United States District Court, N.D. Ohio, Eastern Division
CRISTAL ASU. LLC et al, Plaintiffs,
DELTA SCREEN & FILTRATION, LLC dba DELTA SCREENS, INC. Defendant.
MEMORANDUM OPINION AND ORDER OF REMAND
C. NUGENT UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiffs' Motion to
Remand this action to the Ashtabula County Court of Common
Pleas (ECF #7). The Motion to Remand is opposed by Defendant
(ECF #13) and Plaintiffs have filed their reply brief (ECF
#15). Having carefully considered the legal and factual
issues raised, and for the reasons that follow, the Motion to
Remand is hereby GRANTED.
FACTUAL AND PROCEDURAL BACKGROUND
civil action was filed in the Ashtabula County Court of
Common Pleas on March 1, 2018. The Plaintiffs, Cristal ASU,
LLC and AMCS Corporation, allege claims for breach of
warranty, breach of contract, and products liability against
Defendant Delta Screen & Filtration, LLC. Pursuant to
Ohio's service of process rules, Plaintiffs first served
Defendant at its principal place of business on March 12,
2018. Defendant was subsequently served on March 16, 2018
when a Summons and Complaint was served upon Defendant's
statutory agent. On April 13, 2018, Defendant filed a Notice
of Removal with this court (ECF #1). Plaintiffs have since
moved to remand this case to Ashtabula County Court of Common
Pleas on the basis that Defendant's Notice of Removal was
filed after the thirty (30) day period for removal had
tolled, thus making it untimely.
Requirements for Removal
defendant seeking to remove an action from state court has
the burden of demonstrating that the federal court has
subject matter jurisdiction. See Williams v. Pegnato
& Pegnato Roof Mgmt., Inc.. 619 F.Supp.2d 420, 422
(N.D. Ohio 2008). Courts strictly construe the removal
statutes and all doubts are construed against removal.
Shamrock Oil & Gas Corp. v. Sheets, 313 U.S.
100. 108-09. Whereas here, removal is based on diversity
jurisdiction, 28 U.S.C. §1332 requires: (1) diversity of
citizenship between the parties and (2) an amount in
controversy, exclusive of interests and costs, that exceeds
$75, 000. When the amount pled does not explicitly meet the
amount in controversy requirement, the defendant has the
burden of proving that "more likely than not" this
jurisdictional requirement has been met. Rogers v.
Wal-Mart Stores Inc.. 230 F.3d 868, 871 (6th Cir. 2001).
U.S.C. § 1446(b)(1) establishes a 30-day mandatory
deadline for filing a notice of removal, which begins either
(1) within 30 days after receipt by the defendant of a copy
of the initial pleading, or (2) if the case stated by the
initial pleading is not removable, within 30 days after
receipt by the defendant of a copy of an amended pleading or
other paper from which it may first be ascertained that the
case is one that has become removable. "The 30-day time
limitation to file a removal petition is
mandatory'." Moron v. Guardian Automotive
Products. Inc. 3:05 CV 7184, 2005 WL 1308879. at *2
(N.D. Ohio June 1, 2005). Thus, "failure to comply with
the 30-day limitation to file a petition for removal is an
absolute bar [to removal] regardless of whether the removal
would have been proper if timely filed." Finley v.
The Highbee Co., 1 F.Supp.2d 701, 702 (N.D. Ohio 1997)
(citing Sanborn Plastics v. St. Paul Fire and Marine Ins.
Co.. 753 F.Supp. 660, 664 (N.D.Ohio 1990).
Service of Process
to Ohio's Civil Rule 4.2(F). service upon a corporation
can be made by (1) serving the agent authorized by
appointment or by law to receive service of process, (2) by
serving the corporation at any of its usual places of
business by a method authorized under Civ.R.4.1(A)(1), or (3)
by serving an officer or a managing or general agent of the
corporation. Here, Plaintiff served the corporation at a
usual place of business, specifically its principal place of
business. Diana Padilla signed for the Complaint and Summons
and a return receipt reflects that on March 12, 2018 service
was successfully completed. The status of Diana Padilla's
employment with Defendant is irrelevant to the question of
service because under Ohio's Rules of Civil Procedure,
certified mail service is "valid where the envelope
containing documents to be served is delivered to a person
other than the defendant at the defendant's
address." Mitchell v. Mitchell 413 N.E.2d 1182,
1184 (Ohio 1980). Furthermore, the Ohio Supreme Court has
held that "a corporation may be served within the
meaning of Civ.R.4 when the summons and complaint are
delivered by certified mail to the usual place of business of
the corporation and not specifically addressed to an officer
or agent of that corporation." Samson Sales, Inc. v.
Honeywell, Inc., 421 N.E.2d 522, 523 (Ohio 1981). Here.
Defendant admits that this certified mail was delivered to
its principal place of business. Although Defendant claims
that Diana Padilla failed to give this mail to the
appropriate person, the Ohio Supreme Court has held that
service upon a corporation at its business address satisfies
the due process requirement of service of process because it
is "reasonably calculated, under all the circumstances,
to apprise interested parties of the pendency of
action." Id. At 524. Upon return of the signed
receipt, process is effective even if not delivered to the
defendant or to a person authorized by appointment or by law
to receive service of process for defendant. Id.
30-Day Tolling Period
tolling of the 30-day time period for removal began on March
12. 2018 when service of process was successfully performed
at Defendant's principal place of business. This means
that the 30-day period for removal expired on April 11, 2018.
Defendant's Notice of Removal on April 13, 2018 was
the face of the Complaint indicates that this case was
removable at the time of service. Defendant asserts that the
Complaint was ambiguous in its prayer for relief and that it
did not on its face alert the Defendant that the case was
immediately removable. However, the Complaint seeks
compensator}' damages in the form of consequential and
incidental damages, lost profits, costs, reasonable
attorneys' fees incurred, and exemplary or punitive
damages. In determining whether the amount in controversy has
been met, "punitive damages must be considered... unless
it is apparent to a legal certainty that such cannot be
recovered." Hayes v. Eg. Energy Resources Co..
266 F.3d 560, 572 (6th Cir. 2001) (citing
Holley Equip. Corp. v. Credit Alliance Corp., 821
F.2d 1531, 1535 (11th Cir. 1987). Even in instances in which
a plaintiff is limited in actual damages, punitive damages
can be used to "make up" the requisite amount.
Bell v. Preferred Life Assur. Soc. Of Montgomery.
Ala.. 320 U.S. 238, 240 (1943).
also points to the Plaintiffs* use of the language "in
excess of $25, 000" as evidence that the Complaint did
not trigger the 30-day statutory time frame for a timely
notice of removal. However, Plaintiffs' were limited in
their Complaint by Ohio's Rule of Civil Procedure 8(A),
which states that "if the party seeks more than
twenty-five thousand dollars, the party shall so state in the
pleading but shall not specify in the demand for judgment the
amount of recover}' sought." This language,
therefore merely reflects Ohio's pleading requirements
and not necessarily the amount in controversy of this case.
Considering the number of claims Plaintiffs assert against
Defendant, and the fact punitive damages are ...