Ben Rudick & Sons, Inc.v.Saukko

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISIONJun 10, 2019
CASE NO. 4:19CV1284 (N.D. Ohio Jun. 10, 2019)

CASE NO. 4:19CV1284

06-10-2019

BEN RUDICK & SONS, INC., Plaintiff, v. KEVIN SAUKKO, Defendant.


JUDGE BENITA Y. PEARSON MEMORANDUM OF OPINION AND ORDER

On June 4, 2019, third-party Defendant Auto-Owners Insurance Company unilaterally removed this matter from Warren Municipal Court (Case No. 19 CVI 928), citing the general removal statute, 28 U.S.C. § 1441. ECF No. 1.

The case was filed in Warren Municipal Court on April 16, 2019, Plaintiff Ben Rudick & Sons, Inc., against Defendant Kevin Saukko. ECF No. 1-3 at PageID#: 20. On or about May 15, 2019, Kevin Saukko filed a third-party complaint against Auto Owners seeking indemnity and a refund of premiums paid. ECF No. 1 at PageID#: 2; ECF No. 1-1 at PageID#: 12-14. On the Warren Municipal Court publicly-available docket, Auto-Owners is listed as a third-party defendant. Case No. 2019 CVI 000928 (Warren Mun. Ct.), https://benchmark.warrenmuni.us/benchmarkweb/Home.aspx/Search. --------

"Except as otherwise provided," a civil action brought in state court may only be removed "by the defendant or defendants" in that action. 28 U.S.C. § 1441(a). The Supreme Court recently confirmed the third-party counterclaim defendants have no right to remove a civil action to federal court under that general removal statute. Home Depot U .S.A., Inc. v. Jackson, ___ S. Ct. ___, 2019 WL 2257158, at *4 (May 28, 2019) ("[W]e conclude that § 1441(a) does not permit removal by any counterclaim defendant, including parties brought into the lawsuit for the first time by the counterclaim." (footnote explanation omitted)).

Even before that ruling, however, it was well-settled in the Sixth Circuit that third-party defendants cannot remove to federal court under § 1441. In re Mortg . Elec. Registration Sys., Inc., 680 F.3d 849, 853 (6th Cir. 2012) ("[A] counterclaim or third-party defendant is not a 'defendant' who may remove the action to federal court." (citing Shamrock Oil & Gas Corp . v. Sheets, 313 U.S. 100, 104-08 (1941); additional citation omitted)); First Nat'l Bank of Pulaski v . Curry, 301 F.3d 456, 462 (6th Cir. 2002) ("We hold that third-party defendants are not 'defendants' [who may remove] for purposes of § 1441(a)."); see also Thomas v . Shelton, 740 F.2d 478,488 (7th Cir. 1984); Westwood Apex v . Contreras, 644 F.3d 799, 805-06 (9th Cir. 2011).

Auto-Owners urges that the federal district court has exclusive subject-matter jurisdiction over Kevin Saukko's third-party complaint. ECF No. 1 at PageID#: 7-8. But that assertion, even if true, does not by itself compel removal. If the state court lacks jurisdiction to hear a given claim, then it will abstain from hearing that claim, and it can be brought again at a later time in a court of competent jurisdiction.

The matter was improvidently removed, and it will be remanded to Warren Municipal Court.

IT IS SO ORDERED. June 10, 2019
Date

/s/ Benita Y . Pearson


Benita Y. Pearson


United States District Judge