Barrientos v. Ut-Battelle, LLC

• Decision Date: 26 September 2003
• Docket Number: No. 2:02CV937.,2:02CV937.
• Citation: 284 F.Supp.2d 908
• Parties: Guillermo BARRIENTOS, et al., Plaintiffs, v. UT-BATTELLE, LLC, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

284 F.Supp.2d 908

Guillermo BARRIENTOS, et al., Plaintiffs, v. UT-BATTELLE, LLC, et al., Defendants.

No. 2:02CV937.

United States District Court, S.D. Ohio, Eastern Division.

September 26, 2003.

COPYRIGHT MATERIAL OMITTED

Franklin R. Fraley, Jr., Magdalena E. Cuprys, Los Angeles, CA, Michael Joseph Rourke, Kenneth Steven Blumenthal, Rourke & Blumenthal LLP, Columbus, OH, for Plaintiffs.

James Stern Oliphant, Porter, Wright, Morris & Arthur, Columbus, OH, John Charles Scott, Faulkner & Tepe, Cincinnati, OH, Donald Eugene Theis, Baran Piper Tarkowsky Fitzgerald & Theis Co., Toledo, OH, Edward Ronald Goldman, Rendigs Fry Kiely & Dennis LLP, Cincinnati, OH, Mark A. Shaw, Fuller & Henry, Columbus, OH, James B. Hadden, Porter Wright Morris & Arthur, Columbus, OH, Bruce Marmon, El Cerrito, CA, Charles Coster Ashdown, Joseph J. Braun, Strauss & Troy, Cincinnati, OH, Steven Gerard LaForge, Isaac Brant Ledman & Teetor, Columbus, OH, for Defendants.

OPINION AND ORDER

MARBLEY, District Judge.

I. INTRODUCTION

This matter is before the Court on Plaintiffs' Motion to Remand Case to State Court, Plaintiffs' Motion to Dismiss Second Claim for Relief Regarding Violations of Safety Statutes and Regulations, and Defendants' Motion for Leave to File Amended Notice of Removal. For the following reasons, Plaintiffs' Motion to Remand is GRANTED, Plaintiffs' Motion to Dismiss Second Claim for Relief is GRANTED,¹ and Defendants' Motion for Leave to File Amended Notice of Removal is DENIED.

II. BACKGROUND

A. Facts

Defendants University of Tennessee ("UT") and Battelle Memorial Institute ("Battelle") are the sole founders and members of UT-Battelle, LLC ("UT-Battelle"), a joint venture founded to contract with the United States Department of Energy ("DOE") to operate the Portsmouth Gaseous Diffusion Plant in Piketon, Ohio (the "Plant"), which is one of the Oak Ridge National Laboratories. UT is a Tennessee nonprofit university, Battelle is an Ohio nonprofit corporation, and UT-Battelle is a Tennessee limited liability company. UT-Battelle conducted the Lance Permeation Project (the "Project") at the Plant, which was an experimental clean-up of subsurface environmental contamination.

Guillermo Barrientos was employed at the Plant by a contractor as a heavy machine operator. In July 2000, he was assigned to the Project. Allegedly, although Barrientos was assigned to assist in handling chemicals for the Project, he had no prior experience or training handling chemicals. On or about August 22, 2002, a bucket filled with sodium permanganate exploded when Barrientos began to pick it up. The liquid from the bucket sprayed on his body, causing extensive burns. Barrientos was not wearing protective gear. Allegedly, Barrientos was informed by certain Defendants that protective gear was unnecessary while handling sodium permanganate.

B. Procedural History

Based on the foregoing series of events, Plaintiffs filed a Complaint in the Court of Common Pleas, Pike County, Ohio on August 21, 2002. In their Complaint, Plaintiffs alleged the following claims: (1) intentional tort, (2) violation of all applicable safety statutes and regulations governing the Project, (3) negligence, (4) premises liability, (5) breach of contract, and (6) loss of consortium. Defendants filed their Notice of Removal on September 24, 2002, alleging that federal subject matter jurisdiction was proper pursuant to 28 U.S.C. § 1331 federal question jurisdiction. The Notice of Removal alleges that Plaintiffs' second claim for relief, which is based on violation of all applicable safety statutes and regulations, involves substantial federal questions under the Occupational Safety and Health Act, 29 U.S.C. § 653 ("OSHA"); the Atomic Energy Act, 42 U.S.C. § 161(b); and Department of Energy Order 440.1A. Defendants assert that these federal statutes are made applicable to the Project pursuant to 48 C.F.R. § 970.5240-2, which requires DOE contractors to follow certain federal regulations.

Plaintiffs filed a Motion to Remand Case to State Court on November 18, 2002, based on the Court's lack of subject matter jurisdiction. Plaintiffs subsequently filed a Motion to Dismiss their second claim for relief on January 10, 2003, in an attempt to eliminate any possibility of federal question jurisdiction in this case. Plaintiffs later noted that they really seek leave to amend their Complaint pursuant to Federal Rule of Civil Procedure 15(a). On February 10, 2003, Defendants filed a Motion for Leave to File an Amended Notice of Removal, seeking to amend their Notice of Removal to include diversity jurisdiction as a separate basis for federal jurisdiction. Defendants claim that although Battelle is an Ohio corporation, and therefore a citizen of Ohio, it is only a nominal party and therefore complete diversity exists in this case.

