIP MORRIS USA INC., et al. Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
Plaintiff Sydney Mitchell claims he developed laryngeal cancer caused by smoking cigarettes. He sued Defendants Philip Morris USA Inc., RJ Reynolds Tobacco Company, Liggett Group LLC, Walgreen Co., 87th Food Basket, Inc. d/b/a Paradise Supermarket, Hollywood Food Market, Inc., and 87 South Rothschild Liquors, Inc. d/b/a Rothschild Liquor Marts in Cook County state court under various state-law causes of action. [1-1]. Several of the Defendants removed the action to this Court [1], but Plaintiff now moves to remand it back to state court [40]. For the reasons explained below, this Court grants Plaintiff's motion.
On October 18, 2018, Plaintiff filed his complaint in the Circuit Court of Cook County, Illinois. [1-1] at 3. The state court complaint names two sets of Defendants: (1) Philip Morris, Reynolds, and Liggett (collectively, the Manufacturer Defendants); and (2) Walgreens, Paradise Supermarket, Hollywood Food Market, and Rothschild Liquor Marts (collectively, the Retailer Defendants). Id. Plaintiff is an Illinois citizen, id. at 16, and all three Manufacturer Defendants maintain citizenship in states other than Illinois, id. at 16-17. All of the Retailer Defendants, however, are Illinois citizens. Id. at 17-19.
On November 20, 2018, the Manufacturer Defendants removed the action to this Court. [1]. In their notice of removal, the Manufacturer Defendants asserted that this Court has subject matter jurisdiction under 28 U.S.C. § 1332(a) because there is complete diversity between Plaintiff, an Illinois citizen, and all properly joined Defendants—namely, the Manufacturer Defendants, who are all citizens of states other than Illinois. Id. at 4. The Manufacturer Defendants also asserted that the citizenship of the Retailer Defendants, who are all non-diverse from Plaintiff, should be disregarded because Plaintiff fraudulently joined them to this action. Id.
On December 20, 2018, Plaintiff moved to remand, arguing that he did not fraudulently join the Retailer Defendants, and thus that this case lacks complete diversity. [40]. Then, on January 3, 2019, Plaintiff amended his complaint. [52]. Plaintiff's amended complaint asserts claims only against the Manufacturer Defendants and Walgreens. Id. All remaining Defendants have moved to dismiss; their motions remain pending. [61] [64] [67].
Plaintiff alleges that he smoked cigarette products designed, manufactured, advertised, market, distributed, and/or sold by Defendants. [1-1] at 16. He receivedhis laryngeal cancer diagnosis around October 2016, and claims that smoking cigarettes caused his cancer. Id. at 19.
Plaintiff brings an eight-count complaint. [1-1]. Counts I through VI, which Plaintiff brings against the Manufacturer Defendants, allege common law causes of action for: negligence (Count I); strict liability (Count II); fraudulent concealment and conspiracy to commit fraudulent concealment (Counts III and IV); and fraudulent misrepresentation and conspiracy to commit fraudulent misrepresentation (Counts V and VI). Id. at 32-56. Plaintiff asserts the remaining counts against only the Retailer Defendants: strict liability (Count VII); and negligence (Count VIII). Id. at 57-62.
28 U.S.C. § 1332 requires complete diversity between a plaintiff and defendants, plus an amount in controversy exceeding $75,000. Because federal courts are courts of limited jurisdiction, the removal statute "should be construed narrowly and any doubts about the propriety of removing a particular action should be resolved against allowing removal." Wirtz Corp. v. United Distillers & Vintners N. Am., Inc., 224 F.3d 708, 715 (7th Cir. 2000). The party seeking removal bears the burden of establishing federal jurisdiction, and courts resolve any doubt in favor of remand. Schur v. L.A. Weight Loss Centers, Inc., 577 F.3d 752, 758 (7th Cir. 2009).
In considering a motion to remand, courts examine the plaintiff's complaint at the time of the defendant's removal. In re Burlington N. Santa Fe Ry. Co., 606 F.3d379, 380 (7th Cir. 2010) (); Matter of Shell Oil Co., 970 F.2d 355, 356 (7th Cir. 1992) (); accord Caterpillar Inc. v. Lewis, 519 U.S. 61, 62 (1996) ().
