Johnson v. NEXUS Gas Transmission, LLC

493 F.Supp.3d 592

Ronald L. and Sandra S. JOHNSON, Individually and as Trustees of the Ronald L. Johnson Trust and/or Sandra Johnson Trust, et al., Plaintiffs

v.NEXUS GAS TRANSMISSION, LLC, et al., Defendants

Case No. 3:20-cv-00913-JGC

United States District Court, N.D. Ohio, Western Division.

Filed October 6, 2020

James L. Murray, William H. Bartle, Murray & Murray, Sandusky, OH, for Plaintiffs.

Christine R. Schirra, Sommer L. Sheely, Bricker & Eckler, Columbus, OH, for Defendants Nexus Gas Transmission, LLC, DTE Energy Company, Enbridge, Inc.

James K. Ratliff, Ralph E. Burnham, Reminger Co., Ft. Mitchell, KY, for Defendant Dykon Blasting Corp.

ORDER

James G. Carr, Sr. U.S. District Judge This lawsuit, which defendants removed from the Common Pleas Court of Erie County, Ohio, arises from alleged damage to real property resulting from construction of a natural gas pipeline. (Doc. 1-1).

Pending is plaintiffs’ motion to remand this case to state court and for costs, expenses, and attorneys’ fees incurred as a result of removal. (Doc. 7). Defendants oppose the motion and seek costs, expenses, and attorneys’ fees. (Doc. 19). Plaintiffs have replied. (Doc. 20).

For the reasons that follow, I deny plaintiffs’ motion for remand and both requests for attorneys’ fees, etc.

A. Background

Since 1978, Plaintiffs Ronald and Sandra Johnson have been living in an underground home located in Huron, Ohio. (Doc. 1-1, pgID 5). In April 2018, plaintiffs began feeling vibrations in their home. (Id. ). Plaintiffs also noticed a leak and crack in their garage ceiling. (Id. , pgID 6). By June 2018, plaintiffs noticed vibrations, cracks, and leaks throughout their home. (Id. ).

Plaintiffs allege that defendants NEXUS Gas Transmission, LLC ("NEXUS"), or their agents, are responsible for the vibrations and the damage to their home. (Id. ). Plaintiffs claim that the damage resulted from defendants’ nearby drilling and blasting during construction of defendants’ pipeline. (Id. ). Plaintiffs’ allege that the damage to their home includes structural cracks, water and gas leaks, and shifted outside stone slabs. (Id. ). As a result, they assert, they have lost the use and enjoyment of their long-time residence. (Id. , pgID 7). In their complaint, plaintiffs raise state law causes of action for nuisance, trespass, and strict liability claims. (Id. ). On April 29, 2020, defendants removed the case to this court on diversity grounds under 28 U.S.C. § 1332. (Doc. 1).

B. Legal Standard

Federal courts have limited subject matter jurisdiction. "[T]he intent of Congress drastically to restrict federal jurisdiction in controversies of diverse citizens has always been rigorously enforced by the courts." St. Paul Mercury Indem. Co. v. Red Cab Co. , 303 U.S. 283, 288, 58 S.Ct. 586, 82 L.Ed. 845 (1938) ; see also Musson Theatrical, Inc. v. Federal Express Corp. , 89 F.3d 1244, 1252 (6th Cir. 1996) ("The Constitution allows federal courts only a limited and special jurisdiction, and powers not given to the federal courts by Congress are reserved to the primary repositories of American judicial power: state courts.").

Under 28 U.S.C. § 1441, et seq. , a defendant may remove a case from state court only if the plaintiff could originally have filed suit in federal court. Caterpillar Inc. v. Williams , 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). Absent diversity of citizenship or a federal question this court would lack subject matter jurisdiction. See id.

Diversity of citizenship exists under 28 U.S.C. § 1332 only when: 1) no plaintiff and no defendant are citizens of the same state, United States Fidelity & Guar. Co. v. Thomas Solvent Co. , 955 F.2d 1085, 1089 (6th Cir. 1992), and 2) the amount in controversy exceeds $75,000. Moreover, defendants may only remove a case "to the district court of the United States for the district and division embracing the place where such action is pending" under 28 U.S.C. § 1441(a). And a defendant may not remove an action to federal court if it is a "citizen of the State in which such action is brought." 28 U.S.C. § 1441(b).

To determine the citizenship of an unincorporated entity like an LLC, one must know the citizenship of each member of the LLC. Delay v. Rosenthal Collins Grp., LLC , 585 F.3d 1003, 1005 (6th Cir. 2009) ("The general rule is that all unincorporated entities—of which a limited liability company is one—have the citizenship of each partner or member.").

As the Sixth Circuit has explained:

[w]hen diversity jurisdiction is invoked in a case in which a limited liability company is a party, the court needs to know the citizenship of each member of the company. And because a member of a limited liability company may itself have multiple members—and thus may itself have multiple citizenships—the federal court needs to know the citizenship of each "sub-member" as well. Indeed, if even one of [the defendant's] members—or one member of a member—were a citizen of Ohio, then complete diversity ... would be destroyed.

Id.

With a motion to remand, the issue generally is whether the case was properly removed in the first instance. Ouellette v. The Christ Hosp. , 942 F. Supp. 1160, 1162 (S.D. Ohio 1996). "The defendant that removes a case from state court bears the burden of establishing federal subject-matter jurisdiction." Jerome-Duncan v. Auto-By-Tel, L.L.C. , 176 F.3d 904, 907 (6th Cir. 1999).

C. Discussion

The issue here is whether defendants properly removed this case.

Plaintiffs do not claim that NEXUS or any part of its LLC membership hierarchy are Ohio entities. Instead, they assert that defendants’ removal papers are fatally flawed because, they have not expressly stated where NEXUS has its principal place of business, which, according to plaintiffs, is in Columbus, Ohio. Thus, plaintiffs claim NEXUS is a citizen of Ohio. (Id. , pgID 3).

However, as defendants correctly point out, an LLC's principal place of business is irrelevant for determining its citizenship under § 1332. (Doc. 19, pgID 1). As the Sixth Circuit stated in Delay, supra , 585 F.3d at 1005, "[t]he general rule is that all unincorporated entities—of which a limited liability company is one—have the citizenship of each partner or member."

Defendants have adequately established in their removal papers that they are not citizens of Ohio and that complete diversity exists among the parties in this case. (Doc. 1). Defendants have also established that the amount in controversy exceeds $75,000 exclusive of interest and costs. (Id. ).

I am satisfied that I have subject matter jurisdiction over this case.

Finally, a word about the cross-demands for costs, expenses, and attorneys’ fees. Even if,...