UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

YVONNE METHENEY, ATTORNEY IN FACT

FOR MIRANDA OLMSTEAD, et al., 

Plaintiffs,

 Civil Action No. 2:11-cv-00981

vs. Judge James L. Graham

 Magistrate Judge E. A. Preston Deavers

MR. BULT’S INC., et al., 

Defendants.

REPORT AND RECOMMENDATION

Plaintiffs bring this action for damages arising out of a vehicle accident with Defendant

Shawn Kirk (“Kirk”). Plaintiffs originally filed this action in the Franklin County, Ohio Court of

Common Pleas on September 26, 2011. Defendants removed this action on November 1, 2011,

asserting that the court has diversity jurisdiction. This case is now before the Court on Plaintiffs’

Motion to Remand. (ECF No. 12.) Plaintiffs contend that complete diversity is lacking under 28

U.S.C. § 1332(a). For the reasons that follow, the undersigned RECOMMENDS that the Court

GRANT Plaintiffs’ Motion to Remand. 

I. BACKGROUND

 Plaintiffs’ claims arise from a motor vehicle accident involving Miranda Olmstead and

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Kirk.1

 In their Complaint, Plaintiffs assert that the accident occurred when Kirk negligently

caused a tractor trailer he was operating to go left of center and crash into a vehicle in which Ms.

Olmstead was a passenger. (Compl. ¶¶ 7-8.) Plaintiffs maintain that at the time of the accident

Kirk was acting within the course and scope of his employment with Defendant Mr. Bult’s Inc.

(“MBI”). (Compl. ¶¶ 9-10.) Plaintiffs and Kirk are citizens of Ohio, while MBI is an Illinois

corporation. (Notice Removal ¶¶ 9-11.) Plaintiffs seek to recover damages against Defendants

Kirk and MBI.

Defendants contend that diversity exists and that Kirk’s Ohio citizenship should be

disregarded. Defendants maintain that Plaintiffs fraudulently joined Kirk to this action and he is

a nominal party. In support of their theory of fraudulent joinder, Defendants assert that Plaintiffs

cannot join a primarily liable defendant in the same action as a secondarily liable defendant to

defeat diversity jurisdiction. Moreover, Defendants contend that Kirk is fraudulently joined or a

nominal party because Plaintiffs do not intend to collect a judgment from him. Defendants stress

that Kirk was a low level employee of MBI. Plaintiffs, on the other hand, maintain that they did

not fraudulently join Kirk because Ohio law allows for primarily and secondarily liable

defendants to be joined in the same action. Plaintiffs also assert that Kirk is not a nominal party

because he has a real interest in the outcome of the case.

II. STANDARD

Federal courts have limited subject-matter jurisdiction. “[T]he intent of Congress

drastically to restrict federal jurisdiction in controversies of diverse citizens has always been

1

Plaintiff Yvonne Metheney is Attorney in Fact for Miranda Olmstead, the party who was

allegedly injured in the motor vehicle accident.

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rigorously enforced by the courts.” St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283,

288 (1938). Removal is proper in “any civil action brought in a State court of which the district

courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a). Federal district

courts have original jurisdiction over claims involving either a federal question pursuant to 28

U.S.C. § 1331 or arising among diverse citizens pursuant to 28 U.S.C. § 1332. 

Federal courts have “original ‘diversity’ jurisdiction where the suit is between citizens of

different states and the amount in controversy exceeds $75,000, exclusive of costs and interest.”

Rogers v. Wal-Mart Stores, Inc., 230 F.3d 868, 871 (6th Cir. 2000) (citing 28 U.S.C. § 1332(a)).

The Court must determine “whether complete diversity exists at the time of removal.” Coyne v.

American Tobacco Co., 183 F.3d 488, 492 (6th Cir. 1999). 

The removing party bears the burden of demonstrating federal jurisdiction and all doubts

should be resolved against removal. Eastman v. Marine Mech. Corp., 438 F.3d 544, 549-50 (6th

Cir. 2006). The removing party must demonstrate such jurisdiction “by competent proof that the

complete diversity and amount-in-controversy requirements are met.” Cleveland Housing

Renewal Project v. Deutsche Bank, 621 F.3d 554, 559 (6th Cir. 2010) (citing Hertz Corp. v.

Friend, 130 S.Ct. 1181, 1194-1195 (2010)).

III. LEGAL ANALYSIS

Considering all of the parties in this controversy, complete diversity is lacking in this

case because Plaintiffs and Defendant Kirk are both citizens of Ohio. Therefore, federal

jurisdiction only exists if the Court may disregard Kirk’s citizenship. To decide this issue, the

Court must consider whether Plaintiffs fraudulently joined Kirk or whether Kirk is a nominal

party. Ultimately, because Kirk is neither fraudulently joined nor a nominal party, the

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undersigned finds that complete diversity is lacking and remand is necessary.

