Opinion
Case No. 2:04-CV-1044.
January 19, 2006
OPINION AND ORDER
This is a products liability action filed by plaintiff Tina M. Stevens ("plaintiff") against Taser International, Inc. ("Taser"), Vance Outdoors, Inc. ("Vance Outdoors") and Darin Fulks ("Fulks"). With the consent of the parties, 28 U.S.C. § 636(c), this matter is before the Court on the Plaintiff's Motion to Remand, Doc. No. 20, and on Vance Outdoors, Inc. and Darin Fulks' Motion to Dismiss, Doc. No. 16. For the reasons that follow, Plaintiff's Motion to Remand is DENIED and Vance Outdoors, Inc. and Darin Fulks' Motion to Dismiss is GRANTED.
I. BACKGROUND
Plaintiff is a police officer with the Worthington, Ohio Police Department. Amended Complaint, at ¶ 5. As a condition or her employment, plaintiff was required to be certified in the use of an advanced taser weapon. Id. Part of the certification course required that the taser be administered to plaintiff. Id. On September 18, 2002, plaintiff suffered injuries during the course of that process. Id., at ¶ 6.
On September 17, 2004, plaintiff filed this action in the Court of Common Pleas for Franklin County, Ohio, against Taser, John Doe corporations, John Doe business entities and John Doe individuals. Notice of Removal. Plaintiff claims that the taser was defective and that Taser failed to properly train its instructors.
Taser is a Delaware Corporation and plaintiff is a resident of Ohio. Amended Complaint, at ¶ 2. Taser properly removed this action to this Court on October 29, 2004, based on diversity jurisdiction. Notice of Removal; 28 U.S.C. §§ 1441, 1332.
On September 13, 2005, after conferring with counsel for both parties at a status conference, this Court expressly granted plaintiff leave to amend her complaint. Doc. No. 14. On that same day, plaintiff filed an Amended Complaint replacing a defendant John Doe corporation with Vance Outdoors and replacing a defendant John Doe individual with Fulks. Doc. No. 12. No other changes were made in the Amended Complaint. Vance Outdoors is an Ohio corporation and Fulks is a resident of Ohio. Amended Complaint, at ¶¶ 3, 4
On September 22, 2005, Vance Outdoors and Fulks filed a motion to dismiss for failure to state a claim against them upon which relief can be granted. Doc. No. 16. Specifically, these two defendants argue that the statute of limitations applicable to the claims against them has expired.
On October 11, 2005, plaintiff filed Plaintiff's Motion to Remand arguing that, because her state law claims against Vance Outdoors and Fulks are colorable, there is no longer complete diversity and this Court now lacks subject matter jurisdiction. Doc. No. 20. Vance Outdoors and Fulks oppose remand, contending that plaintiff fraudulently joined them for the purpose of destroying diversity. Doc. No. 23.
II. STANDARD OF REVIEW
A. Motion to Remand
The removal of an action to federal court based on diversity jurisdiction is proper only when complete diversity exists at the time of removal, that is, when all parties on one side of the litigation are of a different citizenship from all parties on the other side of the litigation. Coyne v. American Tobacco Co., 183 F.3d 488, 492 (6th Cir. 1999); 28 U.S.C. § 1447(c). The party invoking federal jurisdiction bears the burden of establishing jurisdiction. Certain Interested Underwriters at Lloyd's London, England v. Layne, 26 F.3d 39, 41 (6th Cir. 1994); Her Majesty The Queen in Right of the Province of Ontario v. City of Detroit, 874 F.2d 332, 339 (6th Cir. 1989) (party seeking removal bears the burden of establishing right to remove).
