IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

RICHARD JONES,

Plaintiff,

Civil Action 2:17-cv-1127

v. Judge Michael H. Watson

Magistrate Judge Jolson

OLD DOMINION FREIGHT

LINE, INC., et al.,

Defendants.

REPORT AND RECOMMENDATION

AND ORDER

This matter is before the Court on Plaintiff’s Motion to Remand to State Court (Doc. 7) 

and Plaintiff’s Motion for Leave to Conduct Limited Jurisdictional Discovery Related to 

Plaintiff’s Motion to Remand (Doc. 17). For the reasons that follow, it is RECOMMENDED

that Plaintiff’s Motion to Remand be GRANTED, but Plaintiff’s request for attorney’s fees is 

DENIED. Further, Plaintiff’s Motion to Conduct Limited Jurisdiction Discovery is DENIED.

I. BACKGROUND

Plaintiff initiated this action on November 17, 2017, in the Franklin County Court of 

Common Pleas against his former employer, Old Dominion Freight Line, Inc. (“Old Dominion”) 

and his former terminal manager John Zielinksi, after Plaintiff was terminated from his 

employment as a truck driver. (Doc. 3 at 1). Plaintiff alleges that following rotator cuff 

surgery, he took twelve weeks of leave under the Family Medical Leave Act and then requested 

unpaid leave, but instead was fired. (Id. at 2). According to Plaintiff, he was “one of the oldest 

employees at his terminal.” (Id.). Based upon these allegations, Plaintiff brought six claims 
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against Defendants under Ohio Revised Code Chapter 4112, stemming from alleged (1) 

discrimination on account of Plaintiff’s disability, perceived disability, and age; (2) a failure to 

accommodate Plaintiff’s disability; and (3) a failure to engage in the interactive process. (Id. at 

5–11). 

Defendants removed the case to this Court, asserting diversity jurisdiction under 28 U.S.C. 

§ 1332. (Doc. 1). Defendants represent that Plaintiff is a citizen of the State of Ohio and 

Defendant Old Dominion is a citizen of both Virginia and North Carolina. (Id. at 2–3). 

Defendants acknowledge that Defendant Zielinksi, like Plaintiff, is also a citizen of the State of 

Ohio. However, Defendants assert that his citizenship “should be disregarded for purposes of 

determining jurisdiction under 28 U.S.C. § 1441....” (Id. at 3). Specifically, Defendants 

argue that the Court should ignore Defendant Zielinksi’s citizenship because the Complaint 

presents no colorable claim against him and Plaintiff fraudulently joined him in an apparent effort 

to defeat this Court’s jurisdiction. (Id.). 

The following week, Defendants moved to dismiss the claims against Defendant Zielinksi, 

arguing that Plaintiff failed to plead facts sufficient to establish Defendant Zielinski’s individual 

liability. (Doc. 4). Then, on January 5, 2018, Plaintiff filed an Amended Complaint, alleging 

the same causes of action but bolstering the allegations as to Defendant Zielinksi. (Doc. 6). 

That same day, Plaintiff filed a Motion to Remand, requesting that this Court remand the case 

back to the Franklin County Court of Common Pleas (hereinafter, “the State Court”) for lack of 

subject matter jurisdiction. (Doc. 7). The Court subsequently stayed the briefing on 

Defendants’ Motion to Dismiss in order to address the Motion to Remand first. (Doc. 9). 

Defendants filed their Response in Opposition to the Motion to Remand (Doc. 14), but 

rather that filing a Reply (even after seeking an extension to do so), Plaintiff filed a Motion for 
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Leave to Conduct Limited Jurisdictional Discovery Related to Plaintiff’s Motion to Remand 

(Doc. 17). In that Motion, Plaintiff requested that his deadline to file a Reply to the Motion to 

Remand be stayed (id.), which the Court granted. (Doc. 18). After the Court expedited 

briefing on jurisdictional discovery (Doc. 18), Defendants filed their Response in Opposition 

(Doc. 19), and Plaintiff filed his Reply (Doc. 20). The Court now considers both Motions.1 

II. LEGAL STANDARD

“[A] defendant may remove a state court case to federal court only if it could have been 

brought there in the first place; that is, if the federal court would have original jurisdiction over the 

case.” Strong v. Telectronics Pacing Sys., Inc., 78 F.3d 256, 259 (6th Cir. 1996). Relevant to this 

case, district courts have federal jurisdiction based on diversity citizenship in actions “where the 

matter in controversy exceeds the sum or value of $75,000” and where the controversy is between 

“citizens of different States.” 28 U.S.C. § 1332; see also 3LI Consultant Grp. v. Catholic Health 

