ENTRY ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
The Magistrate Judge ' recommended that the court grant the Plaintiffs Motion to Remand. For the reasons set forth below, the court ADOPTS the Report and Recommendation and REMANDS this action to the Marion Superior Court.
I. Factual Background
In 2006, the Indiana Family and Social Services Administration (“FSSA”) and International Business Machines Corporation (“IBM”) entered into a Master Services Agreement, whereby IBM agreed to carry out many of the administrative responsibilities formerly carried out by FSSA and the State of Indiana. The following year, Plaintiffs adult son, Seth Land, was diagnosed with schizophrenia at the age of 20. Land applied for and received Medicaid coverage to help pay for his medications.
In 2009, Land’s Medicaid coverage was terminated. Acting as Land’s legal guardian, Plaintiff attempted to reinstate Plaintiffs Medicaid coverage, but was unsuccessful. Without his Medicaid- coverage, Plaintiff had no means to obtain the medications necessary to treat his illness. On May 15, 2009, Land attacked and seriously injured Plaintiff.
On May-13, 2011, Plaintiff filed a lawsuit under 42 U.S.C. § 1983 against Anne Murphy, individually and in her capacity as Secretary of the FSSA, IBM, and John and Jane Doe, arising out of the personal injuries she sustained from her son. On September 29, 2011, the court dismissed Plaintiffs § 1983 claims, declined to exercise supplemental jurisdiction over Plain
On September 19, 2014, Plaintiff filed a Complaint in the Marion Superior Court against IBM, the FSSA, and the State of Indiana. Plaintiff explained that in refiling her claims, she “named the state entities responsible for the conduct alleged rather than the individuals who were named in the original federal court complaint, as required by Ind.Code § 34-13-3-5.” The substance of Plaintiffs allegations remained the same, in that Plaintiff asserted that Defendants’ negligence in administering Indiana’s Medicaid program resulted in the attack that caused her injuries.
On October 22, 2014, IBM removed the action to this court. In its Notice of Removal, IBM asserted that the case was properly removable because Plaintiffs claims raise a substantial federal question and because complete diversity exists among all parties who were properly joined. Although neither the FSSA nor the State joined the Notice of Removal, IBM asserted that their joinder in the action was fraudulent, such that their join-der in the Notice was not required.
On November 21, 2014, Plaintiff moved to remand this case to state court. The court referred the motion to the'-Magistrate Judge on February 2, 2015. Soon thereafter, the Magistrate Judge issued his Report and Recommendation finding that FSSA’s joinder was proper, thus destroying diversity jurisdiction. The Magistrate Judge therefore recommended that the court grant Plaintiffs Motion to Remand. IBM timely objected.
II. Standard of Review
Under the doctrine of fraudulent joinder, “an out-of-state defendant’s right of removal premised on diversity jurisdiction cannot be defeated by joinder of a nondiverse defendant against whom the plaintiffs claim has ‘no chance of success.’” Morris v. Nuzzo,
The defendant asserting fraudulent joinder bears “a heavy burden.” Poulos,
III. Discussion
The Magistrate Judge concluded that the Journey’s Account Statute operated to extend the statute of limitations and preserve Plaintiffs claims against the FSSA, meaning the FSSA was properly joined. Because Plaintiff and the FSSA are citizens of Indiana, the Magistrate Judge concluded that the FSSA’s pres
The JAS provides:
Sec. l.(a) This section applies if a plaintiff commences an action and:
(1) the plaintiff fails in the action from any cause except negligence in the prosecution of the action;
(2) the action abates or is defeated by the death of a party; or
(3) a judgment is arrested or reversed on appeal.
(b) If subsection (a) applies, a new action may be brought not later than the later of:
(1) three (3) years after the date of the determination under subsection (a); or
(2) the last date an action could have been commenced under the statute of limitations governing the original action;
and be considered a continuation of the original action commenced by the plaintiff.
Ind.Code § 34-11-8-1. The timeliness of Plaintiffs federal 2011 Complaint and its failure (i.e., dismissal without prejudice) are not in dispute. The resolution of the parties’ dispute turns on whether the present action is a continuation of the 2011 federal action.
