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explaining that "[t]he test for fraudulent joinder ... is a less searching test than the test under Rule 12(b) [of the Federal Rules of Civil Procedure]. In fact, a federal court may find that a nondiverse defendant is not fraudulently joined for the purposes of jurisdiction, and later a state court may find that the plaintiff failed to state a claim against the same nondiverse defendant, who will then be dismissed from the suit."
Summary of this case from Celeste v. Merck, Sharp & Dohme Corp.Opinion
2:03-cv-090-JDT-WGH
November 21, 2003
ENTRY DISCUSSING PLAINTIFFS' MOTION TO REMAND AND DEFENDANTS' MOTION TO DISMISS
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
Plaintiffs Debra and Michael Valentine, individually and as the natural parents of Logan and Sarah Valentine, minors, sued Defendant Ford Motor Company in Vigo County Superior Court, alleging negligent design, manufacture, testing, and marketing of a 1996 Ford Explorer, in which Debra, Logan, and Sarah Valentine were passengers when the vehicle rolled over. In the same state court Complaint, Plaintiffs sued Defendant Christina Sullivan, the driver of the Explorer when the vehicle rolled over, alleging negligent operation of the vehicle. This matter comes before the court on Plaintiffs' Motion to Remand and Defendants' Motion to Dismiss for Failure to State a Claim. Having considered the motions, and the submissions of both parties, the court decides as follows:
Oral argument on the Plaintiffs' Motion to Remand was granted and took place on October 28, 2003.
I. Background
On March 23, 2001, Plaintiffs Debra, Logan, and Sarah Valentine were injured when they were passengers in a 1996 Ford Explorer that "went out of control and rolled over" on United States Highway 231 in Alabama. (Compl. ¶ 5; Sullivan's Br. Supp. Mot. Dismiss at 1.) The 1996 Ford Explorer was manufactured by Defendant Ford Motor Company ("Ford"). (Compl. ¶ 4.) Defendant Christina Sullivan ("Sullivan") was driving the Ford Explorer when the accident occurred. ( Id. ¶ 5.) The Explorer was owned by Sullivan, who used the Explorer as a family vehicle and kept the vehicle in Terre Haute, Indiana. ( Id. ¶ 4.) "In the collision, Debra Valentine suffered serious and permanent spinal cord injuries." ( Id. ¶ 6.) Plaintiffs Logan and Sarah Valentine were also passengers in the Explorer when it rolled over. ( Id. ¶ 9.) The Complaint alleges that Logan and Sarah Valentine "suffered physically and emotionally as a result of the occurrence and as a result of seeing their mother paralyzed in the collision." ( Id.) Additionally, Michael Valentine sued for damages suffered for loss of services and consortium. ( Id. ¶ 8.)On March 17, 2003, Plaintiffs filed a Complaint against Ford and Sullivan in Vigo County Superior Court. On April 4, 2003, Ford removed the action to the United States District Court for the Southern District of Indiana, alleging that Plaintiffs fraudulently joined Sullivan as a defendant in order to defeat diversity and thereby deny the federal court jurisdiction over the action. On April 22, 2003, Plaintiffs filed a Motion to Remand. Ford filed a Response in Opposition to Plaintiffs' Motion for Remand on May 8, 2003. On May 16, 2003, Plaintiffs filed its Reply. In a separate motion, on May 7, 2003, Sullivan filed a Motion to Dismiss for Failure to State a Claim, which Ford joined on May 9, 2003. On May 27, 2003, Plaintiffs filed a Memorandum of Points and Authorities in Opposition to Sullivan's Motion to Dismiss, in which Plaintiffs argue that the court must rule on Plaintiffs' Motion to Remand before ruling on Defendants' Motion to Dismiss.
II. Sequence of Analysis
Two matters potentially are before the court: Plaintiffs' Motion to Remand for Lack of Jurisdiction and Defendants' Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim for Relief. Because this court cannot properly decide whether the Plaintiffs' Complaint withstands a Rule 12(b)(6) motion if the court does not have jurisdiction over the suit, the court first decides Plaintiffs' Motion to Remand. See Batoff v. State Farm Ins. Co., 977 F.2d 848, 852 (3d Cir. 1992); Conk v. Richards O'Neil, L.L.P., 77 F. Supp.2d 956, 958 (S.D. Ind. 1999); Brantley v. Vaughan, 835 F. Supp. 258, 261-62 (D.S.C. 1993) (following the approach of Batoff, 977 F.2d 848).
