21300 Management Ltd vs. Genflex Roofing Systems et al, No. 1:2018cv01619 - Document 12 (N.D. Ohio 2018)
Court Description: Opinion & Order signed by Judge James S. Gwin on 9/5/18. The Court, for the reasons set forth in this order, remands this case to the Cuyahoga County Court of Common Pleas for lack of subject-matter jurisdiction. (Related Doc. 7 ) (D,MA)
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21300 Management Ltd vs. Genflex Roofing Systems et al Doc. 12 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO ----------------------------------------------------------: : : Plaintiff, : : vs. : : GENFLEX ROOFING SYSTEMS, et al., : : Defendants. : : -----------------------------------------------------------21300 MANAGEMENT LTD., CASE NO. 1:18-cv-1619 OPINION & ORDER [Resolving Doc. 7] JAMES S. GWIN, UNITED STATES DISTRICT JUDGE: D—‘—n–ant G—n‘l—x Roo‘“n’ Syst—ms ( G—n‘l—x ) r—mov—– th“s cas— ‘rom stat— court on July 13, 2018.1 It subsequently amended the notice of removal two times.2 On August 10, 2018, Plaintiff 21300 Management Ltd. moved to remand the case to the state court for lack of subject-matter jurisdiction.3 Defendant Genflex opposes this motion.4 Under 28 U.S.C. § 1441(a), a defendant may remove a civil case brought in state court if the plaintiff could have originally sued in federal court. Once the defendant files a notice of removal, the plaintiff may move to remand the case to state court by contesting the basis of the federal court's subject-matter jurisdiction. Where the only claimed jurisdiction is diversity jurisdiction, the defendant opposing remand bears the burden of proving the complete diversity of citizenship and amount-in-controversy requirements.5 All –oubts as to th— propr“—ty o‘ r—moval ar— r—solv—– “n ‘avor o‘ r—man–. 6 1 Doc. 1. Docs. 2, 9. 3 Doc. 7. Defendant Genflex opposes. Doc. 10. Plaintiff 21300 Management Ltd. replies. Doc. 11. 4 Doc. 10. 5 See Cleveland Hous. Renewal Project v. Deutsche Bank Tr. Co. , 621 F.3d 554, 559 (6th Cir. 2010) ( The party invoking federal court jurisdiction in this case, Deutsche Bank, as removing party has the burden of demonstrating by competent proof that the complete-diversity and amount-in-controversy requirements are met. (citing Hertz Corp. v. Friend, 559 U.S. 77, 96 97 (2010))). 6 Coyne v. Am. Tobacco Co., 183 F.3d 488, 493 (6th Cir.1999). 2 Dockets.Justia.com Case No. 1:18-cv-1619 Gwin, J. If the federal court determines that it lacks subject-matter jurisdiction over the removed case, it must remand the case back to the state court.7 Defendant Genflex only claims diversity jurisdiction. And it fails to show that the complete diversity requirement is satisfied.8 Complete diversity requires that th— c“t“z—nsh“p o‘ —ach pla“nt“‘‘ [b—] –“v—rs— ‘rom th— c“t“z—nsh“p o‘ —ach –—‘—n–ant. 9 [T]here must be complete diversity of citizenship both at the time that th— cas— “s comm—nc—– an– at th— t“m— that th— not“c— o‘ r—moval “s ‘“l—–. 10 –“v—rs— c“t“z—nsh“p must b— r—a–“ly asc—rta“nabl— ‘rom th— ‘ac— o‘ th— pl—a–“n’. Moreover, the 11 D—‘—n–ant G—n‘l—x s not“c—s o‘ r—moval,12 including the state court complaint therein, do not “n–“cat— that —ach pla“nt“‘‘ s c“t“z—nsh“p “s –“v—rs— ‘rom —ach –—‘—n–ant s. Instead, they appear to indicate that Plaintiff 21300 Management and Defendant Military Veterans Roofing Services, LLC ( Roo‘“n’ S—rv“c—s ) ar— both c“t“z—ns o‘ th— Stat— o‘ Oh“o.13 Complete diversity therefore is not 7 28 U.S.C. § 1447(c) ( I‘ at any t“m— b—‘or— ‘“nal ”u–’m—nt “t app—ars that th— –“str“ct court lacks sub”—ct matt—r ”ur“s–“ct“on, th— cas— shall b— r—man–—–. ). 8 Because complete diversity of citizenship is lacking, the Court need not reach Pla“nt“‘‘ s ar’um—nt that th— amount in controversy does not exceed $75,000. See, e.g., Doc. 7 at 12 13. 9 Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996) ( In Strawbridge v. Curtiss, 3 Cranch 267, 2 L.Ed. 435 (1806), this Court construed the original Judiciary Act's diversity provision to require complete diversity of citizenship. We have adhered to that statutory interpretation ever since. (c“tat“on om“tt—–)). 10 Jerome-Duncan, Inc. v. Auto-By-Tel, L.L.C., 176 F.3d 904, 907 (6th Cir. 1999) (citing Easley v. Pettibone Mich. Corp., 990 F.2d 905, 908 (6th Cir.1993)). 11 Tech Hills II Assocs. v. Phoenix Home Life Mut. Ins. Co. , 5 F.3d 963, 968 (6th Cir. 1993); Praisler v. Ryder Integrated Logistics, Inc., 417 F. Supp. 2d 917, 920 (N.D. Ohio 2006) (quoting Tech Hills, 5 F.3d at 968) (explaining that the rule applies to citizenship). 12 Because the Notice of Removal (Doc. 1) by itself contains even less information than the later notices, the Court does not decide whether it may only consider the first Notice of Removal, but not the later notices, in making this determination. See Jerome-Duncan, 176 F.3d at 907 (r—qu“r“n’ compl—t— –“v—rs“ty o‘ c“t“z—nsh“p both at th— t“m— that the case is commenced and at the time that the notice of removal is filed (citing Easley, 990 F.2d at 908) (emphasis added)). Even considering the later notices, Defendant Genflex has not shown complete diversity. 