Fraudulent joinder of nondiverse defendants will not defeat removal on diversity grounds. Alexander v. Electronic Data Sys. Corp., 13 F.3d 940, 949 (6th Cir. 1994). To prove fraudulent joinder, "the removing party must present sufficient evidence that a plaintiff could not have established a cause of action against non-diverse defendants under state law." Coyne, 183 F.3d at 493. "The law relating to this aspect of removal jurisdiction is stringent and it requires removing defendants to do more than simply articulate a basis for dismissal of the plaintiff's claims against the non-diverse defendants who have allegedly been fraudulently joined." Waterloo Coal Co., Inc. v. Komatsu Mining Sys., Inc., Case No. C2-02-560, 2003 U.S. Dist. LEXIS 411, *5 (S.D. Ohio Jan. 6, 2003) (J. Sargus).
When a removing party alleges that a defendant has been fraudulently joined as a party in order to defeat removal jurisdiction, the removing party must establish that not only does the complaint fail to state a claim against the non-diverse defendant, but that there is not even a colorable argument that it does. Id. (citing B., Inc. v. Miller Brewing Co., 663 F.2d 545 (5th Cir. 1981)). When a colorable argument in support of the claim against the non-diverse defendant exists, although the defendant may ultimately succeed in having the claim dismissed by the state court, the original removal of the case is improper. Id. Miller Brewing held:
The burden of persuasion placed on those who cry "fraudulent joinder" is indeed a heavy one. In order to establish that an in-state defendant has been fraudulently joined, the removing party must show either 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, or that there has been outright fraud in the plaintiff's pleading of jurisdictional facts.Id. at 549. Under the Miller Brewing standard, a court's inquiry is not whether the complaint states a claim, but whether "there remain[s] a possibility of a valid claim being stated against the in-state defendants. . . ." If there is, "the case would be properly cognizable only in the state courts." Id., at 550.
No defendant in this case contends that there is an issue of actual fraud as to the jurisdictional facts.
Miller Brewing relied on two prior Fifth Circuit decisions, Bobby Jones Garden Apartments v. Suleski, 391 F.2d 172 (5th Cir. 1968) and Tedder v. F.M.C. Corp., 590 F.2d 115 (5th Cir. 1979). The United States Court of Appeals for the Sixth Circuit has cited both of these cases with approval as articulating the appropriate standard for evaluating a removing defendant's assertion that in-state defendants have been joined without a reasonable basis for asserting liability and that the joinder should be disregarded for purposes of determining diversity jurisdiction. See Alexander, 13 F.3d at 948-49. District court cases within this circuit have also followed Miller Brewing. See Waterloo Coal Co., 2003 U.S. Dist. LEXIS 411, at *5; Brusseau v. Electronic Data Systems Corp., 694 F. Supp. 331, 333-334 (E.D. Mich. 1988); Bucksnort Oil Co. v. Nat'l Convenience Stores, Inc., 585 F. Supp. 883, 886 (M.D. Tenn. 1984).
Thus, in deciding whether diversity jurisdiction exists in the instant case, the Court's task is limited to determining whether the complaint states any claim against Vance Outdoors or Fulks that is even arguably permitted under Ohio law.
B. Rule 12(b)(6)
Vance Outdoors and Fulks move to dismiss the claims against them for failure to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) attacks the legal sufficiency of the complaint. Roth Steel Prod. v. Sharon Steel Co., 705 F.2d 134, 155 (6th Cir. 1983). In determining whether dismissal on this basis is appropriate, the complaint must be construed in the light most favorable to the plaintiff, and all well-pleaded facts must be accepted as true. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Bower v. Federal Express Corp., 96 F.3d 200, 203 (6th Cir. 1996); Misch v. The Cmty. Mutual Ins. Co., 896 F. Supp. 734, 738 (S.D. Ohio 1994). A claim will be dismissed if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
Thus, this Court will grant a motion to dismiss under Rule 12(b)(6) if claims asserted in the complaint are without merit because of an absence of facts or law to support the claims, or if, on the face of the complaint, there is an insurmountable bar to relief on those claims. See generally, Rauch v. Day Night Mfg. Corp., 576 F.2d 697, 702 (6th Cir. 1978).
