Feller v. National Enquirer

• Decision Date: 19 January 1983
• Docket Number: No. C82-2175.,C82-2175.
• Citation: 555 F. Supp. 1114
• Parties: Robert W. FELLER, Plaintiff, v. NATIONAL ENQUIRER, Defendant.
• Court: U.S. District Court — Northern District of Ohio

555 F. Supp. 1114

Robert W. FELLER, Plaintiff, v. NATIONAL ENQUIRER, Defendant.

No. C82-2175.

United States District Court, N.D. Ohio, E.D.

December 15, 1982.

On Motion for Reconsideration January 19, 1983.

Michael T. Gavin, Eli Manos, Mansour, Gavin, Gerlack & Manos, Ford L. Noble, Cleveland, Ohio, for plaintiff.

John G. Kester, Michael S. Sundermeyer & Steven G. Kuney, Williams & Connolly, Washington, D.C., George F. Gore, Michael Zellers, Arter & Hadden, Cleveland, Ohio, for defendant.

ORDER

BATTISTI, Chief Judge.

I. FACTS

Defendant has, for the second time, petitioned for removal of this action to this Court from the Court of Common Pleas for Cuyahoga County. Plaintiff has, for the second time, filed a motion to remand. Because this action was removable from the outset, and because events subsequent to the first removal and remand have not significantly changed the character of this litigation so as to warrant removal, plaintiff's second motion to remand is granted.

Plaintiff originally filed this action for defamation against the National Enquirer and "John Doe," a Cleveland sportswriter, in the Court of Common Pleas on March 20, 1981. See Feller v. National Enquirer, Inc., No. C81-1510, slip op. at 1-2 (N.D.Ohio, memorandum opinion and order filed Dec. 29, 1981) (background of the case). On July 27, 1981, defendant filed a petition to remove the case to this Court pursuant to 28 U.S.C. § 1441 (1976). Plaintiff filed a motion to remand the case to the Court of Common Pleas, which this Court granted on the ground that the petition had not been filed in a timely manner, as required by 28 U.S.C. § 1446(b) (1976). Id. at 2.

In its first petition for removal, defendant argued that the original action filed in Common Pleas against it and the John Doe defendant was removable on the ground of diversity of citizenship because the Doe defendant, allegedly a Cleveland sportswriter, had been improperly joined under the Ohio rules of procedure. Plaintiff, in his motion to remand, argued first that the National Enquirer had failed to file its petition in a timely manner, and second, that the Doe defendant was a real party in interest and, therefore, could not be disregarded for purposes of determining removability. Defendant replied that plaintiff was estopped from arguing that the petition for removal was untimely because of the confusion created by the improper joining of the Doe defendant.

The Court specifically rejected this estoppel argument, and found the petition to have been filed in an untimely manner. Feller v. National Enquirer, Inc., slip op. at 4. The Court did not decide whether the case in fact was removable on diversity grounds; rather, it found that "the removability of this action was reasonably ascertainable from the complaint the plaintiff filed." Id. at 5.

After remand to Common Pleas, plaintiff obtained through discovery the probable identity of John Doe. On July 26, 1982, defendant National Enquirer moved the Court to strike the Doe defendant. Then, on August 2, 1982, plaintiff himself moved to dismiss the Doe defendant. There is some confusion as to the action taken by the Common Pleas court on these two motions. Each party claims that the other's motion was granted. Both are correct. Plaintiff's motion was granted on August 9, 1982, and defendant's motion was granted on August 25, 1982.

In any event, it is clear that John Doe was no longer a party to this action as of August 25, 1982, the date the National Enquirer filed its second petition for removal. That petition is also based on diversity of citizenship, this time arising from the dismissal of the Doe defendant. It was filed pursuant to 28 U.S.C. § 1446(b) (1976), which provides:

If the case stated by the initial pleading is not removable, a petition for removal may be filed within thirty days after receipt by the defendant ... of a copy of an amended pleading, motion, or other paper from which it may first be ascertained that the case is one which is or has become removable.

