IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Central Ohio Gaming Ventures, :

LLC,

Plaintiff, :

v. : Case No. 2:11-cv-223

 : JUDGE JAMES L. GRAHAM

David Goodman, et al., Magistrate Judge Kemp

Defendants. :

OPINION AND ORDER

I. Introduction

This case relates to the proposed construction of a casino

on property located at 200 Georgesville Road on the west side of

Columbus, Ohio. Central Ohio Gaming Ventures, LLC (a whollyowned subsidiary of Penn National Gaming, Inc.), an entity

involved with the construction, filed suit in the Court of Common

Pleas of Franklin County, Ohio, on March 4th of this year asking

that the Ohio Department of Commerce (through its Superintendent,

David Williamson, and its Director, David Goodman) be enjoined

from releasing to the public certain documents which Central Ohio

Gaming had submitted in conjunction with the building plans and

applications for the casino. The complaint asserts that these

documents contain trade secrets and are exempt from the public

disclosure provisions of the Ohio Public Records Act, Ohio Rev.

Code §149.43. Central Ohio Gaming simultaneously moved for

temporary restraining order and preliminary injunction against

disclosure. The trial court granted a TRO and set the

preliminary injunction hearing for March 29, 2011. 

Although the issue of whether documents are or are not

public records as the Ohio General Assembly has defined that term

may seem to be one particularly appropriate for resolution by the

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state courts, and although the two defendants named in the

complaint are both officials of the Ohio Department of Commerce,

Penn National, Central Ohio Gaming’s corporate parent, removed

the case to this Court a scant ten days after it was filed. The

removal petition contains this explanation of why that removal

was proper and why, according to Penn National, this federal

court has jurisdiction over the case.

The documents attached to the removal petition show that, on

the same day the state court action was filed, the Dispatch

Publishing Company was permitted to intervene in the case in

order to assert an interest in the public disclosure of the

documents. After it did so, it filed an answer, cross-claim and 

counterclaim, asserting claims against Central Ohio Gaming and

the two state official defendants, and also joining Penn National

as an additional counterclaim defendant. The subject of the

counterclaim is not, however, related in any real sense to

whether the records described in the complaint are public and

subject to disclosure. Rather, the Dispatch asserted claims

which seek to enforce a commitment Penn National allegedly made

to “The Dispatch, the City of Columbus, and the general public to

annex the casino to the City and connect to Columbus water and

sewer services.” Counterclaim, Demand for Judgment, ¶C. 

In support of its claims, The Dispatch averred that, prior

to the May 4, 2010 election, where one of the ballot issues was

whether the Ohio Constitution should be amended to allow the

casino to be built at the Georgesville Road site, Penn National

said it would be annexing the site to the City of Columbus and

would pay a substantial sum to the City for sewer and water

services. Apparently believing this to be a desirable result,

the Dispatch provided both editorial and financial support for

the referendum on that amendment. It claims that Penn National

has since refused to agree to an unconditional annexation of the

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property and has announced plans to dispose of sewage generated

from the casino’s operation either directly on the site, or by

trucking it elsewhere for disposal. As relief on this claim, the

Dispatch seeks, among other things, an injunction against

building any part of the casino that will deal with sewage

disposal and an order directing Penn National to make good on its

promise to proceed with the annexation of the property to the

City of Columbus.

Following the lodging of the counterclaim, Central Ohio

Gaming dismissed its complaint voluntarily and without prejudice

under Ohio R. Civ. P. 41(A)(1)(a), leaving only the cross-claim

and counterclaim pending for adjudication. The documents in

question were then produced. Penn National, conceptualizing the

current posture of the case as involving the Dispatch as the

plaintiff, and itself and Central Ohio Gaming as defendants,

notes that both it and its subsidiary are limited liability

companies which are citizens of Delaware and Pennsylvania but not

Ohio. It also asserts that the amount involved in the Dispatch’s

request for injunctive relief and attorneys’ fees exceeds

$75,000. Therefore, Penn National concludes, this Court has

original jurisdiction over this case pursuant to 28

U.S.C. §1332(a) (diversity of citizenship) and the case was

properly removed under 28 U.S.C. §1441(a). It does recognize in

the removal petition that the case is not in the usual posture

for removal, but asks the Court to disregard the procedural

maneuvering in which the Dispatch engaged - namely, intervening

in the case in order to assert a right to production of public

documents, and then asserting an independent and unrelated

counterclaim against two non-Ohio defendants simply in order to

avoid removal - and to accept jurisdiction over the case.

