UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
October 11, 2011
KEVIN MIESCHBERGER, PLAINTIFF,
DANA CORPORATION, DANA HOLDING CORPORATION, AND EATON CORPORATION, DEFENDANTS.
The opinion of the court was delivered by: Seybert, District Judge:
MEMORANDUM & ORDER
Pending before the Court is Plaintiff Kevin Mieschberger's ("Plaintiff") motion to remand or, in the alternative, for a jury trial. For the following reasons, the motion to remand is GRANTED, and Plaintiff's request for a jury trial is DENIED AS MOOT.
Plaintiff commenced this action on January 11, 2011 in New York State Supreme Court Suffolk County against Eaton Corporation ("Eaton"), Dana Corporation,*fn1 and Dana Holding Corporation (collectively, "Defendants") seeking to collect damages for personal injury under theories of negligence, strict products liability and breach of warranty. Plaintiff asserts that he was injured on or about June 9, 2008 when the gas tank of a forklift he was operating exploded as a result of an allegedly defective brake hose and fitting manufactured by the Defendants. (Compl. ¶ 34.)
On February 16, 2011, Eaton removed the present action under 28 U.S.C. § 1441 on the basis of diversity jurisdiction. (Not. of Removal, Docket Entry 1.)
On March 21, 2011, Plaintiff filed the instant motion to remand, or, in the alternative, to request a jury trial.
Because the Court grants the motion to remand, Plaintiff's request for a jury trial is DENIED AS MOOT.
"The Court does not treat a removal petition in a civil action as a motion or application to be denied or granted[.] 28 U.S.C. § 1446(a)-(b). Rather, filing the petition has the effect of removing the action to the district court, subject to remand or dismissal." Mercy Hosp. Ass'n v. Miccio, 604 F. Supp. 1177, 1179 (E.D.N.Y. 1985). A district court may remand only if removal was improper, i.e., if there was a lack of subject matter jurisdiction, see 28 U.S.C. § 1441; if there was a statutory prohibition on removal, see, e.g., id. §§ 1441(b), 1445; or if the notice of removal was procedurally defective, id. § 1447(c). The parties do not dispute that the Court has subject matter jurisdiction on the basis of diversity as the matter is between citizens of different States*fn2 and the amount in controversy exceeds $75,000 (Not. of Removal ¶ 4). See 28 U.S.C. § 1332.*fn3 Nor does Plaintiff assert that there was a statutory bar to removal applicable here.
Rather, Plaintiff argues that Eaton's removal was procedurally improper because Dana Corporation and Dana Holding Corporation failed to consent to it.*fn4 The Court agrees. "Although there is no express statutory requirement for joinder or consent by co-defendants, there is widespread agreement among the district courts, including those in the Second Circuit, that all named defendants over whom the state court acquired jurisdiction must join in the removal petition for it to be proper." Codapro Corp. v. Wilson, 997 F. Supp. 322, 325 (E.D.N.Y. 1998) (internal quotation marks and citation omitted).
There are three exceptions to this unanimity rule:
[W]hen: (1) the non-joining defendants have not been served with service of process at the time the removal petition is filed; (2) the non-joining defendants are merely nominal or formal parties; or (3) the removed claim is a separate and independent claim as defined by 28 U.S.C. § 1441(c).
Snakepit Auto., Inc. v. Superperformance Int'l, L.L.C., 489 F. Supp. 2d 196, 201-02 (E.D.N.Y. 2007) (internal quotation marks and citation omitted). Defendants argue that both Dana Corporation and Dana Holding Corporation are nominal parties, so no consent is required.*fn5 The Court agrees that Dana Corporation is a nominal party as it was defunct at the time of removal. See Stonybrook Tenants Ass'n, Inc. v. Alpert, 194 F. Supp. 552, 553 (D. Conn. 1961) (holding that liquidated corporations without assets or liabilities were nominal defendants). However, the Court does not find that Dana Holding Corporation is a nominal party.
Defendants assert that Dana Holding Corporation is a nominal party because Eaton has agreed to defend and indemnity it in this action. (Def. Mot. 7-8.) While it appears as though Eaton has, in fact, agreed to indemnify Dana Holding Corporation (Def. Mot. Ex. B), district courts in this circuit and others have consistently held that "the mere fact that a defendant is indemnified by another defendant does not transform the indemnified defendant into a nominal party." Patrick v. Porter-Cable Corp., No. 10-CV-0131, 2010 WL 2574121, at *5 (D. Conn. Apr. 1, 2010) (citing Bricker v. Ford Motor Co., 514 F. Supp. 1236, 1238-39 (S.D. Tex. 1981) ("Even though it has an indemnity agreement with Ford, plaintiffs seek a judgment against Von-Wil, and if successful on the merits, will obtain a final judgment against them upon which execution may issue."); Thompson v. Conoco Inc., No. 94-CV-0199, 1994 WL 1890836, at *5 (N.D. Miss. Dec. 13, 1994) ("Friend and Smith have very real and subsisting interest in the subject matter of this action and the claim asserted against them. Even though there is an indemnity agreement with Conoco and Vista, plaintiffs seek a judgment against these two men, and if successful on the merits, will obtain a final judgment against them.")).
Thus, the Court finds that Dana Holding Corporation is not a nominal party and was required to indicate its consent to removal to the Court unambiguously and in writing. Since it failed to do so, the removal was procedurally deficient, and the case must be remanded.
For the reasons stated above, Plaintiff's motion to remand is GRANTED, and Plaintiff's request for a jury trial is DENIED AS MOOT. The Clerk of the Court is directed to remand this case back to New York State Supreme Court, Suffolk County, and mark this matter closed.
Joanna Seybert, U.S.D.J.