Greenwood v. Delphi Automotive Systems Inc.

197 F.R.D. 597, 2000 U.S. Dist. LEXIS 19926, 2000 WL 1911490
CourtDistrict Court, S.D. Ohio
DecidedNovember 6, 2000
DocketNo. C-3-00-384
StatusPublished
Cited by1 cases

This text of 197 F.R.D. 597 (Greenwood v. Delphi Automotive Systems Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Greenwood v. Delphi Automotive Systems Inc., 197 F.R.D. 597, 2000 U.S. Dist. LEXIS 19926, 2000 WL 1911490 (S.D. Ohio 2000).

Opinion

DECISION AND ENTRY OVERRULING PLAINTIFFS’ MOTION FOR REMAND (DOC. # 8)

RICE, Chief Judge.

This litigation arises out of the alleged sexual harassment, harassment, and intimidation of Plaintiff Edward J. Greenwood (“Greenwood”), an employee of Defendant Delphi Automotive Systems, Inc. (“Delphi”), by two of his co-workers, Defendants Crystal Long and Teri Engleman.1 Plaintiff alleges that their conduct was known by Defendant Gerald Seege, a Delphi supervisor, but that no action was taken. Plaintiff further alleges that he filed complaints with his union, Defendant IUE Local 755, but due to the conspiracy between Defendants David Heizer (“Heizer”), Edward Harm (“Harm”), and James Clark (“Clark”), his complaints were neither investigated nor addressed.

Plaintiff initiated this litigation in the Montgomery County Court of Common Pleas on June 30, 2000 (Doe. # 1). On August 2, 2000, Delphi, with the written consent of the other Defendants, removed the action to this Court, alleging that the claims against the union and its representatives are preempted by § 301 of the Labor Management Rela[598]*598tions Act (“LMRA”), 29 U.S.C. § 185(a) (id). Pending before the Court is Plaintiffs’ Motion for Remand (Doc. # 8). For the reasons assigned, the Motion is OVERRULED.

The party seeking to litigate in federal court bears the burden of establishing the existence of federal subject matter jurisdiction. McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936). This is no less true where, as here, it is the defendant, rather than the plaintiff, who seeks the federal forum. E.g., Ahearn v. Charter Twp. of Bloomfield, 100 F.3d 451, 453-54 (6th Cir. 1996). When the party asserting federal jurisdiction finds its allegations challenged, it must submit evidence substantiating its claims. Amen v. City of Dearborn, 532 F.2d 554, 560 (6th Cir.1976). The removing defendant’s burden is to prove, by a preponderance of the evidence, that the jurisdictional facts it alleges are true. Gafford v. General Electric Co., 997 F.2d 150, 158 (6th Cir.1993). The district court has “wide discretion to allow affidavits, documents and even a limited evidentiary hearing to resolve disputed jurisdictional facts.” Ohio Nat. Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990) (citations omitted). The court may consider such evidence without turning the motion into one for summary judgment. Id.

In the instant case, Plaintiff does not argue that this Court lacks subject matter jurisdiction. In other words, he does not argue that his state law claims against the IUE Local 755, Heizer, Harm and Clark are not preempted by § 301 of the LMRA. Rather, he asserts that this litigation must be remanded to state court due to a procedural defect in the removal process. Specifically, Plaintiff argues that the Notice of Removal was signed by attorneys who were not, at that time, permitted to practice in this Court, either pursuant to Local Rule 83.4 (Admission to the Bar) or pursuant to Local Rule 83.5(d) (Pro Hac Vice status). In support of his Motion, Plaintiff relies on Local Rule 83.5, which provides, in pertinent part:

(a) Designation and Responsibility. Unless otherwise ordered, in all actions filed in, transferred to or removed to this Court, all parties not appearing in propria persona shall be represented of record by a “trial attorney” who is both a permanent member of the bar of this Court in good standing and a member in good standing of the bar of the Supreme Court of Ohio____
(b) Signing of Pleadings and Motions. All pleadings and motions filed on behalf of a party represented by counsel shall be signed by one attorney in his or her individual names as the trial attorney referred to in Section (a) of this rule, followed by the designation “Trial Attorney” together with his or her typed name, office address, zip code, and telephone number and area code....

Plaintiff asserts that Ms. Stratford and Mr. Walker did not satisfy these requirements at the time that they signed the Notice of Petition. He argues that, as a consequence, the Notice of Petition is a nullity. Plaintiff further asserts that Delphi has attempted to defeat these requirements by having attorney Lori A. Clary file a Motion for Admission Pro Hac Vice for those attorneys.

As an additional argument, Plaintiff contends that the signature of Mr. Replogle does not cure the alleged defect. He contends that because Delphi’s Notice was a nullity, Delphi has not joined in the removal action. In his words:

The original filing by Attorneys Stratford and Walker did not join Delphi as neither Attorney[] Stratford nor Walker could sign the pleading as a ‘Consent to’[,] because they were not admitted to this Bar. Therefore[,] Delphi itself would have had to sign and consent to be joined as a Defendant^] and this was not done.

Doe. # 8 at 2-3. Thus, Plaintiff argues that in the absence of the written consent of all Defendants by counsel, all of whom were admitted to practice in this Court at the time of removal, the Notice of Petition is procedurally defective and remand is required.

In response, Delphi presents two arguments. First, it asserts that any defect due to an unadmitted attorney’s signature is cured once the attorney is admitted in the jurisdiction. Second, Delphi argues that its Notice of Removal complied with the Local Rules. It states that a Notice of Removal is [599]*599neither a pleading or motion, as defined by the Federal Rules of Civil Procedure, and, therefore, its counsel was permitted to file the Notice first and subsequently request admission pro hae vice. Defendant further contends that Plaintiffs interpretation of the Local Rules defies common sense, given that Ms. Stratford and Mr. Walker could not request admission pro hac vice in this Court prior to the commencement of the federal litigation, which was initiated upon removal. Upon review of the Notice of Removal, the Local Rules, and the case law, this Court concludes that Plaintiffs Motion must be overruled.

As recognized by the parties, 28 U.S.C. § 1446 sets forth the procedures for removal of a lawsuit from state court to federal court. Section 1446(a) provides that a defendant or defendants who desire to remove a civil action from state court shall file a Notice of Removal, signed in accordance with Fed. R.Civ.P. 11, in the proper district court. 28 U.S.C. § 1446(a).

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Bluebook (online)
197 F.R.D. 597, 2000 U.S. Dist. LEXIS 19926, 2000 WL 1911490, Counsel Stack Legal Research, https://law.counselstack.com/opinion/greenwood-v-delphi-automotive-systems-inc-ohsd-2000.