II. The Motions to Remand and to Realign Parties

As one might imagine, the Dispatch neither shares Penn

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National’s view that it engaged in some type of procedural

sleight-of-hand in order to obtain a state court adjudication of

an otherwise removable case, nor that the case is, in fact,

properly removable to this Court. Three days after the notice of

removal was filed, the Dispatch filed a motion to remand. The

motion lays out two separate reasons why removal is improper -

first, that a counterclaim defendant such as Penn National is

not, based upon the correct interpretation of the removal

statute, a “defendant” and therefore cannot exercise a

defendant’s right to remove a case, and, second, that Mr. Goodman

and Mr. Williamson remain as defendants to the cross-claim and

their presence in the case destroys diversity of citizenship. 

Those defendants filed their own motion to remand on April 12,

2011, arguing that, at a minimum, the cross-claim should be

remanded because the parties to that claim are not of diverse

citizenship and because Messrs. Goodman and Williamson did not

consent to the removal of that claim.

Penn National has responded on two fronts. First, it has

opposed the motions to remand. Second, at the same time it

opposed the Dispatch’s motion to remand, it moved for a

realignment of the parties, which, if ordered as Penn National

requests, would make the Dispatch the plaintiff and Penn National

and Central Ohio Gaming the defendants. Most of the memorandum

in opposition to the Dispatch’s motion to remand is focused on

the “fraudulent position of the state court action” (Memorandum

in Opposition to the Dispatch Printing Company’s Motion to

Remand, Doc. #10, at 3) and the “various flagrant improprieties

in which [the Dispatch] engaged in order to create the procedural

morass upon which it relies to defeat diversity jurisdiction.” 

Id. at 2. In brief, Penn National asserts that the only reason

it ended up as a counterclaim defendant in the state court action

(and therefore, according to the Dispatch, a party without a

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right of removal), was that the Dispatch ignored state procedural

rules concerning both the permissible scope of its intervention

and the proper joinder of claims and parties. Because that is

so, Penn National claims, that this Court should disregard the

procedural posture of the state court case when it decides

whether removal was proper. Finally, Penn National argues that

the presence of the two state official defendants is simply

irrelevant to the issue of jurisdiction because the dismissal of

Central Ohio Gaming’s complaint, followed by the release of the

records in question, mooted any claims against them, and that the

Dispatch’s claim for attorneys’ fees - premised on the state

defendants’ failure to disclose records subject to public

disclosure under O.R.C. §149.43 - has also been mooted or lacks

merit.

III. Discussion

As the preceding statement of the case illustrates, there

are three distinct issues which the Court may have to resolve:

(1) may the Court realign the parties in such a way that the

Dispatch becomes the plaintiff, and Penn National and Central

Ohio Gaming become defendants; (2) may the Court disregard the

procedural posture of the case in state court under the so-called

“fraudulent misjoinder” doctrine, such as was done in Tapscott v.

MS Dealer Service Corp., 77 F.3d 1353 (11th Cir. 1996); and (3)

of what significance is the presence of the two state officials,

Messrs. Goodman and Williamson, as defendants to the original

complaint and as defendants to the Dispatch’s cross-claim? If,

as the Dispatch claims, the Court must take the state defendants’

presence in the case into account, and if their failure to

consent to the removal and their status as non-diverse parties

are sufficient to defeat removal jurisdiction no matter how the

Court resolves the other two issues, it is logical to address

that issue first. For the following reasons, the Court concludes

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that even though the Dispatch has the better of this particular

argument, it is not entirely dispostive of the question of

jurisdiction, so that the Court also must address the

applicability of the “fraudulent misjoinder” doctrine. As will

be seen, however, on that argument, the Dispatch will also

prevail, and that will necessitate the remand of this case to the

state court.