A. Fraudulent Joinder

Fraudulent joinder is a judicially created doctrine that permits a defendant to remove a

case from state court to federal court where complete diversity of citizenship is lacking. Coyne,

183 F.3d at 493. A defendant is fraudulently joined in an action when the plaintiff is unable to

plead a colorable state law cause of action against that defendant. Id. In considering fraudulent

joinder, “the question is whether there is arguably a reasonable basis for predicting that the state

law might impose liability on the facts involved.” Walker v. Philip Morris USA, Inc., 443 F.

App’x 946, 951 (6th Cir. 2011) (internal quotations omitted). “[T]he determination of fraudulent

joinder is to be based on whether there is a real intention on colorable grounds to procure a joint

judgment [against the diverse and non-diverse defendants]. . . . [T]here must be some reasonable

basis for believing that there is joint liability.” Eckhart v. Depuy Orthopedics, Inc., No.

2:03-cv-1063, 2004 WL 524916, at *4 (S.D. Ohio March 3, 2004) (internal quotations omitted). 

A party’s motive for joining a non-diverse party is immaterial to the fraudulent joinder

determination. Walker, 443 F. App’x at 951. “Similarly, whether the plaintiffs will ultimately

recover against the removing defendants is also immaterial.” King v. Centerpulse Orthopedics,

Inc., No. 1:05–CV–1318, 2006 WL 456478, at *2 (N.D. Ohio Feb. 24, 2006); see also Myers v.

Air Serv Corp., No. 1:07cv911, 2008 WL 149136, at *2 (E.D. Va. Jan. 9, 2008) (“Thus, the

crucial question pertains to the likelihood of liability, not the likely success of collection

efforts.”). Disputed questions of fact and uncertainties about controlling state law should be

resolved in favor of the non-removing party. Coyne, 183 F.3d at 493 (citing Alexander v.

Electronic Data Sys. Corp., 13 F.3d 940, 949 (6th Cir. 1994)).

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Here, Plaintiffs allege sufficient facts to state colorable negligence claims against both

MBI and Kirk under Ohio law. Plaintiffs’ claim against Kirk is based on Ohio common law

negligence. In order to recover on a negligence claim in Ohio, Plaintiffs must show that

Defendant Kirk breached a duty he owed to Plaintiff Olmstead which proximately caused her

injury. Eisnnicher v. Bob Evans Farms Rest., 310 F. Supp. 2d 936, 962 (S.D. Ohio 2004). In

this case, Plaintiffs allege that Kirk drove a tractor trailer left of the center line causing a motor

vehicle accident, which injured Plaintiff Olmstead. These allegations are sufficient to state a

colorable cause of action against Kirk under Ohio law.2

Although Plaintiffs have colorable claims against both MBI and Kirk, Defendants

maintain that Plaintiffs cannot join them both in the same action under Ohio law.3 Defendants

rely heavily on Pierce v. Norfolk & Southern Ry. Co., No. 1:05CV0190, 2005 WL 1114437

(N.D. Ohio May 9, 2005) for their assertion. In Pierce, the court determined that the defendants

had been fraudulently joined. Id. at *2–3. In so doing, the court held that a plaintiff could not

join employees and secondarily liable employers in the same action under Ohio law. Id. The

Pierce court based its conclusion on the Ohio Supreme Court’s decision in Shaver v. Shirks

2

 Although not pertinent to the argument that Plaintiffs fraudulently joined Defendant

Kirk, Plaintiffs also plead a colorable claim against MBI under state law. Under the doctrine of

respondeat superior, an employer may be jointly liable for the negligent acts of its employees

committed within the scope of their employment. Groob v. Keybank, 108 Ohio St.3d 348, 356

(2006). Plaintiffs allege that Kirk was acting in the course and scope of his employment with

MBI when the accident, and Kirk’s alleged negligence, occurred.

3

 The parties do not address whether, in considering the fraudulent-joinder doctrine, the

Court applies state or federal procedural law in determining whether two potentially liable

parties are appropriately joined in the same action. Because the undersigned finds that both Ohio

and federal law permit joinder of Defendants in the same action, it is unnecessary to reach this

issue. 

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Motor Express Corp., 163 Ohio St. 484, 496 (Ohio 1955). The Pierce court noted that in

Shaver, the Ohio Supreme Court concluded that a plaintiff could not join primarily and

secondarily liable defendants in the same action. 163 Ohio St. at 496. 

After Shaver, however, the Ohio Legislature enacted Ohio Revised Code § 2307.191. 

See Darling v. Home Gas & Appliances, Inc, 175 Ohio St. 250, 250–51 (Ohio 1963). This new

provision altered Ohio law, allowing a plaintiff to join a primarily liable defendant and a

secondarily liable defendant in the same action. Ostrander v. Parker-Fallis, 29 Ohio St.2d 72,

73 (Ohio 1972) (holding that “the rule that such defendants may not be joined, was overruled in

this state by the enactment of Ohio Rev. Code § 2307.191”); see also Darling, 175 Ohio St. at

250-51 (holding that a master and servant could be joined in an action for negligence under Ohio

Rev. Code § 2307.191). 

Although Ohio Civil Rule 20 has since replaced Ohio Revised Code § 2307.191, the two

provisions contain nearly identical language with regard to joinder of parties. See Ostrander 29

Ohio St.2d at 73 n.1; Williams v. Gragston, 7 Ohio App.3d 369, 371 (Ohio Ct. App. 1982).

