Opinion
No. 02 C 3512
February 7, 2003
MEMORANDUM OPINION
Before the court is plaintiffs' motion to remand this case to the Circuit Court of Cook County. For the following reasons, the motion is granted.
BACKGROUND
On February 27, 2002, plaintiffs, David F. Aron, Jr. and Susan Aron, filed this wrongful death and survival action in the Circuit Court of Cook County against defendants Brown Williamson Tobacco Corporation ("Brown Williamson"), Fortune Brands, Inc. ("Fortune"), and British American Tobacco (Investments) Limited ("BAT").
Plaintiffs allege that their decedent, David F. Aron, Sr., died of emphysema and coronary atherosclerosis resulting from his smoking of Kool and Pall Mall cigarettes. Their claims are for strict product liability (Counts I and II); negligence (Counts III and IV); fraudulent misrepresentation (Counts V and VI); negligent misrepresentation (Counts VII and VIII); violation of the Consumer Fraud and Deceptive Business Practices Act (Counts IX **—XII); unjust enrichment (Count XIII); breach of warranty of fitness for a particular purpose (Counts XIV and XV); willful and wanton misconduct (Counts XVI and XVII); punitive damages for fraudulent misrepresentation (Counts XVIII and XIX); and for expenses pursuant to the Family Expense Act, 750 ILCS 65/15 (Counts XX and XXI).
On May 15, 2002, defendants Brown Williamson and Fortune filed a notice of removal of the action to this court, asserting the existence of federal diversity jurisdiction pursuant to 28 U.S.C. § 1332. Brown Williamson and Fortune (collectively, "defendants") contend that they are not required to obtain the consent of the third defendant, BAT, to remove the case because BAT has not been served with process. In addition, defendants argue that the court should disregard the citizenship of Fortune, which is non-diverse, because Fortune is fraudulently joined.
Plaintiffs do not claim that they have served BAT with process, nor do they contest defendants' proposition.
Plaintiffs now move to remand the case to state court.
DISCUSSION
"When speaking of jurisdiction, `fraudulent' is a term of art." Poulos v. Naas Foods, Inc., 959 F.2d 69, 73 (7th Cir. 1992). "Fraudulent joinder occurs either when there is no possibility that a plaintiff can state a cause of action against nondiverse defendants in state court, or where there has been outright fraud in plaintiff's pleading of jurisdictional facts." Hoosier Energy Rural Elec. Coop., Inc. v. Amoco Tax Leasing IV Corp., 34 F.3d 1310, 1315 (7th Cir. 1994). A defendant asserting that a codefendant was fraudulently joined bears a "heavy burden to establish fraudulent joinder. 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." Poulos, 959 F.2d at 73 (emphasis omitted).
Defendants do not claim that there was "outright fraud" in plaintiffs' pleading of jurisdictional facts. Rather, they contend that there is no Possibility that plaintiffs can state a cause of action against Fortune in state court because all claims against Fortune are barred by the Illinois "Distributor Statute," 735 ILCS 5/2-621. Section 2-621 governs product liability actions against non-manufacturer defendants, and provides in pertinent part:
(a) In any product liability action based in whole or in part on the doctrine of strict liability in tort commenced or maintained against a defendant or defendants other than the manufacturer, that party shall upon answering or otherwise pleading file An affidavit certifying the correct identity of the manufacturer of the product allegedly causing injury, death or damage.
. . .
(b) Once the plaintiff has filed a complaint against the manufacturer or manufacturers, and the manufacturer or manufacturers have or are required to have answered or otherwise pleaded, the court shall order the dismissal of a strict liability in tort claim against the certifying defendant or defendants, provided the certifying defendant or defendants are not within the categories set forth in subsection (c) of this Section.
. . .
(c) A court shall not enter a dismissal order relative to any certifying defendant or defendants other than the manufacturer even though full compliance with subsection (a) of this Section has been made where the plaintiff can show one or more of the following:
(1) That the defendant has exercised some significant control over the design or manufacture of the product, or has provided instructions or warnings to the manufacturer relative to the alleged defect in the product which caused the injury, death or damage; or
(2) That the defendant had actual knowledge of the defect in the product which caused the injury, death or damage; or
(3) That the defendant created the defect in the product which caused the injury, death or damage.735 ILCS 5/2-621 (West 1992).
The Illinois civil Justice Reform Act of 1995, which amended § 2-621 and other statutes, was held unconstitutional in its entirety by the Illinois Supreme Court in the case of Best v. Taylor Machine Works, 689 N.E.2d 1057 (1997). "The effect of enacting an unconstitutional act is to leave the law in force as it was before the enactment of the unconstitutional act." Hurst v. Capital Cities Media, Inc., 754 N.E.2d 429, 438 (Ill.App.Ct. 2001). Therefore, the version of § 2-621 that was in effect before the 1995 amendments is applicable. See id.
Plaintiffs do not rely on the statutory exceptions set forth in subsection (c) of § 2-621. Instead, they assert that defendants have not established fraudulent joinder because (1) § 2-621 would apply only to the strict liability claim against Fortune, and none of plaintiffs' other claims against Fortune; (2) § 2-621 does not apply to parent companies of manufacturers; and (3) defendants have failed to demonstrate that plaintiffs have no possibility of succeeding against Fortune on an alter ego theory of liability. It is unnecessary to address plaintiffs' second and third arguments because the first is dispositive.
The plain language of § 2-621 would only require that the strict liability claim against Fortune be dismissed. Defendants' contention that the statute requires dismissal of "a product liability action based on any theory or doctrine" is incorrect; defendants rely on the language of the amended § 2-621, which the Illinois Supreme Court has found to be unconstitutional, see supra n. 5. Plaintiffs allege many claims against Fortune in addition to the strict liability claim. Those claims would not be affected by § 2-621. Defendants have not shown, nor do they even argue, that there is no possibility that plaintiffs can state causes of action against Fortune based on those theories. Accordingly, defendants have not met their burden of showing that, after resolving all issues of fact and law in favor of plaintiffs, plaintiffs cannot establish a cause of action against Fortune. Because defendants have not shown that the non-diverse defendant Fortune was fraudulently joined, the case must be remanded to state court.
CONCLUSION
Plaintiffs' motion to remand this case to state Court is granted. Therefore, defendants' pending motion to dismiss is moot. Pursuant to 28 U.S.C. § 1447(c), plaintiff is awarded its reasonable attorney's fees, costs, and disbursements incurred by reason of the removal proceedings. Plaintiff may file a petition for such fees and costs pursuant to Local General Rule 54.3, if the parties are unable to reach agreement as to the appropriate amounts. If plaintiff does find it necessary to file a petition, the defendants may have 14 days to respond, and plaintiff 10 days thereafter to reply.
The Clerk of the Court is directed to remand this case to the Circuit Court of Cook County and to mail a certified copy of the remand order forthwith.