A. The State Defendants

Central Ohio Gaming’s state court complaint named Messrs.

Goodman and Williamson as the only two defendants. It appears

that they were sued in their official capacities, since the

relief sought was limited to an injunction against disclosure of

the building plans at issue. Penn National does not appear to

dispute the fact that state officials named in their official

capacity do not have a “citizenship” for diversity purposes

because they are, in essence, the State itself, and a State

similarly has no citizenship that can be considered in

determining if diversity jurisdiction exists. See, e.g.,

Hughes-Bechtol, Inc. v. West Virginia Bd. of Regents, 527 F.Supp.

1366, 1373 (S.D. Ohio 1981), aff’d 737 F.2d 540 (6th Cir. 1984). 

Penn National also does not and cannot dispute that these

officials were named as defendants in the initial complaint and

that, prior to the dismissal of that complaint, the Dispatch

(after being permitted to intervene as an additional defendant)

also named them as defendants to a cross-claim. That cross-claim

pleaded that the Dispatch had made a proper request for the

documents described in the complaint, that the Department of

Commerce did not immediately produce all responsive documents,

that the documents being withheld did not contain trade secrets,

and that the Dispatch was entitled to a writ of mandamus

directing that the documents be produced. The cross-claim also

included a prayer for an award of costs and expenses, including

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attorneys’ fees. See Notice of Removal, Doc. #1, Exhibit 5. 

It is clear from the Notice of Removal itself that Penn

National made no effort to obtain the consent of Messrs. Goodman

and Williamson to the removal. Instead, it asserted in the

notice of removal, as it continues to assert in its briefing on

the remand issue, that “[a]s a result of [the] voluntary

dismissal [of the complaint], The Dispatch’s Cross-Claim against

the State Defendants is no longer viable” and that “the only

parties remaining in the Declaratory Judgment Action are the

intervening defendant, The Dispatch, and the counterclaim

defendants Gaming Ventures and Penn.” Notice of Removal, Doc.

#1, at ¶s 7 and 8. Both the Dispatch and the State defendants

contest the accuracy of that statement.

In its opposition to both motions to remand, Penn National

argues that the cross-claim against the State defendants did not

survive the dismissal of the complaint for injunctive relief. 

That is clearly true with respect to the Dispatch’s claim for a

writ of mandamus compelling the release of the documents, because

they have now been released. However, it is not so clear that

the portion of the cross-claim that seeks an award of costs and

attorneys’ fees is similarly moot.

Penn National concedes that there is authority in Ohio

supporting the proposition that the production of public records

after the filing of a mandamus complaint, but prior to the

issuance of a writ, does not necessarily moot an accompanying

request for costs and fees. In State ex rel. Pennington v.

Gundler, 75 Ohio St.3d 171 (1996), the Ohio Supreme Court held

that a court may award attorneys’ fees to a party who has filed a

mandamus action seeking release of public records even if the

records are voluntarily produced, so long as the records request

is “proper” - that is, as long as the underlying request was

actually meritorious. See State ex rel. Ohio Patrolmen's

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Benevolent Assn. v. Mentor, 89 Ohio St.3d 440 (2000). But Penn

National argues that the records in this case were actually

exempt from disclosure because they contained trade secrets. It

further argues that the sole reason that the State did not

disclose the records (which it originally told the Dispatch it

planned to do) was that the state court issued a TRO forbidding

it to do so. Citing to State ex rel. Gannett Satellite

Information Network, Inc. v. Petro, 81 Ohio St.3d 1234 (1998),

Penn National asserts that attorneys’ fees will not be awarded to

a party requesting public records when the government agency

involved withheld them only because of a court order. Thus, it

contends that the Dispatch’s request for attorneys’ fees will not

be granted by the state court and, consequently, “the State is

not a proper party in this removal action.” Opposition to the

Motion of Ohio Department of Commerce and Division of Industrial

Compliance and Labor to Remand Cross-Claim of the Dispatch

Printing Company, Doc. #16, at 12.

