a

No, 02 C 4517, MDL No. 1403 Page3

been centralized in this court, that a significant portion of those disputes will be adjudicated
elsewhere. But we cannot exercise jurisdiction when none exists. The motion for

reconsideration of the remand order is denied.

N) JAMES B. MORAN
Senior Judge, U. S. District Court

Nov. & ,2002.


~ Minute cP Form (06/97) (
- Vy United States District Court, Northern District of Mlinois (x)
Name of Assigned Judge James B. Moran Sitting Judge if Other
or Magistrate Judge . than Assigned Judge
CASE NUMBER 02 C 4517 - (MDL 1403) DATE 11/6/2002
CASE Paradise Foods, Inc. et al. Vs. Aventis CropScience etc. et al.
TITLE
[ln the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.)
Memorandum Opinion and Order
DOCKET ENTRY:
qa) Oo Filed motion of [ use listing in “Motion” box above.]
(2) o Brief in support of motion due
(3) oO Answer brief to motion due . Reply to answer brief due.
(4) o Ruling/Hearing on set for at
(5) Oo Status hearing[held/continued to] [set for/re-set for] on set for at
(6) i) Pretrial conference[held/continued to] [set for/re-set for] on set for at
@) oO Trial[set for/re-set for] on at
@) Oo [Bench/Jury trial] [Hearing] held/continued to at
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) CO Local Rule 41.1. COFRCP41(a)(1)  FRCP41(a)(2).
do) =f [Other docket entry] | Enter Memorandum Opinion and Order. The motion for reconsideration of
the remand order is denied.
di) ff [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required. unbel of Sees
Notices mailed by judge’s staff. Nov 0 7 2002
Notified counsel by telephone. date docketed
Y | Docketing to mail notices. iD) l
Mail AO 450 form. Lyuned LOIN LSIg: ‘s'n thadnd Mayda
Copy to judge/magistrate judge. waa
62: -
scourroom 2 *2l Hd 9- AON 20 NOV Ae MiROM2
WAH deputy's
initials OT-93-943514
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
IN RE STARLINK CORN PRODUCTS )
LIABILITY LITIGATION ) MDL No. 1403
)
This document is applicable to: )
)
PARADISE FOODS, INC., et al., )
)
Plaintiffs, )
)
vs. ) No. 02 C 4517
)
AVENTIS CRoPSCIENCE USA HOLDING, )
et al., )
)
Defendants. )

MEMORANDUM OPINION AND ORDER

Defendants concede that ROS, L.L.C. (ROS), if properly joined as a plaintiff, would
destroy diversity. They argue, instead, that John O’Brien had no interest in the dispute when
the case was filed and should never have been joined, that it is too late for ROS to be added
as a plaintiff, and that the other member of ROS, Steve Grossman, has not approved of ROS
joining the suit in any event.

O’Brien and his then wife entered into a franchise agreement with Taco Bell in 1984.
The wife’s interest was later transferred to O’Brien and the transfer was apparently
recognized by Taco Bell. In November 1999, O’Brien and Grossman formed ROS. O’Brien
contributed his franchise agreement and other assets as his capital contribution for an 85%
interest and Grossman paid in $150,000 as his capital contribution for a 15% interest. ROS

apparently distributed $150,000 to O’Brien. The practical effect was that Grossman bought

‘4



~

No. 02 C 4517, MDL No. 1403 Page 2

a 15% interest in the business. O’Brien is a citizen of Delaware, which means he is a non-
diverse party, and apparently Grossman is a citizen of Delaware as well. O’Brien remains the
signatory on the franchise agreement with Taco Bell.

If O’Brien had been diverse from the defendants and had sold his interest to a non-
diverse party after the suit had been removed, a federal court would not lose jurisdiction

because of the subsequent sale. Freeport-McMoRan Inc. y. K N Energy, 498 U.S. 426 (1991).

But that is not the scenario here. It is clear that O’Brien seeks to assert rights as a Taco Bell
franchisee on the basis that the franchise agreement is between him and Taco Bell. Defendants
contend, not unreasonably, that the real franchisee now is ROS. And O’Brien (and Grossman)
respond that they are prepared to add ROS, or substitute ROS if they are required to do so,
although they do not believe that is necessary.

‘What we have, then, is a claim by a non-diverse franchisee with a dispute over whether
it should be prosecuted by named party O’Brien or non-party ROS. Defendants can prevail
on their opposition to remand only if they obtain the dismissal of O’Brien and avoid the
substitution of ROS (as well as prevail on other issues). No court has determined who is the
real party in interest. If it is determined that ROS is the proper plaintiff, then federal law, at
least, would permit a reasonable time for substitution, which would “have the same effect as
if the action had been commenced in the name of the real party in interest.” Fed.R.Civ.P.
17(a). Who is the real party in interest is a state law issue and we leave it to the state court.
It is enough to conclude that the franchisee claim must be prosecuted by a non-diverse party
and therefore this court lacks subject matter jurisdiction. It is perhaps unfortunate, in the

context of occurrences haying national implications in which the resulting claims have largely