Opinion
No. 1:04-cv-101.
November 15, 2004
MEMORANDUM
Defendants Geoffrey Lyday and Kimberly Lyday (collectively "Lydays") move to remand this case to the Circuit Court of Hamilton County, Tennessee. [Court File No. 21]. After reviewing the record, the Court concludes that the motion is well taken. The motion to remand will be GRANTED. This Court lacks removal jurisdiction under 28 U.S.C. § 1441(b), and all of the defendants did not timely join in or consent to removal as required by the rule of unanimity under 28 U.S.C. § 1446.
This case arises out of a multi-vehicle automobile accident on Interstate Highway 75 in Hamilton County, Tennessee. Plaintiffs are citizens and residents of Canada. Plaintiffs filed their complaint in the Circuit Court of Hamilton County, Tennessee, pleading tort claims under Tennessee law based on theories of common law negligence and negligence per se.
The complaint names three defendants — the Lydays and Reba Ann Robinson ("Robinson"). The Lydays are citizens and residents of Ohio. Robinson is a citizen and resident of Tennessee. After Robinson was served with process, she removed the case pursuant to 28 U.S.C. §§ 1441 and 1446. Robinson seeks to invoke this Court's diversity jurisdiction under 28 U.S.C. § 1332. Robinson filed the notice of removal prior to the Lydays being served with process. The Lydays did not join in or consent to removal after they were served with process.
Defendant Robinson seeks to remove this case to the United States District Court for the Eastern District of Tennessee pursuant to 28 U.S.C. § 1441(b). However, removal is improper because Robinson, a Tennessee citizen, has no right to remove this case to a federal district court in Tennessee on the basis of diversity jurisdiction. This Court lacks removal jurisdiction under § 1441(b).
The last sentence of 28 U.S.C. § 1441(b) provides: "Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." This language in § 1441(b) limits and restricts removal jurisdiction. It precludes Robinson, a Tennessee citizen, from removing this case to a federal district court in Tennessee on the basis of diversity jurisdiction. Tillman v. R.J. Reynolds Tobacco, 253 F.3d 1302, 1305 (11th Cir. 2001); Thompson v. Karr, 182 F.3d 918 (Table, text at 1999 WL 519297, * 3 (6th Cir. July 15, 1999)); Dellinger v. Atlas Technologies, Inc., 9 F.3d 107 (Table, text at 1993 WL 438648 (6th Cir. October 28, 1993)); Hurt v. Dow Chemical Co., 963 F.2d 1142, 1145 (8th Cir. 1992); McKay By and Through McKay v. Boyd Construction Co., Inc., 769 F.2d 1084, 1086-87 (5th Cir. 1985); Gaines-Tabb v. Mid-Kansas Co-Op. Ass'n., 980 F. Supp. 1424, 1427 (D. Kan. 1997); 14B CHARLES ALAN WRIGHT, ARTHURR. MILLER EDWARDH. COOPER, FEDERALPRACTICE AND PROCEDURE: JURISDICTION3D § 3723 (1998) ("Wright Miller").
This is true even though the plaintiffs could have originally filed their complaint in this Court based on diversity jurisdiction under 28 U.S.C. § 1332. Pursuant to the last sentence in § 1441(b), removal jurisdiction over diversity cases is more limited than general subject matter jurisdiction over diversity cases originally brought in federal court. Hurt, 963 F.2d at 1145; Ziegler v. Champion Mortgage Co., 913 F.2d 228, 230 (5th Cir. 1990); 14B Wright Miller § 3723. Accordingly, the Court is required to remand on the ground of lack of removal jurisdiction under 28 U.S.C. § 1441(b).
Furthermore, remand is necessary because all of the defendants did not timely join in or consent to removal as required by the rule of unanimity under 28 U.S.C. § 1446(a) and (b). Loftis v. United Parcel Service, Inc., 342 F.3d 509, 516 (6th Cir. 2003). The Lydays did not timely join in or consent to removal after they were served with process. The Lydays oppose and object to removal.
Accordingly, the Lydays' motion to remand [Court File No. 21] will be GRANTED. A separate order of remand will enter.
ORDER OF REMAND
In accordance with the accompanying memorandum opinion, the motion by defendants Geoffrey Lyday and Kimberly Lyday to remand [Court File No. 21] is GRANTED pursuant to 28 U.S.C. § 1447. This civil action is hereby REMANDED to the Circuit Court of Hamilton County. Each party shall bear their own attorney's fees, costs, and expenses incurred as a result of the removal.
SO ORDERED.