Hittle et al v. Wal-Mart Stores East, LP et al

Filing 19

REPORT AND RECOMMENDATION that 8 First MOTION to Remand be DENIED. Objections to R&R due within fourteen (14) days. Signed by Magistrate Judge Elizabeth Preston Deavers on 10/22/2015. (agm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ROCHELE HITTLE, et al.
Plaintiffs,
Civil Action 2:15-cv-2763
Judge Gregory L. Frost
Magistrate Judge Elizabeth P. Deavers

v.

WAL-MART STOARES EAST, LP, et al.,
Defendants.
REPORT AND RECOMMENDATION

This matter is before the Court for consideration of Plaintiffs’ Motion to Remand (ECF
No. 8), Defendants’ Memorandum in Opposition (ECF No. 17), and Plaintiffs’ Reply (ECF No.
18). For the reasons that follow, it is RECOMMENDED that Plaintiffs’ Motion to Remand be
DENIED.
I.
Plaintiffs, citizens of Ohio, filed their original Complaint in the Muskingum County,
Ohio, Court of Common Pleas on August 10, 2015 against Defendant Wal-Mart Stores East, LP
(Defendant “Walmart”), a limited partnership organized under the laws of the state of Delaware
with its principal place of business in the state of Arkansas. Plaintiffs assert claims of
negligence, wanton conduct, and loss of consortium arising out of a sexual assault that occurred
on Defendant Walmart’s premises. (ECF No. 3 at 1-7.) Plaintiffs also named Ohio Attorney
General Mike DeWine (Defendant “OAG”) as a defendant to its claim for declaratory relief as to
the constitutionality of state statutory caps on the recovery of non-economic damages in tort
cases. (ECF No. 3 at 7-8.)

Defendant OAG filed a motion to dismiss in state court on August 26, 2015 and expressly
indicated he had no interest in the case. Defendant Walmart filed its Answer in state court on
August 27, 2015 and timely filed its Notice of Removal in this Court the next day. (ECF Nos. 4
& 2.) Plaintiffs timely filed their Motion to Remand this case to state court on September 9,
2015. (ECF No. 8.)
II. Standard of Review
Generally, a civil case brought in a state court may be removed by a defendant to federal
court if it could have been brought there originally. 28 U.S.C. § 1441(a); Rogers v. Wal-Mart
Stores, Inc., 230 F.3d 868, 871 (6th Cir. 2000). A federal court has original “diversity”
jurisdiction where the suit is between citizens of different states and the amount in controversy
exceeds $75,000.00, exclusive of costs and interests. 28 U.S.C. § 1332(a). Rogers, 239 F.3d at
871.
When an action is removed based on diversity, a federal court must determine whether
complete diversity exists at the time of removal. Coyne v. American Tobacco Co., 183 F.3d 488,
492 (6th Cir. 1999). “Diversity jurisdiction attaches only when all parties on one side of the
litigation are of a different citizenship from all parties on the other side of the litigation.” Id.
(quoting SHR Ltd. Partnership v. Braun, 888 F.2d 455, 456 (6th Cir. 1989)). In determining
whether complete diversity exists, “a federal court must disregard nominal or formal parties and
rest jurisdiction only upon the citizenship of the real parties to the controversy.” Navarro Sav.
Ass’n v. Lee, 446 U.S. 458, 461 (1980). “[A] formal party is one who has no interest in the result
of the suit and need not have been made a party thereto.” Grant Cnty. Deposit Bank v.
McCampbell, 194 F.2d 469, 472 (6th Cir. 1952) (quoting Hamer v. New York Railways Co., 244

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U.S. 266, 271 (1917)). “A disclaimer of all interest in the action changes a party from an
indispensable one to an unnecessary party.” Id. at 473.
III. Analysis
Plaintiffs question whether the Court may exercise diversity jurisdiction over this case,
arguing that, because Defendant OAG is a real party in interest to the suit, there has never been
complete diversity of parties. Defendant Walmart contends that Defendant OAG is a merely
nominal party whom the Court should not consider in determining whether complete diversity
exists.
Plaintiffs allege a lack of complete diversity at the time of removal because, according to
Plaintiffs, Defendant OAG, an Ohio state official, is a real party in interest in this matter. (ECF
No. 8 at 4.) Plaintiffs ground their argument in Ohio Revised Code § 2721.12(A) which
provides that “when declaratory relief is sought under this chapter in an action or proceeding, all
persons who have or claim any interest that would be affected by the declaration shall be made
parties to the action or proceeding.” Plaintiffs also cite Ohio case law holding that Defendant
OAG is an interested party to every claim that attacks the constitutionality of an Ohio law. (ECF
No. 8 at 4.) Because Ohio law authorizes Defendant OAG to appear in any declaratory judgment
action and because plaintiffs are traditionally masters of their own complaint, Plaintiffs argue
that the Court must consider Defendant OAG in determining whether complete diversity exists.
(Id.; ECF No. 18 at 3.)
Defendants counter that Ohio Rev. Code § 2721.12(A) only requires that “all persons
who have or claim any interest that would be affected by the declaration shall be made parties to
the action or proceeding.” (ECF No. 17 at 4 (emphasis added by Defendants).) Section

