`
`UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF OHIO
`WESTERN DIVISION
`
`
`
`VILLAGE OF CAMDEN, OHIO,
`
`56 West Central Avenue
`
`
`Camden, Ohio 45311
`
`
`
`
`
`
`
`
`
`
`Plaintiff,
`
`
`
`
`
`
`
`
`v.
`
`
`
`
`
`
`
`
`
`
`
`CARGILL, INCORPORATED,
`
`c/o CT Corporation System
`
`
`4400 Easton Commons Way
`
`Suite 125
`
`
`
`
`Columbus, Ohio 43219,
`
`
`
`
`
`
`
`
`CENTRAL SALT L.L.C.
`
`
`c/o CT Corporation System
`
`
`4400 Easton Commons Way
`
`Suite 125
`
`
`
`
`Columbus, Ohio 43219,
`
`
`
`
`
`
`
`
`
`R. GOOD RENTALS, LLC
`
`c/o Tami Good
`
`
`
`7076 North Main Street
`
`
`Camden, Ohio 45311,
`
`
`
`
`
`
`
`
`GOOD RAIL & TRUCK
`
`
`TRANSFER, INC.
`
`
`c/o Corporate Statutory Services, Inc.
`255 E. Fifth Street, Suite 2400
`
`Cincinnati, Ohio 45202,
`
`
`
`
`
`
`
`
`and
`
`
`
`
`
`
`
`
`
`
`
`R. GOOD ENTERPRISES, LLC
`
`c/o Chester M. Rhoades
`
`
`1800 Whipp Road
`
`
`
`Dayton, Ohio 45440,
`
`
`
`
`
`
`
`
`
`
`Defendants.
`
`
`
`
`
`Case No.:
`
`
`
`
`
`
`
`
`
`
`
`District Judge ________________________
`
`Magistrate Judge _____________________
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`
`
`Case: 3:20-cv-00273-DRC Doc #: 1 Filed: 07/01/20 Page: 2 of 11 PAGEID #: 2
`
`NOTICE OF REMOVAL OF CIVIL ACTION BY DEFENDANTS
`CARGILL, INCORPORATED AND CENTRAL SALT L.L.C.
`
`Defendants, Cargill, Incorporated (hereinafter “Cargill”) and Central Salt L.L.C.
`
`
`
`(hereinafter “Central Salt”), pursuant to 28 U.S.C. §§ 1332, 1441, and 1446, file their Notice of
`
`Removal of Preble County Case No. 20CV032007 from the Court of Common Pleas for Preble
`
`County, Ohio to the United States District Court for the Southern District of Ohio. The
`
`Complaint in the Preble County case is attached as Exhibit A. The grounds for removal are as
`
`follows:
`
`INTRODUCTION
`
`1.
`
`Plaintiff Village of Camden, Ohio (hereinafter “Plaintiff”) filed an action against
`
`Cargill and Central Salt in the Court of Common Pleas for Preble County, Ohio on May 1, 2020.
`
`See Exhibit B. That complaint alleged salt contamination of Plaintiff’s former municipal wellfield
`
`and asserted claims of public nuisance and trespass.
`
`2.
`
`After receiving notice that Cargill and Central Salt were planning to remove its first
`
`Complaint to this federal Court, Plaintiff voluntarily dismissed the action on June 1, 2020. See
`
`Exhibit C.
`
`3.
`
`On the next business day, in an effort to destroy diversity and thwart removal,
`
`Plaintiff filed a virtually identical complaint in the Court of Common Pleas for Preble County,
`
`Ohio but this time added R. Good Rentals, LLC (“Good Rentals”), Good Rail & Truck Transfer,
`
`Inc. (“Good Rail”), and R. Good Enterprises, LLC (“Good Enterprises”) (collectively the “Good
`
`Entities”). See Exhibit A (the “Complaint”).
`
`4.
`
`However, Plaintiff’s attempt was futile because complete diversity still exists. And,
`
`even if diversity did not exist, the fraudulent joinder of resident defendants will not prevent the
`
`Court’s exercise of diversity jurisdiction.
`
`
`
`
`
`2
`
`
`
`Case: 3:20-cv-00273-DRC Doc #: 1 Filed: 07/01/20 Page: 3 of 11 PAGEID #: 3
`
`DIVERSITY JURISDICTION IS PROPER
`
`5.
`
`The Court has original subject matter jurisdiction over this civil action because
`
`there is complete diversity of citizenship between the parties, the amount in controversy exceeds
`
`$75,000, exclusive of interest and costs, and removal is otherwise proper.
`
`COMPLETE DIVERSITY OF CITIZENSHIP EXISTS
`
`6.
`
`The Court has subject matter jurisdiction over this case because complete diversity
`
`exists between the parties pursuant to 28 U.S.C. § 1332.