C. Comparison: Rule 12(b)(6) and Remand
Dismissal under Fed.R.Civ.P. 12(b)(6) is a decision on the merits of the challenged claims; the denial of a motion to remand because of fraudulent joinder is purely a procedural decision which allows the federal court to assert diversity jurisdiction over the diverse defendants. Nevertheless, "the underlying inquiries are much alike." Little v. Purdue Pharma, 227 F. Supp. 2d 838, 845-46 (S.D. Ohio 2002). "It has been noted by the Third Circuit, however, that 'the inquiry into the validity of a complaint triggered by a motion to dismiss under Rule 12(b)(6) is more searching than that permissible when a party makes a claim of fraudulent joinder.'" Id. (citing Batoff v. State Farm Ins. Co., 977 F.2d 848, 852 (3d Cir. 1992)). The Fourth Circuit, too, "has stated that this means that a plaintiff gets more favorable treatment in a fraudulent joinder inquiry than she does in a 12(b)(6) inquiry." Id. (citing Hartley v. CSX Transp., Inc., 187 F.3d 422, 424 (4th Cir. 1999)).
Accordingly, this Court concludes that, if a motion to remand is denied based on the conclusion that the nondiverse defendants were fraudulently joined, the Court can dismiss the claims against the nondiverse defendants for failure to state a claim upon which relief can be granted. For, if the Court concludes that there is not even a colorable argument that a plaintiff has stated a claim against the nondiverse defendants, surely the plaintiff's claims cannot survive the more exacting inquiry under Rule 12(b)(6).
III. DISCUSSION
Vance Outdoors and Fulks request that the Court consider their motion to dismiss before it considers Plaintiff's Motion to Remand, taking the position that, if the motion to dismiss is granted, then the motion to remand would be rendered moot. The Court, however, must give priority to motions such as Plaintiff's Motion to Remand that allege lack of subject matter jurisdiction. "Questions of jurisdiction, of course, should be given priority — since if there is no jurisdiction there is no authority to sit in judgment of anything else." Vermont Agency of Natural Res. v. United States, 529 U.S. 765, 778 (2000) (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93-102 (1998)). "Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause." Id., at 778-79 (citing Ex parte McCardle, 74 U.S. 506 (1869)). Thus, "[a] motion questioning subject matter jurisdiction must be considered before other challenges" before the court. Martin v. Voinovich, 840 F. Supp. 1175, 1185 (S.D. Ohio 1993) (citing Gould, Inc. v. Pechiney Ugine Kuhlmann, 853 F.2d 445 (6th Cir. 1988)).
A. Plaintiff's Motion to Remand
The standard applied to Plaintiff's Motion to Remand is whether the Amended Complaint states any claim that is even arguably permitted under Ohio law against Vance Outdoors and/or Fulks. See Alexander, 13 F.3d at 948-49. Thus, the Court will consider the briefings related to Vance Outdoors' and Fulks' motion to dismiss for this purpose.
Vance Outdoors and Fulks contend that plaintiff's claims against them are barred by the two (2) year statute of limitations set forth in O.R.C. § 2305.10. Vance Outdoors, Inc. and Darin Fulks' Motion to Dismiss, at 3. Plaintiff agrees that her claims are governed by the limitations period set forth in O.R.C. § 2305.10. Further, plaintiff concedes that she did not file the claims specifically against Vance Outdoors or Fulks within that time period and instead named John Doe defendants in the original complaint. Plaintiff, however, asserts that the Amended Complaint relates back to the original filing date pursuant to Fed.R.Civ.P. 15(c), which would defeat the statute of limitations defense and allow remand of this action. The Court disagrees.
Plaintiff's injuries occurred on September 18, 2002. Amended Complaint, at ¶ 6. Plaintiff originally filed a products liability action against Taser on September 17, 2004. Notice of Removal. Plaintiff added Vance Outdoors and Fulks as defendants in the Amended Complaint, which was filed on September 13, 2005. Because Ohio law prescribes a two year limitations period to the claims asserted in this action, O.R.C. § 2305.10, plaintiff's claims against Vance Outdoors and Fulks are untimely unless the Amended Complaint relates back to the original filing date.