III. Plaintiffs' Motion to Remand
Plaintiffs move to remand the present suit to state court, alleging that this court lacks subject matter jurisdiction over the Plaintiffs' action against the Defendants. From the record, the only evident basis for this court's jurisdiction over the present action is diversity of citizenship. A federal court's diversity jurisdiction is limited. Hoosier Energy Rural Elec. Coop., Inc. v. Amoco Tax Leasing IV Corp., 34 F.3d 1310, 1314 (7th Cir. 1994). "`For a case to be within the diversity jurisdiction of the federal courts, diversity of citizenship must be "complete" meaning that no plaintiff may be a citizen of the same state as any defendant.'" Id. at 1314-15 (quoting Fid. Deposit Co. of Md. v. Sheboygan Falls, 713 F.2d 1261, 1264 (7th Cir. 1983)).Plaintiffs reside in Terre Haute, Indiana. (Compl. ¶ 1.) Ford is a foreign corporation, incorporated in Delaware, with its principal place of business in Dearborn, Michigan. (Notice of Removal ¶ 5.) Sullivan is a resident of Terre Haute, Indiana. (Compl. ¶ 3.) Despite the apparent lack of complete diversity, Ford removed the action to this court. Ford alleges that this court has diversity jurisdiction over the action because the Plaintiffs fraudulently joined Sullivan as a defendant in order to keep the suit in state court. Plaintiffs dispute the argument that there has been fraudulent joinder and also argue that Ford's removal was procedurally defective because Ford failed to join Sullivan in the removal. Because the court ultimately finds that Sullivan was not fraudulently joined to the action, the court does not address the issue of whether Ford's removal was procedurally defective.
The Complaint alleges the residency of the Valentines and Sullivan, not their citizenship. Ford presumes their citizenship to be the same as their residency in its Notice of Removal. Citizenship does not appear to be contested in the Motion to Remand. This is only noted because diversity jurisdiction is based on citizenship rather than residency. See 28 U.S.C. § 1367.
A. Fraudulent Joinder Standard
The joinder of a nondiverse party to a suit cannot destroy diversity jurisdiction if that joinder is fraudulent. Hoosier Energy, 34 F.3d at 1315 (quoting Gottlieb v. Westin Hotel Co., 990 F.2d 323, 327 (7th Cir. 1993)). A party is fraudulently joined in an action "`when there is no possibility that a plaintiff can state a cause of action against nondiverse defendants in state court, or where there has been outright fraud in plaintiff's pleading of jurisdictional facts.'" Id. The diverse defendant seeking removal "must bear a heavy burden to establish fraudulent joinder." Poulos v. Naas Foods, Inc., 959 F.2d 69, 73 (7th Cir. 1992). "The defendant must show that, after resolving all issues of fact and law in favor of the plaintiff, the plaintiff cannot establish a cause of action against the in-state defendant." Id. (citing B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981)). Or stated differently, Ford must demonstrate that there exists no "reasonable possibility that a state court would rule against [Sullivan]." Id.
B. Analysis
There is no evidence in the record of outright fraud, so this discussion focuses on the question of whether Ford has met its burden and demonstrated that the Plaintiffs cannot establish a cause of action against Sullivan. For the purposes of this analysis, the court takes as true the facts alleged in the Plaintiffs' Complaint.Plaintiffs' Complaint contains four paragraphs that specifically make reference to Sullivan:
3. Defendant Christina Sullivan is a resident of Terre Haute, Indiana.
4. The 1996 Ford Explorer, in which Debra Valentine was injured, was manufactured by Ford Motor Company. It was owned by Defendant Sullivan and kept and maintained by her in Terre Haute and used as a family vehicle.
5. On the 23rd day of March 2001, Plaintiff, Debra Valentine, was injured when the 1996 Ford Explorer, operated by defendant Sullivan, went out of control and rolled over.
. . .
13. Defendant Christina Sullivan, according to Ford, was negligent in the operation of her vehicle and proximately caused Plaintiff's injuries and damages.
(Compl. ¶¶ 3, 4, 5, 13.)
