O'Brien v. Waste Management of Ohio, Inc. et al, No. 1:2018cv02982 - Document 43 (N.D. Ohio 2019)

Court Description: Opinion & Order signed by Judge James S. Gwin on 2/21/19. The Court, for the reasons set fort in this order, grants plaintiff's motion to remand and denies plaintiff's motion for attorney's fees. (Related Doc. 8 ) (D,MA)

Download PDF
O'Brien v. Waste Management of Ohio, Inc. et al Doc. 43 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO ----------------------------------------------------------------KERRY O’BRIEN, as personal : : representative of the estate of ERIC A. RUSSELL, : : Plaintiff, : : vs. : : WASTE MANAGEMENT OF OHIO, : INC., et al., : : Defendants. : : ----------------------------------------------------------------- CASE NO. 1:18-CV-2982 OPINION & ORDER [Resolving Doc. 8] JAMES S. GWIN, UNITED STATES DISTRICT JUDGE: Plaintiff Kerry O’Br“en brings this action on behalf of Eric Russel. Eric Russel died in an Akron recycling facility accident. Plaintiff originally brought the action in the Cuyahoga County Court of Common Pleas. Defendants removed it to this Court.1 Plaintiff now moves to remand and for an award of attorney’s fees and costs.2 For the following reasons, the Court GRANTS Pla“nt“ff’s mot“on to remand and DENIES Pla“nt“ff’s mot“on for attorney’s fees. I. Background Eric Russell worked at an Akron, Ohio, recycling center. Sometime on the evening of February 22, 2017, he entered a cardboard baling machine to repair it. The baler started while he was inside, crushing Russell to death. 1 See Doc. 1. Doc. 8. Defendants Waste Management, Inc., Waste Management Ohio, Inc., and Greenstar Mid-America LLC oppose. Doc. 18. 2 Dockets.Justia.com Case No. 1:18-cv-2982 Gwin, J. In November 2018, Pla“nt“ff O’Br“en, Russell’s estate representat“ve, brought this suit in state court. He makes Ohio-law claims for employer intentional tort,3 negligence,4 and products liability. Plaintiff alleges that Defendants Waste Management Ohio, Inc. ( Waste Management Oh“o ), Waste Management, Inc., and Greenstar Mid-America LLC intentionally, recklessly, or negligently required Russell to use the baler in a dangerous manner.5 II. Discussion Under 28 U.S.C. § 1441(b)(2), a defendant may remove a case based on diversity only “f none of the part“es “n “nterest properly joined and served as defendants is a citizen of the State “n wh“ch the act“on “s brought. The parties agree that Defendant Waste Management Ohio is a citizen of Ohio. Defendants argue that they properly removed the case because Plaintiff fraudulently joined Waste Management Ohio to defeat diversity jurisdiction. Joinder is fraudulent where a pla“nt“ff lacks a colorable bas“s for recovery under state law against the joined defendant.6 Defendant bears the burden of demonstrating fraudulent joinder.7 The Court resolves all factual disputes in favor of the non-remov“ng party, and [a]ll doubts as to the propr“ety of removal are resolved “n favor of remand. 3 8 O.R.C. § 2745.01. Plaintiff added this count in his first amended complaint. See Doc. 12. 5 Doc. 12 at 6-7. 6 Casias v. Wal-Mart Stores, Inc., 695 F.3d 428, 433 (6th Cir. 2012) (quoting Coyne v. American Tobacco Co., 183 F.3d 488, 493 (6th Cir. 1999)). 4 7 8 Id. Coyne, 183 F.3d at 493. -2- Case No. 1:18-cv-2982 Gwin, J. Defendants say that Plaintiff lacks a colorable basis to recover against Waste Management Ohio because the company did not employ Eric Russell and it had no role operating the facility where he was killed.9 Defendants contend that Waste Management subsidiary Greenstar Mid-America, LLC ( Greenstar ) employed Russell and ran the facility.10 Waste Management Oh“o’s only role at the fac“l“ty, they say, was to deliver materials.11 Defendants argue Waste Management Ohio’s lack of “nvolvement w“th the facility is fatal to Pla“nt“ff’s cla“ms. Plaintiff offers several pieces of evidence purporting to link Waste Management Ohio to the facility. First, Plaintiff includes emails between Scott Combis, a safety manager at WM Recycl“ng (Central