Nero v. Maserati North America

Filing 8

Memorandum of Opinion and Order: This matter is before the Court upon plaintiff's Motion to Remand (Doc. 4 ). Plaintiff's Motion to Remand is granted. Judge Patricia A. Gaughan on 9/18/17. (LC,S)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

Joseph Nero,
Plaintiff,
Vs.
Maserati North America, Inc.,
Defendant.

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CASE NO. 1:17 CV 1574
JUDGE PATRICIA A. GAUGHAN

Memorandum of Opinion and Order

Introduction
This matter is before the Court upon plaintiff’s Motion to Remand (Doc. 4). This case
arises out of an allegedly defective vehicle manufactured by defendant. For the following
reasons, the motion is GRANTED.
Facts
Plaintiff Joseph Nero filed his Complaint against defendant Maserati North America,
Inc. in the Cuyahoga County Common Pleas Court. Defendant removed the case to this Court
on the basis of federal question jurisdiction. The Complaint alleges the following.
In October 2014, plaintiff purchased a 2014 Maserati Ghibli S Q4, manufactured and
warranted by defendant. The price of the vehicle and/or the total of payments was $25,281.00.
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As a result of the ineffective repair attempts made by defendant, through its authorized dealer,
the vehicle cannot be utilized for the purposes intended by plaintiff and is worthless and/or
substantially impaired.
The Complaint sets forth five claims. Count One alleges a claim under the Ohio
Lemon Law. Count Two alleges a claim under the Magnuson-Moss Federal Trade
Commission Act. Count Three alleges a claim under the Ohio Uniform Commercial Code.
Count Four alleges implied warranty in tort. Count Five alleges a violation of the Ohio
Consumer Sales Practices Act.
This matter is now before the Court upon plaintiff’s Motion to Remand.
Standard of Review
“In order to invoke the district court's removal jurisdiction, a defendant must show
that the district court has original jurisdiction over the action. See 28 U.S.C. § 1441(a). The
burden of showing that the district court has original jurisdiction is on the party seeking
removal. Furthermore, because they implicate federalism concerns, removal statutes are to be
narrowly construed.” Long v. Bando Mfg. of Am., Inc., 201 F.3d 754, 757 (6th Cir. 2000)
(citations omitted). “If at any time before final judgment it appears that the district court
lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. 1447(c).
Discussion
Plaintiff argues that removal was without basis. Plaintiff points out that the Notice of
Removal states that removal is based on the alleged violation of federal law stated in Count
Two under the Magnuson-Moss Federal Trade Commission Act. That statute, however, only
provides federal jurisdiction when the amount in controversy is at least $50,000. Since

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defendant, who bears the burden of establishing that removal was proper, failed to address the
amount in controversy, it waived the argument. Even assuming that defendant could raise the
issue, the Complaint makes clear that the amount in controversy would not be met where the
lease payments for the vehicle were $25,281.
For the following reasons, the Court finds that remand is proper. Removal jurisdiction
herein was based on 28 U.S.C. § 1441(a), allowing removal of actions “of which the district
courts... have original jurisdiction.” Defendant relied solely on 28 U.S.C. § 1331 which
provides that district courts “have original jurisdiction of all civil claims arising under the ...
laws... of the United States.” Defendant cited to the Magnuson-Moss claim. However,
“Although it is a federal statute, the Court's jurisdiction is limited under Magnuson-Moss by a
$50,000 amount in controversy requirement.” Dodd v. Chrysler Grp. LLC, 2012 WL
1565640, at *7 (W.D. Tenn. May 1, 2012) (citing Schultz v. Gen. R.V. Ctr., 512 F.3d 754, 757
(6th Cir.2008); Harnden v. Jayco, Inc., 496 F.3d 579, 581 (6th Cir.2007). “Claims brought
under the statute are not cognizable in federal court ‘if the amount in controversy is less than
the sum or value of $50,000 (exclusive of interests and costs) computed on the basis of all
claims to be determined in this suit.’ ” Id. (citing 15 U.S.C. § 2310(d)(3)(B)).
“The removing party bears the burden of demonstrating federal jurisdiction, and all
doubts should be resolved against removal.” Harden, supra (citing Eastman v. Marine Mech.
Corp., 438 F.3d 544 (6th Cir. 2006) ). Defendant does not argue that federal jurisdiction exists
under Magnuson-Moss. Defendant acknowledges that the Complaint seeks recovery for the
amount of the lease payments totaling $25,281 and agrees with plaintiff that the pendant state
law claims cannot be used to satisfy the jurisdictional requirement under the Act. (Doc. 6 at 1,

