Callahan v. Callahan, No. C-3-02-158.

• Decision Date: 25 November 2002
• Docket Number: No. C-3-02-158.
• Citation: 247 F.Supp.2d 935
• Parties: Christine CALLAHAN, Plaintiff, v. Michael F. CALLAHAN, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

247 F.Supp.2d 935

Christine CALLAHAN, Plaintiff, v. Michael F. CALLAHAN, et al., Defendants.

No. C-3-02-158.

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

November 25, 2002.

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James M. Hill, O'Diam, McNamee, & Hill Co, Dayton, OH, Mark Edward Stone, Beavercreek, OH, for plaintiff.

Constantine Dino Gianuglou, Gianuglou, Skilken & Replogle, Dayton, OH, Gary William Gottschlich, Jeffrey Raiff Myers, Gottschlich & Portune, LLP, Dayton, OH, for defendant.

DECISION AND ENTRY OVERRULING PLAINTIFF'S MOTION FOR REMAND (DOC. # 3)

RICE, Chief Judge.

Plaintiff Christine Callahan ("Plaintiff) and Defendant Michael F. Callahan ("Callahan") were divorced by way of a Final Judgment and Decree of Divorce filed in the Montgomery County Court of Common Pleas, Domestic Relations Division, on August 13, 1997. Since that time, they have engaged in protracted post-decree litigation (See Doc. #3). As part of the divorce settlement, Michael Callahan was required to transfer to Plaintiff the entire interest that he held in the Keymark Fund Raising, Inc., Profit-Sharing Plan ("Keymark Plan"), as of August 13, 1997 (Doc. #1, Doc. #3). On August 29, 1997, a Qualified Domestic Relations Order ("QDRO") was filed, which directed the Plan Administrator of the Keymark Plan to pay that amount to Plaintiff. Plaintiff alleges that Callahan's interest in the Plan was greater than the amount that she received, in accordance with that Order. On February 14, 2000, Plaintiff filed a Motion for Contempt (Doc. #3), seeking to hold Callahan in contempt for his failure to transfer all of his interest in the Keymark Plan. On December 22, 2000, Magistrate Timothy Wood overruled Plaintiffs motion, without prejudice, indicating that "the court is unable to determine that Mr. Callahan intentionally diverted $51,000 from the profit sharing plan into his personal account to avoid paying these monies to Mrs. Callahan."

On March 27, 2001, Plaintiff renewed her Motion for Contempt and Other Matters (Doc. # 1, Ex. C) in the state domestic relations court. In response to Plaintiffs Motion, Callahan filed a Motion to Dismiss, arguing that the parties were required to arbitrate their dispute, due to an arbitration provision in the Keymark Plan; that Plaintiff had failed to state a claim upon which relief may be granted; and that Plaintiff had failed to name all parties in interest. On March 12, 2002, Magistrate Wood overruled the Motion to Dismiss. In his Decision, Magistrate Wood concluded that Defendant had waived his right to arbitrate the dispute and that, even if he had not waived that right, Plaintiff is not subject to the arbitration clause. The Court agreed with Callahan that the Keymark Plan and its Plan Administrator, Defendant Keymark Fund Raising, Inc. ("Keymark"), were necessary parties to the action. The Magistrate therefore ordered that those entities be joined. On March 19, 2002, Keymark was joined as a party-defendant.

On April 8, 2002, Keymark removed the action to this Court, alleging that Plaintiff seeks recovery of the proceeds of a benefit plan governed by the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq. Keymark further argues that the issue of this action is not the interpretation of the QDRO but, rather, the value of Callahan's interest in the Plan. It asserts that the Keymark Plan documents indicate that the determination of the value of a participant's interest is vested exclusively with the Plan Administrator.

Pending before the Court is Plaintiffs Motion for Remand (Doc. # 3).¹ For the reasons assigned, Plaintiffs Motion is OVERRULED.

