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Adams v. Frito-Lay, Inc.

United States District Court, N.D. Ohio, Eastern Division

January 8, 2020

KENNETH E. ADAMS, Plaintiff,
v.
FRITO-LAY, INC., ET AL., Defendant.

          OPINION AND ORDER

          CHRISTOPHER A. BOYKO, J.

         This matter is before the Court on Plaintiff Kenneth E. Adams' Motion to Remand and for Attorney's Fees. (ECF # 11). For the following reasons, the Court denies Plaintiff's Motion.

         On August 7, 2019, Plaintiff filed his Complaint with the Cuyahoga County Court of Common Pleas, alleging a Negligence claim against Defendants Frito-Lay, Inc. and Rolling Frito-Lay Sales, LP. (“Frito-Lay”) for injuries he suffered when he was attempting to load recyclable cardboard from Defendants' business into his truck. Plaintiff attempted to load a bundle of cardboard into his truck when, unbeknownst to Plaintiff, a bundle was secured to a rolling metal cart. When Plaintiff attempted to lift the bundle it caused the cart to topple on top of Plaintiff, causing serious injury.

         Plaintiff has also named as Defendants the Ohio Bureau of Workers Compensation (“BWC”) and the Ohio Department of Medicaid (“ODM”), challenging their right to recoup amounts expended for Plaintiff's medical costs. ODM has cross-claimed against the Frito-Lay Defendants for reimbursement.

         The Frito-Lay Defendants removed the action to federal court on September 11, 2019, based on the Court's diversity jurisdiction under 28 U.S.C. § 1332, and on October 23, 2019, Plaintiff filed his Motion to Remand.

         According to Plaintiff, remand is warranted because there is no complete diversity. Plaintiff is an Ohio resident and Defendants ODM and BWC are Ohio entities. The Frito-Lay Defendants are Delaware companies with principal places of business in Texas. Plaintiff further contends the case should not be removed because BWC's subrogation claim arises under Ohio law and 28 U.S.C. §1445(c) prohibits removal of state workers compensation claims.

         Plaintiff further argues that remand is required because the Frito-Lay Defendants failed to obtain consent for removal from all Defendants.

         Defendants oppose the Motion to Remand, contending there is complete diversity as the BWC and ODM are arms of the State of Ohio and under binding precedent, a State or an arm of the State is not a “citizen” of the State for purposes of diversity jurisdiction. Defendants further contend BWC and ODM are improperly aligned as Defendants and should more appropriately be aligned as third-party Plaintiffs, resulting in complete diversity of parties. Finally, Defendants contend BWC and ODM are not proper parties to the suit but instead were named solely for the purpose of defeating diversity jurisdiction as their subrogation claims are ancillary to Plaintiff's Negligence claim.

         LAW AND ANALYSIS

         Standard of Review

         28 U.S.C. § 1441 “provides that an action is removable only if it could have initially been brought in federal court.” Cole v. Great Atl. & Pacific Tea Co., 728 F.Supp. 1305, 1307 (E.D. Ky.1990). Put another way, “[a] civil case that is filed in state court may be removed by the defendant to federal district court if the plaintiff could have chosen to file there originally.” Warthman v. Genoa Twp. Bd. of Trs., 549 F.3d 1055, 1059 (6th Cir.2008). The burden of establishing federal jurisdiction rests upon the removing party, i.e., the defendant. Alexander v. Elec. Data Sys. Corp., 13 F.3d 940, 949 (6th Cir.1994). “Concern about encroaching on a state court's right to decide cases properly before it, requires this court to construe removal jurisdiction narrowly.” Cole, 728 F.Supp. at 1307 (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 109 (1941)). A removed case must be remanded if the district court lacks subject matter jurisdiction. 28 U.S.C. § 1447(c). In addition, “[w]here there is doubt as to federal jurisdiction, the doubt should be construed in favor of remanding the case to the State court where there is no doubt as to its jurisdiction.” Walsh v. Am. Airlines, Inc., 264 F.Supp. 514, 515 (E.D.Ky.1967); see also Breymann v. Pennsylvania, O. & D. R.R., 38 F.2d 209, 212 (6th Cir.1930). In order “[f]or a federal district court to have original jurisdiction over a civil action based on diversity of citizenship, the amount in controversy must exceed $75, 000, exclusive of interest and costs. 28 U.S.C. § 1332(a).” Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006); Freeland v. Liberty Mutual Fire Insurance Co., 632 F.3d 250, 252 (6th Cir. 2011).

         Consent to Remove

         The Sixth Circuit has held that failure to obtain the consent of all defendants who have been properly served is fatal to removal.

Consistent with the prevailing view, we hold that all defendants in the action must join in the removal petition or file their consent to removal in writing within thirty days of receipt of (1) a summons when the initial pleading demonstrates that the case is one that may be removed, or (2) other paper in the case from which it can be ascertained that a previously unremovable case has become removable. (Internal ...

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