Consequently, the language of Ohio Civil Rule 20, like that of Ohio Revised Code § 2307.191,

allows for the joinder of primarily and secondarily liable defendants.4

 Ohio Civil Rule 20

specifically provides:

All persons may be joined in one action as defendants if there is asserted against

them jointly, severally, or in the alternative, any right to relief in respect of or

4

Tellingly, the Supreme Court of Ohio has recently implied that in certain instances of

vicarious liability the employee must be joined in the suit. See generally Natl. Union Fire Ins. Of

Pittsburgh v. Wuerth, 122 Ohio St.3d 594 (2009) (suggesting that a legal malpractice action

could not be maintained against the employer when the employee was not included in the

action).

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arising out of the same transaction, occurrence, or succession or series of

transactions or occurrences and if any question of law or fact common to all

defendants will arise in the action. 

Ohio Civ.R. 20(a). 

In this case, Plaintiffs can pursue claims against both Kirk and MBI within the same

action under Ohio law. Plaintiffs can join Kirk and MBI in the same action because the right to

relief arises out of the same transaction or occurrence and common questions of law or fact will

arise in the action. The same result would occur under Federal Rule of Civil Procedure 20,

which applies the same basic test.5

 See, e.g., Wayman v. Accor North Am., Inc., 486 F.Supp.2d

1280, 1285 (D. Kan. 2007) (holding that plaintiff could join a non-diverse employee and his

vicariously liable employer in one action because it satisfied the requirements for joinder under

Rule 20)). Plaintiffs, therefore, have not fraudulently joined Defendant Kirk in this action. 

B. Nominal Parties

Defendants also maintain that Kirk is a nominal party. A nominal party is not included as

a “party in interest” and may be ignored in deciding whether diversity jurisdiction exists. 

Barrientos v. UT-Battelle, LLC, 284 F.Supp.2d 908, 913 (S.D. Ohio 2003). In order for a nondiverse defendant to be a nominal party for the purpose of ignoring that party’s citizenship, the

party “must have no real interest in the outcome of the case.” Id. at 913. As this Court has

described:

A real party in interest defendant is one who, by the substantive law, has the duty 

sought to be enforced or enjoined. [Citation omitted]. In contrast to a “real party in

5

 Ohio Civ. R. 20 is based directly on Fed. R. Civ. P. 20. See Ohio Civ. R. 20 (Staff

Notes, 1970).

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interest,” a formal or nominal party is one who, in a genuine legal sense, has no

interest in the result of the suit.

Local Union No. 172 Int'l Ass'n of Bridge, Structural Ornamental & Reinforcing Ironworkers v.

P.J. Dick Inc., 253 F.Supp.2d 1022, 1026-27 (S.D. Ohio 2003) (quoting Rose v. Giamatti, 721

F.Supp. 906, 914 (S.D.Ohio 1989)). If “the nondiverse party is a real party in interest, it is

immaterial that his joinder was motivated by a desire to defeat jurisdiction.” Certain Interested

Underwriters at Lloyd's, London, Eng. v. Layne, 26 F.3d 39, 42 (6th Cir. 1994).

Here, Kirk is not a nominal party whose citizenship may be ignored. Defendants argue

that Plaintiffs have no intent of collecting a judgment against Kirk, because he “was merely a

low-level employee and truck driver. . . .”6

 (Notice Removal ¶15.) The financial situation of a

defendant, however, does not determine whether a defendant is a nominal party. See NFC

Acquisition, LLC v. Comerica Bank, 640 F.Supp.2d 964, 974 (N.D. Ohio 2009). Here, Plaintiffs

seek to collect damages for Kirk’s alleged breach of duty through their claim. Plaintiffs allege

that he is personally liable and seek a monetary judgment from him. Therefore, Kirk is a real

party in interest for the purposes of diversity.

IV. CONCLUSION

Because the Defendants have failed to establish complete diversity, the undersigned

RECOMMENDS that the Court GRANT Plaintiffs’ Motion to Remand.

6

 Defendants rely on Linnin v. Michielsens, 372 F.Supp.2d 811, 823 (E.D. Va. 2005) for

the proposition that a plaintiff cannot join a low-level employee, from whom it does not intend to

collect a judgment, for the purposes of defeating diversity jurisdiction. As detailed above,

however, a plaintiff’s motivations for joinder do not control whether a defendant is fraudulently

joined or a nominal party. Furthermore, unlike the employee in Linnin, Kirk’s actions play a

central role in determining liability in this case.

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V. NOTICE

If any party seeks review by the District Judge of this Report and Recommendation, that

party may, within fourteen (14) days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation, and the part in

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). 

Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the District Judge and

waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to

magistrate judge's report and recommendation). Even when timely objections are filed, appellate

review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994

(6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to specify the

issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation omitted)).

Date: March 13, 2012 /s/ Elizabeth A. Preston Deavers 

 Elizabeth A. Preston Deavers

 United States Magistrate Judge

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