Washington v. Roundy's Ill., LLC

CHERMAINE WASHINGTON, Plaintiff, v. ROUNDY'S ILLINOIS, LLC Defendant.

No. 19-cv-03054

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

January 23, 2020

Hon. Martha M. Pacold

MEMORANDUM OPINION AND ORDER

Plaintiff Chermaine Washington filed an amended complaint against Defendant Roundy's Illinois, LLC, a Foreign Limited Liability Company d/b/a Mariano's ("Roundy's Illinois"), alleging that she slipped and fell at a Mariano's grocery store owned and operated by Roundy's Illinois. (R. 19.) Roundy's Illinois moves to dismiss the amended complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). (R. 22.) For the reasons below, the court denies the motion.

BACKGROUND

I. Legal Standards

"A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to state a claim upon which relief may be granted." Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). In considering a Rule 12(b)(6) motion, "[t]he complaint's well-pleaded factual allegations, though not its legal conclusions, are assumed to be true." Phillips v. Prudential Ins. Co. of Am., 714 F.3d 1017, 1019 (7th Cir. 2013). The court considers "the complaint itself, . . . documents attached to the complaint, documents that are critical to the complaint and referred to in it, and information that is subject to proper judicial notice," as well as "additional facts set forth in [plaintiff's] . . . brief . . . , so long as those facts are consistent with the pleadings." Id. at 1019-20 (citations and internal quotation marks omitted). "The facts are set forth as favorably to [plaintiff] as those materials allow. . . . In setting forth those facts at the pleading stage, the court does not vouch for their accuracy." McWilliams v. Cook Cty., No. 15-cv-00053, 2018 WL 3970145, at *1 (N.D. Ill. Aug. 20, 2018) (citations omitted).

II. Factual and Procedural Background

The amended complaint alleges that: Washington entered a Mariano's grocery store on or about May 2, 2017, to purchase groceries. (Am. Compl., R. 19, ¶ 2.)¹ Defendant Roundy's Illinois possessed, operated, owned, leased, maintained, and controlled the property. (Id. ¶ 1.) While shopping in the produce section, Washington slipped and fell due to a foreign substance left on the floor, causing severe and permanent injuries. (Id. ¶ 4.)

Washington originally filed suit in the Circuit Court of Will County on April 18, 2019, naming The Kroger Co., a Foreign Corporation d/b/a Mariano's ("The Kroger Co."), as the sole defendant. (R. 1 at 7.)²

Washington served the original complaint on The Kroger Co. through its registered agent in Illinois, Illinois Corporation Service C, on April 23, 2019. (R. 24-2 at 1-2.)³

The parties do not dispute that on or about May 2, 2019, the statute of limitations expired. See 735 ILCS 5/13-202 (setting forth 2-year statute of limitations for actions for "damages for an injury to the person," among other actions).

On May 6, 2019, The Kroger Co. removed the case to federal court on the basis of diversity jurisdiction. (R. 1 at 1-3.) Shortly thereafter, The Kroger Co. moved to dismiss for failure to state a claim, arguing that it was the incorrect defendant and that Roundy's Illinois, not The Kroger Co., owned and operated the Mariano's store. (R. 7 at 3 (May 10, 2019 motion to dismiss), R. 10 at 3 (May 13, 2019 motion to dismiss), R. 15 at 3 (May 21, 2019 motion to dismiss).) The Kroger Co. attached to its motion the affidavit of a paralegal at The Kroger Co. (R. 7-3.) The affidavit stated, among other things, that The Kroger Co. did not own or operate the Mariano's, and that Roundy's Illinois did. (Id. ¶¶ 4-5.)

In response, Washington moved for leave to file an amended complaint to add Roundy's Illinois as a defendant. (R. 12 at 4 (May 14, 2019 motion for leave to file amended complaint), R. 17 at 4 (May 21, 2019 motion for leave to file amended complaint).) Washington argued that The Kroger Co. "was identified as the insured party on relevant correspondence with Defendant's insurance provider, Sedgwick,[⁴] including on a February 27, 2019 settlement offer letter addressed to Plaintiff's counsel" (R. 12 ¶ 2); that "[s]ubsequent to the expiration of the statute of limitations, Plaintiff's counsel has learned that the wrong Defendant was named in this action and that in fact" Roundy's Illinois was "the correct named Defendant" (id. ¶ 5); and that an amended complaint naming Roundy's Illinois would relate back to the original complaint under Federal Rule of Civil Procedure 15(c)(1)(C) (id. ¶¶ 7-12). Washington argued, among other things, that The Kroger Co. was served on April 23, 2019, through its registered agent, Illinois Corporation Service C, which is also the registered agent for Roundy's Illinois (id. ¶ 9); that "up until the point of filing this lawsuit, Plaintiff's counsel had been in continuous communication with Sedgwick, the third-party liability insurance carrier for [Roundy's Illinois], including on April 18, 2019, when Plaintiff's counsel emailed a copy of the Complaint at Law directly to Sedgwick" (id. ¶ 10); and that Sedgwick received a copy of the complaint via email on April 18, 2019, the same day it was filed with the Circuit Court of Will County, and therefore knew or should have known that but for a mistake concerning the proper party's identity, [Roundy'sIllinois] was the actual intended target of this suit" (id. ¶ 11). In support of the motion, Washington attached various documents.

