MEMORANDUM AND ORDER
MURPHY, Chief Judge.
This matter is before the Court on the motion for a stay (Doc. 3) and the motion for a hearing (Doc. 16) brought by Defendant Merck & Co., Inc. ("Merck") and on the motion for remand to state court brought by Plaintiff Thomas Vogel (Doc. 12). Merck's motions are
This case is a successor to Rutherford v. Merck & Co., Civil No. 06-159-GPM (S.D. Ill. filed Feb. 22, 2006).
On January 3, 2007, the Madison County circuit court entered an order in the Rutherford case providing, in pertinent part, that "the claims of plaintiffs Rutherford, Miechle, Garza, Brodhacker, Zola, Vogel, Benhoff, Smith, and Testa are severed." Doc. 2, Ex. 2.
Under 28 U.S.C. § 1441, "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). A federal court may exercise jurisdiction in diversity if all parties to an action are of completely diverse citizenship, that is, no plaintiff is a citizen of the same state as any defendant, and an amount in excess of $75,000, exclusive of interest and costs, is in controversy. See 28 U.S.C. § 1332; Johns v. Johns Mitchell No. 06-924-GPM, 2007 WL 496391, at *2 (S.D.Ill. Feb. 13, 2007). The party seeking removal has the burden of establishing federal jurisdiction. See Yount v. Shashek, 472 F.Supp.2d 1055, 1056 (S.D.Ill. 2006). "`Courts should interpret the removal statute narrowly and presume that the plaintiff may choose his or her forum.' Put another way, there is a strong presumption in favor of remand." LaRoe v. Cassens & Sons, Inc., 472 F.Supp.2d 1041, 1044 (S.D.Ill.2006) (quoting Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7 th Cir. 1993)). See also Dudley v. Putnam Inv. Funds, 472 F.Supp.2d 1102, 1111 n. 6 (S.D.Ill.2007) ("[T]he Court is required to apply the removal statutes strictly, with a presumption in favor of remand, . . . and the Court has not been empowered by Congress . . . to fashion equitable removal solutions to procedural complexities[.]").
As discussed, the basis for federal subject matter jurisdiction in this case is diversity, so that complete diversity of citizenship is required. However, it appears from the record that while Merck is a New Jersey citizen, Vogel, like Walgreens and Osco Drugs, is an Illinois citizen. See Doc. 2, Ex. 1 ¶ 7, ¶ 13, ¶ 15, ¶ 16. Merck argues that diversity of citizenship is complete because the claims asserted against Walgreens and Osco Drugs in the Rutherford case were severed from Vogel's claims in state court. This requires the Court in turn to examine whether a true severance of claims occurred in state court.
The term "severance" is a word of sometimes indeterminate meaning. As the United States Court of Appeals for the Seventh Circuit recently explained, when a true severance of claims occurs under Rule
In the context of removal to federal court in diversity jurisdiction, the mere fact that an order of a state court purports to have "severed" claims generally is insufficient to make a case removable. See Nolan v. Boeing Co., 919 F.2d 1058, 1067 (5 th Cir.1990) (holding that diversity-defeating parties were not severed from a case so as to permit removal to federal court where Article 1038 of the Louisiana Code of Civil Procedure, pursuant to which the severance was made, authorizes "separate trials" rather than a true "severance"); Phillips v. Unijax, Inc., 625 F.2d 54, 56 (5th Cir.1980) (an order granting separate trials pursuant to Alabama procedural rules did not sever claims and thereby create two separate lawsuits for purposes of removal in diversity). For example, in Caldwell v. Alfa Insurance Corp., 806 F.Supp. 623 (S.D.Miss.1992), the court held that a state-court order providing that a plaintiff's claims against a non-diverse defendant were "severed for trial purposes" from the plaintiff's claims against a diverse defendant did not permit removal of the claims against the diverse defendant. Id. at 624. "[G]iven a widely-recognized looseness in usage of the language" regarding severance, the court held, "[u]se of the word `severed' is insufficient, in itself, to establish a Rule 21 severance." Id. at 625.
