MEMORANDUM OPINION AND ORDER OF REMAND
THOMAS B. RUSSELL, District Judge.
Presently pending before the Court are the following Motions:
(1) Plaintiff Jonathan Bentley's Motion for Partial Remand.
(Docket No. 6.) Defendant Lawrence Trageser has responded, (Docket No. 14.) Defendant Tony Mattingly and Bentley, as Counterclaim Defendant, also have responded, stating they do not oppose Bentley's Motion for Partial Remand. (Docket No. 16.)
(2) Defendant/Counterclaim Plaintiff Lawrence Trageser's Motion to Remand and for an Award of Attorney Fees. (Docket No. 7.) Mattingly and Bentley, as Counterclaim Defendant, have responded, (Docket No. 17), and Trageser has replied, (Docket No. 21).
For the reasons that follow, Trageser's Motion will be GRANTED IN PART, and this action will be REMANDED to Spencer Circuit Court for all further proceedings.
Bentley and Mattingly are law enforcement officers employed by the Spencer County Sheriff's Office. Trageser operates a political internet blog called the "Spencer County Watchdog, " in which he comments on local politics and officials. In October 2012, Mattingly filed a felony criminal charge against Trageser alleging "unauthorized access to a computer." Trageser was arrested, his home was searched, and certain items belonging to him were seized. Several days later, Bentley instituted another criminal charge against Trageser alleging "harassment, " and Trageser again was arrested.
During the pendency of those criminal charges, Bentley filed a civil action against Trageser in Spencer Circuit Court on February 28, 2013. Bentley filed that action as a private citizen through his private counsel, alleging defamation, harassment, intentional infliction of emotional distress, and invasion of privacy based on certain postings made on Trageser's website. Trageser responded to Bentley's Complaint on May 1, 2013, by filing his "Verified Answer, Counterclaim and Complaint." In that pleading, Trageser answered Bentley's underlying Complaint and asserted a counterclaim against Bentley for various civil rights violations under 42 U.S.C. § 1983. Also in that pleading, Trageser named Mattingly and asserted similar § 1983 claims against him.
Bentley was served with Trageser's Answer, Counterclaim and Complaint through his counsel of record. Service was attempted on Mattingly, but it does not appear that Mattingly has been served. Because the § 1983 claims asserted against Bentley involved allegations related to his employment as a deputy sheriff, Bentley turned the claim over to the Spencer County Sheriff's Department, who in turn notified their insurance carrier, who then retained separate counsel to defend Bentley and Mattingly against Trageser's § 1983 claims. Thus, Bentley, as primary Plaintiff, is represented by private counsel relative to his underlying Complaint, and, as Counterclaim Defendant, is represented by separate counsel relative to Trageser's § 1983 claim against him.
On May 22, 2013, Bentley filed a motion to dismiss Trageser's counterclaim. Counsel for Mattingly and Counterclaim Defendant Bentley entered an "Entry of Appearance" in Spencer Circuit Court on June 24, 2013. (Docket No. 7-1.) Trageser filed his response to Bentley's motion to dismiss on July 23, 2013. After Trageser filed his response, the Spencer Circuit Court Judge, Honorable Charles Hickman, recused himself from the case. Then on August 28, 2013, a special judge, Honorable A.C. McKay Chauvin of Jefferson Circuit Court, was appointed to hear the case. While Bentley's motion to dismiss was still pending, Mattingly and Counterclaim Defendant Bentley filed a notice of removal on September 9, 2013. (Docket No. 1.)
The parties' instant Motions raise several issues relative to the propriety of removal and remand. In order to invoke the district court's removal jurisdiction, a defendant must show that the district court has original jurisdiction over the action. Long v. Bando Mfg. of Am., Inc., 201 F.3d 754, 757 (6th Cir. 2000) (citing 28 U.S.C. § 1441(a)). The burden of showing that the district court has original jurisdiction is on the party seeking removal. Id. (citing Her Majesty the Queen in Right of the Province of Ont. v. City of Detroit, 874 F.2d 332, 339 (6th Cir. 1989)). Furthermore, because they implicate federalism concerns, removal statutes are to be narrowly construed. Id. (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941)). In this case, the parties do not allege diversity of citizenship. Instead, Mattingly and Counterclaim Defendant Bentley removed this action based on 28 U.S.C. § 1441(a), which allows for the removal of "any civil action brought in a State court of which the district courts of the United States have original jurisdiction." Thus, the principal question that must be answered is whether Bentley and/or Mattingly could properly remove this action. Because the resolution of this question is dispositive, the Court need not address the other arguments raised in the parties' instant Motions.
Bentley, as Counterclaim Defendant, could not properly remove the underlying action. "The term defendant' in removal statutes is narrowly construed." In re Mortg. Elec. Registration Sys., Inc., 680 F.3d 849, 853 (6th Cir. 2012) (citing First Nat'l Bank of Pulaski v. Curry, 301 F.3d 456, 461-62 (6th Cir. 2002)). The Sixth Circuit, applying § 1441(a), has unambiguously and explicitly held that "a counterclaim or third-party defendant is not a defendant' who may remove the action to federal court." Id. (applying Shamrock, 313 U.S. at 104-08; Curry, 301 F.3d at 462); accord Holmes Grp., Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 831-32 (2002) ("[A] counterclaim-which appears as part of the defendant's answer, not as part of the plaintiff's complaint-cannot serve as the basis for arising under' jurisdiction."); Dixie Electric Coop. v. Citizens of State of Ala., 789 F.2d 852, 857 (11th Cir. 1986) ("[T]he mere fact that a party is denominated an additional counterclaim defendant' does not mean that a claim is asserted against that party for purposes of removal."); Wells Fargo Bank v. Gilleland, 621 F.Supp.2d 545, 548 (N.D. Ohio 2009) ("With regard to removal under 28 U.S.C. § 1441, this Court agrees that counterclaim defendants who were not defendants in the original action are not proper party defendants' for removal purposes."); OPNAD Fund, Inc. v. Watson, 863 F.Supp. 328, 332 (S.D.Miss. 1994) ("[B]ecause the original plaintiff chose to file suit in state court, [the defendant's] counterclaim did not transform the original plaintiff or the later joined counterdefendant into defendants for removal purposes."); Dartmouth Plan, Inc. v. Delgado, 736 ...