The key issue before the Court is whether the Court has subject matter jurisdiction over this case. If not, the Court will remand Plaintiffs' Complaint to state court. The Court will first consider whether Defendants' Motion for Leave to File an Amended Notice of Removal is appropriate, and if so, whether there is diversity of citizenship jurisdiction in this case. After concluding both that Defendants' Motion for Leave to File an Amended Notice of Removal must be denied and that the Court lacks diversity of citizenship jurisdiction, the Court will consider whether there is federal question jurisdiction in this case.

III. STANDARD OF REVIEW

The burden of establishing federal subject matter jurisdiction is upon the party removing the case to federal court. Her Majesty the Queen in Right of Province of Ontario v. City of Detroit, 874 F.2d 332, 339 (6th Cir.1989) (citing Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97-98, 42 S.Ct. 35, 66 L.Ed. 144 (1921)). "[B]ecause they implicate federalism concerns, removal statutes are to be narrowly construed." Long v. Bando Mfg. of Am., 201 F.3d 754, 757 (6th Cir.2000). All doubts as to whether removal is proper should be resolved in favor of remand to state court. Coyne ex rel. Ohio v. Am. Tobacco Co., 183 F.3d 488, 493 (6th Cir. 1999).

IV. ANALYSIS

A. Diversity Jurisdiction

Defendants' Notice of Removal alleges that this Court has subject matter jurisdiction based only on federal question jurisdiction pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction pursuant to 28 U.S.C. § 1367. In response to Plaintiffs' arguments that federal question jurisdiction is not present in this case, Defendants filed a Motion for Leave to File Amended Notice of Removal in order to claim diversity of citizenship jurisdiction pursuant to 28 U.S.C. § 1332.

Generally, under 28 U.S.C. § 1446, defendants have thirty days after the receipt of a paper indicating that the case has become removable in which to file a removal petition. See Pepsico, Inc. v. Wendy's Int'l, Inc., 118 F.R.D. 38, 40 (S.D.N.Y.1987). If a removal petition is defective in form, this defect is amendable at any time, even if beyond the thirty day period. Barrow Dev. Co. v. Fulton Ins. Co., 418 F.2d 316, 317 (9th Cir.1969). Under 28 U.S.C. § 1653, allegations of jurisdiction may be amended when defective. This provision may not be "invoked to claim an entirely new and distinct jurisdictional basis." Holt v. Lockheed Support Sys., 835 F.Supp. 325, 327 (W.D.La.1993). Amendments should do nothing more than set forth in proper form something imperfectly stated in the original notice of removal. Jackson v. Metro. Life Ins. Co., 433 F.Supp. 707, 709 (E.D.Ky.1977); Cline v. Belt, 43 F.Supp. 538, 540 (E.D.Ky.1942).

In this case, Defendants do not seek to amend a defective notice of removal. Instead, they seek to include complete diversity as a separate basis for this Court's jurisdiction. Because the thirty day period for filing a notice of removal has elapsed, the Court DENIES Defendants' Motion for Leave to File Amended Notice of Removal.

Furthermore, the Court finds that diversity jurisdiction is not present in this case. Section 1332 confers subject matter jurisdiction on federal courts when there is complete diversity among the parties. 28 U.S.C. § 1332. If any plaintiff and any defendant are citizens of the same state there can be no diversity jurisdiction. See SHR Ltd. P'ship v. Braun, 888 F.2d 455, 456 (6th Cir.1989) ("Diversity jurisdiction attaches only when all parties on one side of the litigation are of a different citizenship from all parties on the other side of the litigation."). In this case, Plaintiffs are Ohio citizens and Defendant Battelle is also an Ohio citizen. Defendants argue, however, that Battelle is a nominal party and must not be considered for determining whether there is diversity jurisdiction.

Federal Rule of Civil Procedure 17(a) provides that "every action shall be prosecuted in the name of the real party in interest." A real party in interest, or a necessary party, is one who "claims an interest relating to the subject of the action." Fed.R.Civ.P. 19(a). Section 1441(b) allows for an action to be removed to federal court if there is diversity of citizenship among the "parties in interest properly joined." 28 U.S.C. § 1441(b). Formal or unnecessary parties are not included as "parties in interest" and cannot prevent the removal of an action to federal court. Pesch v. First City Bank of Dallas, 637 F.Supp. 1530, 1536 (N.D.Tex.1986). Non-diverse parties that are purely formal or nominal may be ignored in determining jurisdiction. Salem Trust Co. v. Mfr.'s Fin. Co., 264 U.S. 182, 190, 44 S.Ct. 266, 68 L.Ed. 628 (1924).

In this case, in order for Battelle to be a nominal party, or not a party in interest, it must have no real interest in the outcome of the case. It must be of no moment to Battelle which side succeeds in the controversy. Picard Chem. Profit Sharing Plan v. Perrigo Co., 940 F.Supp. 1101, 1136 (W.D.Mich.1996) (citing Bacon v. Rives, 106 U.S. 99, 104, 1 S.Ct. 3, 27 L.Ed. 69 (1882)).

To determine whether removal is...