13 Defendant Genflex attempts to support its assertion from the first two notices that Plaintiff 21300 Management Ltd., which is a limited liability company, is a citizen of the State of Ohio. See Second Amended Notice of Removal, Doc. 9; Notice of Removal, Doc. 1 ¶ 2 ( This case involves citizens of different states because at all times pertinent: Plaintiff, 21300 Management Ltd., is an Ohio limited-liability company with its principal place of business in Ohio. (See complaint and attached Articles of Organization, Exhibit B) . . . . ). It provides pleadings from another case, one of which contains admissions by the defendants that they are members of 21300 Management Ltd. and that they reside in Ohio. See Exhibit A: Answer and Counterclaim, Doc. 9-1 ¶¶ 2 7, 10. As for Defendant Military Veterans Roofing Services, LLC, Defendant Genflex simply states in the first two notices of removal that Defendant Roofing Services “s an Oh“o-bas—– —nt“ty, an– th—n –“sm“ss—s th— company as irrelevant under section 1441(b) because the company had not been served. See Notice of Removal, Doc. 1 ¶ 2 ( Military Veterans Roofing Services, LLC is an Ohio-based entity (see complaint) but has not been served and thus may be disregarded for removal purposes under 28 U.S.C. §1441(b) . . . . ). Mor—ov—r, th— stat— court compla“nt stat—s that -2- Case No. 1:18-cv-1619 Gwin, J. r—a–“ly asc—rta“nabl— ‘rom th— ‘ac— o‘ th— pl—a–“n’. 14 Defendant Genflex s arguments relying on section 1441(b)(2)15 m“sun–—rstan– th“s s—ct“on s function. As is evident from its plain language, section 1441(b)(2) places limits on actions that are otherwise removable solely on the basis of [diversity jurisdiction]. 16 Diversity jurisdiction therefore must independently exist under section 1441(a) before the section 1441(b)(2) inquiry “nvolv“n’ r—s“–—nt part“—s “n “nt—r—st prop—rly ”o“n—– an– s—rv—– as –—‘—n–ants can take place.17 Because the pleadings, not service of process, determines complete diversity,18 Defendant Roofing Services Oh“o c“t“z—nsh“p –—‘—ats diversity jurisdiction. For these reasons, the Court lacks subject-matter jurisdiction over the action, and REMANDS the case to the Cuyahoga County Court of Common Pleas. IT IS SO ORDERED. s/ Dated: September 5, 2018 James S. Gwin JAMES S. GWIN UNITED STATES DISTRICT JUDGE Defendant [Roofing Services] at all relevant times, was and is a roofing company that installs commercial roofs and is located in Summit County, Ohio. Exhibit A: State Court Complaint, Doc. 1 ¶ 3. It is therefore far from clear from the face of the pleading that the citizenship of each plaintiff is diverse from the citizenship of each defendant. See Tech Hills, 5 F.3d at 968; Praisler, 417 F. Supp. 2d at 920. 14 See Tech Hills, 5 F.3d at 968; Praisler, 417 F. Supp. 2d at 920. 15 S—ct“on 1441(b)(2) stat—s th— ‘ollow“n’: A c“v“l act“on oth—rw“s— r—movabl— sol—ly on the basis of [section 1332(a) diversity jurisdiction] may not be removed if any of the parties in interest properly joined and served as –—‘—n–ants “s a c“t“z—n o‘ th— Stat— “n wh“ch such act“on “s brou’ht. 28 U.S.C. § 1441(b)(2). D—‘—n–ant G—n‘l—x “nt—rpr—ts th“s prov“s“on to m—an that only –—‘—n–ants who hav— b——n s—rv—– at th— t“m— o‘ removal are considered when determining the propriety of removal, Doc. 10 at 1 2 in other words, when determining whether complete diversity of citizenship exists. Because Plaintiff had not yet served Defendant Roofing Services when Defendant Genflex removed the action, see Notice of Removal, Doc. 1 ¶ 2, Defendant Genflex argues that its co–—‘—n–ant s Oh“o c“t“z—nsh“p “s “rr—l—vant to the propriety of removal, see Doc. 10 at 1 4. 16 See 28 U.S.C. § 1441(b)(2) (emphasis added). 17 Many of the cases cited by Defendant Genflex support this very point. The courts had already determined that complete diversity existed before turning to the question of whether the presence of an unserved resident defendant defeats removal under section 1441(b)(2). See Doc. 10 at 2 3 (citing cases). 18 See Finley v. Higbee Co., 1 F. Supp. 2d 701, 703 (N.D. Ohio 1997) ( Defendants are correct that case law supports the proposition that the failure to serve a defendant who would defeat diversity does not permit a court to ignore that defendant in determining the propriety of removal. (citations omitted)). See also Pullman Co. v. Jenkins, 305 U.S. 534, 541 (1939) ( [T]he fact that the resident defendant has not been served with process does not justify removal by the non-r—s“–—nt –—‘—n–ant. (c“tat“ons om“tt—–)). -3-
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