United States District Court, S.D. Ohio, Eastern Division
Michael H. Watson Judge.
REPORT AND RECOMMENDATION AND ORDER
KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Plaintiff's Motion to
Remand to State Court (Doc. 7) and Plaintiff's Motion for
Leave to Conduct Limited Jurisdictional Discovery Related to
Plaintiff's Motion to Remand (Doc. 17). For the reasons
that follow, it is RECOMMENDED that
Plaintiff's Motion to Remand be GRANTED,
but Plaintiff's request for attorney's fees is
DENIED. Further, Plaintiff's Motion to
Conduct Limited Jurisdiction Discovery is
initiated this action on November 17, 2017, in the Franklin
County Court of Common Pleas against his former employer, Old
Dominion Freight Line, Inc. (“Old Dominion”) and
his former terminal manager John Zielinksi, after Plaintiff
was terminated from his employment as a truck driver. (Doc. 3
at 1). Plaintiff alleges that following rotator cuff surgery,
he took twelve weeks of leave under the Family Medical Leave
Act and then requested unpaid leave, but instead was fired.
(Id. at 2). According to Plaintiff, he was
“one of the oldest employees at his terminal.”
(Id.). Based upon these allegations, Plaintiff
brought six claims against Defendants under Ohio Revised Code
Chapter 4112, stemming from alleged (1) discrimination on
account of Plaintiff's disability, perceived disability,
and age; (2) a failure to accommodate Plaintiff's
disability; and (3) a failure to engage in the interactive
process. (Id. at 5-11).
removed the case to this Court, asserting diversity
jurisdiction under 28 U.S.C. § 1332. (Doc. 1).
Defendants represent that Plaintiff is a citizen of the State
of Ohio and Defendant Old Dominion is a citizen of both
Virginia and North Carolina. (Id. at 2-3).
Defendants acknowledge that Defendant Zielinksi, like
Plaintiff, is also a citizen of the State of Ohio. However,
Defendants assert that his citizenship “should be
disregarded for purposes of determining jurisdiction under 28
U.S.C. § 1441….” (Id. at 3).
Specifically, Defendants argue that the Court should ignore
Defendant Zielinksi's citizenship because the Complaint
presents no colorable claim against him and Plaintiff
fraudulently joined him in an apparent effort to defeat this
Court's jurisdiction. (Id.).
following week, Defendants moved to dismiss the claims
against Defendant Zielinksi, arguing that Plaintiff failed to
plead facts sufficient to establish Defendant Zielinski's
individual liability. (Doc. 4). Then, on January 5, 2018,
Plaintiff filed an Amended Complaint, alleging the same
causes of action but bolstering the allegations as to
Defendant Zielinksi. (Doc. 6). That same day, Plaintiff filed
a Motion to Remand, requesting that this Court remand the
case back to the Franklin County Court of Common Pleas
(hereinafter, “the State Court”) for lack of
subject matter jurisdiction. (Doc. 7). The Court subsequently
stayed the briefing on Defendants' Motion to Dismiss in
order to address the Motion to Remand first. (Doc. 9).
filed their Response in Opposition to the Motion to Remand
(Doc. 14), but rather that filing a Reply (even after seeking
an extension to do so), Plaintiff filed a Motion for Leave to
Conduct Limited Jurisdictional Discovery Related to
Plaintiff's Motion to Remand (Doc. 17). In that Motion,
Plaintiff requested that his deadline to file a Reply to the
Motion to Remand be stayed (id.), which the Court
granted. (Doc. 18). After the Court expedited briefing on
jurisdictional discovery (Doc. 18), Defendants filed their
Response in Opposition (Doc. 19), and Plaintiff filed his
Reply (Doc. 20). The Court now considers both
defendant may remove a state court case to federal court only
if it could have been brought there in the first place; that
is, if the federal court would have original jurisdiction
over the case.” Strong v. Telectronics Pacing Sys.,
Inc., 78 F.3d 256, 259 (6th Cir. 1996). Relevant to this
case, district courts have federal jurisdiction based on
diversity citizenship in actions “where the matter in
controversy exceeds the sum or value of $75, 000” and
where the controversy is between “citizens of different
States.” 28 U.S.C. § 1332; see also 3LI
Consultant Grp. v. Catholic Health Partners, No.
1:15-cv-455, 2016 WL 246202, at *1 (S.D. Ohio Jan. 21, 2016).