The problem with Penn National’s argument is that the

conclusion it has reached does not follow from the premise it

relies on. There is a significant difference between being named

as a party to a lawsuit in which the claims will ultimately be

found not to be meritorious, and not being a party at all. All

of Penn National’s arguments invite this Court to make a merits

determination as to the attorneys’ fees claim contained in the

Dispatch’s cross-claim, but were the Court to accept that

invitation, it would be assuming the existence of jurisdiction to

make a merits disposition - something the Court simply may not

do. See Steel Co. v. Citizens for a Better Environment, 523 U.S.

83 (1998). A merits decision on the issues raised by the crossclaim must be made by the state court, not this Court.

It is true that there are situations where, in the context

of removal jurisdiction, a federal court may make a judgment call

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about the potential merits of a state law claim in determining

whether to exercise jurisdiction. Most frequently, that occurs

in the context of a claim of “fraudulent joinder,” when the

removing party argues that the citizenship of a non-diverse party

must be disregarded because the sole purpose of that party’s

joinder was to defeat removal jurisdiction. In such cases, the

federal court may assess the relative merits of the claim against

the “fraudulently joined” party (but not, of course, adjudicate

the merits of the claim) and may retain jurisdiction if the claim

is so insubstantial that it does not present even a colorable

claim under state law. See, e.g., Alexander v. Electronic Data

Systems Corp., 13 F.3d 940, 949 (6th Cir. 1994).

Penn National has not couched its argument in precisely

these terms, nor, it appears, could it have. When the crossclaim was asserted, the records had not been produced, and no

determination had been made about their public nature other than

the TRO which was issued the day the case was filed. Further,

there is no indication that the Dispatch’s purpose in asserting a

cross-claim was to defeat removal jurisdiction; at the time it

filed the cross-claim, the case was clearly not in a removable

posture (and, for that matter, may still not be). Finally, the

Dispatch is not the party who brought the State defendants into

the litigation; Central Ohio Gaming did that. Consequently, this

is not a case where the usual precepts of fraudulent joinder

apply, and the Court will therefore not engage in the type of

predictive adjudication of the merits of the cross-claim that is

permitted in the typical fraudulent jointer situation.

The Court notes further that although Penn National argues,

in that portion of its briefing devoted to the issue of

“fraudulent misjoinder,” that the Dispatch improperly asserted

its counterclaim against both Central Ohio Gaming and Penn

National in violation of Ohio’s rules governing joinder of

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claims, it makes no such argument about the cross-claim. Thus,

there is no basis upon which the Court can either rule that the

cross-claim lacks merit under Ohio law - and to make that

determination, the Court would have to assume jurisdiction over

the claim and then decide, as a matter of substantive law, that

the records which were originally withheld either were or were

not trade secrets - or determine that it is so likely that the

claim will be found to be without merit that the Court should

treat the State defendants as if they were not parties to the

case. Even if a convoluted argument could be made that this is a

case where the concepts underlying fraudulent joinder might

apply, the burden would still be on Penn National to demonstrate

that the Dispatch does not have even a colorable claim for

attorneys’ fees, and it has fallen far short of meeting that

burden. 

Thus, as it stands, this case was removed by a new

counterclaim defendant which, even if it were to be realigned

along with the original plaintiff as a defendant, would still be

only one of four defendants in the underlying suit. Two of them

did not, as required by 28 U.S.C. §1446, join in the removal, nor

would be there be complete diversity because, as noted above, the

State defendants do not count as “citizens” for diversity

purposes. Consequently, the Court determines that, unless there

is some other reason besides the arguable lack of merit to the

cross-claim which would justify disregarding the State

defendants’ presence in this suit for jurisdictional purposes,

removal was not proper. That leads directly to the fraudulent

misjoinder argument.

