Ndukwe v. Walker, Jr.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION - CINCINNATI

CHINEDUM NDUKWE, et al., : Case No. 1:19-cv-888

Plaintiffs, Judge Matthew W. McFarland

v .

JAMES L. WALKER JR., et al.,

Defendants.

ORDER

Plaintiffs, Chinedum Ndukwe and Kingsley Consulting, LLC, initially filed this

action in the Hamilton County, Ohio, Court of Common Pleas. Defendant James L.

Walker, Jr., removed the case, asserting that there was diversity jurisdiction. (Doc. 1, at

p. 2). In the action, Plaintiffs allege state-law claims of extortion, coercion, and

intentional infliction of emotional distress against Defendants James L. Walker, Jr., J.

Walker & Associates, LLC, Attorney Doe, Jane Doe, and John Doe (See Doc. 1-2 (Ex. A)).

This matter is before the Court on several motions. They are as follows:

Plaintiffs’ Motion for Remand for Lack of Subject Matter Jurisdiction (Doc. 6),

Defendants’ Motion to Strike Plaintiffs’ Reply in Support of Their Motion for Remand,

or in the Alternative, Motion to File a Sur-Reply (Doc. 13); Defendants James L. Walker,

Jr. and J. Walker & Associates, LLC’s Motion to Dismiss Plaintiffs’ Complaint, or in the

Alternative, for a Transfer of Venue (Doc. 3), Defendants Jane Doe and Attorney Doe’s

Motion to Dismiss, and Defendant John Doe’s Motion for Judgment on the Pleadings

(Doc. 4), and Plaintiffs’ motion to expedite (Doc. 15).

The Court turns first to Plaintiffs’ motion for remand. (Doc. 6). See Ruhrgas AG

v. Marathon Oil Co., 526 U.S. 574, 578 (1999) (noting that “[c]ustomarily, a federal court

first resolves doubts about its jurisdiction over the subject matter”). That motion is

dispositive of the Court's analysis.

ANALYSIS

The Sixth Circuit has explained the requirements for diversity jurisdiction:

The federal removal statute, codified at 28 U.S.C. § 1441, grants defendants

in civil suits the right to remove cases from state courts to federal district

courts when the latter would have had original jurisdiction. Diversity of

citizenship, the basis for jurisdiction in the present case, exists only when

no plaintiff and no defendant are citizens of the same state. See United States

Fidelity and Guar. Co. v. Thomas Solvent Co., 955 F.2d 1085, 1089 (6th Cir.1992).

In order for a defendant to remove a case to federal court based upon

diversity jurisdiction, there must be complete diversity of citizenship both

at the time that the case is commenced and at the time that the notice of

removal is filed. See Easley v. Pettibone Mich. Corp., 990 F.2d 905, 908 (6th

Cir.1993).

Jerome-Duncan, Inc. v. Auto-By-Tel, L.L.C., 176 F.3d 904, 907 (6th Cir. 1999). The

removing party bears the burden of proving the existence of federal jurisdiction.

Eastman v. Marine Mech. Corp., 438 F.3d 544, 550 (6th Cir.2006). “[B]ecause lack of

jurisdiction would make any decree in the case void and the continuation of the

litigation in federal court futile, the removal statute should be strictly construed and

all doubts resolved in favor of remand.” Id. at 549-50 (quoting Brown v. Francis, 75

F.3d 860, 864-65 (3d Cir.1996)). A case may be remanded at any time prior to final

judgment if it appears the federal court lacks subject matter jurisdiction over the case.

28 U.S.C. § 1447(c).

In their motion for remand, Plaintiffs assert that diversity jurisdiction is lacking

in this case because there is not complete diversity between the parties. Plaintiffs assert

that both they and the Doe defendants are citizens of Ohio. (Doc. 6, at p. 2). Defendants

oppose the motion for remand, arguing that for purposes of removal the citizenship of

the Doe defendants is disregarded. (Doc. 10). Defendants assert: “As of the date this

case was filed, and as of the date it was removed to this court, the Plaintiffs were

citizens of Ohio and the only named defendants were citizens of Georgia. The other

defendants were sued under fictitious names-John Doe, Jane Doe and Attorney Doe-so

their citizenship is ‘disregarded’ for purposes of this analysis.” (Doc. 10, at p. 5).

