Allen v. Independent Concrete Pipe Co.

Full title: David Allen, Plaintiff v. Independent Concrete Pipe Co., et al, Defendant

Court: United States District Court, N.D. Ohio

Date published: Mar 9, 2004

Case No. 3:04CV7053 (N.D. Ohio Mar. 9, 2004)

Opinion

Case No. 3:04CV7053

March 9, 2004

ORDER

JAMES CARR, District Judge

This suit initially was filed in the Lucas County, Ohio, Court of Common Pleas. Thereafter, it was removed to this court. Pending is plaintiff's motion to remand, which shall be denied.

Removal was premised on the understanding of a diverse defendant that the only non-diverse party had "apparently" been dismissed as a result of a settlement between the plaintiff and the non-diverse defendant.

Plaintiff does not contest the representation that the non-diverse party has been dismissed, nor does plaintiff contend that removal was not thereafter timely. Thus, the only issue is whether this case, having been non-removable (due to the presence of a non-diverse defendant) at its filing in state court became removable after the plaintiff dismissed the non-diverse defendant.

The answer depends on whether dismissal of the non-diverse party was voluntary or involuntary (i.e, on plaintiff's motion or on motion of the non-diverse party). See American Car Foundry v. Kettelhake, 236 U.S. 311, 314-16 (1915) (holding that cases with non-diverse and diverse parties become removable only if the plaintiff voluntarily dismisses the non-diverse parties).

The reason for the distinction between voluntary and involuntary dismissal was set forth in Wiacek v. Equitable Life Assur. Soc. of U.S., 795 F. Supp. 223, 225 (E.D.Mich. 1992):

This voluntary/involuntary distinction is grounded in the observation that when a non-diverse party is eliminated from an action pursuant to court order (i.e., involuntarily), the order of dismissal may be the subject of appeal; consequently, although diversity may temporarily exist between the parties, federal jurisdiction might ultimately be destroyed if the state appellate court reverses the order of dismissal. In contrast, a voluntary dismissal demonstrates a plaintiff's permanent intention not to pursue the case against the non-diverse defendant. As a result, unlike an involuntary dismissal, a voluntary dismissal does not present a threat to continued diversity, and courts will generally permit removal.

Dismissal following settlement is clearly voluntary, rather than involuntary. Thus, removal is appropriate, and the motion to remand must be denied.

It is, therefore,

ORDERED THAT plaintiff's motion for remand be, and the same hereby is denied.

So ordered.