In Johnson v. Snapper Division of Fuqua Industries, Inc., 825 F.Supp. 127 (E.D.Tex.1993), the court discussed some factors to be considered in evaluating whether a state-court severance order has rendered a case removable in diversity, including: (1) whether the severance "truly create[s] different lawsuits, and not just separate trials in a single lawsuit"; (2) whether a non-diverse party has been removed to federal court together with a diverse defendant and whether the diverse party is participating in the pre-trial proceedings in the federal court, "leading to the conclusion that no true severance has taken place"; and (3) whether the state court severance has "result[ed] in entirely separate actions with separate judgments for the claims which are severed." Id. at 129 (citing Phillips, 625 F.2d at 56). The court found that all of the requirements were met by an "Agreed Order for Severance of Actions" entered in a state court containing the following provisions:
Id. at 129-30 (footnote omitted). Cf. Miller v. Fulton, 113 F.Supp.2d 1035, 1039 (S.D.Miss.2000) (holding that a state-court order providing for "severance and separate trials" of claims against a diverse defendant and a non-diverse defendant did not permit removal of a plaintiffs claim against the diverse defendant, where the claims had not been separately docketed in state court and the plaintiffs claim against the non-diverse defendant had been removed together with the claim against the diverse defendant).
In this case there is no indication that the claims in the Rutherford case truly have been severed so as to render them separate judicial units. As discussed, the state court's order provides only that "the claims of plaintiffs Rutherford, Miechle, Garza, Brodhacker, Zola, Vogel, Benhoff, Smith, and Testa [as well as, presumably, Lane] are severed." Doc. 2, Ex. 2. Although it appears that a motion was filed in state court to consolidate the claims of the Rutherford plaintiffs, it is unclear whether the proposed consolidation is simply a request for a joint trial of the claims or whether the claims actually have been severed into separate cases. It does not
Finally, the Court's review of Illinois case law indicates that a true severance did not occur in state court so as to make this case removable in diversity. In Carter v. Chicago & Illinois Midland Railway Co., 119 Ill.2d 296, 116 Ill.Dec. 210, 518 N.E.2d 1031 (1988), the court observed that under Illinois law the term "severance" can arise in at least three distinct contexts. First, the Carter court noted, a trial court "may, in its discretion, `order separate trial of any causes of action, counterclaim or third-party claim if it cannot be conveniently disposed of with the other issues in the case.'" Id. at 1036 (quoting 735 ILCS 5/2-614(b)). Second, under an Illinois civil procedure rule governing joinder of plaintiffs, a state court may order separate trials "if. . . . it shall appear that joinder may embarrass or delay the trial of the action[.]" Id. (quoting 735 ILCS 5/2-404). Third, the Carter court held, a true severance of claims, as opposed to an order for separate trials, occurs when severance is ordered pursuant to an Illinois procedural rule providing that "[a]n action may be severed, and actions pending in the same court may be consolidated, as an aid to convenience, whenever it can be done without prejudice to a substantial right." Id. at 1036-37 (quoting 735 ILCS 5/2-1006). The Carter court observed that "[t]he term `sever' is used broadly, and when a trial court orders an issue or claim severed, more often than not the court is simply providing for separate trials and has not determined that the claims thereafter should proceed as separate actions." Id. at 1037.
