United States District Court, S.D. Ohio, Eastern Division
Michael H. Watson
REPORT AND RECOMMENDATION
ELIZABETH A. PRESTON DEAVERS UNITED STATES MAGISTRATE JUDGE
matter is before the Court for consideration of
Plaintiffs' Motion to Remand to State Court. (ECF No. 7.)
Defendant filed its Response in Opposition to Plaintiff's
Motion on October 6, 2016. (ECF No. 8.) Plaintiffs filed
their Reply to the Opposition on October 20, 2016. (ECF No.
13.) For the reasons that follow, it is
RECOMMENDED that Plaintiffs' Motion be
Dutchmaid Logistics, Inc., PCM Transport, LLC, and Mark R.
Lewis, LLC (collectively, “Plaintiffs”) are
logistic companies and owners of commercial trucking fleets.
(ECF No. 2; the “Complaint” or
“Compl.” ¶¶ 7-12.) All Plaintiffs are
citizens of the State of Ohio. (Id. ¶¶
1-3.) Plaintiffs initiated this action on February 12, 2015
by filing an original complaint in the Licking County, Ohio
Court of Common Pleas. (Id.) Plaintiffs brought
claims against Navistar, Inc. (“Defendant” or
“Navistar”), a Delaware-based manufacturer of
trucks and other equipment, including International brand
heavy-duty commercial trucks and Maxxforce brand diesel
engines, and Truck Sales & Service, Inc. (“Truck
Sales”), an Ohio corporation that sells and services
Navistar trucks and equipment, including International trucks
and Maxxforce diesel engines. (Id. ¶¶
10-12.) Plaintiffs brought the following claims against
Navistar and Truck Sales: (1) breach of express warranty; (2)
breach of implied warranty; (3) breach of contract; (4)
fraudulent misrepresentation; and (5) fraud. Plaintiffs'
action is based on Defendants' alleged misconduct based
on knowledge of the flawed MaxxForce engines, and failure to
fulfill warranty obligations. (Id. ¶¶
months of discovery, Truck Sales filed a motion to dismiss
under Ohio Rule of Civil Procedure 12(b)(6) on August 19,
2016. (ECF No. 7-4.) On September 2, 2016, Plaintiffs
voluntarily dismissed Truck Sales from the State Court
action. On September 7, 2016, Navistar filed a Notice of
Removal from State court on the grounds that Plaintiffs acted
in “bad faith, ” pursuant to 28 U.S.C.
§1446(c)(1), for failure to actually litigate against
Truck Sales. (ECF No. 1.) In the alternative, Navistar claims
that Truck Sales was fraudulently joined to destroy
diversity. Plaintiffs subsequently filed a Motion to Remand
to State Court on September 12, 2016, asserting that neither
bad faith nor fraudulent joinder exist such that removal was
proper. (ECF No. 7.) The Motion to Remand is now ripe for
STANDARD OF REVIEW
a civil case brought in a state court may be removed by a
defendant to federal court if it could have been brought
there originally. 28 U.S.C. § 1441(a); Rogers v.
Wal-Mart Stores, Inc., 230 F.3d 868, 871 (6th Cir.
2000). A federal court has original “diversity”
jurisdiction where the suit is between citizens of different
states and the amount in controversy exceeds $75, 000.00,
exclusive of costs and interests. 28 U.S.C. § 1332(a).
Rogers, 239 F.3d at 871.
action is removed based on diversity, a federal court must
determine whether complete diversity exists at the time of
removal. Coyne v. American Tobacco Co., 183 F.3d
488, 492 (6th Cir. 1999). “Diversity jurisdiction
attaches only when all parties on one side of the litigation
are of a different citizenship from all parties on the other
side of the litigation.” Id. (quoting SHR
Ltd. Partnership v. Braun, 888 F.2d 455, 456 (6th Cir.
case initially is not removable under the above standards, a
notice of removal may be filed within thirty days after
receipt by the defendant, through service or otherwise, of a
copy of an amended pleading, motion, order, or other paper
from which it may first be ascertained that the case is one
which is or has become removable. 28 U.S.C. §
1446(b)(3). Removal based upon diversity jurisdiction may not
be sought, however, more than one-year after commencement of
the action, unless the district court finds that the
plaintiff has acted in bad faith in order to prevent a
defendant from removing the action. 28 U.S.C. §
Sixth Circuit has not clearly defined the meaning of
“bad faith” in the statute. Federal courts that
have examined the statutory language, however, agree that the
issue is whether the plaintiff engaged in intentional conduct
to deny the defendant the chance to remove the case to
federal court. See Hiser v. Seay, No. 5:14-CV-170,
2014 WL 6885433, at *4 (W.D. Ky. Dec. 5, 2014); Taylor v.
King, No. 5:12-CV-1, 2012 WL 3257528 at *4 (W.D. Ky.
Aug. 8, 2012); Ehrenreich v. Black, 994 F.Supp.2d
284 (E.D. N.Y. 2014) (discussing the statutory language and
finding that the “bad faith” exception was not
met because the plaintiff did not take any actions intended
to prevent removal).
Navistar's notice of removal was timely under §
§1446(b)(3), a notice of removal must be filed within 30
days after receipt by the defendant, through service or
otherwise, of a copy of an amended pleading, motion, order or
other paper from which it may first be ascertained that the
case is one which is or has become removable. It is not
disputed that Plaintiff's voluntary dismissal of Truck
Sales on September 7, 2016 constitutes “other
paper.” (ECF No. 7, at 3.) It is also not disputed that
Navistar filed ...