Under Fed.R.Civ.P. 15(c), an amended complaint may relate back to the original filing date when:
(1) relation back is permitted by the law that provides the statute of limitations applicable to the action, or
(2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or
(3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the period provided by Rule 4(m) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.
A sister district court has analyzed Rule 15(c) in a case that is directly on point. In Oros v. Hull Assoc., 217 F.R.D. 401 (N.D. Ohio 2003), the plaintiff worked on a waste removal project in Toledo, Ohio. The plaintiff became ill, allegedly from exposure to some of the work site materials. The plaintiff filed suit in the Court of Common Pleas, Lucas County, Ohio, against his employer, Hull Associates, Inc.; the property owner, the City of Toledo; and four John Doe defendants. The plaintiff asserted state law claims for ultra-hazardous activity and negligence, which were governed by the two (2) year statute of limitations set forth in O.R.C. § 2305.10. The defendants removed the case to federal court on the basis of diversity jurisdiction.
The plaintiff alleged that it was only after removal of the action that he first learned that the site contractor allegedly controlled the work site and made pertinent decisions. The plaintiff sought leave to amend his complaint to name the site contractor as a defendant. The plaintiff's request was granted and he filed an amended complaint naming the contractor as a defendant and removing one of the John Doe defendants. The contractor moved to dismiss under Fed.R.Civ.P. 12(b)(6), asserting that the statute of limitations barred the plaintiff's claims against him. The plaintiff claimed that he was entitled to relation back under Fed.R.Civ.P. 15(c).
Judge Carr concluded that the plaintiff was not entitled to relation back under Fed.R.Civ.P. 15(c)(1), (2) or (3) for the same reasons that this Court concludes that plaintiff may not invoke the relation back provisions of Rule 15(c). That is, sub-section two did not apply in Oros, nor does it apply in this action, because the plaintiffs did not seek to add a claim or defense to their complaints. Sub-section three also did not apply in Oros, nor does it apply in the instant action, because the plaintiff in Oros did not, and plaintiff cannot, meet the notice or mistake requirements. Finally, the United States Court of Appeals for the Sixth Circuit's interpretation of Rule 15(c)(1) requires that the actual statute providing the claim limitation period include a relation back provision. See Cox v. Treadway, 75 F.3d 230, 240 (6th Cir. 1996). O.R.C. § 2305.10, however, contain no such provision. Therefore, sub-section one of Rule 15(c) did not apply to the Oros plaintiff's claims against the site contractor nor does it apply to plaintiff's claims against Vance Outdoors and/or Fulks.
This Court finds the Oros court's analysis of Rule 15(c) persuasive and will be guided by it.
Fed.R.Civ.P. 15(c)(2) provides that an amended pleading relates back when "the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." In the Amended Complaint, plaintiff in this case did not change or add any claims. Plaintiff merely added parties against whom some of the claims set forth in the original complaint are asserted. Section (c)(2), therefore, does not apply to this action.
The Amended Complaint will not relate back under Fed.R.Civ.P. 15(c)(3) because the notice component of that sub-section has not been met. An amended complaint changing the party against whom a claim is asserted will not relate back unless:
1) the foregoing section [(c)](2) is satisfied, and within the time period provided by rule 4(m) for service of process, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against that party.
There is no question that the first requirement has been met. Section (c)(2) requires that the claims asserted must arise out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading. The plaintiff did not assert any new claims in the amended complaint; she merely named new parties against whom some of the claims were asserted.