Importantly, the Carter court created a presumption that, when an order purporting to sever claims does not specify that severance is effected pursuant to 735 ILCS 5/2-1006, it is not effected under that statute, so that the order instead is simply one for separate trials. Specifically, the court held that, "regardless of the section of the [Illinois] Code [of Civil Procedure] relied upon by [a trial] court to bring about a separate trial of a claim or a counterclaim," a severance order will be deemed interlocutory and thus unappealable absent a certification of appealability
518 N.E.2d at 1037 (emphasis in original). The court noted further that, even when a trial court invokes 735 ILCS 5/2-1006 as
In sum, Merck has failed to show that Vogel's claims have been severed out of the Rutherford case. Thus, Vogel's claims remain joined with those of Rutherford and Miechle against Walgreens and Osco Drugs, defeating complete diversity of citizenship. In the Court's prior decision remanding the Rutherford case to state court, the Court held that it does not recognize the doctrine of so-called "fraudulent misjoinder" of parties or claims to defeat diversity jurisdiction. As the Court stated at that time, "[n]othing in the jurisprudence of the Supreme Court of the United States . . . suggests that the joinder of . . . claims" under state law "is a question that implicates the subject matter jurisdiction of a federal court," and the fraudulent misjoinder doctrine "is an improper expansion of the scope of federal diversity jurisdiction by the federal courts." Rutherford, 428 F.Supp.2d at 851-52. That decision remains, of course, the law of the case, see Midlock v. Apple Vacations W, Inc., 406 F.3d 453, 457 (7 th Cir.2005); Dudley, at 1106; Hauck v. ConocoPhillips Co., Civil No. 06-135-GPM, 2006 WL 1596826, at *6 (S.D.Ill. June 6, 2006), from which Merck does not ask the Court to depart, and from which the Court does not intend to depart, in the absence of a controlling decision of the Supreme Court of the United States or the Seventh Circuit Court of Appeals. See Hardaway v. Merck & Co., Civil No. 06-465-GPM, 2006 WL 2349965, at *3 (S.D.Ill. Aug. 11, 2006); Bavone v. Eli Lilly & Co., Civil No. 06-153-GPM, 2006 WL 1096280, at *5 (S.D.Ill. Apr. 25, 2006); Riddle v. Merck & Co., Civil No. 06-172-GPM, 2006 WL 1064070, at "8 (S.D.Ill. Apr. 21, 2006); Rabe v. Merck & Co., No. Civ. 05-363-GPM, Civ. 05-378-GPM, 2005 WL 2094741, at *2 (S.D.Ill. Aug. 25, 2005). See also Alegre v. Aguayo, No. 06 C 5744, 2007 WL 141891, at *5-6 (N.D.Ill. Jan. 17, 2007); Bird v. Carteret Mortgage Corp., No. 2:06-cv-0588, 2007 WL 43551, at *5 (S.D.Ohio Jan. 5, 2007); A. Kraus & Son v. Benjamin Moore & Co., No. CV 05-5487(ARR)(VVP), 2006 WL 1582193, at *5 (E.D.N.Y. June 7, 2006); Osborn v. Metropolitan Life Ins. Co., 341 F.Supp.2d 1123, 1127-28 (C.D.Cal.2004). Cf. 14B Charles A. Wright, Arthur R. Miller, Edward H. Cooper & Joan E. Steinman, Federal Practice & Procedure § 3723 (3d ed. 1998 & Supp.2007) (calling the holding of a leading decision regarding the fraudulent misjoinder doctrine "somewhat cryptic" and noting that the "doctrine and its allied jurisprudence adds a further level of complexity — and additional litigation — to a federal court's decision regarding removal jurisdiction."). Merck has failed to meet its burden to show the existence of federal subject matter jurisdiction in this case, so that the case will be remanded to state court.
As a further basis for remand, the Court concludes that the removal of this case violates the so-called "voluntary-involuntary" rule, the federal common-law principle that only a voluntary action of a plaintiff, such as the voluntary dismissal of a diversity-defeating party, can make a case removable in diversity jurisdiction. See Great N. Ry. Co. v. Alexander, 246 U.S. 276, 281, 38 S.Ct. 237, 62 L.Ed. 713 (1918) ("[C]onversion [of an action from
The basis for the voluntary-involuntary rule frequently is identified as a narrowly pragmatic one, namely, ensuring that a federal court does not exercise jurisdiction in a removed case on the basis of an involuntary dismissal of a diversity-defeating defendant that is susceptible to reversal on appeal in state court. As one court put it, "An involuntary dismissal of [a] non-diverse party in a state court action should not lead to removal of the action to federal court if the complete diversity just created by the dismissal might be destroyed by an appeal and reversal of the state court's decision." Atlanta Shipping Corp. v. International Modular Hous., Inc., 547 F.Supp. 1356, 1360 n. 8 (S.D.N.Y. 1982). See also Quinn, 