Dominguez et al v. Acrux Staffing et al

Filing 6

Memorandum of Opinion and Order or remand granting 5 plaintiff's Motion to Remand to State Court (Related Doc # 5 ). Judge Dan A. Polster(C,KA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

JACOBO DOMINGUEZ, et al.,
Plaintiffs,
vs.
ACRUX STAFFING, et al.,
Defendants.

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Case No. 1:11 CV 2443
Judge Dan Aaron Polster
MEMORANDUM OF OPINION
and
ORDER OF REMAND

On October 3, 2011, Plaintiffs Jacobo, Manuela and Jason Dominguez, all Texas
residents, filed this action against Defendants Acrux Staffing, a George citizen, and Resource
Reclamation Toledo, LLC (“Resource Reclamation”), an Ohio citizen, in the Court of Common
Pleas, Cuyahoga County, Ohio under Case No. CV 11 765752. (Doc #: 1-1.) Plaintiffs allege
various Ohio state common-law and statutory claims arising from injuries Jacobo Dominguez
allegedly suffered when performing maintenance on a conveyor belt at Resource Reclamation’s
recycling facility in Toledo, Ohio. (Id.)
On November 10, 2011, Resource Reclamation timely removed the case to federal court
based on diversity jurisdiction. (Doc #: 1 ¶ 9.)
On December 12, 2011, Plaintiffs filed a Motion to Remand (“Motion”). (Doc #: 5.)
Plaintiffs argue therein that the Court lacks subject matter jurisdiction over the complaint under
the “forum defendant rule.” (Id. at 2 (citing 28 U.S.C. § 1441(b) and Capps v. Weflen, 690
F.Supp.2d 885, 887 (D.N.D. 2010).)

Under 28 U.S.C. § 1441(b), any civil action of which the district courts have original
jurisdiction founded on a federal question “may be removed without regard to the citizenship or
residence of the parties.” Id. However, any such other action over which the district courts have
original jurisdiction (e.g., cases removed based on diversity jurisdiction) “shall be removable
only if none of the parties in interest properly joined and served as defendants is a citizen of the
State in which such action is brought.” 28 U.S.C. § 1441(b). “Referred to as the forum
defendant rule, § 1441(b) prohibits removal if the defendant is a citizen of the state in which the
suit was filed.” NFC Acquisition, LLC v. Comerica Bank, 640 F.Supp.2d 964, 968 (N.D. Ohio
2009) (citing Geffen v. Gen. Elec. Co., 575 F.Supp.2d 865, 869 (N.D. Ohio 2008)). “This rule
reflects the belief that even if diversity exists, a forum defendant – a defendant who is a citizen
of the state in which it is sued – has no reason to fear state court prejudice.” Id. (citing Lively v.
Wild Oats Markets, Inc., 456 F.3d 933, 940 (9th Cir. 2006)). Because Defendant Resource
Reclamation is a citizen of Ohio, it is clear that it improperly removed the case to federal court.
Thus, after reviewing the Motion and the record, the Court held a teleconference with
counsel for Plaintiffs and counsel for Resource Reclamation to discuss subject matter jurisdiction
and the propriety of removal.1 As a result of discussions, the parties agreed that remand was
appropriate.
Based on the foregoing, the Court GRANTS Plaintiffs’ Motion to Remand (Doc #: 5).
The Court directs the Clerk of Court to remand this case to the state court from which it was
removed.

1

Plaintiff’s counsel represented that he had not yet served a copy of the complaint on
Defendant Acrux Staffing.

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IT IS SO ORDERED.

/s/ Dan A. Polster December 14, 2011
Dan Aaron Polster
United States District Judge

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