In Indiana, to prevail in a negligence action, a plaintiff must demonstrate the following three elements: (1) the defendant owed a duty to the plaintiff; (2) there was a breach of that duty by the defendant, whose conduct fell below the applicable standard of care; and (3) there is compensable injury, which was proximately caused by the defendant's breach of duty. King, 790 N.E.2d at 484 (citation omitted). Indiana law also recognizes joint tortfeasor liability. See E.Z. Gas, Inc. v. Hydrocarbon Transp., Inc., 471 N.E.2d 316, 321 (Ind.App. 1984) ("[W]here the separate and independent acts of two or more parties are the direct causes of a single injury, and it is not possible to determine in what proportion each contributed, any or all may be held responsible for the injury." (citation omitted)); Nat'l R.R. Passenger Corp. v. Everton by Everton, 655 N.E.2d 360, 366 (Ind.App. 1995) ("[A]n act of negligence need not be the only proximate cause, and liability arises if the act, concurring with one or more other causes, is a proximate cause of the injury. A defendant is not relieved of liability because he is responsible for only one of such causes." (citations omitted)).
The court need not apply a choice of law analysis to determine which state's negligence law controls the action. "Ordinarily a choice of law issue will be resolved only if it appears there is a difference in the laws of the potentially applicable jurisdictions." Allen v. Great Am. Reserve Ins. Co., 766 N.E.2d 1157, 1162 (Ind. 2002). Both the Plaintiffs and Sullivan are citizens of Indiana; however, the roll over of the Ford Explorer from which this action arises occurred on a highway in Alabama. Under Indiana law, "[i]n order to prevail on a claim of negligence the plaintiff must show: (1) duty owed to plaintiff by defendant; (2) breach of duty by allowing conduct to fall below the applicable standard of care; and (3) compensable injury proximately caused by defendant's breach of duty." King v. N.E. Sec., Inc., 790 N.E.2d 474, 484 (Ind. 2003) (citation omitted). Under Alabama law, "[t]he elements of a negligence claim are a duty, a breach of that duty, causation, and damage." Armstrong Bus. Servs., Inc. v. AmSouth Bank, 817 So.2d 665, 679 (Ala. 2001) (citation omitted). Because Indiana and Alabama apply substantially the same test for negligence, it is unnecessary to determine which law controls.
Alabama also recognizes joint tortfeasor liability. See Williams v. Woodman, 424 So.2d 611, 613 (Ala. 1982) (citation omitted); U.S. Fidelity Guaranty Co. v. Jones, 356 So.2d 596, 598 (Ala. 1977).
Plaintiffs have provided sufficient facts to support a claim against Sullivan for negligence. Plaintiffs were the passengers of a vehicle manufactured and designed by Ford. Sullivan was the driver of the Explorer when it rolled over and injured the Plaintiffs. As the driver and owner of the vehicle, Sullivan owed a duty owed to the passengers. As the manufacturer of the vehicle, Ford also owed a duty to the Plaintiffs. If the court takes all inferences in favor of the Plaintiffs, which it must, then the court must infer that when the vehicle rolled over, there was a breach of duty. Ford argues that the Plaintiffs' injuries were caused by Sullivan's breach of her duty to the Plaintiffs. (Ford's Answer Pls.' Compl., Affirmative Defenses ¶ 14.) The facts pleaded in the Complaint support a claim that the actionable conduct was both Sullivan's negligent operation of the Explorer and Ford's negligent design, manufacture, testing, or marketing of the vehicle.
Yet, Ford argues that this court properly has jurisdiction over this matter because fraudulent joinder has occurred. Ford offers no facts or law that suggest the Plaintiffs can not bring a cause of action against Sullivan. In fact, Ford has presented statements to the contrary. For example, Ford argues that "If plaintiffs seek to advance a claim against Sullivan they can and should do so." (Ford's lesp. Opp'n Pls.' Mot. Remand at 4 n. 2.) Rather, it is clear from Ford's Response that Ford's argument is not that the Plaintiffs cannot state a cause of action against Sullivan; Ford's argument is that the Plaintiff's have not stated a cause of action against Sullivan. ( See, e.g., Ford's Resp. Opp'n Pls.' Mot. Remand at 3 n. 1 (stating that "Sullivan has filed a Motion to Dismiss the Complaint because plaintiffs have failed to state a claim against her," and that "Ford has joined in this motion which articulates the identical position to Ford's regarding plaintiff's failure to state a claim against Ms. Sullivan" (emphasis added)). Ford argues that because the Plaintiffs, in their Complaint, do not assert that Sullivan was negligent, but assert that "according to Ford," Sullivan was negligent, the Plaintiffs have failed to state a claim against Sullivan.
