United States District Court, N.D. Ohio, Eastern Division
KENNETH E. ADAMS, Plaintiff,
FRITO-LAY, INC., ET AL., Defendant.
OPINION AND ORDER
CHRISTOPHER A. BOYKO, J.
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
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.
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
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.
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.
further argues that remand is required because the Frito-Lay
Defendants failed to obtain consent for removal from all
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.
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).
Sixth Circuit has held that failure to obtain the consent of
all defendants who have been properly served is fatal to
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