However, Rule 4(m) provides that service of process must be completed within 120 days from the original complaint filing date. Fed.R.Civ.P. 4(m). Plaintiff filed suit on September 17, 2004. The 120 days for effecting service of process was January 17, 2005. See Fed.R.Civ.P. 6. Plaintiff did not file the Amended Complaint until September 13, 2005, and there is no evidence in the record suggesting that Vance Outdoors and/or Fulks had constructive notice of the suit prior to that date. Therefore, the second and third requirements of sub-section (c)(3) have not been met, so plaintiff's Amended Complaint cannot relate back under sub-section (c)(3).
Whether the parties received constructive notice depends on several factors such as the relationship between the unnamed parties and the named defendants and whether the old and new parties share representation. Berndt v. Tennessee, 796 F.2d 879 (6th Cir. 1986). Plaintiff does not contend that Vance Outdoors and/or Fulks had constructive notice of this action.
In addition, plaintiff contends that O.R.C. § 2305.17 applies to this action and provides her with an additional year from the date she filed the original complaint to bring claims against additional defendants. O.R.C. § 2305.17 provides:
Commencement of action
An action is commenced within the meaning of sections 2305.03 to 2305.22 and sections 1302.98 and 1304.35 of the Revised Code by filing a petition in the office of the clerk of the proper court together with a praecipe demanding that summons issue or an affidavit for service by publication, if service is obtained within one year.
This statute, however, applies only to a complaint that was filed within the limitations period. See Seger v. For Women, Inc., 2005 Ohio 528, 2005 Ohio App. LEXIS 561 (Hamilton Cy., Feb. 11, 2005). The statute does not serve to add a year to the applicable statute of limitations as plaintiff suggests. Because plaintiff's claims against Vance Outdoors and Fulks were not filed within the limitations period, O.R.C. § 2305.17, which relates only to service, does not apply to her claims against them.
Moreover, even if the notice requirements had been met, plaintiff still could not avail herself of sub-section (c)(3) because the naming of Vance Outdoors and Fulks to replace John Doe defendants would not constitute a "mistake concerning the identity of the proper party" required under subsection (B). "Sixth Circuit precedent clearly holds that new parties may not be added after the statute of limitations has run, and that [actions like replacing "John Doe" defendants in] amendments do not satisfy the 'mistaken identity' requirement of Rule 15(c)(3)(B)." Cox, 75 F.3d at 240 (6th Cir. 1996) (citing In re Kent Holland Die Casting Plating, Inc., 928 F.2d 1448, 1449-50 (6th Cir. 1991) and Marlowe v. Fisher Body, 489 F.2d 1057, 1064 (6th Cir. 1973)).
The Amended Complaint cannot relate back under Fed.R.Civ.P. 15(c)(1). That portion of the Rule provides that an amended complaint may relate back when "relation back is permitted by the law that provides the statute of limitations applicable to the action." Fed.R.Civ.P. 15(c)(1). This section was added to Rule 15 in 1991 and the Advisory Committee Notes state that the provision "is intended to make clear that the rule does not apply to preclude any relation back that may be permitted under the applicable limitations law." Fed.R.Civ.P. 15(c)(1) Advisory Committee Notes. The Notes more specifically state:
Generally, the applicable limitations law will be state law. If federal jurisdiction is based on the parties' citizenship, the primary reference is the law of the state in which the district court sits. . . . Whatever may be the controlling body of limitations law, if that law affords a more forgiving principle of relation back than the one provided in this rule, it should be available to save the claim.Id. (internal citations omitted).
Rule 15(c)(1), therefore, implicates state relation back principles only when the applicable state law so provides. The Sixth Circuit has considered Rule 15(c)(1) only once, holding that the rule would not save a 42 U.S.C. § 1983 claim asserted in an amended complaint. Lovelace v. O'Hara, 985 F.2d 847, 851-52 (6th Cir. 1993). The court reasoned that, while Kentucky law provided the applicable statute of limitations, the particular state statute in question "contained no specific provision for relation back." Id., at 852.