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2721.12(A) goes on to provide that “if any statute . . . is alleged to be unconstitutional, the
attorney general also shall be served with a copy of the complaint.” Defendants argue that the
code language makes clear that Defendant OAG is not a necessary party in a declaratory
judgment action. (ECF No. 17 at 4-5.)
The Ohio Supreme Court has held that Section 2721.12 “requires only service of a copy
of the proceeding on the Attorney General, not that he be named as a party.” Ohioans for Fair
Representation, Inc. v. Taft, 67 Ohio St.3d 180, 183, 616 N.E.2d 905, 1993-Ohio-218 (Ohio
1993). According to the Ohio Supreme Court, the purpose of Section 2721.12 is to give
Defendant OAG “a reasonable amount of time in which to evaluate the issues and determine
whether to participate in the case.” Cicco v. Stockmaster, 89 Ohio St.3d 95, 99, 728 N.E.2d
1066, 2000-Ohio-434 (Ohio 2000). According to the Ohio Supreme Court, Section 2721.12 is
“jurisdictional in nature” and functions to provide a court with the necessary jurisdiction to
render declaratory relief in constitutional cases. Id. at 100. Under Ohio law, therefore, “[t]he
Attorney General is not a defendant in a declaratory judgment action that asserts that a particular
statute is unconstitutional.” Avery v. Rossford, Ohio Transp. Improvement Dist., 145 Ohio
App.3d 155, 162, 762 N.E.2d 388 (Ohio Ct. App. 2001).
In the instant case, Plaintiffs have joined Defendant OAG as a party to its declaratory
judgment claim, asserting that an Ohio statute capping non-economic recovery in tort cases is
unconstitutional. With respect to the declaratory judgment claim, then, Defendant OAG is not a
real party in interest. If Defendant OAG has no interest in any of the other claims, the Court may
properly consider Defendant OAG a nominal party for the purposes of determining whether
complete diversity of parties exists in this matter.

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Strain v. Payne, No. 3:05-cv-7244, 2005 WL 2249919 (N.D. Ohio Sept. 15, 2005), is
instructive. In Strain, the court considered Defendant OAG’s motion to dismiss pursuant to
Federal Rules of Civil Procedure 12(b)(1) for lack of jurisdiction and 12(b)(6) for failure to state
a claim upon which relief may be granted. The court determined that plaintiff’s claims for
damages were barred by the Eleventh Amendment. Strain, 2005 WL 2249919 at * 2. The court
then, citing Cicco, found that Section 2721.12 “does not require Plaintiff to make the Ohio
Attorney General’s Office a party; rather, Plaintiff was required merely to serve the Ohio
Attorney General with a copy of the Complaint.” Id. at * 3. The court concluded that, because
no claims for damages remained and because Section 2721.12 does not require Defendant OAG
to remain as a defendant in a purely declaratory action, the claims against Defendant OAG as a
named defendant could be dismissed. Id.
In the present case, Defendant OAG disclaimed his interest in this matter by filing a
motion to dismiss in state court. Defendant OAG’s disclaimer suggests that he is a nominal
party in this matter. Grant Cnty. Deposit Bank, 194 F.2d at 473. Moreover, both the statutory
language of Section 2721.12 and Ohio case law, as explained in Strain and Avery, make clear
that Defendant OAG is not a real party in interest in a purely declaratory judgment action.
Plaintiffs have asserted no other claims against Defendant OAG in this matter.
Accordingly, the Undersigned finds that Defendant OAG is a nominal party in the instant
case. Complete diversity of the parties as required by 28 U.S.C. § 1332(a)(1), therefore, existed
at the time Defendant Walmart filed its notice of removal.

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IV.
In sum, Defendant Walmart properly removed this matter to federal court under 28
U.S.C. § 1441(a) based on federal diversity jurisdiction granted in 28 U.S.C. § 1332(a)(1).
Accordingly, for the reasons explained above, the Undersigned RECOMMENDS that Plaintiffs’
Motion to Remand be DENIED.
PROCEDURE ON OBJECTIONS
If any party seeks review by the District Judge of this Report and Recommendation, it
may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District Judge and
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when timely objections are filed,
appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d
981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to

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specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation
omitted)).
IT IS SO ORDERED.

Date: October 22, 2015

/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE

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