Moreover, Ford undercuts its argument that Sullivan was fraudulently joined when Ford argues both that defendant Sullivan is fraudulently joined in the action and also argues that if Sullivan were dismissed from the action, Ford would be required, "per Indiana's Comparative Fault Act and the case law interpreting it, to object to the dismissal of Sullivan to preserve its right to name her as a non-party." ( See Ford's Resp. Opp'n Pls.' Mot. Remand at 5.) Ford appears to want to have it both ways when Ford argues that Sullivan is fraudulently named a party in the action and that Sullivan is liable for the accident.
However, the question of whether the Plaintiffs have stated a claim against Sullivan is the question the court needs to ask when determining a Rule 12(b)(6) motion to dismiss for failure to state a claim, not when determining if fraudulent joinder has occurred. The test for fraudulent joinder is different-it is a less searching test than the test under Rule 12(b)(6). Batoff, 977 F.2d at 852; see also Mayes v. Rapeport, 198 F.3d 457, 464 (4th Cir. 1999). In fact, a federal court may find that a nondiverse defendant is not fraudulently joined for the purposes of jurisdiction, and later a state court may find that the plaintiff failed to state a claim against the same nondiverse defendant, who will then be dismissed from the suit. Batoff, 977 F.2d at 852. Furthermore, as discussed above, the question of whether the Plaintiffs have stated a claim against Sullivan is not appropriately before this court if the court does not have jurisdiction over the action.
Ford argues that it was "disingenuous" for the Plaintiffs to assert that "according to Ford," Sullivan was negligent when Ford had not answered the Complaint or provided the Plaintiffs with Ford's contentions. (Ford's Resp. Opp'n Pls.' Mot. Remand at 4.) Technically, Ford contests a factual assertion in the Complaint. Generally, when examining fraudulent joinder claims where it is alleged that the plaintiff cannot bring a cause of action against the non-diverse defendant, the court must resolve all issues of fact in the Complaint in favor of the plaintiff. See Poulos, 959 F.2d at 73; see also Batoff, 977 F.2d at 851-52 (holding that a district court must "`assume as true all factual allegations of the complaint'" (citation omitted)). However, in this case, because the statement in paragraph 13 of the Complaint makes an assertion as to Defendant Ford's legal position, the court will pierce the pleadings and examine the facts in the record, as is permissible in fraudulent joinder claims. See Bridgestone/Firestone, Inc. v. Ford Motor Co., 260 F. Supp.2d 722, 726 (S.D. Ind. 2003) (citing Hutchins v. Ford Motor Co., 204 F. Supp.2d 1149, 1153 (S.D. Ind. 2002)); Conk, 77 F. Supp.2d at 964 (collecting cases); Hoosier Energy Rural Elec. Coop., Inc. v. Amoco Tax Leasing IV Corp., No 89-816-C, 1992 WL 684355, at *1 (S.D. Ind. Mar. 17, 1992) (citation omitted), aff'd, 34 F.3d 1310, 1315-16 (7th Cir. 1994); see also Travis v. Irby, 326 F.3d 644, 648-49 (5th Cir. 2003).
The present case is not the type of case where, after piercing the pleadings, the court discovers that there is no basis for a factual assertion in the Complaint. Rather, an examination of the record only confirms the Plaintiffs' assertion that Ford contends Sullivan was at fault for the roll-over. In oral argument, counsel for the Plaintiffs stated that it made the assertion in paragraph 13 under the belief that Ford would allege Sullivan was at fault for the roll-over based on previous suits against Ford in roll-over actions. This assumption proved to be correct, as Ford, in its Answer, asserts the following affirmative defense: "Plaintiffs' claims are barred, in whole or in part pursuant to Indiana's Comparative Fault Act, by the acts or omissions of certain non-parties, including the driver of the vehicle in which Debra, Logan and Sarah Valentine were passengers and the driver of the other vehicle which caused the accident events." (Ford's Answer to Pls.' Compl., Affirmative Defenses ¶ 14.) Additionally, in Ford's Opposition to the Motion to Remand, Ford reserves its right to bring a nonparty defense against Sullivan. (See Ford's Resp. Opp'n Pls.' Mot. Remand at 4 n. 2, 5.)