Partners, No. 1:15-cv-455, 2016 WL 246202, at *1 (S.D. Ohio Jan. 21, 2016). The statute

requires “complete” diversity of citizenship, meaning no plaintiff resides in the same state as any 

defendant. Myers Indus., Inc. v. Young, No. 5:13-CV-01278, 2013 WL 4431250, at *1 (N.D. Ohio 

Aug. 16, 2013) (citing Lincoln Prop. Co. v. Roche, 546 U.S. 81, 84 (2005)). If complete diversity 

of citizenship exists, defendants may remove an action filed by a plaintiff in state court pursuant to 

28 U.S.C. § 1441. Id.

If, however, it appears that the federal district court to which a case was removed lacks 

subject matter jurisdiction, the case must be remanded. See, e.g., Woodworth v. Time Warner 

Cable, Inc., No. 1:15 CV 1685, 2015 WL 6742085, at *1 (N.D. Ohio Nov. 2, 2015) (“Under 28 

U.S.C. § 1447(c), cases originally filed in a state court must be remanded if, at any time before trial, 

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Although Plaintiff did not have an opportunity to file a Reply to the Motion to Remand, because the Court’s 

recommendation is in Plaintiff’s favor, there is no prejudice. 
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it appears that the federal district court to which they were removed lacks subject matter 

jurisdiction.”). “However, the ‘fraudulent joinder of non-diverse defendants will not defeat 

removal on diversity grounds.’” Id. (quoting Coyne v. The Am. Tobacco Co., 183 F.3d 488, 493 

(6th Cir. 1999)). Thus, if a non-diverse party has been joined as a defendant—and in the absence 

of a federal question—the removing defendant may avoid remand by demonstrating that the 

non-diverse party was fraudulently joined. Murray Energy Holdings Co. v. Bloomberg, L.P., No. 

2:15-CV-2845, 2016 WL 3355456, at *2 (S.D. Ohio June 17, 2016). Put another way, “fraudulent 

joinder is a judicially created doctrine that provides an exception to the requirement of complete 

diversity.” Coyne, 183 F.3d at 493 (citation and internal quotes omitted).

To determine whether a defendant is fraudulently joined, a court must ask whether “it is 

‘clear that there can be no recovery under the law of the state on the cause alleged or on the facts in 

view of the law.’” Murray Energy Holdings Co., 2016 WL 3355456, at *2 (quoting Alexander v. 

Elec. Data Sys. Corp., 13 F.3d 940, 949 (6th Cir. 1994)). In other words, “the question is whether 

a colorable cause of action exists against the non-diverse defendant.” Markins v. Sw. Airlines Co., 

No. 5:17 CV 793, 2017 WL 4050195, at *2 (N.D. Ohio Sept. 13, 2017) (citing Jerome–Duncan, 

Inc. v. Auto-By-Tel, L.L.C., 176 F.3d 904, 907 (1994)). Importantly, a court does not probe a 

plaintiff’s motive for joining a non-diverse defendant to the lawsuit because motive is immaterial to 

the analysis. See, e.g., Jerome–Duncan, Inc., 176 F.3d at 907; see also Kovacic v. Clark Retail 

Ent., Inc., No. 1:08CV1921, 2008 WL 11381423, at *2 (N.D. Ohio Nov. 19, 2008) (“The court 

examines the legal sufficiency of the claim, not [a plaintiff’s] actual motive for joining the 

non-diverse defendants.”) (listing cases). 

Ultimately, the removing party bears the burden of demonstrating that no colorable cause of 

action exists under state law. Murray Energy Holdings Co., 2016 WL 3355456, at *2. Courts 
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have described this burden as “an uphill struggle in persuading the Court that not only does the 

complaint fail to state a claim against the non-diverse defendant, but that there is not even a 

colorable argument that it does.” Eckhart v. Depuy Orthopaedics, Inc., No. 203-CV-1063, 2004 

WL 524916, at *2 (S.D. Ohio Mar. 3, 2004); see also Walker v. Philip Morris USA, Inc., 443 F. 

App’x 946, 952 (6th Cir. 2011) (“The burden of persuasion on those who claim fraudulent joinder is 

a heavy one.”). 

Courts have explained the fraudulent joinder inquiry as similar to one under a “motion to 

dismiss under Fed. R. Civ. P 12(b)(6), but as even more deferential” to a plaintiff. Markins, 2017 

WL 4050195, at *2; see also Casias v. Wal–Mart Stores, Inc., 695 F.3d 428, 433 (6th Cir. 2012) 

(“When deciding a motion to remand, including fraudulent joinder allegations, we apply a test 

similar to, but more lenient than, the analysis applicable to a Rule 12(b)(6) motion to dismiss.”). 