Generally, for an action to be considered a continuation of the former, the parties, the facts, and the causes of action must be the same. Eves v. Ford Motor Co.,
In Crawford, the Indiana Court of Appeals observed that “[official capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent.”
The record reflects that the Indiana Attorney General’s office represented Murphy in her individual and official capacity in the 2011. federal action. In accordance with Indiana Code § 34-13-3-5(e), the FSSA had an obligation to provide counsel for Murphy, and it did. Indeed, in the 2011 federal action, the Secretary of the FSSA joined IBM in moving to dismiss Land’s claims. The court therefore agrees with the Magistrate Judge’s conclusion that the FSSA had notice and an opportunity to respond to the 2011 federal action, and the Journey’s Account Statute likely applies to save her otherwise time-barred claims.
The court finds the FSSA failed to meet its burden of establishing that Plaintiff has no chance of success in the present action due to the statute of limitations. Accordingly, the court hereby ADOPTS the Magistrate Judge’s Report and Recommendation (Filing No. 54) and REMANDS this action to the Marion Superior Court.
REPORT AND RECOMMENDATION ON PLAINTIFF’S MOTION TO REMAND
This matter comes before the Court on Plaintiffs Motion to Remand. [Dkt. 20.] For the reasons set forth below, the Magistrate Judge recommends
I. Background
Sharon Land (“Plaintiff’ or “Land”) is an Indiana resident and the mother of Seth Land (“Seth”). [Dkt. 1-1 ¶¶ 1, 5 (PL’s Compl.).] In 2007, Seth was diagnosed with schizophrenia, which rendered him “a danger to himself and others.” [Id.] Seth received medication to manage his condition, and he applied for Medicaid to help pay for this medication. [Id. ¶¶ 5, 7.] His application was approved and his Medicaid became effective on November 1, 2007. [Id. ¶ 7.]
In 2009, however, Seth’s Medicaid coverage was terminated. [Id. ¶ 8.] Acting as Seth’s legal guardian, Plaintiff attempted to reinstate Seth’s Medicaid coverage, but she was unsuccessful. [Id. ¶ 9.] Without Medicaid coverage, Seth allegedly had “no means to obtain the medications necessary to treat his mental illness.” [Id. ¶ 11.] Plaintiff claims that as a result of this lack of treatment, Seth “attacked and seriously injured” Plaintiff on May 15, 2009. [Id. ¶ 12.]
At the time of the preceding events, the Indiana Medicaid program was administered by the Indiana Family and Social Services Administration (“FSSA”). [Id. ¶3.] Plaintiff alleges that in 2006, the FSSA entered into an agreement with International Business Machines Corporation (“IBM”), under which IBM “agreed to carry out many of the responsibilities associated with administration of the Medicaid program.” [Id. ¶ 4.] After signing this agreement, IBM and the FSSA thus shared responsibility for administering Indiana’s Medicaid program. [See id.]
Plaintiff claims that the FSSA and IBM were negligent in administering the program and that their negligence caused the termination of Seth’s Medicaid benefits in 2009. [Id. ¶ 8.] She asserts that at all relevant times, Seth was actually eligible for Medicaid, such that IBM and the FSSA erred when they terminated his benefits. [Id. ¶ 10.] Plaintiff thus concludes that the negligence of IBM and the FSSA caused the loss of Seth’s medication, which, in turn caused the attack that injured her. [See id. ¶¶ 11-13.]