28 U.S.C. § 1441(b) states that for purposes of removal “the citizenship of

defendants sued under fictitious names shall be disregarded.” Here, however, the

identity of the Doe defendants is known. They are represented by counsel in this

action. Defendant John Doe has filed an Answer and a motion for judgment on the

pleadings. (Docs. 2, 4). Defendants Attorney Doe and Jane Doe have filed a motion to

dismiss. (Doc. 4). Further, Defendants Jane and John Doe are identified in Defendants

James L. Walker, Jr. and J. Walker & Associates, LLC’s Motion to Dismiss Plaintiffs’

Complaint, or in the Alternative, for a Transfer of Venue as the plaintiffs in Jane Doe, et

al., v. Ndukwe, et al., No. A1904449—an action pending in the Hamilton County Court of

Common Pleas. (See Doc. 3, at p. 2.3). A copy of the complaint in that action, which

was filed on the same day as Plaintiffs’ complaint in this case, is attached to Plaintiffs’

motion for remand. (See Doc. 6, at pp. 3, 8-17). Therein, Jane and John Doe identify

themselves as residents of Butler County, Ohio. (See Doc. 6, at p. 9). Plaintiffs assert

that Defendant Attorney Doe is also a citizen of Ohio. (Doc. 6, at p. 4). Defendants do

not dispute that the Doe defendants are citizens of Ohio. (See Doc. 10).

Because the identities of the Doe defendants are known in this case, “it would be

unfair to Plaintiffs to force them from their chosen state court forum into federal court

by allowing Defendant[s] . . . to plead ignorance about the identity and citizenship of

[these defendants].” Musial v. PTC All. Corp., No. 5:08CV-45R, 2008 WL 2559300, at *4

(W.D. Ky. June 25, 2008). See also Harrison v. Allstate Indem. Co., No. 11-361-KKC, 2012

WL 1029437, at *2 (E.D. Ky. Mar. 26, 2012) (granting motion for remand where the

plaintiff's “complaint provide[s] a description of a fictitious defendant in such a way

that his identity could not be reasonably questioned.”) (quoting Musial, 2008 WL

2559300, at *3).

Defendants also oppose the motion for remand by suggesting that the citizenship

of the Doe defendants should be disregarded because the Doe defendants have been

fraudulently joined as parties to this lawsuit. (See Doc. 10, at p. 19). Fraudulent joinder

of non-diverse defendants will not defeat removal on diversity grounds. See Saginaw

Hous. Comm'n v. Bannum, Inc., 576 F.3d 620, 624 (6th Cir. 2009) (quoting Coyne v. Am.

Tobacco Co., 183 F.3d 488, 493 (6th Cir.1999)). To prove fraudulent joinder, “the

removing party must present sufficient evidence that a plaintiff could not have

established a cause of action against non-diverse defendants under state law.” Coyne,

183 F.3d at 493. The removing party “must do more than simply articulate a basis for

dismissal of the plaintiff's claims against the non-diverse defendants who have

allegedly been fraudulently joined.” Waterloo Coal Co. v. Komatsu Mining Sys., Inc., No.

C2-02-560, 2003 WL 124137, at *2 (S.D. Ohio Jan. 9, 2003). “[T]he removing party must

establish that not only does the complaint fail to state a claim against the non-diverse

defendant, but that there is not even a colorable argument that it does.” Id. Ifa

colorable argument in support of the claim exists, removal is improper, even if the

defendant may ultimately prevail in state court. Id.

Defendants argue fraudulent joinder based on Plaintiffs’ alleged failure to state a

claim upon which relief can be granted against the Doe defendants. (See Doc. 10, at pp.