`
`7.
`
`8.
`
`Plaintiff is a political subdivision in the State of Ohio. Complaint at ¶ 1.
`
`For the purpose of diversity, a political subdivision is a citizen of the state in which
`
`it is located. See State of Ohio v. Ultracell Corp., No. 2:16-cv-187, 2017 WL 430731, at *2 (S.D.
`
`Ohio 2017). Therefore, Plaintiff is a citizen of Ohio.
`
`9.
`
`Cargill is a privately-held corporation organized in the State of Delaware and
`
`headquartered in the State of Minnesota.
`
`10.
`
`For the purpose of diversity, a corporation is deemed to be a citizen of both its state
`
`of incorporation and the state where its principal place of business is located. 28 U.S.C. §
`
`1332(c)(1). Therefore, Cargill is a citizen of the States of Delaware and Minnesota.
`
`11.
`
`12.
`
`Central Salt is a single-member limited liability company.
`
`For the purpose of diversity, a limited liability company has the citizenship of its
`
`members. Engle v. UHaul, 208 F. Supp.3d 844, 849 (S.D. Ohio 2016).
`
`13.
`
`B.S.C. Holding, Inc. is the only member of Central Salt, and B.S.C. Holding, Inc.
`
`is incorporated and headquartered in the State of Kansas. Therefore, Central Salt is a citizen of the
`
`State of Kansas.
`
`14.
`
`Good Rentals is a single-member limited liability company.
`
`
`
`
`
`3
`
`
`
`Case: 3:20-cv-00273-DRC Doc #: 1 Filed: 07/01/20 Page: 4 of 11 PAGEID #: 4
`
`15.
`
`16.
`
`Tami Good is the only member of Good Rentals.
`
`For the purpose of diversity, an individual’s citizenship is determined by her
`
`domicile at the time the plaintiff files the complaint. Winningham v. North American Resources,
`
`Corp., 809 F. Supp. 546, 551 (S.D. Ohio 1992).
`
`17.
`
`To be domiciled in a state, an individual must be physically present there and must
`
`have either the intention to make her home there indefinitely or an absence of intention to make
`
`her home elsewhere. Id.
`
`18.
`
`Courts may consider a variety of factors when evaluating an individual’s domicile,
`
`including: current residence, voter registration and voting practices, location of real and personal
`
`property, location of bank accounts, memberships in community organizations, places of
`
`employment or business, driver’s license and automobile registration, and payment of taxes. Ewert
`
`v. Holzer Clinic, Inc., No. 2:09-CV-0131, 2010 WL 3063226, at *4 (S.D. Ohio Aug. 3, 2010).
`
`19.
`
`Tami Good owns a condominium and resides at 502 Riverfront Way, Knoxville,
`
`TN 37915. See Exhibit D. Tami Good is also a registered voter in the State of Tennessee. See
`
`Exhibit E. Therefore, Tami Good is a citizen of the State of Tennessee.
`
`20.
`
`Since Tami Good is the only member of Good Rentals, Good Rentals is a citizen
`
`of the State of Tennessee.
`
`21.
`
`Good Enterprises was a single-member limited liability company. It was dissolved
`
`in 2013. See Exhibit F.
`
`22.
`
`23.
`
`Rodney Good is the only member of Good Enterprises.
`
`Rodney Good resides with Tami Good at 502 Riverfront Way, Knoxville, TN
`
`37915. Rodney Good is also a registered voter in the State of Tennessee. See Exhibit G. Therefore,
`
`Rodney Good is a citizen of the State of Tennessee.
`
`
`
`
`
`4
`
`
`
`Case: 3:20-cv-00273-DRC Doc #: 1 Filed: 07/01/20 Page: 5 of 11 PAGEID #: 5
`
`24.
`
`Per R.C. 1705.45, a dissolved limited liability company continues its existence until
`
`the winding up of its affairs is complete, and it may sue and be sued during this winding up period.
`
`See In re Soderberg and Schafer CPAS, LLC, 441 B.R. 262, 266 (N.D. Ohio 2010) (allowing an
`
`involuntary case to be commenced against a dissolved but not wound up limited liability company
`
`as a Chapter 7 debtor); ACV Realty v. Bayview Loan Servicing, LLC, 2016-Ohio-5467, ¶50 (7th
`
`Dist.) (holding that a dissolved limited liability company lacked standing to bring claims unrelated
`
`to winding up its affairs more than five years after its dissolution).
`
`25.
`
`Thus, Plaintiff’s claims against Good Enterprises, which have nothing to do with
`
`the winding up of the entity and which were brought seven years after the entity ceased operations,
`
`are improper and should be ignored for diversity purposes.
`
`26.
