United States District Court, E.D. Kentucky, Central Division
MEMORANDUM OPINION AND ORDER
M. HOOD SENIOR U.S. DISTRICT JUDGE.
parties that have appeared in this action have filed a joint
motion to remand to the case to state court. [DE 6, Joint
Motion] . The parties have made no argument and have cited no
authority indicating that remand is proper in this action.
The parties simply agree and stipulate to the remand the
action to state court. But the Court's discretion to
remand a case that was properly removed to federal court is
limited by statute. As a result, since the parties have
pointed to no defect that would justify remand, the joint
motion or stipulation to remand this action to Fayette
Circuit Court [DE 6] is DENIED.
Plaintiff filed this action in Fayette Circuit Court on
January 11, 2019. [DE 1-2, State Court Record at 6-30, Pg ID
14-38]. Plaintiff sued the Defendants for breach of contract,
wage payment and collection law, defamation per se, and
defamation. [Id. at 20-28, Pg ID 28-36].
Defendants removed the action to this court on February 7,
2019. [DE 1, Notice of Removal]. Subsequently, three of the
Defendants, Sonja Keating, William Moroney, and the United
States Equestrian Foundation ("USEF"), answered the
complaint, filed a counterclaim, and moved to dismiss count
two of Plaintiff's complaint. [DE 4, Answer; DE 5, Motion
from two of the Defendants, Murray Kessler and Kent Allen,
were attached as exhibits to the notice of removal. The
affidavits stated that Kessler and Allen had not been served
but that they were aware that they had been named as
Defendants in the action and that they consented to removal
of this action to federal court. [DE 1-5, Kessler Affidavit;
DE 1-6, Allen Affidavit]. Still, subsequent filings indicate
that attorney Catherine Wright only represents Defendants
Sonja Keating, William Moroney, and USEF. [See DE 4;
DE 5; DE 6]. As such, Kessler and Allen consented to removal
of this action but have not answered the Plaintiff's
complaint or otherwise appeared to defend themselves.
four of the parties, Plaintiff Uboh and Defendants Keating,
Moroney, and USEF, have filed a joint motion or stipulation
to remand this action to the Fayette Circuit Court. [DE 6] .
The moving parties have provided no argument and have cited
no authority indicating that remand is proper. The parties
simply state that they "are now in agreement and
stipulate to the remand of this case to Fayette Circuit
Court, Lexington, Kentucky, with each party to bear its own
costs." [Id. at 1, Pg ID 117] . Since the
parties that have appeared in the action have moved for
relief jointly and the other Defendants have not appeared,
the motion to remand is ripe for review.
courts are courts of limited jurisdiction. See, e.g.,
Kokkonen v. Guardian life Ins. Co., 511 U.S. 375,
377 (1994) (citing cases) . A defendant may remove a case
from state court to federal court if the court has original
jurisdiction over the case. 28 U.S.C. § 1441(a).
Original jurisdiction under § 1441 arises if there is
diversity of citizenship between the parties or the complaint
presents a federal question. See 28 U.S.C.
§§ 1331, 1332.
based on diversity of citizenship between the parties exists
when there is complete diversity of citizenship between the
opposing parties and the amount in controversy exceeds $75,
000. 28 U.S.C. § 1332. Normally, the defendants who
removed an action would attempt to demonstrate that removal
was proper, and that subject matter jurisdiction is present.
But here, the Defendants who have appeared in the action
consent to remand. As a result, in considering whether remand
is warranted, the Court must address whether removal was
proper and whether the Court has subject matter jurisdiction
based on the state court complaint and notice of removal.
this Court does not have discretion to remand a case to state
court simply because the parties agree or stipulate to
remand. Remand of actions after removal is governed by 28
U.S.C. § 1447 (c), which states," [a] motion to
remand the case on the basis of any defect other than lack of
subject matter jurisdiction must be made within 30 days after
the filing of the notice of removal under section
1446(a)." Here, the Defendants made a strategic decision
when they removed this action to federal court based on
diversity jurisdiction. Now, it appears that the moving
parties have simply conferred and changed their mind about
their preferred forum for this action. But the joint motion
to remand suffers from two fatal flaws.
not all parties are included in the joint motion to remand.
The joint motion is signed by attorney Catherine Wright,
counsel for USEF, Sonja Keating, and William Moroney and
attorney John Abaray, counsel for Cornelius Uboh.
[See DE 6 at 2, Pg ID 118]. As was previously
discussed, Defendants Murray Kessler and Kent Allen indicated
their agreement to removal through affidavits filed with the
notice of removal, but it is unclear if Kessler and Allen
have been served and they have not answered the complaint or
otherwise appeared to defend themselves in this action. As
such, remand may result in prejudice to Kessler and Allen.
and more important, the moving parties have not provided any
defect or cited any case law that supports remand. Section
1447(c) allows for" [a] motion to remand the case on the
basis of any defect other than lack of subject matter
jurisdiction" within thirty days after filing notice of
removal. Here, the parties have failed to identify any defect
or cite any authority that justifies remand.
the parties do not contend that removal was improper or that
the Court lacks subject matter jurisdiction. There appears to
be complete diversity of citizenship between the parties