United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
M. Hood Senior U.S. District Judge.
Cornelius Uboh, through counsel, has moved the Court to
reconsider the decision outlined in the Court's previous
memorandum opinion and order [DE 7] denying the parties'
joint motion to remand. [DE 8]. In support of his motion,
Uboh states that remand to state court is justified based on
a procedural defect in removal, namely the “resident
defendant rule” or the “forum defendant
rule.” But Uboh's employment agreement with USEF
contained a forum-selection clause consenting to the federal
jurisdiction for actions or proceedings arising out of or
relating to the employment agreement. [DE 1-2 at 37, Pg ID
45]. This forum-selection clause operates as a waiver of this
procedural defect with removal since Uboh contractually
agreed to litigate any disputes arising out of the employment
agreement in federal court. As a result, Uboh's motion to
reconsider [DE 8] 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 to Dismiss].
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]. As such, Kessler and Allen
consented to removal of this action but had not answered the
Plaintiff's complaint or otherwise appeared to defend
themselves. Since then, Kessler and Allen have appeared in
the action through counsel and have answered the
Plaintiff's complaint. [DE 12; DE 13].
four of the parties, Plaintiff Uboh and Defendants Keating,
Moroney, and USEF, filed a joint motion or stipulation to
remand this action to the Fayette Circuit Court. [DE 6]. The
moving parties provided no argument and cited no authority
indicating that remand was justified. The parties simply
stated that they were “now in agreement and
stipulate[d] 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]. The Court
denied the parties' joint motion to remand because the
parties failed to provide any reason justifying remand to
state court or any jurisdictional defect. [DE 7].
Uboh filed a motion asking the Court to alter or amend the
memorandum opinion and order denying the joint motion to
remand, pointing to the forum defendant rule as justification
for remand. [DE 8]. Defendants Keating, Moroney, and USEF
filed a response in opposition, asserting that Uboh's
consent to litigate in a federal forum in his USEF employment
agreement constituted waiver of any procedural defects with
removal to federal court. [DE 11]. Uboh did not reply to the
Defendants' response. As a result, the motion to alter or
amend is ripe for review.
Uboh moves the Court to reconsider the previous order denying
remand. Uboh contends that the forum defendant rule caused a
defect in removal of this action to federal court and asks
the Court to amend the previous order to address this issue
and remand the action to state court.
This Court has Subject Matter Jurisdiction
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. There appears to be complete
diversity of citizenship between the parties based on the
notice of removal and accompanying affidavits. When this
action was commenced, the Plaintiff was a citizen of
Pennsylvania. [DE 1-2 at 6, Pg ID 14]. Defendant USEF was a
non-profit corporation organized under New York law, with a
principal place of business in Kentucky. [DE 1 at 2-3, Pg ID
2-3]. Defendants Moroney and Allen were citizens of Virginia.
[DE 1 at 3, Pg ID 3; DE 1-3; DE 1-6]. Defendant Keating was a
citizen of Kentucky. [DE 1 at 3, Pg ID 3; DE 1-4]. Finally,
Defendant Kessler was a citizen of Florida. [DE 1 at 3, Pg
Id. 3; DE 1-5]. Thus, complete diversity of
citizenship existed amongst the parties when this action was
the amount in controversy requirement appears to be met. In
any action for unliquidated damages, Kentucky law prevents
the plaintiff from reciting a sum of alleged damages.
See Ky. R. Civ. P. 8.01. When faced with an
indeterminate amount of damages in a state court complaint,
federal courts may make “an independent appraisal of
the amount in controversy or suggest that the defendant do
so.” Cole v. Great Atl. & Pac. Tea Co.,
728 F.Supp. 1305, 1308 (E.D. Ky. 1990). In the present case,
the Plaintiff's annual salary was $200, 000 and he seeks
one-year's salary as severance pay, in addition to
punitive damages. [See DE 1-2 at 7, 21, 28, Pg ID 15, 29,
36]. Thus, the face of the Plaintiff's state court
complaint indicates that he seeks ...