Further, as is the case over any dispute regarding whether removal is proper, all doubts must be 

resolved in favor of remand. See, e.g., Kovacic, 2008 WL 11381423, at *2 (“Any disputed 

questions of fact or ambiguities of state law are resolved in favor of the non-removing party.”); 

Long v. Bando Mfg. Co. of Am., Inc., 201 F.3d 754, 757 (6th Cir. 2000) (stating “removal statutes 

are to be narrowly construed” because “they implicate federalism concerns”). All of this is to 

say that Defendants’ burden here is very high.

III. DISCUSSION

A. Motion to Remand (Doc. 7)

As an initial matter, the Court must consider Plaintiff’s allegations at the time of removal 

when analyzing fraudulent joinder. Markins, 2017 WL 4050195, at *1 (citing Coyne, 183 F.3d at

492). Thus, the Court takes into account only allegations in the original Complaint (“the 

Complaint”), and not the added factual allegations made in the January 5, 2018 Amended 
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Complaint (Doc. 8). See Markins, 2017 WL 4050195, at *1.

With this in mind, the Court turns to Defendants’ arguments that Defendant Zielinksi was 

fraudulently joined because Plaintiff “has no colorable basis for his Ohio Revised Code Chapter 

4112 claims” against him. (Doc. 1 at 3). Specifically, Defendants contend that Plaintiff’s 

Complaint does not allege that Defendant Zielinski: “(1) played any role in setting physical 

requirements for Old Dominion’s drivers; (2) told Plaintiff that he could not work because of his 

physical restrictions; (3) refused to accommodate any requests made by Plaintiff; (4) refused to 

engage Plaintiff in the interactive process; (5) treated Plaintiff any differently on the basis of 

Plaintiff’s alleged disability; (6) perceived Plaintiff as disabled; or (7) treated Plaintiff any 

differently on the basis of Plaintiff’s age.” (Id. at 3–4). 

Although the Complaint has few explicit allegations against Defendant Zielinski as an 

individual, Plaintiff also alleges that “Defendants,” which includes Defendant Zielinski, violated 

various sections of O.R.C. § 4112.02 in his Claims for Relief section within the Complaint. (Id. at 

5–11). Further, the Complaint alleges that Defendant Zielinski is a resident of the State of Ohio; 

that he was “the terminal manager with supervisory authority over” Plaintiff; and that he “was an 

individual responsible for firing” Plaintiff. (Doc. 3 at 4).

Defendants concede that a supervisor/manager may be held jointly and/or severally liable 

with his employer for discriminatory conduct in violation of O.R.C. § 4112. (Doc. 14 at 10); see 

also Genaro v. Cent. Transp., Inc., 84 Ohio St.3d 293, 296 (1999). Defendants argue, however, 

that under Williams v. General Electric Co., 269 F. Supp. 2d 958, 970 (S.D. Ohio 2003), individual 

supervisors and/or managers can only be held liable when they play a “direct role in making [the 

complained of] employment decision[s].” (Doc. 14 at 10). Here, Plaintiff alleges that Defendant

Zielinski had supervisory authority and was an individual responsible for his firing. Although the 
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allegations are somewhat terse, Plaintiff’s core allegation is that Defendant Zielinski was not 

simply a bystander, but instead an active participant who played a direct role in the firing process. 

See McKinney v. CVS Caremark Corp., No. 2:13-CV-00863, 2014 WL 171838, at *4 (S.D. Ohio 

Jan. 13, 2014), adopted by No. 2:13-CV-863, 2014 WL 1608489 (S.D. Ohio Apr. 22, 2014).

As explained above, even if a complaint “is too vague or conclusory to withstand a motion 

to dismiss on remand, the sufficiency of the Complaint faces a higher threshold than does the 

establishment of a colorable cause of action under the removal statute.” Markins, 2017 WL 

4050195, at *3. Based on this standard and Plaintiff’s allegations, “the Court cannot say to a 

requisite degree of certainty that [P]laintiff will be unable to state a claim against” Defendant

Zielinski, especially because all doubts must be resolved in favor of remand. See Vogt v. Total 

Renal Care, Inc., No. 1:13 CV 1719, 2013 WL 5740066, at *3 (N.D. Ohio Oct. 22, 2013). 

Although Defendant Zielinski stated in an affidavit that he played “no role in deciding whether to 

extend [Plaintiff’s] medical leave and/or terminate his employment” (Doc. 14-1 at 2), this simply 

creates a “he said, he said” situation. This Court has previously held that,

because the appropriate standard for a claim of fraudulent joinder is whether there is 

a possibility that the state court would find the complaint states a cause of action 

against the resident defendant . . . contested issues of fact and uncertainty as to the 

controlling substantive law should be resolved in favor of the plaintiff.

