Smado v. Crawford Manufacturing Co.

111 F.R.D. 415, 1986 U.S. Dist. LEXIS 22421
CourtDistrict Court, N.D. Illinois
DecidedJuly 22, 1986
DocketNo. 85 C 5303
StatusPublished
Cited by1 cases

This text of 111 F.R.D. 415 (Smado v. Crawford Manufacturing Co.) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smado v. Crawford Manufacturing Co., 111 F.R.D. 415, 1986 U.S. Dist. LEXIS 22421 (N.D. Ill. 1986).

Opinion

MEMORANDUM AND ORDER

MORAN, District Judge.

Defendant Crawford Manufacturing Co. properly removed this wrongful termination action on the basis of diversity of citizenship. Defendant is incorporated under the laws of the State of Delaware and has its principal place of business in the State of New Jersey. Plaintiff Josephine T. Smado is a citizen of the State of Illinois. On September 16, 1985, plaintiff filed an amended complaint which added Davis Marsh, the defendant’s plant manager, as an individual defendant. Davis Marsh is a resident of Illinois. The question before this court is whether Marsh is indispensable. If he is, his presence destroys diversity, and we would have to remand.

FACTS

Plaintiff asserts that defendant wrongfully terminated her from her job as an expediter when she exercised her rights under the Illinois Workers Compensation Act to get reasonable and necessary medical care. Plaintiff alleges that she was accidentally injured on the job. She claims she was fired when she sought medical treatment and therapy which precluded her from working for approximately one hour a day.

The complaint was originally filed in the Circuit Court of Cook County on April 25, 1985. Defendant properly removed this action on June 3, 1985. Subsequently, on December 27, 1985, plaintiff moved to remand the action to the Circuit Court of Cook County because Davis M. Marsh, an Illinois resident, was joined as a defendant on September 15, 1985, when plaintiff filed her amended complaint.

DISCUSSION

Initially, defendant contends that because plaintiff failed to file a motion to remand by December 26, 1985, as directed by a scheduling order of this court, her motion is untimely and should be denied. The motion to remand was submitted on December 27, 1985. We will not base our ruling here on such a short delay. However, plaintiff argues that because defendant did not object on’ December 27, 1985, to adding Davis Marsh as a defendant, the motion to remand should be granted. This court is not willing to penalize the defendants for a procedural default either, as they have obviously not consented to adding Davis Marsh as a defendant.

When a case has been properly removed on the basis of diversity, jurisdiction generally cannot be defeated by a change in parties, 14A Wright & Miller, § 3723 at 321 (1985), unless the non-diverse party is an indispensable party whose presence is necessary “to an adjudication on the merits.” Id. at 323. See also 1A Moore’s Federal Practice, 110.161 [.1-3] (1983).

Rule 19 of the Federal Rules of Civil Procedure provides for the “joinder of persons needed for just adjudication,” and articulates the factors which determine whether a party is indispensable. The factors include the extent of prejudice to the plaintiff if the additional party is not joined, whether the court can eliminate or reduce that prejudice, and whether an adequate final judgment can be rendered without the participation of the party. The application of the rule is determined on a case-by-case basis and depends upon the specific facts and circumstances surrounding each case. Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968); [417]*417Takeda v. Northwestern National Life Insurance Co., 765 F.2d 815 (9th Cir.1985).

This court finds that no prejudice will attach to plaintiff if Davis Marsh is not added as a defendant. Plaintiff can receive an adequate final judgment without the participation of Marsh as a party because plaintiff can obtain complete recovery from Crawford if liability is established. Under long-established Illinois law, a supervisory employee is regarded as the representative of the employer. The employer is responsible for the supervisor’s negligence when the supervisor issues instructions or commands which are within the scope of his or her authority. Schillinger Bros. Co. v. Smith, 225 111. 74, 80 N.E. 65 (1907). Defendant asserts that it has not suggested that Marsh acted in any way other than as an authorized agent of defendant and that his liability as a joint tortfeasor, if any, would be joint and several. Defendant also acknowledges that complete relief can be obtained against it if liability were to be found.

Plaintiff contends that plant manager Marsh is a necessary and indispensable party since plaintiff believes that Marsh was responsible for defendant’s decision to fire' her. Plaintiff argues that it is still unclear whether Marsh acted on behalf of the corporation when he fired her, and cites Stanhope v. Ford Motor Co., Inc., 483 F.Supp. 275 (W.D.Ark.1980), as authority. In Stanhope the court joined the non-diverse party because the original defendant denied that the non-diverse party was its agent. Plaintiff in that case could not have gotten complete satisfaction unless the non-diverse party was joined. Here defendant has not denied that Marsh was its duly authorized agent and, moreover, acknowledges that if liability were to be found complete relief can be obtained against it. Discovery has already taken place yet plaintiff has not alleged that any new evidence pertaining to .Marsh or to his capacity as duly authorized agent and supervisory employee of defendant has come to light which would tend to support her contention that Marsh is an indispensable party and should not be dropped. See Soam Corp. v. Trane Co., 506 F.Supp. 302 (S.D.N.Y.1980). This court is therefore not persuaded by plaintiff’s argument.

Plaintiff next claims that Marsh is a necessary party in an action for retaliatory discharge where plaintiff is asking for punitive damages. See Kelsay v. Motorola, Inc., 74 Ill.2d 172, 384 N.E.2d 353, 23 Ill. Dec. 559 (1978) (punitive damages allowed in an action for retaliatory discharge). The argument is that these damages are separately assessed against each individual defendant subject to evidence of their individual net worth. Both defendant and Marsh are necessary because “it is impossible for plaintiff to know which of the two defendants has a greater net worth and consequently greater exposure to the imposition of punitive damages” (plaintiff’s mem. in support of motion to remand, p. 6). This court finds plaintiff’s argument unpersuasive since it is obvious that defendant has a greater net worth than its plant manager.

Plaintiff further argues that her situation is similar to Heatherton v. Playboy, Inc., 60 F.R.D. 372 (C.D.Cal.1973), where a non-diverse defendant was added after the filing of the original complaint. In Heatherton, plaintiff brought suit in state court against Playboy and unidentified “Does I through XX, inclusive.” The case was removed to federal court because of diversity of citizenship. Then, when that plaintiff discovered the names of the magazine distributors, she amended her complaint to add those names. The Heatherton court stated that plaintiff was not really adding a defendant to the complaint but merely substituting the specific name of a previously unknown party.

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Related

Patterson v. Winthrop-Breon Laboratories
115 F.R.D. 478 (E.D. Washington, 1986)

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Bluebook (online)
111 F.R.D. 415, 1986 U.S. Dist. LEXIS 22421, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smado-v-crawford-manufacturing-co-ilnd-1986.