616 F.2d at 40 n. 2 (the purpose of the voluntary-involuntary rule "is to protect against the possibility that a party might secure a reversal on appeal in state court of the non-diverse party's dismissal . . . producing renewed lack of complete diversity in the state court action[.]"); LGP Gem, Ltd. v. Cohen, 636 F.Supp. 881, 883 (S.D.N.Y.1986) ("[T]he finality of the dismissal [of a non-diverse defendant], not the plaintiffs participation in it, is the factor that determines removability."); Burke v. General Motors Corp., 492 F.Supp. 506, 508 (N.D.Ala.1980) (the voluntary-involuntary rule "is premised upon the assumption that voluntary actions of the plaintiff which remove a party from a case are final" and thus not subject to reversal on appeal so as to divest a federal court of jurisdiction on removal); Ennis v. Queen Ins. Co. of Am., 364 F.Supp. 964, 966 (W.D.Tenn.1973) ("The reason for the `voluntary dismissal' rule is based on judicial efficiency. The voluntary dismissal of a resident defendant is not appealable. Such a dismissal finally determines who are the parties to the action in a state court proceeding immediately
In fact, the foundation of the voluntary-involuntary rule is both broader and more fundamental. Specifically, the purpose of the rule is to protect a plaintiffs right to choose his or her forum. See Kettelhake, 236 U.S. at 315-16, 35 S.Ct. 355 (applicability of the voluntary-involuntary rule does not depend on the finality of a state-court order dismissing a diversity-defeating party and thus ostensibly giving rise to federal subject matter jurisdiction); Lathrop, Shea & Henwood Co. v. Interior Constr. & Improvement Co., 215 U.S. 246, 251, 30 S.Ct. 76, 54 L.Ed. 177 (1909) (same); Kansas City Suburban Belt Ry. Co. v. Herman, 187 U.S. 63, 69, 23 S.Ct. 24, 47 L.Ed. 76 (1902) (same); Whitcomb v. Smithson, 175 U.S. 635, 638, 20 S.Ct. 248, 44 L.Ed. 303 (1900) (same). The underlying purpose of the voluntary-involuntary rule is, quite simply, "to protect [a] plaintiffs choice of forum as long as [the plaintiff] wants it protected." Ford Motor Credit Co. v. Aaron-Lincoln Mercury, 563 F.Supp. 1108, 1117 (N.D.Ill.1983). See also Ushman v. Sterling Drug, Inc., 681 F.Supp. 1331, 1337 (C.D.Ill.1988) (noting that, under the "majority rule" regarding the voluntary-involuntary rule, "the purpose of the rule is to protect [a] plaintiffs forum," and holding that "removal would not be allowed in this case [under the voluntary-involuntary rule] even if the state court proceedings were final."); Jenkins v. National Union Fire Ins. Co. of Pa., 650 F.Supp. 609, 614 (N.D.Ga.1986) (quoting Alexander, 246 U.S. at 282, 38 S.Ct. 237) ("What emerges from an examination of the Supreme Court cases on the voluntary-involuntary rule is the conclusion that the rule is not based upon an appealability/finality rationale but upon a policy of favoring the plaintiffs `power to determine the removability of his case.'"); Vidmar Buick Co. v. General Motors Corp., 624 F.Supp. 704, 706 (N.D.Ill.1985) ("The underlying purpose of the voluntary/involuntary rule . . . is . . . to protect [a] plaintiff's choice of forum[.]").
In this case, as discussed, the basis for federal diversity jurisdiction is a contested severance of claims against diversity-defeating parties, Walgreens and Osco Drugs, in state court, therefore triggering the voluntary-involuntary rule. See Miller, 113 F.Supp.2d at 1039-40 (even if a state court had severed claims against a jurisdictionally diverse insurer from those against a non-diverse insured, remand to state court following removal by the insurer would have been warranted under the voluntary-involuntary rule, given that the plaintiff opposed the severance). There is, of course, a well established exception to the voluntary-involuntary rule for cases involving alleged fraudulent joinder to defeat diversity jurisdiction. Fraudulent joinder occurs when there has been actual fraud in a plaintiffs pleading of jurisdictional facts with respect to a non-diverse defendant or when, after resolving all disputed issues of fact and law in a plaintiffs favor, a federal court nonetheless concludes that the plaintiff has no possibility of establishing a cause of action against a non-diverse defendant in state court. See Gottlieb v. Westin Hotel Co., 990 F.2d 323, 327 (7 th Cir.1993); Riddle, 2006 WL 1064070, at *2; Rutherford, 428 F.Supp.2d at 846. In Poulos, the Seventh Circuit Court of Appeals held that "the complete diversity rule and the voluntary/involuntary rule make it difficult for an out-of-state (diverse) defendant to remove a case to federal court if an in-state (non-diverse) defendant has ever been party to the lawsuit,"