Eckhart, 2004 WL 524916, at *5 (quotations and citations omitted). Because there is “a 

reasonable possibility that [Plaintiff’s] factual allegations state a claim under state law,” the actual 

“truth of the allegations and merits” are to be left to the trier of fact—and are not to be resolved at 

this juncture. Id.

Finally, Defendants aver that Plaintiff fraudulently joined Defendant Zielinksi “in an 

apparent effort to defeat the jurisdiction of this Court.” (Id. at 3). As explained above, 

however, Plaintiff’s motives are irrelevant to the fraudulent joinder analysis. See, e.g., Jerome–
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Duncan, Inc., 176 F.3d at 907. Instead, the Court’s only inquiry is “whether there is arguably a 

reasonable basis for predicting that the state law might impose liability on the facts involved.” 

Probus v. Charter Comm., LLC, 234 F. App’x 404, 407 (6th Cir. 2007); see also Eckhart, 2004 WL 

524916, at *3 (“[T]he Court’s task is limited to determining whether the complaint states any claim 

against the resident defendant that is even arguably permitted under state law.”). 

Applying this standard, the Court finds that the Complaint states a colorable claim and 

Defendant Zielinski was not fraudulently joined. Consequently, complete diversity between the 

adverse parties does not exist, and the Court lacks jurisdiction over this matter. See, e.g., id. The 

Court notes, however, that it may very well see this case again: If the State Court agrees with 

Defendants’ merits arguments regarding the claims against Defendant Zielinksi and dismisses him 

from the case, Defendant Old Dominion may choose to remove the case yet again. But that is 

for the State Court to decide. See Eckhart, 2004 WL 524916, at *2 (“When a colorable argument 

in support of the claim against the non-diverse defendant exists, although the defendant may 

ultimately succeed in having the claim dismissed by the state court, removal of the case is 

improper.”). For those reasons, the undersigned RECOMMENDS that this case be 

REMANDED. 

Finally, Plaintiff has asked this Court for an award of fees and costs incurred as a result of 

Defendants’ removal of this case. (Doc. 7). Under 28 U.S.C. § 1447, it is within the Court’s 

discretion whether to award such fees and costs. When an objectively reasonable basis exists for 

seeking removal, however, fees should be denied. Paul v. Kaiser Found. Health Plan of Ohio, 701 

F.3d 514, 523 (6th Cir. 2012). It cannot be said here that Defendants lacked an objectively 

reasonable basis for removal. Thus, Plaintiff’s request for award of fees and costs is DENIED. 
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B. Motion for Limited Jurisdictional Discovery (Doc. 17)

In an effort to support his Motion to Remand, Plaintiff seeks jurisdictional 

discovery—namely, 16 document requests, depositions of Defendant Zielinksi, non-party Vynae 

Jamison, and a 30(B)(6) notice of deposition. (Doc. 17). While a court has discretion “to allow 

affidavits, documents, and even a limited evidentiary hearing to resolve disputed jurisdictional

facts,” such discovery is not necessary in this case. Hicks v. Emery Worldwide, Inc., 254 F. Supp. 

2d 968, 971 (S.D. Ohio 2003); see also Walker v. Philip Morris USA, Inc., 443 F. App’x 946, 953 

(6th Cir. 2011) (holding that a court may pierce the pleadings “only to identify the presence of 

discrete and undisputed facts that would preclude plaintiff's recovery against the in-state 

defendant”). Here, as described above, the parties dispute Defendant Zielinski’s role in 

Plaintiff’s termination. The affidavits, potential discovery responses, and depositions Plaintiff 

seeks all concern Defendant Zielinski’s role and whether the facts actually support Plaintiff’s

claims. As such, the requested discovery goes to the heart of this matter and is “more 

appropriately left for the court which ultimately takes control of the case.” Markins, 2017 WL 

4050195, at *2 (quoting Little v. Perdue Pharma, L.P., 227 F. Supp. 2d 838, 847 (S.D. Ohio 2002). 

Consequently, Plaintiff’s Motion for Limited Jurisdictional Discovery (Doc. 17) is DENIED. 

IV. CONCLUSION

For those reasons, it is RECOMMENDED that Plaintiff’s Motion to Remand (Doc. 7) be

GRANTED, but Plaintiff’s request for attorney’s fees is DENIED. Further, Plaintiff’s Motion 

for Leave to Conduct Limited Jurisdictional Discovery Related to Plaintiff’s Motion to Remand 

(Doc. 17) is DENIED.

IT IS SO ORDERED.

Date: April 3, 2018 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE