UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

American Zurich Ins. Co., et at., 

Plaintiffs, 

-v- Case No. 2:12-cv-01036 

Sunlight Transport LLC, et at., Judge Michael H. Watson 

Defendants. 

OPINION AND ORDER 

The Court sua sponte REMANDS this case to the Franklin County Court of 

Common Pleas. The Court lacks subject matter jurisdiction over this case 

because there is not complete diversity among the parties. 

Plaintiffs filed suit in the Franklin County Court of Common Pleas against 

Defendants in November of 2012. Plaintiff American Zurich Insurance Company 

is a Florida corporation with its principal place of business in Illinois. Plaintiff 

Naughton Insurance Co. is a Rhode Island corporation with its principal place of 

business in Rhode Island. Plaintiff American Motorcyclist Association, Inc. is an 

Ohio corporation with its principal place of business in Ohio. Notice Removal 3, 

ECF No.1. 

Defendant Daimler Trucks North America LLC is a Delaware corporation 

with its principal place of business in Oregon. Defendant Sunlight Transport LLC 

is an Ohio limited liability company with its principal place of business in Ohio. 

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Notice Removal 3, ECF No. 1 . All of these entities were named in the complaint 

in the state court action before it was removed to this court. Notice Removal Ex. 

D, ECF No. 1-4. 

Defendant Daimler Trucks North America LLC removed the case to this 

Court pursuant to 28 U.S.C. § 1441(b) before Sunlight Transport LLC was 

served. Notice Removal 3, ECF No. 1. Section 1441 (b) states, "a civil action 

otherwise removable solely on the basis of the jurisdiction under section 1332(a) 

of this title may not be removed if any of the parties in interest properly joined 

and served as defendants is a citizen of the State in which such action is 

brought." 28 U.S.C. § 1441(b) (emphasis added). Daimler stated removal was 

proper because "complete diversity exists among the parties properly joined 

and served pursuant to 28 U.S.C. § 1441(b)," as the forum defendant (Sunlight 

Transport LLC) had not been served at the time of removal. Notice Removal 4, 

ECF No. 1 (emphasis added). 

At an April 22, 2013 teleconference, the Court represented to the parties 

that it intended to remand the case for lack of jurisdiction. Given that 

representation, Defendants recently filed a "Suggestion of Lack of Authority to 

Remand Case." ECF No. 20. Defendants argued that if the Court intended to 

remand because removal was improper under§ 1441 (b )(2), any violation was 

procedural and was waived by Plaintiffs. Defendants are correct as to that point. 

Under§ 1441(b)(2), Defendant Daimler's removal was likely improper 

because Sunlight Transport LLC was a non-diverse resident defendant. 

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Defendant Daimler was likely not permitted to disregard resident Defendant 

Sunlight Transport LLC simply because it had not been served when determining 

whether to remove under§ 1441(b). Percherski v. Gen. Motors Corp., 636 F.2d 

1156, 1160 (8th Cir. 1981) ("the prevailing view is that the mere failure to serve a 

defendant who would defeat diversity jurisdiction does not permit a court to 

ignore that defendant in determining the propriety of removal."); Preaseau v. 

Prudential Ins. Co. of Am., 591 F.2d 74, 78 (9th Cir. 1979); Finley v. Higbee Co., 

1 F. Supp 2d 701, 703 (N.D. Ohio 1997). Nonetheless, Plaintiffs waived their 

right to object to improper removal under§ 1441(b)(2). RFF Family P'Ship, LP v. 

Wasserman, 316 F. App'x 410, 411 (6th Cir. 2009) ("The forum defendant 

provision is a procedural removal requirement that is waived if it is not raised by 

a timely motion to remand."); see a/so e.g., Lively v. Wild Oats Markets, Inc., 456 

F.3d 933, 936 (9th Cir. 2006), Hurley v. Motor Coach Indus., Inc., 222 F.3d 377, 

379 (7th Cir. 2000). 

However, the Court is not remanding for improper removal pursuant to 

§ 1441(b}(2) because Sunlight Transport LLC is a forum defendant. The Court 

remands this case because it lacks subject matter jurisdiction-Plaintiff American 

Motorcyclist Association, Inc. and Defendant Sunlight Transport LLC are both 

Ohio citizens. 

It is axiomatic that federal courts are courts of limited jurisdiction. Freeland 

v. Liberty Mut. Fire Ins. Co., 632 F.3d 250, 255 (6th Cir. 2011 ). Congress has 

granted federal courts jurisdiction over "all civil actions where the matter in 

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controversy exceeds the sum or value of $75,000 ... and is between D citizens 

of different States .... " 28 U.S.C. § 1332(a)(1 ). "[D]iversity of citizenship 

requires complete diversity between all plaintiffs on one side and all defendants 

on the other side." Glancy v. Taubman Ctrs., Inc., 373 F.3d 656, 664 (6th Cir. 

2004). "If at any time before final judgment it appears that the district court lacks 

subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c). 

Defendants have not offered case law to support their assertion that 

because the case was removed after Sunlight Transport LLC had been named in 

the state court complaint but before it had been served, it was therefore not a 

party to the action, and this Court has diversity jurisdiction. The Court concludes 

that there is not complete diversity. Pullman Co. v. Jenkins, 305 U.S. 534, 541 

(1939) (stating a non-resident defendant may not remove a non-separable 

controversy prior to a resident defendant being served because "there is no 

diversity of citizenship .... "); Pecherski v. Gen. Motors Corp., 636 F .2d 1156, 

1160 (8th Cir. 1981) ("Whenever federal jurisdiction in a removal case depends 

upon complete diversity, the existence of diversity is determined from the fact of 

citizenship of the parties named and not from the fact of service.") (quoting and 

agreeing with Clarence E. Morris, Inc v. Vitek, 412 F.2d 1174, 1176 (9th Cir. 

1969)); Parekh v. Economy Premier Assurance Co., No. CV 10-5599, 2012 WL 

1020426, at *4 (E.D. N.Y. Jan. 17, 2012) (remanding for lack of subject matter 

jurisdiction a case removed under § 1441 (b) where there was not complete 

diversity), report and recommendation adopted by 2012 WL 1020425, at *1; 

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Wurdack v. Am. Enterprise Life Ins. Co., No.1 :02-CV-109, 2002 WL 32060137, 

at *2 (E. D. Tenn. May 24, 2002) ("Th[e] failure to serve rule only applies where 

the unserved defendant is a non-resident. Under Pullman ... and its progeny, a 

failure to serve process upon a resident defendant does not render a case 

removable."); Kelly v. Drake Beam Morin, Inc., 695 F. Supp. 354, (E.D. Mich. 

1988) ("The fact that a defendant has not been served is irrelevant to the Court's 

determination whether it has jurisdiction over the action based on complete 

diversity of citizenship."); 16 MOORE'S FEDERAL PRACTICE§ 107.14(2}(c)(ii) ("the 

better view is that an unserved defendant's citizenship be considered when the 

defendant's citizenship is clear."). Accordingly, the Court must sua sponte 

remand. 

Therefore, the Court REMANDS this case to the Franklin County Court of 

Common Pleas. 

IT IS SO ORDERED. 

Ml AEL H. WI( ON, JUDGE 

UNITED STATES DISTRICT COURT 

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