United States District Court, N.D. Ohio, Western Division
Jeffrey J. Helmick United States District Judge.
of 2015, Karen Lincoln, Renee Thomas, Margaret Thornewell,
Kimberly Orzechowski, Joseph Printke, Chris Ann Stuchel, and
Isaac Jordan were employed by the Lucas County Job and Family
Services. They worked in a building located at 3210 Monroe
Street, Toledo, Ohio. The building is heated by a water
circulation system in addition to the use of heat pumps, a
cooling tower, and an air recovery unit which circulates air
throughout the building. The water for the building's
circulation system is provided by the City of Toledo. These
employees allege exposure to mist or vapor containing
Legionella bacteria, through use of outside water, led to
December 20, 2016, Plaintiffs filed suit in the Lucas County
Court of Common Pleas against Watcon, Inc., Baltimore Aircoil
Company, Sarmento Mechanical Sales, Inc., the City of
Toledo's Division of Water Treatment, the Lucas County
Department of Job and Family Services, the Lucas County Board
of Commissioners, and John Does 1-10.
January 26, 2017, this action was removed by Defendants to
the district court. In their Joint Notice of Removal (Doc.
No. 1), Defendants contend there is no diversity of
citizenship because “Sarmento and the Government
Defendants” have been fraudulently joined as
parties. (Id. at ¶ 13). Twenty-one days later,
Defendant, City of Toledo, filed a motion to dismiss. (Doc.
No. 17). With leave of the Court, Plaintiffs filed an amended
complaint on February 21, 2017. Several of the
Defendants filed a motion to stay discovery (Doc. No. 24) and
moved to dismiss for failure to state a claim (Doc. No. 25)
on February 28, 2017. On April 4, 2017, Plaintiffs filed a
motion to remand. (Doc. No. 36).
of the issues have been fully briefed by the parties, I first
turn to the motion to remand.
The Applicable Legal Standard
28 U.S.C. § 1441(a), a defendant may remove any civil
action from state to federal court only if the district
courts of the United States have original jurisdiction, both
at the time of the original action and when the petition for
removal is filed. Metro Life Ins. Co. v. Taylor, 481
U.S. 58, 63 (1987); Fed.R.Civ.P. 19(a). Following removal to
the district court, a plaintiff may seek remand of the action
to state court within thirty days after the notice of removal
is filed. 28 U.S.C. § 1447(c). If the court lacks
subject matter jurisdiction, remand is proper. Id.
jurisdiction exists when the dispute involves a federal
question or when the amount in controversy exceeds $75, 000
and, at issue in this case, there is diversity of
citizenship. 28 U.S.C. § 1332. Diversity requires
complete diversity between plaintiff's and as to each
defendant named in the complaint. Newman-Green, Inc. v.
Alfonzo-Larrain, 490 U.S. 826, 829 (1989), citing
Strawbridge v. Curtiss, 7 U.S. 267 (3
Cranch)(1806). Federal court subject matter jurisdiction is
determined at the time of removal. Pullman Co. v.
Jenkins, 305 U.S. 534, 537 (1939). The removing party
bears the burden of establishing subject matter jurisdiction.
the doctrine of fraudulent joinder, a federal district court
may disregard the status of a non-diverse party joined for
the purposes of diversity jurisdiction. In Casias v.
Wal-Mart Stores, Inc., the Sixth Circuit set forth the
legal standard to be applied in such an analysis:
Fraudulent joinder is “a judicially created doctrine
that provides an exception to the requirement of complete
diversity.” Coyne, 183 F.3d at 493 (quoting
Triggs v. John Crump Toyota, Inc., 154 F.3d 1284,
1287 (11th Cir.1998) (alteration in original)). A defendant
is fraudulently joined if it is “clear that there can
be no recovery under the law of the state on the cause
alleged or on the facts in view of the law ...”
Alexander v. Elec. Data Sys. Corp., 13 F.3d 940, 949
(6th Cir.1994) (citation omitted). The relevant inquiry is
whether there is “a colorable basis for predicting that
a plaintiff may recover against [a defendant].”
Coyne, 183 F.3d at 493. “The removing party
bears the burden of demonstrating fraudulent joinder.”
Alexander, 13 F.3d at 949 (citation omitted).
When deciding a motion to remand, including fraudulent
joinder allegations, we apply a test similar to, but more
lenient than, the analysis applicable to a Rule 12(b)(6)
motion to dismiss. See Walker v. Philip Morris USA,
Inc., 443 Fed.Appx. 946, 952-54 (6th Cir.2011). As
appropriate, we may “pierce the pleading” and
consider summary judgment evidence, such as affidavits
presented by the parties. Id. The court may look to
material outside the pleadings for the limited purpose of
determining whether there are “undisputed facts that
negate the claim.” Id. at 955-56.
695 F.3d 428, 432-33 (6th Cir. 2012).
plaintiff's motive in joining a defendant is immaterial
to this determination. Jerome-Duncan, Inc. v.
Auto-By-Tel, L.L.C., 176 F.3d 904, 907 (6th Cir 1999).
light of federalism and comity concerns, federal courts must
strictly construe removal jurisdiction and resolve all doubts
in favor of remand. Shamrock Oil & Gas Corp. v.
Sheets, 313 U.S. 100, 109-09 (1941); Alexander v.
Electronic Data Sys. Corp., 13 F.3d 940, 949
(6th Cir. 1994).
Motion to Remand
Positions of the Parties
seek remand of this action contending there is no diversity
of citizenship between the parties under 28 U.S.C. §
1332. Plaintiffs state they have alleged viable claims
against both the Government Defendants and the Defendant
supplier, Sarmento. In contrast, the Defendants contend there
is immunity from liability as to the Governmental ...