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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS

WESTERN DIVISION

Ryan Wenzel, )

 )

Plaintiff, ) Case No. 20 C 50226

 )

 vs. )

 ) Judge Philip G. Reinhard

Target Corporation, )

 )

Defendant. )

ORDER

For the reasons stated below, plaintiff’s motions to amend [8] and to remand [7] are 

denied.

STATEMENT-OPINION

Plaintiff, Ryan Wenzel, brought this action against defendant, Target Corporation

(“Target”), in state court alleging a state law claim for retaliatory discharge. Defendant removed 

[1] to this court premised on diversity of citizenship jurisdiction. 28 U.S.C. § 1332(a)(1). 

Subject matter jurisdiction is proper because plaintiff is a citizen of Illinois, defendant is a 

Delaware corporation with its principal place of business in Minnesota, and the amount in 

controversy exceeds $75,000. Plaintiff moves to amend [8] his complaint to add a nondiverse 

defendant, Jenneba Fofana, and to remand [7] based on post-amendment lack of diversity of 

citizenship.

Plaintiff’s complaint alleges he was the store director at the Target Rockford, Illinois 

store. Fofona was plaintiff’s “immediate up the chain report.” Dkt. 1-1, p. 6. On or about 

December 14, 2019, Fofona terminated plaintiff without notice, progressive discipline or prior 

warning. Id. Prior to plaintiff’s termination Fofona had repeatedly requested that plaintiff falsify 

company records concerning one of plaintiff’s subordinates “to delete or non-report to [the 

subordinate’s] employment records her inadequate performance in the discharge of her job duties 

and responsibilities.” Id. Plaintiff alleges he was fired in retaliation for his refusal take the 

“illegal and unethical” actions Fofona asked him to take. The complaint asserts a claim against 

only defendant, Target.

Plaintiff now seeks to amend the complaint to join Fofona as a second defendant. Fofona 

was the Target employee who effected plaintiff’s firing. He alleges she did so in retaliation for 

his refusal to falsify the employment records of his subordinate. Fofona is a citizen of Illinois, as 

is plaintiff. Joining Fofona as a defendant would destroy diversity jurisdiction and require 

remand to state court.

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Defendant filed a response to the motions to amend and remand arguing the fraudulent 

joinder doctrine bars joining the proposed nondiverse defendant. Defendant contends plaintiff 

seeks to join Fofana strictly to destroy diversity jurisdiction and that joining her would be futile 

because plaintiff cannot state a retaliatory discharge claim against her under controlling Illinois 

law. 

“If after removal the plaintiff seeks to join additional defendants whose joinder would 

destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the 

action to the State court.” 28 U.S.C. § 1447(e). “A district court has discretion to permit or deny 

post-removal joinder of a nondiverse party, and the court should balance the equities to make the 

determination.“ Schur v. L.A. Weight Loss Centers, Inc., 577 F.3d 752, 759 (7th Cir. 2009). The 

court should consider the following factors in determining whether post-removal joinder of a 

nondiverse party is appropriate: “(1) the plaintiff’s motive for seeking joinder, particularly 

whether the purpose is to defeat federal jurisdiction; (2) the timeliness of the request to amend; 

(3) whether the plaintiff will be significantly injured if joinder is not allowed; and (4) any other 

relevant equitable considerations.” Id. 

Neither party directly discusses these four factors. In his motions, plaintiff makes no 

argument for allowing joinder. He simply asserts that his attempt to join Fofana is made in good 

faith and notes he made a motion to add her while the case was still in state court prior to 

defendant filing notice of removal. Defendant’s fraudulent joinder argument goes to plaintiff’s 

motive for seeking joinder --Schur factor (1). Id. at 764. Plaintiff has not filed a reply 

memorandum to rebut defendant’s argument.

“[A]lthough the fraudulent joinder doctrine is not directly applicable to the post-removal 

context, it can be a relevant factor for determining whether to permit joinder under § 1447(e).” 

Id. “But the fraudulent joinder doctrine is not dispositive of whether joinder is improper; it is 

simply another tool in the district judge’s belt for scrutinizing the plaintiff’s motive for joining a 

nondiverse party. After all, the doctrine is but one means to discern whether the plaintiff sought 

only to destroy complete diversity.” Id. (emphasis in original).

 Fraudulent joinder analysis requires the court to “ask whether there is any reasonable 

possibility that the plaintiff could prevail against the non-diverse defendant.” Id. (quotation 

marks and citation omitted.) “In conducting this analysis, a district court must turn to state law 

to determine whether the plaintiff has any reasonable possibility of success.” Id. 

Illinois law limits retaliatory discharge claims to claims against the employer. It does not 

allow such claims against other employees including the employee who carried out the discharge

of the claimant on behalf of the employer. Buckner v. Atlantic Plant Maintenance, Inc., 694 

N.E.2d 565, 569 (Ill. 1998). Plaintiff seeks to amend the complaint to allow him to pursue a 

claim against Fofana for firing him in retaliation for plaintiff’s refusal to take “illegal and 

unethical” actions Fofona asked him to take. However, under Illinois law Fofana cannot be 

liable to plaintiff for retaliatory discharge. Plaintiff has no reasonable possibility of prevailing 

on a retaliatory discharge claim against Fofana.

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Plaintiff has not offered any argument that he has some other claim against Fofana. His 

proposed amended complaint (Dkt 8-1) alleges only that he was fired in retaliation for not taking 

the actions Fofana asked him to take. This is his only asserted claim against Fofana and Illinois 

law precludes him from recovering on it.

Because plaintiff has no reasonable possibility of prevailing on his only claim against 

Fofana, application of the fraudulent joinder doctrine suggests that his motive in joining her was 

to destroy complete diversity. He has not asserted any other motive. The fact he sought to join 

her in the state court prior to removal does not weigh in his favor as doing so, given the lack of a 

reasonable possibility of recovery, appears to have been an attempt to avoid removal in the first 

place. Thus, the first Schur factor, “the plaintiff’s motive for seeking joinder, particularly 

whether the purpose is to defeat federal jurisdiction”, weighs against allowing joinder of Fofana 

as a defendant.

“Timeliness of the request to amend” is the second Schur factor. Defendant removed this 

case on June 19, 2020 and plaintiff moved to amend four days later. Timeliness weighs in favor 

of allowing the amendment.

The third Schur factor is “whether the plaintiff will be significantly injured if joinder is 

not allowed.” As the above discussion makes clear, plaintiff will not be injured at all by denying 

joinder because Illinois law precludes recovery against the party he seeks to join. This factor 

weighs heavily against allowing joinder of Fofana.

The fourth Schur is “any other relevant equitable considerations.” Given the lack of a 

claim against Fofana under Illinois law, allowing joinder and remanding the case would be an 

unnecessary burden on Fofana, a waste of the parties’ time and money, and a waste of the state 

court’s time. The fourth factor weighs against allowing joinder.

Having considered all the factors Schur articulates for evaluating a motion to join a 

nondiverse party pursuant to 28 U.S.C. § 1447(e), the court finds these factors strongly weigh 

against allowing joinder of the nondiverse party. Plaintiff’s motions to amend [8] and to remand 

[7] are denied.

Date: 11/02/2020 ENTER:

____________________________________

 United States District Court Judge

Electronic Notices. (LC)

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