Opinion
No. 00 C 3013.
July 27, 2000
MEMORANDUM OPINION AND ORDER
James and Elaine Kruempelstaedters ("Kruempelstaedters"), Illinois citizens who were cruise ship passengers, filed this lawsuit in the Circuit Court of Cook County asserting that Sonesta International Hotels, the owner of the cruise line Sonesta Sun Goddess ("Sonesta"); House of Travel International, an Illinois travel agency ("HOTI"); and Gate 1 Limited, a tour operator ("Gate 1"), are liable for injuries James suffered while on a cruise vacation. Gate 1 removed the case to federal court based on diversity jurisdiction under 28 U.S.C. § 1332 (a)(1). The Kruempelstaedters now ask us to remand the case back to state court. Because the Kruempelstaedters can state a cause of action against HOTI, an Illinois corporation, in state court, we grant the plaintiffs' motion to remand.
RELEVANT FACTS
The Kruempelstaedters went on vacation to the Mediterranean Sea. Their travel agent, HOTI, booked them on a tour known as the "Nile Legacy." Gate 1 packages and arranges the various components of the "Nile Legacy tour," which includes a five-day cruise aboard the Sonesta Sun Goddess. During the cruise, James Kruempelstaedter swam in the pool on the top deck of the cruise ship. Afterwards, he walked barefoot on the stairway leading to the deck below and severely burned his feet.
The Kruempelstaedters initially filed this action in state court claiming that Sonesta, Gate 1, and HOTI are liable for James' injuries because they failed to investigate and warn him that surfaces of the ship could become hot if exposed to the sun. Gate 1 removed this case, arguing diversity jurisdiction under 28 U.S.C. § 1332. Gate 1 contends that HOTI's residency should be disregarded because HOTI was fraudulently joined. The Kruempelstaedters maintain that HOTI was not fraudulently joined because they have alleged a valid cause of action against HOTI. Thus, according to the Kruempelstaedters, we lack jurisdiction under § 1332 and must remand the case to state court.
ANALYSIS
Under federal law, diversity jurisdiction cannot be destroyed by joinder of nondiverse parties if such joinder is fraudulent. Schwartz v. State Farm Mut. Auto. Ins. Co., 174 F.3d 875, 877 (7th Cir. 1999); Hoosier Energy Rural Elec. Coop. v. Amoco Tax Leasing IV Corp., 34 F.3d 1310, 1315 (7th Cir. 1994); Gottlieb v. Westin Hotel Co., 990 F.2d 323, 327 (7th Cir. 1993). In determining whether there is diversity, fraudulently joined parties are disregarded. Gottlieb, 990 F.2d at 327. Fraudulent joinder occurs when no possibility exists that the plaintiff can state a cause of action against the nondiverse defendants in state court. LeBlang Motors, Ltd. v. Subaru of Am., Inc., 148 F.3d 680, 688 (7th Cir. 1998).
Under Illinois law, HOTI, as a travel agent, owed certain duties to the Kruempclstaedters. A travel agent is a special agent, akin to a broker, which engages in a single business transaction with the principal. United Airlines, Inc. v. Lerner, 410 N.E.2d 225, 228 (Ill.App.Ct. 1980). Like every agent, a travel agent owes duties to its principal. Id. For example, a travel agent must disclose all information material to the agency. Id.
Gate 1 contends that the Kruempelstaedters are involved in a "fishing expedition" and cannot possibly state a cause of action against HOTI. We disagree. Under Lerner, HOTI could possibly have breached its fiduciary duties to the Kruempelstaedters when it failed to inform them about the conditions on the cruise ship Sonesta Sun Goddess. Lerner imposes a general fiduciary duty on HOTI towards the Kruempelstaedters. This Court does not need to address whether the Kruempelstaedters can ultimately succeed in their suit against HOTI. The Kruempelstaedters' claim against HOTI is sufficient for this Court to conclude that HOTI's joinder was not fraudulent. Therefore, Gate 1's removal was improper, and this action must be remanded to state court.
CONCLUSION
For the foregoing reasons, the Kruempelstaedters' motion to remand is granted. (R. 15-1.) The remaining motions for summary judgment, (R. 7-2, 10-2, and 13-1), to dismiss, (R. 7-1, 10-1), and to transfer, (R. 7-3), are all denied without prejudice as moot with fUll renewal rights in state court.