B. “Fraudulent Misjoinder”

Penn National’s fraudulent misjoinder argument, as

presented, assumes the Court will disregard the presence of the

State defendants for the reasons which the Court has just

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rejected. Under that assumption, however, Penn National argues

that if the Court were to realign the parties as it has

suggested, Penn National would no longer be a counterclaim

defendant without a right of removal. Then, if the State

defendants were treated as non-existent parties, it would have

the right to remove the case because there would be complete

diversity between the Dispatch, as plaintiff, and Penn National

and Central Ohio Gaming, as the only real defendants. However,

the Court’s determination that the State defendants remain

parties, and that it is up to the state court, in the first

instance, to determine if the remaining issue asserted in the

cross-claim has merit, largely undercuts the fraudulent

misjoinder argument, at least in the precise way Penn National

has made it. Nevertheless, it does not, for the following

reasons, eliminate it altogether. 

The heart of Penn National’s fraudulent misjoinder argument

is that the Dispatch’s counterclaim could not properly have been

brought in the state court case because it does not relate to the

claim made by Central Ohio Gaming against the State defendants. 

A necessary corollary of that argument, however, is that it also

does not relate to the Dispatch’s cross-claim against the State

defendants, because that cross-claim, which sought the release of

the records in question, is simply an outgrowth of Central Ohio

Gaming’s claim that the records are exempt from public

disclosure. Thus, if the Court were to adopt Penn National’s

arguments about fraudulent misjoinder, it could disregard the

State defendants’ presence in the case not because the Dispatch

has no valid claim remaining against them, but because the

counterclaim should not have been joined with the cross-claim in

the first instance. If the Court were then to realign the

parties so that the Dispatch became the sole plaintiff and all

the other parties were defendants, and applied the fraudulent

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misjoinder doctrine to determine that the claims against Penn

National and Central Ohio Gaming were improperly joined to the

cross-claim against the State defendants, that latter claim could

be disregarded for removal purposes. The net result would be the

conclusion that Penn National properly removed the case. 

Consequently, the Court must delve into the fraudulent misjoinder

argument notwithstanding its determination that the State

defendants continue to be parties to the case.

The first issue which the Court must confront is whether to

recognize the fraudulent misjoinder doctrine at all. Although

some courts (including one and perhaps two Courts of Appeals)

have either developed or applied the doctrine, it is by no means

universally accepted. As Penn National candidly acknowledges,

Judge Frost of this Court, in Bird v. Carteret Mortg. Corp., 2007

WL 894841 (S.D. Ohio March 22, 2007), expressed strong skepticism

about the doctrine itself. Although Penn National tries to

distinguish that decision on grounds that the misjoinder alleged

there was not as “egregious” as the one present here, it is clear

from a review of the decision that Judge Frost did not simply

conclude that the doctrine was inapplicable to the particular

facts of that case, but, rather, that it was not to be recognized

at all.

In Bird, two Ohio plaintiffs asserted claims against two

defendants, one of whom was also a citizen of Ohio for diversity

purposes. The non-resident defendant removed the case, arguing

that under both the fraudulent joinder and fraudulent misjoinder

doctrines, the presence of the in-state defendant should be

disregarded for jurisdictional purposes. In rejecting the latter

argument, Bird described the fraudulent misjoinder doctrine as

“less well-developed than the fraudulent joinder doctrine” and

noted that it applied, if at all, “to situations where the

complaint may state arguably viable claims against both the in-

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state and out-of-state defendants, but there is no arguable basis

for joining those claims together.” Id. at *3. Bird also

pointed out that only one Court of Appeals, the Eleventh Circuit,

see Tapscott v. MS Dealer Service Corp., 77 F.3d 1353 (11th Cir.