On May 28, 2019, the court granted Washington's motion for leave to amend the complaint, denied The Kroger Co.'s motion to dismiss as moot, and set a briefing schedule for a renewed motion to dismiss. (R. 20 (Kocoras, J.).)

Washington filed an amended complaint, the complaint at issue here, on May 28, 2019, naming Roundy's Illinois as the sole defendant. (R. 19.) The amended complaint is materially identical to the original complaint, except that the amended complaint names Roundy's Illinois instead of The Kroger Co. (Compare R. 1 at 7-9 (original complaint) with R. 19 at 1-3 (amended complaint).)

Washington served the amended complaint on Roundy's Illinois through its registered agent in Illinois, Illinois Corporation Service C (which also happened to be the registered agent of The Kroger Co.), on June 13, 2019. (R. 24-4.)⁵

Roundy's Illinois, represented by the same counsel who had represented The Kroger Co., filed the current motion to dismiss on June 21, 2019, arguing that the limitations period expired before Washington filed the amended complaint. (R. 22 at 2-3.) In the current motion, among other things, Roundy's Illinois notes that Sedgwick is a third-party claims administrator "for numerous corporations throughout the State of Illinois," including both The Kroger Co. and Roundy'sIllinois. (Id. at 4.) Roundy's Illinois attaches to its motion the affidavit of a Sedgwick claims representative, which states that she was familiar with the case against The Kroger Co. filed in state court, that she never informed Roundy's Illinois of the lawsuit, and that upon information and belief, Roundy's Illinois became aware of the lawsuit when it received service on June 13, 2019. (R. 22-6.)

In response to the motion to dismiss, Washington renews many of the arguments from the motions for leave to file the amended complaint naming Roundy's Illinois. Washington argues that Roundy's Illinois knew or should have known that Washington made a mistake in failing to name Roundy's Illinois in the original complaint. (R. 24 at 5.) Washington argues that: before filing the lawsuit, Washington's counsel had been communicating with the Sedgwick claims representative who manages claims on behalf of both The Kroger Co. and Roundy's Illinois; correspondence from the Sedgwick claims representative, including the Sedgwick claims representative's email signature block and a February 27, 2019, settlement letter, identified The Kroger Co. as Sedgwick's client; and Washington identified The Kroger Co. as the defendant based on this information. (Id.) On April 18, 2019 (the same day she filed the original complaint naming The Kroger Co.) and April 29, 2019, Washington's counsel emailed the original complaint to the Sedgwick claims representative. (Id. at 6.) Washington's counsel only learned of the issue about the correct defendant when The Kroger Co. filed its first motion to dismiss on May 21, 2019, after the limitations period had expired. (Id.) Washington's brief also refers to Roundy's Illinois as a subsidiary of The Kroger Co.(Id.) The precise corporate structure or relationship that may exist between the companies was unclear from the briefing on the motion to dismiss.⁶

Washington further contends that it was "unlikely" that Roundy's Illinois was never notified of the lawsuit. (Id. at 5-6.) Washington states that on May 10, 2017, Washington's counsel received a letter from Sedgwick acknowledging Washington's counsel's letter of representation of Washington, and that the Sedgwick letter repeatedly identified "K531 Roundy's Illinois (Mariano's)" as Sedgwick's client. (Id. at 6.) Washington attaches various documents to her response brief in support of her factual contentions.

DISCUSSION

I. Jurisdiction

This court has an independent obligation to ensure that it has subject matter jurisdiction. Jason's Foods, Inc. v. Peter Eckrich & Sons, Inc., 768 F.2d 189, 190 (7th Cir. 1985) ("Federal courts have an independent obligation to confine themselves to the jurisdiction that has been given them by the Constitution and byCongress . . . ."). The court concludes that it has diversity jurisdiction under 28 U.S.C. § 1332(a)(1).

"[T]he party seeking to invoke federal diversity jurisdiction . . . bears the burden of demonstrating that the complete diversity and amount in controversy requirements were met at the time of removal." Tylka v. Gerber Prod. Co., 211 F.3d 445, 448 (7th Cir. 2000). Washington was a citizen of Illinois at...