Based on this theory of liability, Plaintiff filed suit in this Court on May 13, 2011. [Id. ¶ 14.] She named as defendants 1) IBM; 2) Anne Murphy, individually and in her capacity as Secretary of the FSSA; and 3) John and Jane Doe, who were allegedly employees of IBM or the local
Plaintiffs 2011 complaint included claims brought under Indiana law and 42 U.S.C. § 1983. [Id; see also Dkt. 21-1 (Pl.’s 2011 Compl.).] This Court dismissed the Section 1983 claim under Fed.R.Civ.P. 12(b)(6). [Dkt. 1-1 ¶ 15; see also Dkt. 21-3 (Entry on Mot. To Dismiss).] The Court then addressed Plaintiffs state law claims and noted that “jurisdiction on all of Plaintiffs remaining claims is based upon 28 U.S.C. § 1367, which provides for the exercise of supplemental jurisdiction over claims based upon state law that are closely related to the federal claims in a case.” [Dkt. 21-3 at 7.] The Court further observed that when the “federal claim in a case drops out before trial, the presumption is that the district judge will relinquish jurisdiction over any supplemental claim to the state courts.” [Id (quoting Leister v. Dovetail, Inc.,
On September 19, 2014, Plaintiff filed a new complaint in Indiana’s Marion County Superior Court. [Dkt. 1-1.] This complaint named as defendants 1) IBM; 2) the FSSA; and 3) the State of Indiana (“the State”). [Id] Plaintiff explained that in re-filing her claims, she “named the state entities responsible for the conduct alleged rather than the individuals who were named in the original federal court complaint, as required by Ind.Code § 34-13-3-5.” [Id ¶ 17.] The substance of Plaintiffs allegations, however, remained the same, in that Plaintiff asserted that defendants’ negligence in administering Indiana’s Medicaid program resulted in the attack that caused her injuries. [See Dkt. 1-1; Dkt. 21-1.]
On October 22, 2014, IBM removed the case to this Court. [See Dkt. 1.] In its notice of removal, IBM asserted that the case was properly removable 1) because Plaintiffs claims raise a substantial federal question, [id. ¶ 6], and 2) because complete diversity exists among all parties who were properly joined. [Id ¶ 19.] Neither the State nor the FSSA joined the notice of removal, but IBM asserted that their join-der in the action was fraudulent, such that their joinder in the notice of removal was not required. [Id ¶ 40.] On November 21, 2014, Plaintiff moved to remand this case to state court, [Dkt. 20], and the Court now addresses Plaintiffs motion.
II. Discussion
The defendant in a civil action brought in state court may remove the case to the U.S. district court for the district embracing the place where the action is pending, provided the district court has original jurisdiction over the action. 28 U.S.C. § 1441(a). “The party seeking removal has the burden of establishing federal jurisdiction, and federal courts should interpret the removal statute narrowly, resolving any doubt in favor of the plaintiffs choice of forum in state court.” Schur v. L.A. Weight Loss Centers, Inc.,
IBM asserts that original jurisdiction in this case rests both on the presence of a federal question, see 28 U.S.C. § 1331, and on the parties’ complete diversity of citizenship. See 28 U.S.C. § 1332. The Court will first address federal question jurisdiction and then turn to diversity jurisdiction.
A. Federal Question Jurisdiction
District courts have original jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331.
IBM argues that Plaintiffs claims “fit comfortably within Grable’s standard,” such that the Court may exercise jurisdiction over them. [Dkt. 1 ¶ 11.] IBM notes that Plaintiff claims that her son’s Medicaid coverage was negligently terminated, and that Medicaid is “borne of federal statutory law, governed by extensive federal regulation, largely funded by the government, and overseen by a federal agency.” [Id. ¶¶ 12, 14 (citations omitted).] IBM adds that these “federal issues are disputed,” as IBM “denies that plaintiffs son was entitled to Medicaid benefits” and asserts that it “complied with all applicable federal laws.” [Id. ■ ¶ 13.] Finally, IBM notes that federal courts have previously considered and ruled on “wrongful failure to provide Medicaid benefits,” such that exercising jurisdiction in this case would not upset the “congressionally approved balance of federal and state judicial responsibilities.” [Id. ¶ 17.]
Plaintiff opposes IBM’s arguments on three grounds. [See Dkt. 21.] She contends 1) that the law of the case doctrine precludes IBM from asserting that this Court has jurisdiction [id. at 5]; 2) that IBM waived any opportunity it had to assert that this Court has federal question jurisdiction [id. at 7-8]; and 3) that her claims do not raise a federal question. [Id. at 8.]
1. Law of the Case
Plaintiff argues that the law of the case doctrine prohibits IBM from asserting that a federal question exists in this case. [Id. at 5.] Plaintiff bases this argument on this Court’s prior dismissal of her section 1983 claim and its accompanying decision to relinquish jurisdiction over her state-law negligence claims.' [Id. at 5-6; see also Dkt. 21-3 at 7 (“[T]he Court declines to exercise supplemental jurisdiction over the state law claims asserted in Land’s complaint.”).] Plaintiff contends this decision amounted to a determination “that there is no basis for [this Court] to exercise jurisdiction over Land’s state law negligence claims,” and that this determination now prohibits a different decision on whether the Court has jurisdiction over the claims. [Id. at 7.]