1996), appears to have endorsed the doctrine wholeheartedly, and

that subsequent district court decisions are relatively evenly

divided on the question of whether the doctrine runs afoul of the

need to construe removal jurisdiction strictly and to identify a

particular statutory basis upon which Congress has authorized

removal. Bird also expressed concern that although the doctrine

does not authorize a federal court to decide the question of

whether the joinder at issue was proper under state law, it does,

like the fraudulent joinder doctrine, invite the removal court to

characterize certain joinders of claims as “egregious” and to

disregard an “egregious misjoinder” in determining whether

removal was proper. One problem noted in Bird is that the courts

subscribing to the doctrine “have not been able to craft a

bright-line rule which distinguishes ‘egregious’ misjoinders from

‘mere’ misjoinders.” Id. at *4. For a variety of reasons, Bird

concluded that this doctrine had the potential to expand federal

removal jurisdiction in ways that were “were neither wise nor

warranted” and that “issues of state procedural law should not be

determinative of, or even relevant to, issues of federal court

jurisdiction in most instances ....” Id. at *5. Thus, to the

extent that a party may have misused state joinder rules in a

particularly egregious fashion in an effort to structure a case

that is removal-proof, Bird concluded that the proper remedy

would be to allow the state court to correct the problem by

severing the claims, following which removal could occur. 

 Bird’s approach has been explicitly adopted by at least one

other District Judge in Ohio. See Geffen v. General Elec. Co.,

575 F.Supp. 2d 865 (N.D. Ohio 2008) (Polster, J.). Geffen, like

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Bird, also catalogs the split among district courts on this

issue, and that division of authority holds true to this day. 

Additionally, Geffen relied both on Bird and on the “astute,

insightful analysis” found in Rutherford v. Merck & Co., 428

F.Supp.2d 842, 851 (S.D. Ill. 2006), in reaching its conclusion

that the fraudulent misjoinder doctrine represents an unwarranted

and unauthorized expansion of federal removal jurisdiction.

The proper disposition of this issue is not reached, of

course, by counting heads. Regardless of whether the number of

districts which have adopted this doctrine in one form or another

is slightly more, or slightly less, than those which have chosen

the opposite path, the real question is whether the fraudulent

misjoinder doctrine can be reconciled with the general and wellsettled precepts surrounding removal jurisdiction and practice,

including those which are derived from the fact that the grant of

removal jurisdiction is statutory and that Congress’ intent, as

evidenced by the words it has elected to include (or not to

include) in the removal statute is an important consideration. 

Cf. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108 (1941),

citing “the policy of the successive acts of Congress regulating

the jurisdiction of federal courts [as] calling for the strict

construction of such legislation.” 

The Court has given due consideration to the motivation

behind the recognition of the fraudulent misjoinder doctrine, as

articulated in the Tapscott case, and, like the courts in Bird,

Geffen, and Rutherford, does not find that case persuasive. 

Tapscott built the rule around the same concepts which underlie

the fraudulent joinder doctrine, namely that, as the Supreme

Court recognized in Wilson v. Republic Iron & Steel Co., 257 U.S.

92 (1921), the right of removal should not be defeated simply by

the joinder of an in-state defendant who has no real connection

to the case. Tapscott’s concern was that a plaintiff desiring to

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defeat removal may, by joining (albeit incorrectly) a valid claim

against a non-diverse defendant with a valid but totally

unrelated claim against a diverse defendant, accomplish the same

result produced by joining a frivolous (but related) claim

against the non-diverse defendant with a valid claim against a

diverse defendant. In the latter situation, the courts, using

the well-accepted fraudulent joinder doctrine, look through the

form of the pleadings to their substance and disregard any claim

which, as a matter of state substantive law, is patently

insubstantial. Why, then, should a joinder of two substantial

claims which clearly do not belong together be treated

differently?

