United States District Court, S.D. Ohio, Eastern Division
D. Morrison Judge
REPORT AND RECOMMENDATION
ELIZABETH A. PRESTON DEAVERS, CHIEF UNITED STATES MAGISTRATE
matter is before the Court for issuance of a Report and
Recommendation on the Motion to Remand (ECF No. 15) filed by
Plaintiff Angie Bugno (“Ms. Bugno”), the response
(ECF No. 18) filed by Prestige Financial Services, Inc.
(“Prestige”), and Ms. Bugno's reply
memorandum (ECF No. 19). For the reasons that follow, it is
RECOMMENDED that Ms. Bugno's Motion to
Remand be GRANTED and that this action be
REMANDED to the Court of Common Pleas for
December 27, 2017, Prestige filed a complaint against Ms.
Bugno in Franklin County Municipal Court (“Municipal
Court”) captioned Prestige Financial Services,
Inc., No. 2017 CVF 044552, seeking to collect on an
alleged deficiency balance remaining on an installment
contract for the purchase of an automobile. (ECF No. 1 at 1;
ECF No. 15-1 (copy of Prestige's Complaint).) Ms. Bugno
filed an answer and counterclaim (ECF No. 15-2 at PAGEID ##
255- 61), to which Prestige responded (id. at PAGEID
# 239-44). The parties engaged in written discovery.
(Id. at PAGEID ## 219, 245.)
February 28, 2019, Ms. Bugno served on Prestige a motion for
leave to file an amended answer and class-action counterclaim
and a motion to transfer to the Court of Common Pleas for
Franklin County (“Franklin County Common Pleas
Court”). (Id. at PAGEID ## 192, 209; ECF No. 1
March 7, 2019, Prestige filed a notice of dismissal without
prejudice. (ECF No. 15-2 at PAGEID ## 226-27.)
March 25, 2019, Ms. Bugno's motion for leave to file an
amended answer and class-action counterclaim and a motion to
transfer to the Franklin County Common Pleas Court was filed
in the Municipal Court. (Id. at PAGEID ## 190-216.)
On March 26, 2019, the Municipal Court filed two entries
granting Ms. Bugno's motion to amend and to transfer and
directed the Municipal Court Clerk to transfer the action to
the Franklin County Common Pleas Court. (ECF No. 15-2 at
PAGEID ## 183, 189.) On April 5, 2019, the Municipal Court
transferred the action to the Franklin County Common Pleas
Court. (Id. at PAGEID # 278.)
April 24, 2019, Prestige filed its notice of removal in this
Court and in Municipal Court, removing the action to this
Court on the basis of diversity jurisdiction pursuant to 28
U.S.C. §§ 1332, 1441. (ECF No. 1; ECF No. 15-3.)
April 29, 2019, the Franklin County Common Pleas Court opened
a file for the case transferred from Municipal Court. (ECF
21, 2019, this Court conducted a preliminary pretrial
conference pursuant to the provisions of Federal Rule of
Civil Procedure 16(b) and issued a scheduling Order. (ECF No.
9.) On June 14, 2019, Prestige moved to dismiss Ms.
Bugno's claims. (ECF No. 11.) Thereafter, Ms. Bugno filed
a Motion to Remand. (ECF No. 15.) Upon Ms. Bugno's motion
and for good cause shown and in consultation with the
presiding District Judge, the Court stayed discovery and
briefing on Prestige's Motion to Dismiss pending
resolution of the Motion to Remand. (ECF No. 17.) Prestige
has filed a response in opposition to the Motion to Remand
(ECF No. 18) and Ms. Bugno has filed a reply memorandum (ECF
No. 19). This matter is ripe for resolution.
“[t]he defendant or the defendants” may remove a
civil action from state court to the federal district court
“for the district and division embracing the place
where such action is pending” if the action could have
been brought there originally. 28 U.S.C. § 1441(a);
see also 28 U.S.C. § 1446(a) (explaining the
general process that “[a] defendant or
defendants” wishing to remove an action must follow).
“The term ‘defendant' in removal statutes is
narrowly construed.” In re Mortg. Elec.
Registration Sys., Inc., 680 F.3d 849, 853 (6th Cir.
2012) (citations omitted); see also First Nat'l Bank
of Pulaski v. Curry, 301 F.3d 456, 462-63 (6th Cir.
2002) (“[T]he phrase “the defendant or the
defendants, ” as used in § 1441(a), [must] be
interpreted narrowly, to refer to defendants in the
traditional sense of parties against whom the plaintiff
asserts claims.”) (citations omitted).
the phrase ‘the defendant or the defendants' in
light of the structure of the statute and our precedent, [the
United States Supreme Court has] conclude[d] that §
1441(a) does not permit removal by any counterclaim
defendant, including parties brought into the lawsuit for the
first time by the counterclaim.” Home Depot U.S.
A., Inc. v. Jackson, 139 S.Ct. 1743, 1748 (2019);
see also In re Mortg. Elec. Registration Sys., Inc.,
680 F.3d at 853 (“[A] counterclaim or third-party
defendant is not a ‘defendant' who may remove the
action to federal court.”) (citing Shamrock Oil
& Gas Corp. v. Sheets, 313 U.S. 100, 104-08 (1941)
(interpreting an earlier version of the removal statute);
First Nat'l Bank, 301 F.3d at 461-62
(“Counterclaims, cross-claims, and third-party claims
cannot be the basis for removal under § 1441(a).”)
(internal quotation marks and citations omitted))); Sesi
v. Perrault, No. 16-cv-12680, 2016 WL 9403992, at *1
(E.D. Mich. Aug. 10, 2016) (“[Plaintiff,
Counterclaim-Defendant] Sesi seems to think that because
Perrault filed a counterclaim against him, he is now a
‘defendant' for purposes of the removal statute. He
is wrong.”). As the United States Supreme Court
explains, “because the ...