“The doctrine of law of the case is a rule of practice under which ‘... a decision on an issue of law made at one stage of a case becomes a binding precedent to be followed in successive stages of the same litigation.’” Roboserve, Inc. v. Kato Kagaku Co.,
Law of the case, however, is “not an immutable concept.” Parts & Elec. Motors, Inc. v. Sterling Elec., Inc.,
Moreover, even if the Court’s prior decision to dismiss the state law claims did carry an implicit finding that they did not raise a federal question, this finding would be entitled to little weight. “[T]he law of the case doctrine is discretionary and does not preclude a district court from reopening a decided issue.” Galvan v. Norberg,
The nature of the question at issue also reinforces this conclusion. “[C]ourts are significantly less constrained by the law of the case doctrine with respect to jurisdictional questions.” Shakman v. Dunne,
This is exactly the argument that Land makes in this case, [see Dkt. 21 at 6], but the court in National Business Development rejected it. That court no.ted that it had “previously dismissed Plaintiffs alleged state-law claims without argument,” and that the relevant legal issues had changed in light of the plaintiffs new complaint and “the current status of the case.” Nat'l Bus. Dev.,
The situation in this case is analogous. The Court previously dismissed Land’s state-law claims “without argument,”
2. Waiver
Plaintiff next argues that, even if the law of the case doctrine does not apply, IBM has “waived any claim that federal question jurisdiction exists here by failing to cross appeal this Court’s September 29, 2011, Judgment.” [Dkt. 21 at 7.] She reiterates her contention that the Court’s earlier relinquishment of the state-law negligence claims included a finding that there was no federal jurisdiction over those claims, and argues that if IBM wanted to alter that finding, it had to cross-appeal the judgment. [Id. at 8.] Because IBM did not do so, see Land,
At the outset, this argument rests on the premise that' the Court already made a “determination that it lacked jurisdiction over [Land’s] state law claims.” [Dkt. 34 at 4 (Pl.’s Reply Br.).] As described above, however, the parties never presented and the Court never analyzed jurisdiction over these claims, such that the Court
Furthermore, Plaintiff herself notes that “ ‘a federal court always has jurisdiction to determine its own jurisdiction.’ ” Knudsen v. Liberty Mut. Ins. Co.,
3. Substantial and Disputed Question
Plaintiff argues that this Court lacks federal question jurisdiction because her claims are governed by state law and do not raise a federal question. [Id. at 8.] Both parties cite Grable,
In Grable, the IRS seized property from the plaintiff and sold it to the defendant. Id. at 310,
The Court first noted that “the meaning of the federal statute [26 U.S.C. § 6335] [was] actually in dispute,” and in fact, the meaning of the federal statute was “the only legal or factual issue contested in the case.” Id. at 315,
Plaintiffs claims in this case do not fit within this framework. First, IBM notes that Medicaid is a “creature of federal law,” [Dkt. 30 at 8], but IBM does not identify a single federal statute that this Court must interpret or apply in deciding Plaintiffs claims. [See id. at 7-9.] Plaintiff contends that, at all relevant times, Seth was entitled to Medicaid benefits, [Dkt. 1-1 ¶ 10], but it is the state government — not the federal government — that determines eligibility guidelines for each state’s Medicaid program. See 42 U.S.C. § 1396a. Likewise, Plaintiff contends that Seth’s Medicaid benefits were improperly terminated, [Dkt. 1-1 ¶ 8], but it is the state government — not the federal government — that administers each state’s Medicaid program. See 42 U.S.C. § 1396a; see also Glaser v. Wound Care Consultants, Inc.,
This case is thus far removed from Grable: there, the interpretation of a federal law was the only disputed issue. Grable,
Plaintiff also acknowledges that state Medicaid guidelines must meet certain federal minimum requirements. [Dkt. 21 at 10.] These requirements, however, are irrelevant to this case, as Plaintiff “is not contending that Indiana’s statutory eligibility requirements for Medicaid run afoul of federal requirements[J” [Id.] The Court will thus have no cause to interpret or apply the federal laws establishing Medicaid’s minimum guidelines, making it unlikely that a substantial federal question will arise.