Group) and Dav“d Hass, Midwest group recycling ma“ntenance d“rector for Waste Management Recycl“ng. 12 These emails discuss the proper safety procedures for the baler that caused Russel’s death. Defendants argue that these emails do not directly implicate Waste Management Ohio. However, they do support Plaintiff because they show that multiple Waste Management entities aside from Greenstar were involved in developing safety procedures for the Akron facility baler. They also cast doubt on Defendants’ content“on that Greenstar alone handled facility operations. Second, Plaintiff submits the Akron police report of the death, listing Waste Management as Russel’s employer13 The report also has pictures of facility signs reading 9 Doc. 18-2 at 2. 10 Id. Id. 12 Doc. 8-1. 11 13 Doc. 8-2 at 10. -3- Case No. 1:18-cv-2982 Gwin, J. Waste Management Off“ces and Employee Entrance. 14 Defendants argue these prove nothing, because the Waste Management name and logo are used by subsidiaries such as Greenstar.15 Defendants essentially dispute that one should infer Waste Management Oh“o’s facility involvement from these Waste Management references. However, the Court must resolve all factual disputes “n the Pla“nt“ff’s favor. Finally, Plaintiff offers a June 26, 2018 news article saying that Waste Management of Ohio . . . runs Akron’s Greenstar Recycl“ng Center. 16 Defendant denies this and argues that the article is hearsay.17 The parties have not cited any case law discussing whether the Court may consider inadmissible hearsay evidence when ruling on a motion to remand. Other district courts have come to differing conclusions.18 The closest analogue to the current situation is a motion to dismiss for lack of personal jurisdiction under Federal Rule 12(b)(2). When ruling on a 12(b)(2) motion, courts also considers affidavits bearing on jurisdictional facts. In that context, the Sixth Circuit held that it is improper to consider hearsay.19 Thus, the Court will not consider the hearsay news article. 14 Id. at 11. Doc. 18 at 5 n.2. 16 Doc. 10-5 at 2. 15 17 See Gailor v. Armstrong, 187 F. Supp. 2d 729, 734 (W.D. Ky. 2001) (holding that newspaper articles were inadmissible hearsay and declining to consider them on a summary judgment motion). 18 Compare McClendon v. Challenge Fin. Inv'rs Corp., No. 1:08CV1189, 2009 WL 589245, at *4 (N.D. Ohio Mar. 9, 2009) (holding that hearsay declaration was properly considered on motion to remand because it fell within the Federal Rule of Evidence 803(6) hearsay exemption) with Spottswood v. Stewart Title Guar. Co., No. CIVA 10-0109-WS-B, 2010 WL 1539993, at *4 n.11 (S.D. Ala. Apr. 16, 2010) (rejecting argument that str“ct compl“ance w“th all prerequ“s“tes of adm“ss“b“l“ty “s necessary before an exh“b“t may be cons“dered on a mot“on to remand ). 19 See Beydoun v. Wataniya Restaurants Holding, Q.S.C. , 768 F.3d 499, 506 (6th Cir. 2014). -4- Case No. 1:18-cv-2982 Gwin, J. In sum, the Court must resolve all factual disputes in favor of the party opposing removal. Because Pla“nt“ff’s ev“dence ra“ses a colorable poss“b“l“ty of recovery aga“nst Waste Management Ohio, the Court grants Pla“nt“ff’s mot“on to remand. Pla“nt“ff also moves for attorney’s fees and costs. An award of fees under 18 U.S.C. § 1447(c) is proper where the remov“ng party lacked an ob”ect“vely reasonable bas“s for seeking removal. 20 Here, Defendant presented affidavits suggesting that Waste Management Ohio did not employ Russell nor oversee the Akron facility. The Court cannot say that Defendants lacked any objective basis for seeking removal. Thus, the Court denies Pla“nt“ff’s attorney’s fee mot“on. III. Conclusion For the foregoing reasons, the Court GRANTS Pla“nt“ff’s mot“on to remand the case to state court. The Court DENIES Pla“nt“ff’s mot“on for attorney’s fees. IT IS SO ORDERED. s/ Dated: February 21, 2019 James S. Gwin JAMES S. GWIN UNITED STATES DISTRICT JUDGE 20 Conver Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). -5-

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.