United States District Court, S.D. Ohio, Eastern Division
C. Smith, Judge
REPORT AND RECOMMENDATION
ELIZABETH A. PRESTON DEAVERS, UNITED STATES MAGISTRATE JUDGE
matter is before the Court for consideration of
Plaintiff's Motions to Remand (ECF No. 11, 20, 25 &
27.) and Defendants' Response in Opposition (ECF No.
For the reasons that follow, it is
RECOMMENDED that Plaintiff's Motions to
Remand be DENIED.
December 2016, Plaintiff, a citizen of Ohio, filed a
purported nationwide class action against Defendants. In his
2016 Complaint, Plaintiff claimed that Defendants violated
the Stored Communication Act when Defendant Nationwide
allegedly issued a “bad check” that was
subsequently refused by Defendant JP Morgan Chase. Allen
v. Nationwide Mut. Ins., No. 2:16-cv-1178, 2017 WL
1929970 (S.D. Ohio Jan. 10, 2017). On May 9, 2017, this Court
dismissed that case for failure to state a claim on which
relief may be granted. Allen v. Nationwide Mut.
Ins., No. 2:16-cv-1178, 2017 WL 1881456 (S.D. Ohio May
the Court's ruling, Plaintiff filed the instant case in
state court alleging an identical set of facts and purporting
to bring another nationwide class action against Defendants.
(ECF No. 9.) Plaintiff claims that Defendants are liable for
fraudulent conversion, unjust enrichment, breach of contract,
and breach of fiduciary duty arising from a one-day delay in
cashing Plaintiff's insurance check, during which time
Defendant JP Morgan Chase allegedly benefited from the
overnight federal funds rate to accrue interest on Defendant
Nationwide's check. (Id. at 3-4.)
27, 2017, Defendants removed this matter to federal court
pursuant to the provisions of the Class Action Fairness Act
of 2005 (“CAFA”), 28 U.S.C. §§ 1332(d)
and 1453, and further pursuant to 28 U.S.C. §§
1332, 1441, and 1446. (ECF No. 1.) Plaintiff filed his Motion
to Remand on July 3, 2017. (ECF No. 11.) Invoking the
“home state controversy” provisions of CAFA,
Plaintiff argues that remand is proper because he filed his
self-styled First Amended Complaint in state court on June
30, 2017, purporting to restrict the proposed class to Ohio
plaintiffs only. (ECF No. 20.) Defendants counter that
Plaintiff's Amended Complaint is not relevant because
Plaintiff never filed it in this Court. (ECF No. 19 at 2.)
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). Under the Class Action Fairness Act, a district court
has original jurisdiction over an action where (1) the amount
in controversy exceeds $5 million, (2) any plaintiff is a
citizen of a state different from any defendant, and (3) the
proposed plaintiff class (or classes) contain(s) at least 100
members in the aggregate. 28 U.S.C. §§ 1332(d)(2),
1332(d)(5)(B). As the party invoking federal jurisdiction,
the defendant bears the burden of establishing these
jurisdictional prerequisites by a preponderance of the
evidence. Smith v. Nationwide Prop. & Cas. Ins.
Co., 505 F.3d 401, 404-5 (6th Cir. 2007).
well-established general rule is that jurisdiction is
determined at the time of removal, and nothing filed after
removal affects jurisdiction. St. Paul Mercury Indemnity
Co. v. Red Cab Co., 303 U.S. 283, 293 (1938). Under
CAFA, “[t]he law remains that post-removal events do
not oust jurisdiction.” Long v. State Farm
Ins., No. 2:13-CV-786, 2015 WL 6391221, at *2 (S.D. Ohio
Oct. 22, 2015); see In re Burlington N. Santa Fe Ry.
Co., 606 F.3d 379, 380 (7th Cir. 2010)
(“Jurisdiction under CAFA is secure even though, after
removal, the plaintiffs amended their complaint to eliminate
the class allegations.”). Furthermore, “removal
cases present concerns about forum manipulation that counsel
against allowing a plaintiff's post-removal amendments to
affect jurisdiction.” Rockwell Int'l Corp. v.
U.S., 549 U.S. 457, 473-74 & n. 6 (2007).
states that his First Amended Complaint restricts the class
of plaintiffs in this matter to Ohio citizens only. (ECF No.
11.) According to Plaintiff, this Court must now decline
jurisdiction under CAFA's “home state
controversy” exception. (Id.) Defendants
proffer two arguments in support of continued jurisdiction
under CAFA. Defendants first argue that, because jurisdiction
is determined at the time of removal, Plaintiff's
subsequent efforts at amendment cannot destroy federal
jurisdiction. (ECF No. 19 at 3.) Defendants also argue that,
because Plaintiff filed his First Amended Complaint in state
court, only Plaintiff's original Complaint is properly
before the Court. (Id. at 2.)
parties do not dispute that CAFA's jurisdictional
prerequisites are satisfied by Plaintiff's original
Complaint and that removal to federal court, therefore, was
proper. (ECF Nos. 11 & 19.) They disagree, however, on
the effect of Plaintiff's purported First Amended
Complaint. Plaintiff's argument that his June 30, 2017,
filing in state court divests this Court of jurisdiction
under CAFA is misguided. (ECF No. 22.) Simply put, Plaintiff
filed in the wrong court. Defendants properly removed this
matter to federal court on June 27, 2017. (ECF No. 1.) A
properly filed notice of removal in the state court
“immediately strips the state court of its
jurisdiction.” Nyamusevya v. Medical Mut. of
Ohio, No. 02AP-769, 2003-Ohio-3335, ¶ 24 (Ohio Ct.
App. 10th Jun. 26, 2003) (quoting In re Diet Drugs,
282 F.3d 220, 232, n. 6 (3rd Cir. 2002)). From the moment of
removal, then, a filing in state court is a nullity.
Plaintiff's June 30, 2017, filing in state court came
three days too late to effectively amend his Complaint. For
that reason alone it would be proper to deny Plaintiff's
Motions for Remand.
assuming, arguendo, that Plaintiff properly filed
his First Amended Complaint in this Court, his hypothetical
post-removal restrictions on the potential class would not
change the fact that federal jurisdiction under CAFA was
proper at the time of removal, which is the touchstone for
determining such jurisdictional questions under CAFA.
Long, 2015 WL 6391221, at *2. Because federal
jurisdiction was proper at the time Defendants removed this
matter, subsequent amendments to the Complaint will not
divest this Court of jurisdiction under CAFA. Id.
For that reason, the Court need not address Plaintiff's
“home state controversy” ...