United States District Court, E.D. Kentucky, Northern Division
L. BUNNING UNITED STATES DISTRICT JUDGE
a breach of contract action, initiated by Plaintiff Darius
Ehteshami's filing of a Complaint in the Kenton County
Circuit Court. (Doc. # 1-2 at 2). The lawsuit was removed to
this Court on October 22, 2018. (Doc. # 1). The case is
presently before the Court on Plaintiff's Motion to
Remand the action to state court. (Doc. # 4). While the time
for Defendants to respond pursuant to LCR 7.1(c) has not yet
elapsed, the issue of remand may be addressed sua
sponte. See Thompson v. Karr, 182 F.3d 918,
1999 WL 519297 at *3-4 (6th Cir. 1999) (table opinion)
(raising removal under § 1441(b)(2) sua sponte,
“since it relates to our jurisdiction”). For the
reasons set forth herein, this civil action is
remanded to the Kenton County Circuit Court.
Factual and Procedural Background
According to the Complaint, on July 16, 2018, the parties
entered into a contract whereby Plaintiff agreed to purchase
a parcel of real property from the Defendants. (Doc. # 1-2 at
3). The complaint further alleges that Defendants breached
their obligation to Plaintiff by failing to close on the
contract on or before the closing date of September 30, 2018.
Id. at 6. Plaintiff seeks, inter alia,
damages and specific performance under the contract.
Id. at 6-7.
filed a Notice of Removal on October 22, 2018, asserting that
this Court has original jurisdiction pursuant to 28 U.S.C.
§ 1332(a) and, consequently, that the action is
removable under 28 U.S.C. § 1441(a). (Doc. # 1).
Plaintiff opposes Defendants' removal and seeks remand to
the Kenton Circuit Court. Specifically, Plaintiff asserts
that Defendants-as citizens of Kentucky-are barred from
removing this action pursuant to 28 U.S.C. § 1441(b)(2).
(Doc. # 4).
action filed in state court may be removed pursuant to 28
U.S.C. § 1441(a) if a federal district court also has
original jurisdiction over the action. In their Notice of
Removal, Defendants maintain that diversity subject matter
jurisdiction exists because the amount in controversy exceeds
$75, 000 and the action is between citizens of different
states. (Doc. # 1). Specifically, Defendants assert that
Plaintiff is a citizen of Ohio, while each of the Defendants
is a citizen of Kentucky. Id. at 2. In his Motion to
Remand, Plaintiff asserts that under 28 U.S.C. §
1441(b)(2), removal of a case based upon diversity of
citizenship is not proper where the named defendants are
citizens of the state in which the action is brought. (Doc. #
at first blush the removal requirements have been satisfied,
as the amount in controversy is not in dispute and the
parties are diverse in citizenship, Congress has placed an
important limitation on the right of removal under 28 U.S.C.
§ 1441. The statute provides in relevant part:
A civil action otherwise removable solely on the basis of the
jurisdiction under section 1332(a) of this title may not be
removed if any of the parties in interest properly joined and
served as defendants is a citizen of the State in which such
action is brought.
28 U.S.C. § 1441(b)(2). This is commonly known as the
forum-defendant rule. See In re Darvocet, Darvon
& Propoxyphene Prod. Liab. Litig., No. 2:11-md-2226,
2012 WL 2919219, at *2 (E.D. Ky. July 17, 2012); Athena
of SC, LLC. v. Macri, No. 3:15-cv-41, 2015 WL 11108894,
at *1 (E.D. Tenn. Aug. 20, 2015).
forum-defendant rule “generally prohibits defendants
from removing a case to federal district court when the
concerns that underpin diversity jurisdiction (i.e. prejudice
to out-of-state defendants) are not present because the
plaintiff chose to file suit in the defendant's own home
state courts.” Ethington v. Gen. Elec. Co.,
575 F.Supp.2d 855, 858 (N.D. Ohio 2008). See United Steel
Supply, LLC v. Buller, 3:13-cv-362, 2013 WL 3790913, at
*1 (W.D. Ky. July 19, 2013) (stating that the rule “is
designed to prevent a forum resident defendant from removing
to federal court, because doing so would run counter to the
rationale for removal.”). See also Lively v. Wild
Oats Mkts., Inc., 456 F.3d 933, 939 (9th Cir. 2006)
(observing that “the purpose of diversity jurisdiction
is to provide a federal forum for out-of-state litigants
where they are free from prejudice in favor of a local
litigant, ” but that “the need for such
protection is absent . . . in cases where the defendant is a
citizen of the state in which the case is brought.”)
“even if there is complete diversity among the parties,
the presence of a properly joined and served resident
defendant bars removal.” Macri, 2015 WL
11108894, at *1. If a timely challenge is made to such defect
in removal, then § 1447(c) directs the district court to
remand the case. Id. (citing Southwell v. Summit
View of Farragut, LLC, 494 Fed.Appx. 508, 511 n.2 (6th
it is undisputed that Defendants are citizens of the
Commonwealth of Kentucky. See (Doc. # 1 at 2; Doc. #
1 -2 at 2). Further, Plaintiff moved to remand on this basis
within thirty days of the removal pursuant to 28 U.S.C.
§ 1447(c). Thus, 28 U.S.C. § 1441(b)(2) bars
removal. As this case involves an action for breach of
contract under Kentucky law and does not present a federal
question under 28 U.S.C. § ...