Terrell v. General Motors, LLC et al

Filing 5

Memorandum of Opinion and Order For the reasons set forth herein, the Court lacks subject-matter jurisdiction over the matter. The case is remanded to the Mahoning County, Ohio Court of Common Pleas forthwith. Judge Benita Y. Pearson on 6/30/2015. (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

DON M. TERRELL, Individually and as
Executor of the Estate of the Deceased Ellen
L. Terrell,
Plaintiff,
v.
GENERAL MOTORS, LLC, et al.,
Defendants.

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CASE NO. 4:15cv1249

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION AND
ORDER

The above-captioned case was removed from the Mahoning County Court of Common
Pleas.
I. Background
Plaintiff filed a lawsuit against Defendants General Motors, LLC, Johnson Controls, Inc.,
and Anthony Italiano in the Mahoning County, Ohio Court of Common Pleas on April 1, 2015.
ECF No. 1-1. The Original Complaint alleged causes of action for negligence, product liability,
loss of consortium, wrongful death, and a cause of action for punitive damages against all three
defendants. Id. Plaintiff voluntarily dismissed Johnson Controls on May 15, 2015. See Terrell
v. General Motors, et al., 2015-cv-00877 (Mahoning County Court of Common Pleas docket).1
Plaintiff filed the First Amended Complaint on June 4, 2015. ECF No. 1-2. Other than
1

The docket may be accessed electronically via the Mahoning County Clerk of Courts
Case Search website: http://ecourts.mahoningcountyoh.gov/eservices/home.page.

(4:15cv1249)

substituting Defendant Lear Corporation in place of Johnson Controls, the First Amended
Complaint asserted identical causes of action as the initial Complaint (negligence, product
liability, loss of consortium, wrongful death, and a cause of action for punitive damages).
Plaintiff omitted Defendant Italiano from the caption of the First Amended Complaint.
Nevertheless, he referred to Italiano as a defendant throughout the First Amended Complaint.
Compare, e.g., ECF No. 1-1 ¶ 8 (Original Complaint, stating that Defendant Italiano resides in
Youngstown, Ohio), with ECF No. 1-2 ¶ 8 (First Amended Complaint, stating that Defendant
Italiano resides in Youngstown, Ohio).
The next day, on June 5, 2015, Plaintiff filed a motion for an order nunc pro tunc. Terrell
v. General Motors, et al., 2015-cv-00877 (Mahoning County Court of Common Pleas docket).
Italiano’s opposition (ECF No. 1-3 at 2, filed on June 15, 2015) and Plaintiff’s reply (ECF No.
1-3 at 6, filed on June 17, 2015) reveal that the motion had been made to correct the inadvertent
omission of Italiano from the case caption of the First Amended Complaint. Plaintiff’s reply
further states that he did not omit Italiano from the body of the First Amended Complaint. ECF
No. 1-3 at 6.
Defendant Lear Corporation filed a notice of removal on June 22, 2015—five days after
Plaintiff had filed a reply in support of the motion for an order nunc pro tunc—and admits that
the state court had not yet resolved Plaintiff’s motion. ECF No. 1 ¶ 4.
II. Ruling
Federal courts have a constitutional obligation to ensure that subject-matter jurisdiction

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exists. Ku v. State of Tennessee, 322 F.3d 431, 433 (6th Cir. 2003) (“A federal court’s original
jurisdiction is created by statute enacted under Article III, which functions as a fundamental limit
on federal power.”). This includes jurisdiction contingent on diversity of citizenship. “The
presence of the nondiverse party automatically destroys original jurisdiction: No party need assert
the defect. No party can waive the defect or consent to jurisdiction. No court can ignore the
defect; rather a court, noticing the defect, must raise the matter on its own.” Wisconsin Dep’t of
Corr. v. Schacht, 524 U.S. 381, 389 (1998) (citations omitted). The same is true when
jurisdiction is questioned in the context of removal:
In substance, [28 U.S.C. § 1447(c)] differentiates between removals that are
defective because of lack of subject-matter jurisdiction and removals that are
defective for some other reason, e.g., because the removal took place after
relevant time limits had expired. For the latter kind of case, there must be a
motion to remand filed no later than 30 days after the filing of the removal notice.
For the former kind of case, remand may take place without such a motion and at
any time.
Schacht, 524 U.S. at 392 (citations omitted, emphasis added).
There is no question that the First Amended Complaint contains allegations and claims
imputing Defendant Anthony J. Italiano, who is a resident of Ohio and, therefore, non-diverse
from Plaintiff Don M. Terrell, who also resides in Ohio. ECF No. 1-2 ¶ 1. The decedent also
resided in Ohio. Id. ¶ 2; ¶ 8. Specifically, Plaintiff contends that Defendant Italiano failed to
“stop and/or sufficiently brake” when his vehicle approached decedent’s. Id. ¶ 22. The injuries
that decedent sustained during the accident “are a direct and proximate result of the [alleged]
negligence of Defendant Italiano and the [alleged] defective condition of the subject vehicle as

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placed in the stream of commerce by Defendants GM and Lear Corporation.” Id. ¶ 24. Plaintiff
alleges a similar causal connection with respect to decedent’s death on or around December 19,
2014. Id. ¶ 25. Moreover, Plaintiff alleges that Defendant Italiano is liable to Plaintiff for loss of
consortium due to Defendant Italiano’s negligent conduct. Id. ¶ 38.
Oddly, Defendant Lear Corporation alleges in the Notice of Removal that this action
involves a controversy between citizens of different states (ECF No. 1 ¶ 3), but acknowledges
that Defendant Italiano’s presence in the lawsuit undermines complete diversity:
The original Complaint filed on April 1, 2015 also named Anthony Italiano, an
Ohio citizen, as a defendant. The First Amended Complaint filed on June 4, 2015
omitted Italiano from the caption of that pleading but did refer to him in the body
of the pleading (First Amended Complt. ¶¶ 19, 21 to 24). Italiano asserts in state
court that the omission of his name from the caption of the First Amended
Complaint constitutes a dismissal of the claim against him. See: Exhibit C.
Plaintiff disputes this assertion and the issue is unresolved. If the issue is resolved
in Italiano’s favor, complete diversity exists.
ECF No. 1 ¶ 4; see also id. ¶ 6 (declaring that “all defendants, including Italiano, have consented
to removal”).
At the threshold, there is no complete diversity while Italiano remains a party to this case.
Defendant Lear Corporation appears to acknowledge this without respecting its significance.
Defendant Italiano’s presence undermined complete diversity from the moment Lear removed the
case to federal court. The inadvertent omission of his name from the caption of the First
Amended Complaint did not change that.
Accordingly, the Court lacks subject-matter jurisdiction over the matter. The case is

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remanded to the Mahoning County, Ohio Court of Common Pleas forthwith.2

IT IS SO ORDERED.

June 30, 2015
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

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As the Court has lacked subject-matter jurisdiction from the date of removal, the Court
also lacks the jurisdiction to consider the pending motion to sever (ECF No. 3).
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