It is true, as Ford states, that the court "must `focus on the plaintiff's complaint at the time the petition for removal was filed.'" Batoff, 977 F.2d at 851-52 (citation omitted); accord Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997) (citing B, Inc., 663 F.2d at 549). However, the court is not limited to only the facts present in the record at the time of removal in a fraudulent joinder analysis. This would not make sense in light of the rule that the parties are permitted to supplement a petition for removal or motion to remand with affidavits and deposition transcripts, as well as the rule that the court may pierce the pleadings and examine the entire record. Rather, a better understanding of the rule is that a plaintiff is limited to only the allegations it asserts in the Complaint against the non-diverse defendant at the time of removal. See Conk, 77 F. Supp.2d at 964 ("[S]aying that the district court must `focus on the plaintiff's complaint at the time the petition for removal was filed' falls short of prohibiting a plaintiff from elaborating on the claims actually asserted in the complaint." (quoting Batoff, 977 F.2d at 851-52)); see also Crowe, 113 F.3d at 1538 ("The federal court makes these determinations based on the plaintiff's pleadings at the time of removal; but the court may consider affidavits and deposition transcripts submitted by the parties." (citing B, Inc., 663 F.2d at 549)). The court finds that the record supports the Plaintiffs' assertion in paragraph 13 of the Complaint.
Next, Ford argues that under the Seventh Circuit's decision in Poulos, 959 F.2d 69, the court should hold that the joinder of Sullivan to the action was fraudulent. In Poulos, the plaintiff, a terminated employee, brought action against his former employer, a citizen of another state, and the nondiverse parent company of the subsidiary. The plaintiff sued the defendants in state court, alleging violations of the Wisconsin Fair Dealership Law. The subsidiary removed the case to federal court, alleging that the parent corporation was fraudulently joined in the action. The Seventh Circuit held that there was fraudulent joinder, reasoning as follows:
Under Wisconsin law, a parent corporation may be liable for its subsidiary's delicts if "`applying the corporate fiction would accomplish some fraudulent purpose, operate as a constructive fraud, or defeat some strong equitable claim.'" Although Poulos alleged that RHM controlled Naas, he alleged no impropriety or disregard of Naas' corporate form. Perhaps more importantly, there is simply no indication that RHM's presence in the suit was required to avoid any possible fraud: Poulos did not allege (nor, truthfully, could he allege) that the assets of Naas would be insufficient to satisfy a judgment on his claims.Id. at 73-74 (citations omitted).
In Poulos, the parent corporation could only be found to be liable to the plaintiff, and thus properly joined in the suit, if the parent company was found to have disregarded the subsidiary's corporate form or engaged in some other fraud. The Seventh Circuit noted that the plaintiff failed to present any facts which demonstrated that there was a disregard of corporate formalities or that there was fraud. The Seventh Circuit pointed to facts in the record which demonstrated that the plaintiff could not raise a claim against the parent corporation, i.e., the subsidiary was not undercapitalized.
In the present case, the Plaintiffs have presented facts that support a claim of negligence against Sullivan. It is undisputed that Sullivan was the driver of the vehicle when it rolled over and injured the Plaintiffs. The Plaintiffs can raise negligence claims against both Ford and Sullivan, as joint tortfeasors. Furthermore, "[i]f there is a joint liability, [the Plaintiffs have] an absolute right to enforce it, whatever the reason that makes [them] wish to assert the right." Chi., Rock Island, Pacific Railway v. Schwyhart, 227 U.S. 184, 193 (1913). Moreover, as discussed above, Ford has not presented any facts suggesting that the Plaintiffs could not bring a cause of action against Sullivan. It is Ford's burden in a fraudulent joinder claim to present evidence in support of removal. Rather than presenting facts that demonstrate that the Plaintiffs cannot bring a negligence claim against Sullivan, Ford has admitted that the Plaintiffs can in fact bring a claim against Sullivan.