What this means is that the voluntary-involuntary rule is not a bar to removal in diversity if it can be shown that a nondiverse defendant whose involuntary dismissal in state court ostensibly rendered a case removable to federal court was in fact fraudulently joined to defeat diversity jurisdiction. For example, in Poulos the court held that the involuntary dismissal of a non-diverse corporate defendant in state court did not preclude removal under the voluntary-involuntary rule because the plaintiff had no possibility of establishing a cause of action under state law against that defendant, which the plaintiff was attempting to hold liable for the acts of a subsidiary and which therefore was shielded from liability under state law by the familiar doctrine of the corporate veil. See 959 F.2d at 73-74. As Poulos illustrates, fraudulent joinder is an exception to the voluntary-involuntary rule in the sense that a dismissal of a non-diverse defendant in state court will permit removal in diversity if the state-court dismissal is tantamount to a finding that "there [is] no possibility that the plaintiff could prove a cause of action against the resident defendant or that the plaintiff fraudulently pled jurisdictional facts in order to subject that resident defendant to the jurisdiction of the state court." Insinga v. LaBella, 845 F.2d 249, 254 (11 th Cir.1988) (removal was not precluded by the voluntary-involuntary rule where a plaintiff had no possibility of establishing a cause of action in state court against a defendant who was properly dismissed in state court before removal on the grounds of sovereign immunity). See also Arthur v. E.I. du Pont, 798 F.Supp. 367, 369 (S.D.W.Va.1992) (citing Poulos, 959 F.2d at 73) ("Fraudulent joinder . . . will be found when there is no . . . arguably reasonable basis for predicting that state law might impose liability on the facts involved. . . . If a state trial court has dismissed the nondiverse defendant, the inquiry, similarly, is whether there is any reasonable possibility that such judgment will be reversed on appeal.").
In this case, nothing in the record suggests that, before the removal of Vogel's claims, the state court made any finding that the plaintiffs in the Rutherford case who have asserted claims against Walgreens and Osco Drugs cannot establish a cause of action under state law against those Defendants or have fraudulently pleaded facts to acquire jurisdiction over them in state court. Merck makes no argument that, under the traditional test of fraudulent joinder in this Circuit, Walgreens and Osco Drugs have been fraudulently joined and, in any event, the Court already has resolved that issue adversely to Merck, see Rutherford, 428 F.Supp.2d at 846-50, a decision that, as discussed, is the law of the case at this juncture. Rather, Merck argues that the voluntary-involuntary rule does not apply in this instance because Vogel's claims have been fraudulently misjoined with the claims of persons asserting state-law causes of action against Walgreens and Osco Drugs. In effect, Merck asks the Court to craft, in addition to the exception to the voluntary-involuntary rule for fraudulent joinder, an exception to the rule for fraudulent misjoinder. See Crockett v. R.J. Reynolds Tobacco Co., 436 F.3d 529, 533 (5 th Cir.2006); Zea v. Avis Rent a Car Sys., Inc., 435 F.Supp.2d 603, 606 (S.D.Tex.2006). However, as has been discussed, the Court simply does not recognize the fraudulent misjoinder doctrine. Just as the Court will not recognize the doctrine directly, by permitting removal on the basis of supposed misjoinder of claims, so the Court will not recognize the doctrine indirectly, by acknowledging it as an exception to the voluntary-involuntary
Where the voluntary-involuntary rule applies to bar removal in diversity, the removal is procedurally defective, not jurisdictionally defective. See Taylor v. Hayes, Civ. A. No. 90-980, 1990 WL 192486, at *3 (E.D.La. Nov. 26, 1990). See also Hurley v. Motor Coach Indus., Inc., 222 F.3d 377, 379-80 (7 th Cir.2000) (explaining that a procedural defect in removal is one that does not affect the subject matter jurisdiction of a federal court and hence the court's ability to entertain a case if sued on originally in federal court); Booth v. Furlough, Inc., 995 F.Supp. 629, 632 (E.D.Va.1998) ("[A]ny defect in the removal process that does not go to the jurisdiction of the federal court to which the action is removed is [procedural].").
Merck's motion for a stay of this case (Doc. 3) and motion for a hearing (Doc. 16) are