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3) Rather, defendant maintains, “If the Court does not believe Plaintiff’s claims reach the
jurisdictional requirement of $50,000.00 under the Magnuson-Moss Warranty Act,
[defendant] submits this Court still has diversity jurisdiction over this matter pursuant to 28
U.S.C. § 1332(a)(1).” (Doc. 6 at 1) Defendant points out that the parties are citizens of
different states and that the amount in controversy exceeds $75,000 when considering the
amount of the lease payments in addition to the treble damages allowed under the Ohio
Consumer Sales Practices Act alleged in Count Five. Strangely, plaintiff did not file a reply
brief and so did not address defendant’s argument regarding diversity of citizenship
jurisdiction. Nonetheless, the Court finds it cannot confer jurisdiction on this basis.
“Statutes conferring removal jurisdiction are to be strictly construed because removal
jurisdiction encroaches on a state court’s jurisdiction.” Commercial Bank, Inc. v. Summers,
2010 WL 1257873 (E.D.Tenn. March 25, 2010) (citing Brierly v. Alusuisse Flexible
Packaging, Inc., 184 F.3d 527 (6th Cir. 1999)). For the following reasons, the Court finds that
defendant cannot rely on diversity jurisdiction when this basis was not named as a ground for
removal in the Notice of Removal.
28 U.S.C. § 1446(a) states that the notice of removal must “contain [] a short and plain
statement of the grounds for removal...” Courts recognize that while a defendant may freely
amend the removal petition within the 30-day period for removal, a defendant may only
amend the removal notice after the expiration of the 30-day period “to set out more
specifically the grounds for removal that already have been stated, albeit imperfectly, in the
original notice... In most circumstances, however, defendants may not add completely new
grounds for removal or furnish missing allegations, even if the court rejects the first-proffered

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basis of removal, and the court will not, on is own motion, retain jurisdiction on the basis of a
ground that is present but that defendants have not relied upon.” 14C Charles Alan Wright et
al., Federal Practice and Procedure § 3733 (4th ed. 2009) (collecting cases). Thus, a remand
to state court is proper although the case falls within diversity jurisdiction but defendant
waived that ground for removal by never raising it. Id. Courts in this Circuit conclude the
same. See, for e.g., Uppal v. Elec. Data Sys., 316 F.Supp.2d 531 (E.D.Mich. 2004) (The court
recognized that a defendant may not amend its notice of removal after the 30-day limit to
remedy a substantive defect in the notice. Defendant may not allege new jurisdictional
grounds for removal, but may only clarify the stated grounds.) By extension, a defendant may
not rely on a new jurisdictional ground in response to a motion to remand. Thompson v. Gulf
Stream Coach, Inc., 2007 WL 2413108 (W.D.Mich. Aug. 21, 2007) (Where the notice of
removal was based only on diversity and did not cite to federal question jurisdiction, the court
will not consider a new ground for removal in response to the motion to remand.); Little v.
Wyndham Worldwide Operations, Inc., 2017 WL 1788427 (M.D.Tenn. May 5, 2017)
(Defendant argued in its response brief that even if removal on diversity grounds was
improper, the court should retain the case because of the existence of federal question
jurisdiction. The court rejected the argument because defendant is required to state the ground
for removal in its notice, and where federal question was not stated, the court would not retain
jurisdiction on that basis.)
Accordingly, because defendant did not cite diversity of citizenship in its Notice of
Removal, it may not rely on that basis as a ground for this Court to retain removal
jurisdiction. As such, plaintiff’s Motion to Remand is granted.

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Conclusion
For the foregoing reasons, plaintiff’s Motion to Remand is granted.
IT IS SO ORDERED.

/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Court
Chief Judge
Dated: 9/18/17

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