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." Schur, 577 F.3d at 763 (quoting Mayes v. Rapoport, 198 F.3d 457, 461 (4th Cir. 1999)). Courts find fraudulent joinder where the plaintiff asserts a claim against a non-diverse defendant "that simply has no chance of success, whatever the plaintiff's motives." Poulos v. Naas Foods, Inc., 959 F.2d 69, 73 (7th Cir. 1992); Walton v. Bayer Corp., 643 F.3d 994, 999 (7th Cir. 2011) ().
Defendants bear a "heavy burden" to establish fraudulent joinder. Poulos, 959 F.2d at 73. They 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 non-diverse defendant. Id. To find fraudulent joinder, courts must predict whether the plaintiffhas "any reasonable possibility" of recovering against the non-diverse defendant. Id.; Schur, 577 F.3d at 764.
Defendants argue that this Court should disregard Plaintiff's joinder of the Retailer Defendants under the fraudulent joinder doctrine because there is no reasonable possibility that Plaintiff could prevail against them on his negligence and strict liability claims. [60]. As discussed above, courts consider whether jurisdiction existed at the time of removal, Burlington, 606 F.3d at 380, so this Court looks to Plaintiff's original complaint [1-1] for its fraudulent joinder analysis.
Plaintiff's original complaint seeks to impose strict liability against the Retailer Defendants for distributing, marketing, promoting, and selling cigarettes, which Plaintiff claims were unreasonably dangerous and defective. [1-1] at 57-59.
Under Illinois law, "all entities in the distributive chain of an allegedly defective product, including manufacturers, sellers, wholesalers, distributors and lessors of the product, are strictly liable in product liability actions for injuries resulting from that product." Murphy v. Mancari's Chrysler Plymouth, Inc., 887 N.E.2d 569, 574 (Ill. App. Ct. 2008); Winters v. Fru-Con Inc., 498 F.3d 734, 745 (7th Cir. 2007). Illinois, however, provides a "seller's exception" statute, under which a court may dismiss a non-manufacturing defendant if that defendant files an affidavit certifying the correct identity of the manufacturer. 735 ILCS 5/2-621(a), (b). A plaintiff can only overcome dismissal if he shows one or more of three conditions: (1)the defendant exercised "significant control" over the design or manufacture of the product; (2) the defendant had actual knowledge of the defect; or (3) the defendant created the defect. Id. § 5/2-621(c). Additionally, the seller's exception allows a plaintiff to vacate the dismissal, and reinstate, the non-manufacturing defendant if the plaintiff can satisfy one or more of certain conditions, such as that the manufacturer could not satisfy a reasonable settlement or judgment. Id. § 5/2-621(b).
Here, Walgreens submits an affidavit stating that it has never had any involvement in the design, manufacture, packaging, or labeling of cigarettes. [60-8].1 Walgreens also attests that it had no actual knowledge of any defect in the cigarettes at issue. Id. The Manufacturer Defendants corroborated Walgreens' affidavit, asserting—by way of their own affidavits—that they never shared responsibility for, or control over, the design, manufacture, packaging, or labeling of its cigarettes with Walgreens or any of the other Retailer Defendants. [60-5]; [60-6]; [60-7].
Notwithstanding these affidavits, which counsel in favor of dismissal of the Retailer Defendants, the majority of courts in this district hold that "section 2-621 cannot be the basis for finding fraudulent joinder because any dismissal is merely conditional." Kopitke v. Depuy Orthopaedics, Inc., No. 11-CV-912, 2011 WL 856865, at *3 (N.D. Ill. Mar. 8, 2011); Whelchel v. Briggs & Stratton Corp., 850 F. Supp. 2d 926, 933 (N.D. Ill. 2012) (); see alsoKellerman v. Crowe, 518 N.E.2d 116, 118 (Ill. 1987) ().
Based upon these authorities, this Court does not find that Plaintiff's strict liability claim has no reasonable possibility of success.
This Court also rejects the Manufacturer Defendants' argument that Plaintiff lacks any reasonable possibility of success on his negligence claim against the Retailer Defendants. Contra [60] at 26-30.
In Illinois, a "product liability...
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