As the Oros court noted, there is a split among the circuits regarding the scope of Rule 15(c)(1). Cases permitting relation back include Lundy v. Adamar of N.J., Inc., 34 F.3d 1173 (3d Cir. 1994) [New Jersey]; McGregor v. Louisiana State Univ. Bd. of Supervisors, 3 F.3d 850 (5th Cir. 1993) [Louisiana]; Arendt v. Vetta Sports, Inc., 99 F.3d 231 (7th Cir. 1996) [Illinois]; and Saxton v. ACF Industries, Inc., 254 F.3d 959, 963 (11th Cir. 2001) (relevant state law is not restricted to the actual limitations statute for Rule 15(c)(1) purposes).
Like the Sixth Circuit in Lovelace, supra, the First Circuit conditions application of relation back provisions on the underlying statute. Edwards v. First American Title Ins. Co. of Nevada, 1994 U.S. App. LEXIS 5872, 1994 WL 102402, *5 (1st Cir. Mar 29, 1994).
In the case sub judice, plaintiff's claims against Vance Outdoors and Fulks are authorized under Ohio law and are governed by O.R.C. § 2305.10. That statute does not contain a specific relation back provision, and Lovelace compels the conclusion that the Amended Complaint may not relate back under Fed.R.Civ.P. 15(c)(1) because the limitations statute applicable to this action does not specifically so provide.
Accordingly, the Court concludes that the statute of limitations governing plaintiff's claims against Vance Outdoors and Fulks has expired and the Fed.R.Civ.P. 15(c) relation back provisions do not apply to preserve these claims. Therefore, plaintiff has failed to set forth colorable claims against Vance Outdoors and Fulks under Ohio law. It follows, then, that Vance Outdoors and Fulks were fraudulently joined. Consequently, Plaintiff's Motion to Remand, Doc. No. 20, must be denied.
The "term 'fraudulent joinder' is a term of art and is not intended to impugn the integrity of a plaintiff or plaintiff's counsel." Rose v. Giamatti, 721 F. Supp. 906, 914 (S.D. Ohio 1989) (citing Nobers v. Crucible, Inc., 602 F. Supp. 703, 706 (W.D. Pa. 1985)); see also Poulos v. Naas Foods Inc., 959 F.2d 69, 73 (7th Cir. 1992) (same). Although the doctrine of fraudulent joinder applies to situations in which there has been actual fraud committed in the plaintiff's pleading of jurisdictional facts for the purpose of defeating federal court jurisdiction, the Court emphasizes that there is neither allegation nor evidence of actual fraud on the part of plaintiff or plaintiff's counsel in this case.
B. Vance Outdoors Inc. and Darin Fulks' Motion to Dismiss
Based on the Court's conclusion supra, i.e., that plaintiff's claims against Vance Outdoors and Fulks are barred by the applicable statute of limitations, it is appropriate to dismiss Vance Outdoors and Fulks from this action under Fed.R.Civ.P. 12(b)(6). See, e.g., Constant v. Wyeth, 352 F. Supp.2d 847, 854 (M.D. Tenn 2003) (the court denied remand concluding that the defendant had been fraudulently joined because the statute of limitations precluded the plaintiff's claims against it and then granted the defendant's 12(b)(6) motion to dismiss because the "court's rulings on the remand motion [were] determinative on the issues raised in the Motion to Dismiss").
Consequently, even accepting all plaintiff's well-pleaded allegations as true, Scheuer, 416 U.S. at 236, "it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief." Conley, 355 U.S. at 45-46. Plaintiff's claims against Vance Outdoors and Fulks are barred by the applicable statute of limitations and, thus, their motion to dismiss, Doc. No. 16, must be granted. WHEREUPON, in light of the forgoing analysis, Plaintiff's Motion to Remand, Doc. No. 20, is DENIED and Defendants Vance Outdoors, Inc. and Darin Fulks' Motion to Dismiss, Doc. No. 16, is GRANTED. Vance Outdoors, Inc., and Darin Fulks are DISMISSED as defendants in this case.