Order Form (01/2005)

United States District Court, Northern District of Illinois

Name of Assigned Judge

or Magistrate Judge

Edmond E. Chang Sitting Judge if Other

than Assigned Judge

CASE NUMBER 12 C 5120 DATE 10/2/2012

CASE

TITLE

Ken Byrd vs. Cottrell, Inc.

DOCKET ENTRY TEXT

Plaintiff’s request to remand is granted. The case is remanded to the Circuit Court of Cook

County. Plaintiff’s motion to supplement [21] is denied as moot.

O[ For further details see text below.]

Notices mailed by Judicial staff.

STATEMENT

Defendant Cottrell, Inc., a maker of trailers, removed this personal injury case from the

Circuit Court of Cook County, invoking diversity jurisdiction. Plaintiff Ken Byrd asks that this

Court remand the case to state court, because both he and Cottrell’s co-defendant, Empire

Truck Sales, are citizens of Mississippi. The complaint names Empire Truck Sales as an

“LLC,” that is, a limited liability company (whose citizenship would be determined by its

members’ citizenship), whereas Cottrell alleges that Empire Truck Sales is an “Inc.,” that is, a

corporation (whose citizenship would be determined by its state of incorporation and the

location of its principal place of business). Regardless of the correct organizational form, both

parties agree that Empire Truck is at least Mississippi citizen. 

The lack of complete diversity normally does require remand, but Cottrell argues that

Empire Truck Sales was “fraudulently joined,” a term of procedural art that means Empire

Truck’s citizenship should be disregarded because there is no reasonable possibility of Byrd

asserting a valid cause of action against the non-diverse defendant. Poulos v. Naas Foods, 959

F.2d 69, 73 (7th Cir. 1992). After reviewing the parties’ submissions, the Court grants the

motion to remand because Cottrell has not met its “heavy burden,” Poulos, 959 F.2d at 73, to

show fraudulent joinder. In evaluating a fraudulent joinder argument, the issue presented is

as follows:

The 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. .

12C5120 Ken Byrd vs. Cottrell, Inc.
STATEMENT

. . . At the point of decision, the federal court must engage in an act of prediction: is

there any reasonable possibility that a state court would rule against the non-diverse

defendant? 

Poulos, 959 F.2d at 73 (part of emphasis added) (quoted by Steel v. Ford Motor Co., 2011 WL

1485380, at *3 (N.D. Ill. April 19, 2011)). The standard’s formulation demonstrates why the

burden on the defendant is “heavy”: all factual and legal issues must be resolved in the

plaintiff’s favor when deciding whether a non-diverse defendant has been fraudulently joined. 

Here, in the complaint, Byrd alleges that Empire Truck sold the trailer from which Byrd

fell, and was negligent in doing so by, among other things, failing to equip the trailer in

certain ways and post warnings on the trailer. Compl. ¶¶ 6, 10. If the Court assumes, as it

must, that legal and factual issues are resolved in Byrd’s favor, then Byrd does have a

reasonable possibility of prevailing against Empire Truck. It is true that Cottrell offers

evidence that Empire Truck is not liable, but in effect Cottrell is asking this Court to not just

make a prediction about Empire Truck’s liability, but to definitively decide it in the first

instance, even before Byrd has had a chance to fully engage in discovery and litigate the issue

in state court. This case’s procedural posture distinguishes it from other cases where the

plaintiff either lost or dismissed the non-diverse defendant in the state-court case, and

thereafter the diverse defendant removed the case. Poulos, 959 F.2d at 74 (non-diverse

defendant won summary judgment in Wisconsin state court, thereafter remaining defendant

removed); Steel, 2011 WL 1485380, at *1 (non-diverse defendant dismiss in Illinois state court,

thereafter remaining defendant removed). To be sure, there might be some cases where no

state-court litigation is needed to predict that there is no reasonable possibility of success

against the non-diverse defendant, but this is not one of them.

Plaintiff’s request to remand is granted. The case is remanded to the Circuit Court of

Cook County. Plaintiff’s motion to supplement [21] is denied as moot. 

12C5120 Ken Byrd vs. Cottrell, Inc. Page 2 of 2