The best answer to this question is, in this Court’s view,

that although efforts by in-state plaintiffs to preserve their

perceived “home court” advantage by misusing state court rules

concerning joinder of claims and parties are not looked upon with

favor, Congress has intentionally not expanded the scope of

removal jurisdiction to the full extent allowed either by Article

III of the United States Constitution or the general

jurisdictional statutes such as 28 U.S.C. §1331 and §1332. There

are classes of cases over which the federal courts would have

original jurisdiction, had they been filed initially in a federal

court, but which are not removable. Ultimately, what types of

cases may be removed to a federal court is a legislative

decision, and the Court should give due respect to the fact that

none of the statutes governing removal make any mention of

“fraudulent misjoinder” as an exception to the rule that a case

in which diversity of citizenship appears to be lacking may still

be removed to and adjudicated by a federal court.

It is true that the fraudulent joinder doctrine is similarly

not to be found in the removal statutes. However, that doctrine

has been well-established in removal jurisprudence for many

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years, and Congress has amended the removal statutes on a number

of occasions since the doctrine was first announced and while it

was being applied in widespread fashion. Congress could have, by

statutory amendment, reversed that judge-made doctrine, but it

has chosen not to do so, lending credence to the fact that

Congress has acquiesced in that particular judicial construction

of the removal statutes. 

The same cannot be said of the fraudulent misjoinder

doctrine. It is new and not widely-accepted, and Congress would

have no reason to think that it has become a well-established

judicial gloss on the statute which either merits acceptance or,

if Congress disapproves of it, calls for statutory reversal. 

That fact, coupled with the desirability of predictable rules

governing federal court jurisdiction and the admonition to

construe the right of removal narrowly rather than expansively,

persuades this Court that it would be, as Judge Frost has said,

both unwise and unwarranted to create yet another exception to

the statutorily-prescribed removal scheme, especially when the

application of that doctrine relies on such an amorphous standard

as “egregious misjoinder.” 

Additionally, there is no real need for such a doctrine. If

the joinder at issue is patently improper under state law, the

diverse defendant should easily and quickly succeed in having the

removable claim severed, at which point the case against the

diverse defendant may properly be removed. See 28 U.S.C.

§1446(b), which provides that “[i]f the case stated by the

initial pleading is not removable, a notice of removal may be

filed within thirty days after receipt by the defendant, through

service or otherwise, of a copy of an amended pleading, motion,

order or other paper from which it may first be ascertained that

the case is one which is or has become removable ...”; see also

Crump v. Wal-Mart Group Health Plan, 925 F.Supp. 1214, 1219 (W.D.

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Ky. 1996). Assuming that the joinder is egregiously improper, as

the fraudulent misjoinder doctrine does, there would be little

risk that the severance of claims would take so long that the

one-year limitation on removal of diversity cases found in

§1446(b) would preclude removal. Conversely, if the joinder is

proper under state law, or even arguably so, the state court

could refuse to sever the claims. While that would mean the case

remains in state court, under the exact same circumstances, a

federal court applying the fraudulent misjoinder doctrine would

also conclude that the case was not removable. Thus, no real

purpose is served by creating and applying such a doctrine.

For all of these reasons, the Court concludes that it may

not examine the propriety of the Dispatch’s joinder of its

counterclaim against Penn National and Central Ohio Gaming with

its cross-claim against the State defendants for purposes of

determining if the case was properly removed. Thus, any

realignment of the parties would not alter the fact that there is

not complete diversity in this case, and that this Court lacks

jurisdiction over the dispute in its present posture. That being

so, it is required to remand the case for want of jurisdiction. 

See 28 U.S.C. §1447(c). 

IV. Conclusion and Order

For all of the above reasons, the Court GRANTS the motions

to remand filed by The Dispatch Printing Company (Doc. #6) and

the State Defendants (Doc. #12). The Court DENIES the motion to

realign parties (Doc. #11). This case is REMANDED to the Court

of Common Pleas of Franklin County, Ohio.

It is so ORDERED.

s/James L. Graham 

JAMES L. GRAHAM

United States District Judge

DATE: May 20, 2011

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