Next, the cases IBM cites to support its position are inapposite. In its notice of removal, IBM cites Banks v. Secretary of Indiana Family & Social Services Administration for the proposition that assertions of “wrongful failure to provide Medicaid benefits are routinely litigated in federal court regardless of diversity.” [Dkt. 1 ¶ 17 (citing
IBM also cites Chickadaunce v. Minott, No. 1:13-CV-01223-WTL,
Land’s claims, in contrast, will not. Unlike the plaintiffs in Chickadaunce, Land has alleged no failure to administer Indiana’s Medicaid program in a way that complies with federal law. [See Dkt. 1-1 (Compl.).] And unlike the plaintiffs in WellCare, Land has alleged no failure to abide by the terms of an agreement incorporating federal Medicaid law by reference. [See id.] Again, then, Land’s complaint will not require interpretation of federal law and therefore does not raise a federal issue.
IBM finally argues that the (purported) federal issue in this case is “substantial” because Medicaid is “funded by the federal treasury.” [Dkt. 30 at 8; see also Dkt. 1-1 ¶8 (“The federal government funds 50%-83% of each state’s Medicaid costs for patient care.”).] This may be true, but it is irrelevant. In Grable, the Supreme Court acknowledged that lawsuits impacting the federal treasury could raise substantial issues, see
B. Diversity Jurisdiction
IBM argues that even if the Court does not have federal question jurisdiction over Land’s claims, the Court may exercise diversity jurisdiction over this case. [Dkt. 1-1 ¶ 19; Dkt. 30 at 4.] A district court has diversity jurisdiction over “all civil actions where the matter in controversy exceeds the sum or value of $75,000”
Plaintiff in this case is a citizen of Indiana, [see Dkt. 1-1 ¶ l],
IBM, however, argues that, “under the doctrine of fraudulent or improper join-der,” both the State and the FSSA were improperly joined, such that these defendants are “disregarded when determining whether diversity exists.” [Dkt. 1 ¶ 23.] If IBM is correct, then the only properly joined parties are Plaintiff and IBM, such that complete diversity of citizenship exists. The Court must thus determine whether the FSSA and the State were fraudulently joined. In doing so, the Court will first consider the FSSA’s join-der and then, if necessary, consider the State’s joinder.
1. Fraudulent Joinder
Under the doctrine of fraudulent joinder, “an out-of-state defendant’s right of removal premised on diversity cannot be defeated by joinder of a nondiverse defendant against whom the plaintiffs claim has ‘no chance of success.’ ” Morris v. Nuzzo,
The defendant asserting fraudulent join-der bears “a heavy burden.” Id. “The defendant must show that, after resolving all issues of fact and law in favor of the plaintiff, the plaintiff cannot establish a cause of action against the in-state defendant.” Id. (emphasis original). The court must thus assess the defendant’s argument and “engage in an act of prediction: is there any reasonable possibility that a state court would rule against the non-diverse defendant?” Id. If so, then the joinder was not fraudulent, and the citizenship of the non-diverse defendant cannot be disregarded. See id.
IBM in this case contends “there is no reasonable possibility that this case will go forward” against the FSSA because
Plaintiff responds that Indiana’s Journey’s Account Statute (“JAS”) operates to save her claims. [Dkt. 21 at 13.] That statute provides:
Sec. 1. (a) This section applies if a plaintiff commences an action and:
(1) the plaintiff fails in the action from any causp except negligence in the prosecution of the action;
(2) the action abates or is defeated by the death of a party; or
(3) a judgment is arrested or reversed on appeal.
(b) If subsection (a) applies, a new action may be brought not later than the later of:
(1) three (3) years after the date of the determination under subsection (a); or
(2) the last date an action could have been commenced under the statute of limitations governing the original action;
and be considered a continuation of the original action commenced by the plaintiff.
Ind.Code § 34-11-8-1. Plaintiff argues that she timely filed her original action within the two-year statute of limitations, and that this Court’s dismissal of her state-law claims without prejudice constituted a “failure] in the action” under subsection (a); Plaintiff thus contends that, under subsection (b), she had an additional three years to file a new action. [See Dkt. 21 at 14.] Because the dismissal of her state law claims occurred on September 29, 2011, [Dkt. 21-3 at 8], and because her new complaint was filed September on 19, 2014, [Dkt. 1-1 at 1], Plaintiff concludes her claims are timely.
