UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

Richard Jones, 

Plaintiff, 

v. Case No. 2:17-cv-1127 

Old Dominion Freight Line, Inc., et al., Judge Michael H. Watson 

Defendants. Magistrate Judge Jolson 

OPINION AND ORDER 

Richard Jones (“Plaintiff”), a truck driver, filed this suit 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 

Zielinski (“Zielinski”) 1 (collectively “Defendants”). Compl. 1, ECF No. 3. 

Defendants removed the case to this Court on December 21, 2017, 

asserting diversity jurisdiction under 28 U.S.C. § 1332. ECF No. 1. Defendants 

asserted that Old Dominion is a corporation organized under the laws of Virginia 

with a principal place of business in North Carolina. Id. ¶ 6. Defendants 

conceded that Zielinski is a citizen of Ohio but claimed that he was fraudulently 

joined because Plaintiff had “no reasonable cause of action” against Zielinski. Id.

¶ 7. 

                                                            

1 Plaintiff incorrectly spelled Zielinski as “Zlinski” in the Complaint, but the Court will use 

the correct spelling throughout this Opinion and Order. 
Case No. 2:17-cv-1127 Page 2 of 10

The following week, Defendants moved to dismiss all claims against 

Zielinski pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No. 4. 

Shortly thereafter, Plaintiff filed an Amended Complaint that bolstered the 

allegations against Zielinski. ECF No. 6. Plaintiff also filed a motion to remand 

based on a lack of subject matter jurisdiction. ECF No. 7. 

On April 3, 2018, Magistrate Judge Jolson issued a Report and 

Recommendation and Order (“R&R”), ECF No. 21, recommending that Plaintiff’s 

motion to remand be granted and denying Plaintiff’s request for attorney’s fees.2 

Specifically, Magistrate Judge Jolson found that Zielinski was not fraudulently 

joined but also concluded that Defendants had an objectively reasonable basis 

for removal; therefore, attorney’s fees were denied. R&R 8, ECF No. 21. 

Magistrate Judge Jolson issued the R&R pursuant to Federal Rule of Civil 

Procedure 72(b). Under that rule, the Undersigned must conduct a de novo 

review of any part of the Magistrate Judge’s recommendation on a “matter 

dispositive of a claim or defense” that has received proper objections. Fed. R. 

Civ. P. 72(b)(3). The Undersigned may accept, reject, or modify the R&R, 

receive further evidence, or return the matter to the Magistrate Judge with 

instructions. Id. With respect to any non-dispositive matter, the Undersigned 

                                                            

2 The R&R also denied Plaintiff’s motion to conduct limited jurisdictional discovery, but 

that order is not relevant to Plaintiff’s objection. 
Case No. 2:17-cv-1127 Page 3 of 10

must consider timely objections and modify or set aside any part of the order that 

is clearly erroneous or contrary to law. Fed. R. Civ. P. 72(a).3 

Despite receiving an unfavorable ruling on the motion to remand, 

Defendants did not object to the R&R. However, Plaintiff timely objected to four 

specific portions of the R&R: 1) the denial of attorney’s fees; 2) the decision to 

not allow Plaintiff to file a reply memorandum in support of the motion to remand; 

3) the denial of Plaintiff’s motion for jurisdictional discovery; and 4) the decision 

to not consider the First Amended Complaint when ruling on the motion to 

remand. See generally, ECF No. 22. The latter two objections were raised in the 

event that Defendants objected to the R&R; therefore, because Defendants did 

not object, the Court will not address them. See id. at 15–16. 

A. Plaintiff’s Lack of Reply 

The Court begins by briefly addressing Plaintiff’s second objection—that 

Magistrate Judge Jolson erred by deciding the motion to remand before Plaintiff 

filed a reply. Magistrate Judge Jolson addressed this issue in her R&R in a 

footnote, stating that “[a]lthough Plaintiff did not have an opportunity to file a 

                                                            

3 Plaintiff assumes throughout his objection that Magistrate Judge Jolson’s ruling with 

respect to attorney’s fees was dispositive and therefore subject to de novo review. 

Defendants do not reference the appropriate standard of review. The Court is not 

convinced that the denial of attorney’s fees was a recommendation on a matter 

dispositive of a claim or defense, particularly given the language used in the R&R which 

“recommended that Plaintiff’s Motion to Remand be granted,” but stated that the request 

for attorney’s fees was denied without phrasing it as a recommendation. R&R 1, ECF 

No. 21 (emphasis removed). Nevertheless, because the parties do not brief the issue 

and it does not change the Court’s decision, this opinion will assume de novo review is 

appropriate. 
Case No. 2:17-cv-1127 Page 4 of 10

Reply to the Motion to Remand, because the Court’s recommendation is in 

Plaintiff’s favor, there is no prejudice.” R&R 3, n.1, ECF No. 21. Plaintiff does 

not cite any case law to support the argument that the failure to consider a reply 

is reversible error. In the absence of such support, the Court does not find that 

the failure to consider a reply alone dictates reversal of an otherwise wellreasoned R&R.4 

B. Denial of Attorney’s Fees 

This leaves one primary objection to the R&R: Magistrate Judge Jolson 

erred by denying Plaintiff’s motion for attorney’s fees. Plaintiff raises three 

specific objections to the R&R’s denial of attorney’s fees: 1) the R&R did not 

articulate its specific reasoning; 2) the R&R did not apply the correct legal 

standard; and 3) the R&R erred in finding removal was objectively reasonable. 

