Opinion
CIVIL ACTION No. 00-2472-CM
July 31, 2001
MEMORANDUM AND ORDER
This matter is before the court on plaintiffs motion to remand (Doc. 5). On September 27, 2000, plaintiff filed the instant action in the District Court of Wyandotte County, Kansas. Plaintiff named Burlington Northern and Santa Fe Railway Company (BNSF) as the sole defendant. Plaintiff alleged that defendant BNSF was negligent in its operation of a floodgate and that, as a result, plaintiff s personal and real property were damaged by flooding that occurred on October 4, 1998.
On October 17, 2000, defendant BNSF removed the action to federal court based on diversity jurisdiction. Plaintiff is a resident of the state of Kansas, while defendant BNSF is alleged to be a foreign corporation. Plaintiff was granted leave on January 26, 2001 to file an amended petition. The first amended petition joined as additional party defendants the Unified Government of Wyandotte County/Kansas City Kansas and Kaw Valley Drainage District, both of whom are municipalities of the state of Kansas. Plaintiff alleges that the Unified Government of Wyandotte County/Kansas City Kansas and Kaw Valley Drainage District are vicariously liable for the actions of defendant BNSF.
Plaintiff later sought and was granted leave to file a second amended petition. Identical in substance, the second amended petition merely corrected a clerical error.
A civil action is removable only if a plaintiff could have originally brought the action in federal court. 42 U.S.C. § 1441(a). In general, there is a presumption against federal jurisdiction because the courts of the United States are courts of limited jurisdiction. Basso v. Utah Power Light Co., 495 F.2d 906, 909 (10th Cir. 1974). Accordingly, courts must resolve any doubts concerning removability in favor of remanding the case to state court. Henderson v. Holmes, 920 F. Supp. 1184, 1186 (D. Kan. 1996).
When a plaintiff seeks to join a nondiverse party after the case has been removed, the court is provided with two options:
If after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the State court.28 U.S.C. § 1447(e). Defendant BNSF does not argue that joinder of the Unified Government of Wyandotte County/Kansas City Kansas and the Kaw Valley Drainage District is inappropriate or that plaintiffs sole reason for joining these parties was to defeat diversity jurisdiction. In fact, defendant BNSF asserted as an affirmative defense in its answer that the case should be dismissed because plaintiff failed to implead necessary and indispensable parties, naming Kaw Valley Drainage District as one of those parties. Defendant BNSF further asserted as an affirmative defense that regulations of the Unified Government of Wyandotte County/Kansas City Kansas barred plaintiffs complaint.
The court concludes that joinder of the Unified Government of Wyandotte County/Kansas City Kansas and the Kaw Valley Drainage District is appropriate at this stage of the litigation. Accordingly, the court finds that complete diversity does not exist, and the case should be remanded to state court. Because the court has determined that diversity is lacking, it need not decide whether the amount in controversy requirement has been met.
IT IS THEREFORE ORDERED that plaintiffs' motion to remand (Doc. 5) is granted. The court directs the clerk of the court to remand this case to the District Court of Wyandotte County, Kansas.