Based on these arguments, the viability of any claim against the FSSA depends on the applicability of the JAS, and the Court must thus “engage in an act of prediction” and ask whether there is “any reasonable possibility that a state court would rule” that the JAS applies. See Poulos,
2. Applying the Journey’s Account Statute
IBM argues that the JAS applies only to new causes of action that assert the same claims against the same defendants. [Dkt. 30 at 4.] Here, Plaintiffs original complaint named the defendants as 1) IBM; 2) Anne Murphy, individually and in her capacity as Secretary of the FSSA; and 3) John and Jane Doe, who were allegedly employees of either IBM or the local FSSA office that handled Seth’s Medicaid applications. [See Dkt. 21-1.] Her current complaint, however, names the defendants as 1) IBM; 2) the State of Indiana; and 3) the FSSA itself. [See Dkt. 1-1.] IBM thus- concludes that the JAS does not apply to save the claims against the new defendants. [Dkt. 30 at 4.] For the reasons explained below, the Court will first focus its analysis upon whether the FSSA has been fraudulently joined.
Plaintiff responds that she altered the names of the defendants only to comply with Indiana’s procedures governing
Civil actions relating to acts taken by a board, a committee, a commission, an authority, or another instrumentality of a governmental entity may be brought only against the board, the committee, the commission, the authority, or the other instrumentality of a governmental entity. A member of a board, a committee, a commission, an authority, or another instrumentality of a governmental entity may not be named as a party in a civil suit that concerns the acts taken by a board, a committee, a commission, an authority, or another instrumentality of a governmental entity where the member was acting within the scope of the member’s employment. For the purposes of this subsection, a member of a board, a committee, a commission, an authority, or another instrumentality of a governmental entity is acting within the scope of the member’s employment when the member acts as a member of the board, committee, commission, authority, or other instrumentality.
Ind.Code § 34-18-3-5(a). Plaintiff therefore could not individually, name Anne Murphy or the unknown employees of the FSSA as defendants. Instead, to comply with Indiana law, she had to name only the FSSA itself.
In evaluating these arguments, the Court first notes that the case law on which IBM relies does not persuasively establish that the JAS is inapplicable in all cases in which the parties to an action change. IBM first cites Kindred Nursing Centers v. Estate of McGoffney,
Next, IBM cites Vesolowski v. Repay,
IBM also cites Eads v. Community Hospital,
This conclusion suffers from two flaws: First, as noted above, the fact that the JAS does apply when there is no change in parties does not necessarily mean that the JAS does not apply when the parties do change. Second, the Indiana Supreme Court in Eads applied the JAS even though the complaint in that case was “altered” to comply with “the procedural requirements to assert the claim” at issue. Eads,
IBM finally cites McGill v. Ling,
In Eads, however, the Indiana Supreme Court specifically cited McGill and still determined that the JAS applied to a complaint that had been altered to comply with procedural requirements. See Eads,
Next, even if the Court accepts IBM’s argument, the JAS may still apply to Land’s claims. Land’s original suit included allegations against Anne Murphy both “individually and in her capacity as Secretary of the Indiana Family & Social Services Administration.” [Dkt. 21-1 at 1.] Land thus sued Murphy in both “her individual and official capacities.” • [Id. ¶ 5.]
An “official-capacity” suit, however, “generally represents] only another way of pleading an action against an entity of which an officer is an agent.” Crawford v. City of Muncie,
Here, the FSSA plainly did. In Porter County Sheriff Department v. Guzorek, the Indiana Supreme Court assessed when notice may be attributed to a government entity based on a lawsuit against an individual.
In Guzorek, the plaintiffs originally sued only an individual police officer, but then amended their complaint to add the police department itself.