Plaintiff, in his second motion to remand, never mentions his own voluntary dismissal of John Doe. Instead, he notes that defendant's motion to strike was granted, and then, briefly and without much explanation, makes the rather astounding concession that "John Doe never was a party to this action." Motion to Remand at 3. By taking this position, plaintiff now appears to be arguing, albeit implicitly, that the case initially was removable on the ground of diversity, and that because defendant's first petition based on diversity was untimely, its second petition based on the same ground "certainly cannot be timely a year later." Id. In response, defendant cites a substantial amount of case law to the effect that a plaintiff's voluntary dismissal of a Doe defendant, resulting in complete diversity, makes a case removable even though it may not have been removable initially. Response to Motion to Remand at 4-8. However, defendant never addresses the fact that it had previously maintained that the action was removable from the outset. If the case were initially removable, the applicability of the case law cited and the second paragraph of the removal statute, § 1446(b) would be called into question.

II. DISCUSSION

Defendant's brief adequately summarizes the law with respect to a defendant's removal of a case after the plaintiff's voluntary dismissal of a Doe defendant, so there is no need for the Court to review the law on that point here. Defendant apparently maintains that the instant action falls neatly within that body of law, but that is not the case. Many of the decisions cited by defendant did not involve a previous removal and remand, and none of them involved a previous order which remanded a case to state court on timeliness grounds without a dispositive finding on the substantive ground asserted for removal. Moreover, none of these cases involved the added complication present here, namely, the confusion over whether the right of removal existed at the time this action was first filed. These distinctions are key to the resolution of the instant controversy.

In its first order of remand, the Court did not determine whether the case had been removable from the outset, but it did specifically find that its removability was "reasonably ascertainable" from the initial pleading. Feller v. National Enquirer, Inc., slip op. at 5. This means simply that, notwithstanding its claims of confusion because of the joinder of the Doe defendant, the National Enquirer could have raised its procedural argument in a timely removal petition. The information defendant needed to glean from the complaint in order to make its argument of improper joinder under the Ohio rules of procedure was that plaintiff was suing a John Doe defendant. That information was clear from the face of the complaint, and, as the Court noted in its order, there was no reason why defendant could not have raised the point in a timely removal petition.

The "reasonably ascertainable" language was sufficient to dispose of defendant's first removal petition as untimely. But the Court's first order is not necessarily dispositive of defendant's second petition. By adding the second paragraph of § 1446(b), Congress "intended that a party be permitted successive removals." O'Bryan v. Chandler, 356 F.Supp. 714, 717 (W.D.Okla.1973), aff'd, 496 F.2d 403 (10th Cir.), cert. denied, 419 U.S. 986, 95 S.Ct. 245, 42 L.Ed.2d 194 (1974). The fact that a case was initially removed and remanded does not in and of itself preclude removal a second time around. As the Supreme Court stated in an early case:

It is not open to controversy that if after an order to remand has been made it results, from the subsequent pleadings or conduct of the parties to the cause, that the cause is removable, on the development of such situation a second application to remove may be made, and a right to do so because of the changed aspect is not controlled by the previous order remanding the cause.

Fritzlen v. Boatmen's Bank, 212 U.S. 364, 372, 29 S.Ct. 366, 369, 53 L.Ed. 551 (1909) (emphasis added). Professor Moore further explains:

The remand order is, therefore, conclusive only as to matters that were adjudged or could have been presented at that time as a basis for removal. And when subsequent developments make the case removable, since these were not concluded by the prior remand order, a timely second petition for removal may be made.

1A, Moore's Federal Practice, ¶ 0.1693 (2d ed. 1982).

After the dismissal of John Doe there was complete diversity in this case. Diversity of citizenship is, of course, an appropriate basis for federal removal jurisdiction. But the inquiry does not end there. The removal statute, by its terms, applies when the case stated by the initial pleading was not removable. That issue was left unresolved by this Court in its remand order. Since the time of the remand, both parties apparently have reversed themselves on this question. Consequently, the court now finds it necessary to resolve this matter in order to determine whether the case may be removed pursuant to § 1446(b).

In his first motion to remand, plaintiff asserted that it was seeking real relief against the Doe defendant, and that, therefore, complete diversity did not then exist. He also "vigorously denied" that John Doe had been improperly joined under the Ohio rules of procedure. The National Enquirer, on the other hand, argued with equal vigor that diversity of citizenship did exist by virtue of the fact that John Doe was not a proper party.

Now, plaintiff seems to have conceded that the Doe defendant had been joined in contravention of the requirements of Ohio Civil Rule 15(D), which mandates that a Doe defendant be personally served with a summons. One would think that, as a result of this concession, the parties would now be in agreement on the initial removability of this action. Unfortunately, these waters are still muddied....