Obj. 2–14, ECF No. 22. 

1. The R&R did not articulate its specific reasoning 

 Plaintiff first asserts that the R&R did not articulate specific reasoning for 

denying the motion for attorney’s fees. Obj. 2, ECF No. 22. Plaintiff cites cases 

for the proposition that courts must explain their reasoning and not simply issue 

                                                            

4 Plaintiff asserts that he was prejudiced by the lack of a reply because it “may have 

precluded [him] from preserving arguments should Defendants object to the R&R[],” 

which they did not, and because Plaintiff did not receive the benefit of a reply in support 

of his motion for attorney’s fees. Obj. 15, ECF No. 22. Plaintiff’s contention that his 

lack of a reply could result in his failure to preserve arguments rings hollow. A party is 

not permitted to raise new arguments on reply in any event, so a reply would not have 

expanded the scope of arguments for review. 
Case No. 2:17-cv-1127 Page 5 of 10

conclusory opinions. Id. at 2–3. This is certainly true, but it does not apply to the 

R&R. While it is true that the specific discussion of attorney’s fees in the R&R 

was limited to one paragraph that simply stated the applicable standard and 

concluded that “[i]t cannot be said here that Defendants lacked an objectively 

reasonable basis for removal,” R&R 8, ECF No. 21, the preceding seven pages 

of the R&R addressed the basis for removal and the strength of Defendants’ 

arguments for removal in depth. The R&R stated that “the Complaint has few 

explicit allegations against Defendant Zielinski as an individual” and that “the 

allegations are somewhat terse.” R&R 6–7, ECF No. 21. Nevertheless, the R&R 

also considered the allegations against “Defendants” generally, instead of simply 

those that specifically mentioned Zielinski, and credited the allegation that 

Zielinski “was an individual responsible for firing” Plaintiff. Id. at 6. When 

Magistrate Judge Jolson applied the deferential standard Plaintiff is entitled to on 

a motion to remand challenging fraudulent joinder, she found that remand was 

appropriate. Id. at 7. The R&R provides more than enough reasoning for the 

Court to review Magistrate Judge Jolson’s decision to deny attorney’s fees. 

 The cases Plaintiff cites to support his argument are inapposite. See, e.g., 

Bridgeport Music, Inc. v. Univ.-Mca Music Pub., Inc., 481 F.3d 926 (6th Cir. 

2007) (considering whether “nearly identical” one-page orders granting voluntary 

dismissal with no analysis were sufficient to allow an abuse-of-discretion review); 

DWG Corp. v. Granada Invest., Inc., 962 F.2d 1201, 1202 (6th Cir. 1992) 

(remanding for additional analysis when the initial district court order was totally 
Case No. 2:17-cv-1127 Page 6 of 10

silent on whether fees were appropriate). The R&R recited the applicable legal 

standards with supporting case law and applied the facts of this case. The R&R 

provided sufficient reasoning. 

2. The R&R Did Not Apply the Correct Legal Standard 

Plaintiff next argues that the R&R did not apply the correct legal standard 

for assessing attorney’s fees for improper removal based upon fraudulent joinder. 

The R&R cited the following standards for assessing attorney’s fees: “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).” 

Plaintiff contends that this standard was applied in error because it “did not 

refer to the Sixth Circuit’s “seminal case” interpreting that standard for fraudulent 

joinder removals,” which Plaintiff contends is found in Kent St. Univ. Bd. of 

Trustees v. Lexington Ins. Co., 512 F. App’x 485 (6th Cir. 2013). Setting aside 

the parties’ disagreement over whether this unpublished Sixth Circuit opinion 

represents the seminal case on attorney’s fees awards in fraudulent joinder 

cases, the standard cited in the R&R is fully consistent with the law articulated in 

Kent State. In Kent State, the Sixth Circuit started by referencing the Supreme 

Court’s decision in Martin v. Franklin Capital Corp., 546 U.S. 132, 136–37 (2005), 

which “limited a district court’s discretion to award fees, absent unusual 

circumstances, to those cases where ‘the removing party lacked an objectively 
Case No. 2:17-cv-1127 Page 7 of 10

reasonable basis for seeking removal.’” Kent State, 512 F. App’x at 488 (quoting 

Martin, 546 U.S. at 141). This Supreme Court precedent is what was applied in 

the R&R. 