The same considerations apply in this case. Both the individual defendant— Murphy — and her agency — the FSSA— are or were represented by the Indiana Attorney General’s office, [see, e.g., Dkt. 1-
The FSSA also had a chance to respond to Land’s claims: as the Court noted in its previous Entry on Motions to Dismiss, the Secretary of the FSSA in the original federal lawsuit joined IBM and the other defendants in moving to dismiss Land’s claims. • [Dkt. 21-3 at 3 & n. 3.] This motion on behalf of the Secretary constitutes a response on behalf of the FSSA that satisfies the requirement that the government entity have a chance to respond to the claims against it. See, e.g., Pubentz v. Holder,
The FSSA itself thus received both notice of and a chance to respond to Plaintiffs original complaint, and the suit against Murphy in her official capacity was a suit against the FSSA itself. See Crawford,
3. Effect on Fraudulent Joinder Claim
The result of this analysis is that Land’s claims against the FSSA likely are not time-barred. This conclusion, however, goes further than necessary to decide the current motion: Plaintiff need not show that her claims would “likely” succeed; instead, to establish fraudulent joinder, IBM “must show that, after resolving all issues of fact and law in favor of the plaintiff,” there is no “reasonable possibility” that a court would rule in Land’s favor. Poulos,
The Court also notes that it “should interpret the removal statute narrowly” and “resolv[e] any doubt in favor of the plaintiffs choice of forum in state court.” Schur,
Because the FSSA was properly joined, the Court cannot disregard the citizenship the FSSA. See Nuzzo,
For the reasons described in the previous sections, the Court concludes that it has neither federal question jurisdiction nor diversity jurisdiction over the present case. Because an action is properly removable only if the district court to which the action is removed has original jurisdiction, see 28 U.S.C. 1441(a), removal in this case was not proper, and the Magistrate Judge therefore recommends that the case be remanded to state court.
Additionally, removal under 28 U.S.C. 1441(a) requires that “all defendants who have been properly joined and served must join in or consent to the removal of the action.” 28 U.S.C. § 1446. The FSSA did not join IBM’s removal. [See Dkt. 1 at 1 n. 1] IBM contends that its consent to removal is not required because the FSSA was fraudulently joined. [Id.] As described above, however, this argument is erroneous, and the failure of the FSSA to join the removal constitutes a defect that, again, requires remand. See, e.g., Yount v. Shashek,
III. Conclusion
For the reasons set forth above, the Magistrate Judge recommends that the Court GRANT Plaintiffs Motion to Remand. [Dkt. 20.] Any objections to the Magistrate Judge’s Report and Recommendation shall be filed with the Clerk in accordance with 28 U.S.C. § 686(b)(1) and Fed.R.Civ.P. 72(b), and failure to timely file objections within fourteen days after service shall constitute a waiver of subsequent review absent a showing of good cause for such failure.
Filed Feb. 10, 2015.
Notes
. Having found the FSSA’s presence destroyed the court's diversity jurisdiction, the Magistrate Judge did not analyze whether the State was fraudulently joined.
. Federal courts are divided on whether a motion to remand is a case-dispositive issue for which a magistrate judge may issue only a report and recommendation. See Johnson v. Globus Med., Inc., No. 1:14-CV-00730-SEB-MJD,
. The Seventh Circuit has noted that, despite its statement in Shakman,
. Plaintiffs appeal focused on the Court’s dismissal of Plaintiff’s federal claim, not on the Court’s refusal to exercise supplemental jurisdiction. See Land,
. Plaintiff argues that the Court’s duty to assess its jurisdiction means the Court necessarily assessed whether it had jurisdiction over the state law claims when it declined to exercise supplemental jurisdiction over them. [Dkt. 34 at 2.] As Hay indicates, however, the Court’s duty arises "upon a challenge” to the Court’s jurisdiction.
. The parties do not dispute that the amount in controversy exceeds $75,000.
. Technically, Plaintiff alleges only that she is a "resident” of Indiana, which does not establish her citizenship for purposes of diversity jurisdiction. See Poulos v. Naas Foods, Inc.,
. Plaintiff does not contest that these were the applicable dates for her claims. [See Dkt. 21.]
. Because the Court has determined that the FSSA was not fraudulently joined, and that diversity jurisdiction therefore does not exist, it is irrelevant to the instant motion whether the State of Indiana was fraudulently joined. The presence of the FSSA alone is enough to prevent this Court from hearing this case, and the Court thus has no need to consider whether Indiana was fraudulently joined as well. On remand, the state court may decide whether the claims against the State are time-barred, but in the interest of judicial economy, this Court will not address the issue.