MEMORANDUM

CATHERINE C. BLAKE, United States District Judge

Now pending before this Court is a motion by plaintiffs Marina Eddy, Carol Fegan, and Desiree Martin to remand this case to the Circuit Court for Baltimore County. The defendants have filed a memorandum in opposition to that motion, and the plaintiffs have replied. This matter has been fully briefed and no hearing is necessary. See Local Rule 105.6. For the reasons that follow, the Court will grant the plaintiffs' motion. During the time relevant to this lawsuit, the plaintiffs were employed in a building on property known as One Investment Place in Towson, Maryland. (Complaint ¶ 1.) They claim to have suffered detrimental health effects as a result of poor ventilation and an improperly maintained HVAC system in that building. (Id. ¶ 14-18.) Accordingly, they filed this lawsuit in the Circuit Court for Baltimore County, Maryland against the property owners and maintenance companies. Specifically, the plaintiffs named as defendants Kronos Property Holdings, N.V. and AMG Realty Partners, L.P., the two companies that owned the property, and Maritime Realty Corporation and CB Richard Ellis, Inc., the two management companies. In addition, they named Henry Knott who was the on-site manager of the property at all times relevant to the lawsuit. (Def.s' Opp. at 3.)

The plaintiffs claim that all defendants were negligent and caused injury to the plaintiffs by their indifference to employee complaints, failure to provide even minimal cleaning, inspection or maintenance, and failure to adhere to the terms of the lease. (Compl. ¶ 21.) All three plaintiffs are residents of Maryland. The four corporations — Kronos, AMG, Maritime, and CB Richard Ellis — are incorporated and have their principal places of business in states other than Maryland. They are, therefore, not residents of Maryland for purposes of diversity jurisdiction. Mr. Knott is a resident of Maryland.

On November 17, 2000, the defendants filed a notice of removal to federal court pursuant to 28 U.S.C. § 1441. They claim that this court may properly assert jurisdiction based on complete diversity of citizenship. See 28 U.S.C. § 1332(a). In response, the plaintiffs filed the motion to remand that is the subject of this memorandum. In it, they contend that, because diversity does not exist among the parties, there is no basis for federal subject matter jurisdiction. The debate centers on Mr. Knott because he is the sole Maryland defendant.

The defendants contend that Mr. Knott's citizenship should not be considered when evaluating diversity because he is not a "real party in interest" but, rather, a "nominal party." (Def.s' Opp. at 6.) They rely on Mr. Knott's status as an agent of the management companies and the existence of recently-concluded agreements in which the companies consent to indemnify and defend Mr. Knott. (Id. at 5, 10.) Because they will be vicariously liable for any actions committed by Mr. Knott, will control his defense, and have agreed to pay any damages awarded against him, the companies contend that Mr. Knott has no stake in the outcome of the lawsuit and, therefore, is not a "real party in interest." (Id. at 10.)

In response, the plaintiffs argue that neither Mr. Knott's status as an agent of the management companies nor the indemnity agreements render his citizenship irrelevant to the jurisdictional inquiry. Rather, they contend that even though the management companies would be vicariously liable for any actions taken within the scope of his employment, Mr. Knott remains jointly and severally liable for any damages incurred. (Pl.s' Reply at 2.) They do not contest the fact that Mr. Knott is an agent of the management companies. (Mem. Sup. Mot. to Rem. at 2.)

Initially, it is important to note that the defendants do not allege that Mr. Knott was fraudulently joined. If they had, the court could have disregarded Mr. Knott's citizenship if the companies could have shown "either `outright fraud in the plaintiff's pleading of jurisdictional facts' or that `there is no possibility that the plaintiff would be able to establish a cause of action against the in-state defendant in state court." Hartley v. CSX Transportation, Inc., 187 F.3d 422, 424 (4th Cir. 1999) (quoting Marshall v. Manville Sales Corp., 6 F.3d 229, 232 (4th Cir. 1993)). See also Richardson v. Philip Morris Inc., 950 F. Supp. 700, 702 (D.Md. 1997). The defendants do not make this argument. (See Def.s' Opp. at 10, ". . . Plaintiffs did not fraudulently join Henry Knott as a Defendant.") Indeed, they could not have succeeded on such a claim; the agreements to indemnify Mr. Knott belie any contention that there is no possibility of recovery against him.

