GREGORY H. LEESEMANN, et al., Plaintiffs,
LOWE'S HOME CENTERS, INC. doing business as Lowe's, et al., Defendants.
REPORT AND RECOMMENDATIONS 
SHARON L. OVINGTON, Chief Magistrate Judge.
Plaintiff Gregory Leesemann alleges that he was injured by a forklift while he was unloading bundles from his truck "on the property of Lowe's Home Center in Springfield, Clark County, Ohio...." (Doc. # 4, PageID at 25). Believing that his injuries resulted from negligence, Leesemann and his wife sued Defendant Lowe's Home Centers, Inc. (Defendant Lowe's) and others in Clark County, Ohio Court of Common Pleas. At that time, the Leesemanns did not know the name of the forklift operator, and they consequently listed one defendant as an unknown "John Doe, " a forklift operator who was "in the employ...." of Defendant Lowe's at all relevant times. Id., PageID at 25-26.
Defendant Lowe's removed the case to this Court, invoking diversity jurisdiction under 28 U.S.C. §1332. Defendant Lowe's states in its Petition for Removal, "the residency of John Doe Defendants should not be considered for purposes of removal. See 28 U.S.C. §1441(a)." (Doc. #1, PageID at 1).
The case is presently before this Court upon the Leesemanns' Motion for Remand (Doc. # 6), Defendant Lowe's Memorandum in Opposition (Doc. #10, the Leesemanns' Reply (Doc. #11), and the record as a whole.
Generally, a defendant may remove "any civil action brought in a State court of which the district courts of the United States have original jurisdiction." 28 U.S.C. § 1441(a). Removal is therefore permissible where the requirements of diversity jurisdiction are met - more specifically, "where the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs, and is between... citizens of different states.'" Williamson v. Aetna Life Ins. Co., 481 F.3d 369, 375 (6th Cir. 2007) (quoting 28 U.S.C. § 1332(a)). "A defendant seeking to remove a case to federal court has the burden of proving that the district court possesses jurisdiction." Id.
When Defendant Lowe's removed this case to this Court, diversity of citizenship existed between Plaintiffs (Ohio citizens) and Defendant Lowe's (a citizen of North Carolina) and Defendant Anthem Blue Cross Blue Shield (a citizen of Indiana). There must, however, be complete diversity among the parties' citizenship at the moment of removal in order to maintain diversity jurisdiction. See Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 267 (1806); see also V & M Star, LP v. Centimark Corp., 596 F.3d 354, 355 (6th Cir. 2010); Curry v. U.S. Bulk Transp., Inc., 462 F.3d 536, 539 (6th Cir. 2006). Jurisdictional attention thus turns to the citizenship of the remaining Defendants: First Source Employee Management and the previously unidentified John Doe forklift operator, whose identity and Ohio citizenship is now known.
First things first - First Source Employee Management is, like Plaintiff, an Ohio citizen. Defendant Lowe's acknowledges as much in its removal petition. (Doc. #1, PageID at 2). If the analysis stopped there, complete diversity between the identified parties would not exist, diversity jurisdiction would be defeated, and the case would be remanded to state court. See Curry, 462 F.3d at 540 (and cases cited therein). Defendant Lowe's steps around this potential problem by asserting that Plaintiffs' and First Source's interests are aligned and adverse to Defendant Lowe's, thus requiring realignment of the parties and thus creating diversity of citizenship between First Source and Defendant Lowe's. (Doc. #1, PageID at 2). This appears correct, see Stallsworth v. Cox, 3:13cv00064, 2013 WL 1867032 at *3, n.1 (S.D. Ohio May 2, 2013) (Black, D.J.); see also Smith v. Gen. Motors Corp., 2:11cv00782, 2011 WL 5999865 at *2 (S.D. Ohio Nov. 30, 2011) (Sargus, D.J.), and Plaintiffs do not contend otherwise in their Reply, see Doc. #11.
Plaintiffs maintain that if the parties are realigned in the manner Defendant Lowe's proposes, then removal of this case was procedurally flawed because Defendant Lowe's did not provide notice of its removal petition to Defendant First Source, an adverse party, as required by 28 U.S.C. § 1446(d). This contention lacks merit because Defendant Lowe's has established that it provided sufficient notice of its removal petition to Defendant First Source's statutory agent, as shown by the copy of the Notice it attached as an exhibit in support of its Memorandum in Opposition. See Doc. #10, Exh.3, PageId at 90.
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The parties' jurisdictional dispute thus turns to the effect of the now-known identity and citizenship of Defendant John Doe.
The main legal principle in operation here establishes that a defendant is barred from removing a state case to federal court under 28 U.S.C.§ 1441(b) "on the basis of diversity if any part[y] in interest properly joined and served as [a] defendan[t] is a citizen of the State in which [the] action is brought.'" Lincoln Prop. Co. v. Roche, 546 U.S. 81, 90, 126 S.Ct. 606, 613 (2005).
On April 1, 2013, Defendant Lowe's identified Dana Kuhn as the John Doe forklift operator and "his citizenship as Ohio." (Doc. #11, PageID at 92). Since then, Plaintiffs have amended their Complaint, after obtaining leave of Court to do so. Their First Amended Complaint replaced Defendant John Doe with Defendant Dana Kuhn. (Doc. # 14). This staves off the application of the "general rule... that diversity is determined at the time of the filing of the lawsuit." Curry, 462 F.3d at 540 (citing Smith v. Sperling, 354 U.S. 91, 93 & n. 1, 77 S.Ct. 1112(1957)). "[P]ersuasive authority counsels that in a situation such as this where an amended complaint is filed to include the identity of a previous unidentified defendant, diversity must be determined at the time of the filing of the amended complaint." Curry, 462 F.3d at 540-41 (listing cases). Because Plaintiffs' First ...