The statute requires “complete” diversity of
citizenship, meaning no plaintiff resides in the same state
as any defendant. Myers Indus., Inc. v. Young, No.
5:13-CV-01278, 2013 WL 4431250, at *1 (N.D. Ohio Aug. 16,
2013) (citing Lincoln Prop. Co. v. Roche, 546 U.S.
81, 84 (2005)). If complete diversity of citizenship exists,
defendants may remove an action filed by a plaintiff in state
court pursuant to 28 U.S.C. § 1441. Id.
however, it appears that the federal district court to which
a case was removed lacks subject matter jurisdiction, the
case must be remanded. See, e.g., Woodworth v.
Time Warner Cable, Inc., No. 1:15 CV 1685, 2015 WL
6742085, at *1 (N.D. Ohio Nov. 2, 2015) (“Under 28
U.S.C. § 1447(c), cases originally filed in a state
court must be remanded if, at any time before trial, it
appears that the federal district court to which they were
removed lacks subject matter jurisdiction.”).
“However, the ‘fraudulent joinder of non-diverse
defendants will not defeat removal on diversity
grounds.'” Id. (quoting Coyne v. The
Am. Tobacco Co., 183 F.3d 488, 493 (6th Cir. 1999)).
Thus, if a non-diverse party has been joined as a
defendant-and in the absence of a federal question-the
removing defendant may avoid remand by demonstrating that the
non-diverse party was fraudulently joined. Murray Energy
Holdings Co. v. Bloomberg, L.P., No. 2:15-CV-2845, 2016
WL 3355456, at *2 (S.D. Ohio June 17, 2016). Put another way,
“fraudulent joinder is a judicially created doctrine
that provides an exception to the requirement of complete
diversity.” Coyne, 183 F.3d at 493 (citation
and internal quotes omitted).
determine whether a defendant is fraudulently joined, a court
must ask whether “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.'” Murray
Energy Holdings Co., 2016 WL 3355456, at *2 (quoting
Alexander v. Elec. Data Sys. Corp., 13 F.3d 940, 949
(6th Cir. 1994)). In other words, “the question is
whether a colorable cause of action exists against the
non-diverse defendant.” Markins v. Sw. Airlines
Co., No. 5:17 CV 793, 2017 WL 4050195, at *2 (N.D. Ohio
Sept. 13, 2017) (citing Jerome-Duncan, Inc. v.
Auto-By-Tel, L.L.C., 176 F.3d 904, 907 (1994)).
Importantly, a court does not probe a plaintiff's motive
for joining a non-diverse defendant to the lawsuit because
motive is immaterial to the analysis. See, e.g.,
Jerome-Duncan, Inc., 176 F.3d at 907; see also
Kovacic v. Clark Retail Ent., Inc., No. 1:08CV1921, 2008
WL 11381423, at *2 (N.D. Ohio Nov. 19, 2008) (“The
court examines the legal sufficiency of the claim, not [a
plaintiff's] actual motive for joining the non-diverse
defendants.”) (listing cases).
the removing party bears the burden of demonstrating that no
colorable cause of action exists under state law. Murray
Energy Holdings Co., 2016 WL 3355456, at *2. Courts have
described this burden as “an uphill struggle in
persuading the Court that not only does the complaint fail to
state a claim against the non-diverse defendant, but that
there is not even a colorable argument that it does.”
Eckhart v. Depuy Orthopaedics, Inc., No.
203-CV-1063, 2004 WL 524916, at *2 (S.D. Ohio Mar. 3, 2004);
see also Walker v. Philip Morris USA, Inc., 443 F.
App'x 946, 952 (6th Cir. 2011) (“The burden of
persuasion on those who claim fraudulent joinder is a heavy
have explained the fraudulent joinder inquiry as similar to
one under a “motion to dismiss under Fed. R. Civ. P
12(b)(6), but as even more deferential” to a plaintiff.
Markins, 2017 WL 4050195, at *2; see also Casias
v. Wal-Mart Stores, Inc., 695 F.3d 428, 433 (6th Cir.
2012) (“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.”). Further, as is the case
over any dispute regarding whether removal is proper, all
doubts must be resolved in favor of remand. See,
e.g., Kovacic, 2008 WL 11381423, at *2
(“Any disputed questions of fact or ambiguities of
state law are resolved in favor of the non-removing
party.”); Long v. Bando Mfg. Co. of Am., Inc.,