Rather than fraudulent joinder, the defendants rely on the Supreme Court's assertion that "`citizens' upon whose diversity a plaintiff grounds jurisdiction must be real and substantial parties to the controversy" and that, therefore, "a federal court must disregard nominal or formal parties. . . ." Navarro Savings Ass'n v. Lee, 446 U.S. 458, 460, 100 S.Ct. 1779, 1781-82 (1980). In Navarro, the Court found that the trustees of a business trust could invoke federal diversity jurisdiction based on their own citizenship, rather than that of the trust's shareholders, because they had legal title, controlled the trust assets, and were, therefore, the "real parties to the litigation." Id. at 465-66, 1784.

Navarro has been relied upon by several courts in either disregarding the citizenship of one or more named parties because they were not "real parties in interest," or, conversely, considering the citizenship of persons not named because they were, in fact, "real parties." These cases, most of which are cited by the defendants, are distinguishable from the situation currently before the court. First, like Navarro, several are cases in which a representative has been named to pursue an action on behalf of the "real parties in interest." See, e.g., Airlines Reporting Corp. v. S and N Travel, Inc., 58 F.3d 857, 862 (2d Cir. 1995) ("we will not deem ARC's corporate citizenship controlling when it acts merely as an agent representing the interests of others. In such a case, the citizenship of the represented individuals controls for diversity purposes,. . . .") (citations omitted); Associated Ins. Mgmt. Corp. v. Arkansas Gen. Agency, Inc., 149 F.3d 794, 796 (8th Cir. 1998) ("the citizenship of an agent who merely sues on behalf of the real parties must be ignored." (citations omitted). See also Messer v. American Gems, 612 F.2d 1367, 1374 (4th Cir. 1980); Bishop v. Hendricks, 495 F.2d 289, 297 (4th Cir. 1974); Miller v. Perry, 456 F.2d 63 (4th Cir. 1972); Lester v. McFadden, 415 F.2d 1101 (4th Cir. 1969) (holding, collectively, that the citizenship of an administrator named to prosecute a wrongful death claim should be disregarded, for diversity purposes, in favor of the beneficiaries).

Second, several of the cases intertwine the "real party in interest" analysis with principles of fraudulent joinder. In Rose v. Giammatti, for example, the court explained the fraudulent joinder standard and then stated that "it . . . must disregard nominal or formal parties to the action and determine jurisdiction based only upon the citizenship of the real parties to the controversy." 721 F. Supp. 906, 913-14 (S.D.Ohio 1989) (citing Navarro). The court went on to conclude that, "for the purpose of determining diversity of citizenship, the defendant . . . was, in a legal sense, fraudulently joined as a defendant and that it is, at best, a nominal party in this action." Id. at 917. See also Fletcher v. Advo Systems, Inc., 616 F. Supp. 1511, 1515 (E.D.Mich. 1985) (finding that the defendant was fraudulently joined); Am. Mutual Services Corp. v. United States Liability Ins. Co., 293 F. Supp. 1082, 1083-84 (E.D.N.Y. 1968).

In this case, Mr. Knott is not a named representative and is not alleged to have been fraudulently joined. Rather, he was an employee of the management companies. As such, he can be held jointly and severally liable for any damages awarded. See Pavelka v. Carter, 996 F.2d 645, 651 (4th Cir. 1993) ("liability is joint and several; the servant is not relieved"); Bernheimer-Leader Stores, Inc. v. Burlingame, 136 A. 622, 623 (1927). He is, therefore, a "real party in interest" for purposes of diversity jurisdiction. The indemnity agreements do not relieve him of that status. See Frontier Airlines, Inc. v. United Airlines, Inc., 758 F. Supp. 1399, 1404 (D. Col. 1989) ("Where a plaintiff seeks monetary damages against defendants alleged to be jointly and severally liable, the court may not disregard properly joined defendants simply because a non-resident defendant has the capital reserves to satisfy an entire judgment. The question before the court is whether the plaintiff has a possibility of proving liability on the part of the resident defendant.") Because Mr. Knott's citizenship cannot be disregarded, there is not complete diversity of citizenship in this case. The court, therefore, lacks subject matter jurisdiction. For that reason, it will grant the plaintiffs' motion to remand.

A separate Order follows.

ORDER

For the reasons stated in the accompanying Memorandum, it is hereby ORDERED that:

1. Plaintiffs' Motion to Remand is granted;

2. The case is remanded to the Circuit Court for Baltimore County; and

3. Copies of this Order and the accompanying Memorandum shall be mailed to counsel of record.