The court finds that Ford has not met its heavy burden of demonstrating that Sullivan was fraudulently joined and that removal was thus improper. Therefore Plaintiffs' Motion for Remand is GRANTED. Because the court holds that it does not have jurisdiction over the action, the court does not address Defendants' Motion to Dismiss.
IV. Costs and Attorneys Fees
Plaintiffs have requested costs and attorneys fees pursuant to 28 U.S.C. § 1447(c), which permits the court to award payment of "`just costs and any actual expenses, including attorney fees, incurred as a result of the removal.'" Garbie v. DaimlerChrysler Corp., 211 F.3d 407, 409-10 (7th Cir. 2000) (quoting 28 U.S.C. § 1447(c)).
Ford, however, argues that attorneys fees should not be awarded to the Plaintiffs because "Ford complied with the procedural requirements of 28 U.S.C. § 1446" and "its Notice of Removal was not improvident." (Ford's Resp. Opp'n Pls.' Mot. Remand at 9.) Additionally, Ford argues that costs are not warranted because the issue presented a significant and seminal legal question, i.e., "does a complaint state a claim if it does not allege a party listed and named `defendant' was negligent, but merely anticipates that another defendant might allege a non-party defense and thereby effectively shift the burden of proof to a defendant." ( Id. at 8.)
In support of its argument, Ford cites two cases: Katonah v. USAir, Inc., 876 F. Supp. 984, 990 (N.D. III. 1995) and Guyant v. Johnson Johnson, Inc., No. 1:03-cv-0015, 2003 U.S. Dist. LEXIS 6747, at *13 (S.D. Ind. Apr. 21, 2003). In Guyant, the court did not award costs against the defendant because the fraudulent joinder issue involved a "fairly close question" so that removal was reasonable. Id. at *12. The court does not find that the issue in the present case was so close that costs should not be granted. The significant and seminal issue which Ford states stems from Ford's misapplication of the fraudulent joinder test, rather than a real issue. Next, Ford argues that "good faith in the arguments asserted" is one factor to consider in the awarding of costs. ( See Ford's Resp. Opp'n Pls.' Mot. Remand at 8.) In Katonah, the court stated the opposite: "The presence or absence of good faith is not the standard for determining whether costs should be awarded." 876 F. Supp. at 990 (citations omitted). Additionally, the court in Guyant recognized that "[s]uch an award does not require a finding of bad faith." 2003 U.S. Dist. LEXIS 6747, at *12.
Section 1447(c) "is not a sanctions rule; it is a fee-shifting statute, entitling the district court to make whole the victorious party." Garbie, 211 F.3d at 410. "The rationale of fee- shifting rules is that the victor should be made whole — should be as well off as if the opponent had respected his legal rights in the first place. This cannot be accomplished if the victor must pay for the appeal out of his own pocket.'" Id. at 411 (quoting Rickels v. South Bend, 33 F.3d 785, 787 (7th Cir. 1994)). "Because § 1447(c) is a fee-shifting statute, the plaintiffs as prevailing parties are presumptively entitled to recover the attorneys' fees incurred in defending their award." Id. (citing Comm'r of INS v. Jean, 496 U.S. 154 (1990)). The court finds no reason why Plaintiffs should not recover costs and attorneys fees to which they are presumptively entitled; therefore, Plaintiffs' request for costs and attorneys fees is GRANTED.
The amount of time spent and the rates documented in the affidavits submitted by Plaintiffs' counsel appear reasonable and necessary for the work done in connection with the Motion to Remand. The court will award compensation for one additional hour of an attorney's time for the oral argument at the hourly rate of $150.00. Only one lawyer was needed for that argument, and the Indiana lawyer's rate is appropriate. The total award of attorneys fees in favor of the Plaintiffs and against Defendant Ford Motor Company is $1,725.00.
V. Conclusion
This court finds that Sullivan was not fraudulently joined as a defendant and therefore holds that removal was improper under 28 U.S.C. § 1441(b). Plaintiffs' Motion for Remand is GRANTED and the court orders that this action be REMANDED to the Vigo County Superior Court. The court also awards COSTS and ATTORNEYS FEES to Plaintiffs. Because this court lacks subject matter jurisdiction over the action, the court declines to rule on Defendants' Motion to Dismiss.ALL OF WHICH IS ORDERED.