The party seeking to litigate in federal court bears the burden of establishing the existence of federal subject matter jurisdiction. McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936). This is no less true where, as here, it is the defendant, rather than the plaintiff, who seeks the federal forum. E.g., Ahearn v. Charter Twp. of Bloomfield, 100 F.3d 451, 453-54 (6th Cir.1996). When the party asserting federal jurisdiction finds its allegations challenged, it must submit evidence substantiating its claims. Amen v. City of Dearborn, 532 F.2d 554, 560 (6th Cir.1976). The removing defendant's burden is to prove, by a preponderance of the evidence, that the jurisdictional facts it alleges are true. Gafford v. General Electric Co., 997 F.2d 150, 158 (6th Cir.1993). The district court has "wide discretion to allow affidavits, documents and even a limited evidentiary hearing to resolve disputed jurisdictional facts." Ohio Nat. Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990) (citations omitted). The court may consider such evidence without turning the motion into one for summary judgment. Id.

In her Motion, Plaintiff argues that removal of this action to this Court was improper on four grounds. First, she contends that the removal was defective, because not all defendants (i.e., Callahan) joined in the removal. Second, she asserts that the Notice of Removal was not timely filed. Third, Plaintiff argues that her claims are not completely preempted by ERISA. Fourth, she asserts that the Court should remand this action, based on the doctrine of abstention.

A. Consent of All Defendants in Removal

First, Plaintiff asserts that remand is required, because Callahan did not join in or consent to the removal. Section 1446(a) of 28 U.S.C. requires that "[a] defendant or defendants desiring to remove any civil action ... shall file ... a notice of removal." Despite the ambiguity of the term "defendant or defendants," it is well established that removal generally requires unanimity among the defendants. Balazik v. County of Dauphin, 44 F.3d 209, 213 (3rd Cir.1995), citing Chicago, R.I. & P. Ry. Co. v. Martin, 178 U.S. 245, 247, 20 S.Ct. 854, 44 L.Ed. 1055 (1900)("[I]f a suit arises under the Constitution or laws of the United States, or if it is a suit between citizens of different states, the defendant, if there be but one, may remove, or the defendants, if there be more than one...."). As stated by the Sixth Circuit: "The rule of unanimity requires that in order for a notice of removal to be properly before the court, all defendants who have been served or otherwise properly joined in the action must either join in the removal, or file a written consent to the removal." Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 533 n. 3 (6th Cir.1999).

In its Notice of Removal, Keymark states: "The other defendant in the action, Michael Callahan, has agreed to the removal effected by this notice." (Doc. # 1 ¶ 19). Although the Notice of Removal was signed only by Keymark's counsel, this statement indicates that Callahan intended to consent to Keymark's removal of the action. In addition, to the extent that any procedural defect occurred, Defendants have cured that deficiency by the filing of an Amended Notice of Removal on June 24, 2002 (Doc. # 12). See Gafford v. General Elec. Co., 997 F.2d 150, 164 (6th Cir. 1993) (holding that "a petition for removal may be amended under the same considerations governing the amendment of any other pleading containing jurisdictional allegations"); Klein v. Manor Healthcare Corp., 1994 WL 91786, n. 8 (6th Cir. Mar.22, 1994)(applying the reasoning in Gafford to permit the defendants to cure a procedural deficiency in the Notice of Removal). In their Amended Notice, Defendants submit the affidavits of Michael Callahan and his counsel, C. Dino Gianuglou, in which they state that Callahan agrees and consents to removal. Accordingly, the Court concludes that all Defendants have consented to removal of this action and that any alleged defect in this regard has been cured. Plaintiffs Motion for Remand, on the ground that not all Defendants have joined in or consented to removal, is OVERRULED.

B. Timeliness of Removal

Second, Plaintiff argues that Defendants have failed to comply with the time limitations for removal, set forth in 28 U.S.C. § 1446. Under that statute,

The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, expect that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title [diversity of citizenship] more than 1 year after commencement of the action.

28 U.S.C. § 1446(b). Plaintiff argues that Defendants have failed to comply with the thirty (30) day deadline for removal.

In support of her argument, Plaintiff asserts that Callahan holds a 72% ownership interest in Keymark, is the president of Keymark and, at all relevant times, has been actively involved in conducting its business. She further notes that her original motion for contempt was filed on February 14, 2000, and renewed on March 27, 2001, alleging the same basis for relief as the amended motion filed on March 19, 2002. Plaintiff claims that, by virtue of Callahan's position with Keymark in the year 2000, the company was on notice no later than February 14, 2000, that potentially removable federal claims were being pursued by her. Thus, Plaintiff argues, the window for seeking removal opened no later than February 14, 2000.

Defendants respond that Keymark...