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Uboh v. United States Equestrian Federation

United States District Court, E.D. Kentucky, Central Division, Lexington

April 26, 2019



          Joseph M. Hood Senior U.S. District Judge.

         Plaintiff 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.

         I. Procedural History

         The 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].

         The 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].

         Affidavits 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].

         Previously, 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].

         Subsequently, 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.[1] [DE 11]. Uboh did not reply to the Defendants' response. As a result, the motion to alter or amend is ripe for review.

         II. Analysis

         Here, 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.

         A. This Court has Subject Matter Jurisdiction

         Federal 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.

         Jurisdiction 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 commenced.

         Furthermore, 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 ...

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