12-19). However, Plaintiffs assert identical claims against all Defendants and base

Defendants Jane and John Doe’s liability, at least in part, on the alleged conduct of

Defendants Attorney Walker and Attorney Doe under an agency theory. (See Doc. 1-2,

at p. 6). Defendants’ arguments that Plaintiffs’ claims fail to state a claim against the

Doe defendants “manifestly [go] to the merits of the action as an entirety, and not to the

joinder.” Simmons ex rel. Estate of Simmons v. Norfolk S. Ry. Co., 324 F. Supp. 2d 914, 917

(S.D. Ill. 2004) (quoting Chesapeake & Ohio Ry. Co. v. Cockrell, 232 U.S. 146, 153-54 (1914)).

This Court has explained:

where there are colorable claims or defenses asserted against or by diverse

and non-diverse defendants alike, the court may not find that the non-

diverse parties were fraudulently joined based on its view of the merits of

those claims or defenses. Instead, that is a merits determination which must

be made by the state court.

MA Equip. Leasing I LLC v. Tilton, No. 2:09-CV-880, 2010 WL 11538520, at *6 (S.D. Ohio

Aug. 19, 2010) (quoting Brooks v. Merck & Co., 443 F.Supp.2d 994, 1002 (S.D. III. 2006)

(internal quotation marks omitted)). Because Defendants’ fraudulent-joinder

arguments raise defenses common to all Defendants, they have not established

fraudulent joinder. See MA Equip. Leasing I LLC, 2010 WL 11538520, at *6 (finding that

“where defendants repeatedly assert a common defense as to all claims that is equally

dispositive of all defendants, it cannot be said that [one defendant] was fraudulently

joined to defeat diversity jurisdiction”); see also Ohio ex rel. Joyce v. MERSCORP, Inc., No.

1:11-CV-2474, 2012 WL 1669883, at *2 (N.D. Ohio May 13, 2012) (declining to find

fraudulent joinder where the defendants’ argument that the plaintiff's claims were

frivolous “applie[d] equally to both non-diverse Defendant . . . and the diverse

Defendants”).

In light of the Court's finding that remand is appropriate based on a lack of

federal subject matter jurisdiction, see 28 U.S.C. § 1447(c), the Court does not reach

Plaintiffs’ alternative argument in their reply that removal is improper because neither

Defendant J. Walker & Associates nor the Doe defendants consented to removal. (See

Doc. 11, at pp. 3-5).

Finally, the Court addresses Plaintiffs’ request for attorney’s fees and costs. (See

Doc. 6, at p. 6). “An order remanding [a] case may require payment of just costs and

any actual expenses, including attorney fees, incurred as a result of the removal.” 28

U.S.C. § 1447(c). “Absent unusual circumstances, courts may award attorney's fees

under § 1447(c) only where the removing party lacked an objectively reasonable basis

for seeking removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005).

Although the Court found Defendants’ arguments in favor of removal to be

unpersuasive, the Court does not find that removal was objectively unreasonable.

Plaintiffs’ request for an award of attorney’s fees is hereby DENIED.

CONCLUSION

For the foregoing reasons, Plaintiffs’ Motion for Remand for Lack of Subject

Matter Jurisdiction (Doc. 6) is GRANTED. Pursuant to 28 U.S.C. § 1447(c), this matter

is REMANDED to the Hamilton County Court of Common Pleas for lack of federal

subject matter jurisdiction. Plaintiffs’ request for an award of attorney fees is DENIED.

In light of the Court’s Order GRANTING Plaintiffs’ motion for remand (Doc. 6), the

remaining motions before the Court, i.e., Defendants’ Motion to Strike Plaintiffs’ Reply

in Support of Their Motion for Remand, or in the Alternative, Motion to File a Sur-

Reply (Doc. 13), Defendants Walker & Associates, LLC, and James L. Walker, Jr.’s,

Motion to Dismiss Plaintiffs’ Complaint, or in the Alternative, for a Transfer of Venue

(Doc. 3), Defendants Jane Doe and Attorney Doe’s Motion to Dismiss, and Defendant

John Doe’s Motion for Judgment of the Pleadings (Doc. 4), and Plaintiffs’ motion to

expedite (Doc. 15) are DENIED as moot.

IT IS SO ORDERED.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

Mae WH fbf

By:

JUDGE MATTHEW W. McFARLAND