Plaintiff asserts that Kent State added to the standard that “the 

reasonableness of a fraudulent joinder removal ‘must be viewed through the lens 

of Coyne’ and its well-settled fraudulent joinder standard that imposes a ‘heavy 

burden’ on the removing defendants.” Obj. 4, ECF No. 22. But the Kent State

opinion did not purport to change the applicable standard for awarding fees or 

mandate analysis other than whether removal was objectively reasonable. See 

Kent State, 512 F. App’x at 488–89. Even if it did, in the R&R’s analysis of the 

fraudulent joinder issue, Magistrate Judge Jolson cited Coyne, stated that “the 

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

action exists under state law,” and described Defendants’ burden as “an uphill 

struggle.” R&R 4–5, ECF No. 21 (quoting Murray Energy Holdings Co. v. 

Bloomberg, L.P., No. 2:15-cv-2845, 2016 WL 3355456, at *2 (S.D. Ohio June 17, 

2016) and Eckhart v. Depuy Orthopaedics, Inc., No. 2:03-cv-1063, 2004 WL 

524916, at *2 (S.D. Ohio Mar. 3, 2004)). This is the standard Plaintiff seeks. 

The R&R simply did not unnecessarily repeat this analysis in the portion of the 

R&R specifically discussing attorney’s fees. 

3. The R&R Erred in Finding an Objectively Reasonable Basis for 

Removal 
Case No. 2:17-cv-1127 Page 8 of 10

Plaintiff’s final argument is a general objection that the R&R erred in 

finding that removal was objectively reasonable. Opp. 5, ECF No. 22. This 

objection states that “the three arguments by Defendants were objectively 

unreasonable,” and construes Defendants’ arguments this way: 1) that failure to 

satisfy federal pleading standards constitutes fraudulent joinder; 2) that Plaintiff’s 

intent to make the case non-removable is relevant; and 3) that a fact dispute 

between the parties supports fraudulent joinder. Id. at 5–14. This is an 

inaccurate and incomplete summary of Defendants’ arguments, and none of 

these arguments were relied upon by Magistrate Judge Jolson. 

In their opposition to the motion to remand, Defendants correctly focused 

on the allegations included in the original Complaint, not the Amended 

Complaint, and argued that the Court should disregard Plaintiff’s generic use of 

the term “Defendants” and find that the allegations specifically referencing 

Zielinski were insufficient. Br. in Opp. 6–9, ECF No. 14. Defendants supported 

this argument with reference to relevant case law from within the Sixth Circuit. 

Magistrate Judge Jolson also did not rely on any of these three arguments 

to support her recommendation for remand or in finding removal was objectively 

reasonable. First, with respect to the pleading standard to be applied, the R&R 

analyzed whether the complaint was sufficient under state law and did not 

mention federal pleading standards other than to say that the fraudulent joinder 

inquiry is even more deferential than a motion to dismiss under Rule 12(b)(6). 

R&R 5, ECF No. 21. Second, regarding Plaintiff’s intent in naming Zielinski, the 
Case No. 2:17-cv-1127 Page 9 of 10

R&R states that “a court does not probe a plaintiff’s motive for joining a nondiverse defendant to the lawsuit because motive is immaterial to the analysis.” 

Id. at 4. Finally, with respect to any attempt by Defendants to create a factual 

dispute to support fraudulent joinder, the R&R relied completely on the 

allegations in the Complaint, not factual disputes, and stated that “[b]ecause 

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. at 7. 

After reviewing the R&R’s thorough analysis of the motion to remand and 

conducting its own de novo review, the Court finds that, based upon the sparse 

allegations related to Zielinski in the original Complaint, it was objectively 

reasonable for Defendants to remove this case. As Defendants pointed out in 

their opposition to the motion to remand, “[t]he factual insufficiency of a plaintiff’s 

claim may be a basis for removal based upon fraudulent joinder.” Clarkwestern 

Dietrich Bldg. Sys. LLC v. Certified Steel Stud Ass’n, Case No. 1:13-cv-818, 

2013 U.S. Dist. LEXIS 194260, at *20 (S.D. Ohio Dec. 20, 2013). Plaintiff’s 

Amended Complaint added substantially to the allegations related to Zielinski, 

but in the original Complaint there was very little connection between Zielinski 

and the allegedly offending conduct other than conclusory statements. 

C. Conclusion 

For all of these reasons, Plaintiff’s objections are OVERRULED, the R&R, 

ECF No. 21, is ADOPTED. Plaintiff’s motion to remand, ECF No. 7, is 
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GRANTED, but Plaintiff’s request for attorney’s fees is DENIED. Defendants’ 

motion to dismiss, ECF No. 4, is DENIED as MOOT. The Clerk shall remove 

ECF Nos. 4, 7, and 21 from the Court’s pending motions list. 

IT IS SO ORDERED. 

 s/Michael H. Watson 

 MICHAEL H. WATSON, JUDGE 

 UNITED STATES DISTRICT COURT