`
`Nonetheless, if the Court deems the citizenship of Good Enterprises to be relevant,
`
`the entity’s citizenship will be determined by its only member, Rodney Good; therefore, Good
`
`Enterprises is a citizen of the State of Tennessee.
`
`27.
`
`Good Rail was a corporation organized under the laws of the State of Ohio. At one
`
`time, its principal place of business may have been located in the State of Ohio. However, it was
`
`dissolved in 2013. See Exhibit H.
`
`28.
`
`Per R.C. 1701.88, a new lawsuit may only be filed against a dissolved corporation
`
`for five years after its dissolution. Ohio ex rel. DeWine v. Breen, 362 F. Supp.3d 420, 441 (S.D.
`
`Ohio 2019) (holding that R.C. 1701.88(B) “limits the period a dissolved Ohio corporation can be
`
`liable for any existing claim or right against it to five years after the corporation’s dissolution,” so
`
`any claims existing prior to dissolution could no longer be filed after expiration of the five-year
`
`period); Garrett Day, LLC v. Int'l Paper Co., No. 3:15-CV-36, 2019 WL 1331680, at *7 (S.D.
`
`
`
`
`
`5
`
`
`
`Case: 3:20-cv-00273-DRC Doc #: 1 Filed: 07/01/20 Page: 6 of 11 PAGEID #: 6
`
`Ohio Mar. 25, 2019 (suit must be brought against a dissolved corporation within five years after
`
`dissolution).
`
`29.
`
`Thus, Plaintiff’s claims against Good Rail, which have nothing to do with winding
`
`up the dissolved corporation and which were brought more than seven years after the entity’s
`
`dissolution, are improper and should be ignored for diversity purposes. Compare Tax Increment
`
`Finance Authority v. Liberty Mutual Ins. Co., 771 F. Supp.2d 791, 795 (E.D. Mich. 2011) (holding
`
`that claims against a dissolved corporation defeated diversity because the corporation was not yet
`
`wound up and the reasonable time period for winding up under Michigan law had not yet lapsed);
`
`with Okamoto v. Mizuho Holding Co., No. 06-C-459, 2006 WL 8447929, at *2 (N.D. Ill. July 28,
`
`2006) (holding that claims against a dissolved corporation did not defeat diversity when the
`
`corporation was wound up and the suit was brought more than a year after the expiration of
`
`Delaware’s winding up time period).
`
`30.
`
`Accordingly, there is complete diversity of citizenship within the meaning of 28
`
`U.S.C. §§ 1332(a), 1332(c), and 1441, et seq., between Plaintiff, Cargill, Central Salt, and the
`
`Good Entities for the purpose of diversity jurisdiction.
`
`THE AMOUNT IN CONTROVERSY EXCEEDS $75,000
`
`31.
`
`The Court has subject matter jurisdiction over this case because the amount in
`
`controversy exceeds $75,000, exclusive of costs and interest, pursuant to 28 U.S.C. § 1332.
`
`32.
`
`Because Rule 8(A) of the Ohio Rules of Civil Procedure restricts Plaintiff’s
`
`Complaint from pleading a damages figure above $25,000, and because Plaintiff’s Complaint
`
`
`
`
`
`6
`
`
`
`Case: 3:20-cv-00273-DRC Doc #: 1 Filed: 07/01/20 Page: 7 of 11 PAGEID #: 7
`
`seeks nonmonetary injunctive relief, this Notice of Removal may assert the amount in controversy.
`
`28 U.S.C. § 1446(c)(2)(A).
`
`33.
`
`In this case, the amount in controversy exceeds $75,000. Plaintiff alleges that it
`
`incurred damages in excess of $3.6 million for a new public water system. Complaint at ¶ 38.
`
`Furthermore, this sum does not encompass the expense of soil and groundwater remediation sought
`
`by Plaintiff at its former wellfield, nor does the amount encompass operating expenses at the new
`
`public water system, both of which are damages Plaintiff seeks to recover. Complaint at Prayer for
`
`Relief at ¶ 4.
`
`34.
`
`According to the United States Supreme Court, a Notice of Removal “need include
`
`only a plausible allegation that the amount in controversy exceeds the jurisdictional threshold.”
`
`Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 89 (2014). Removal is proper
`
`when the Court finds by a preponderance of the evidence that the amount in controversy is
`
`satisfied. Id. at 88.
`
`35.
`
`As Plaintiff itself alleged millions of dollars in expenses incurred as a result of the
`
`alleged salt contamination, the $75,000 amount in controversy threshold is met.
`
`REMOVAL IS OTHERWISE PROPER
`
`36.
`
`Plaintiff filed the Complaint on June 3, 2020. Cargill and Central Salt were served
`
`with summons via United States certified mail on June 8, 2020.
`
`37.
`
`This Notice of Removal is timely under 28 U.S.C. § 1446(b) in that it is made within
`
`thirty days of receipt of the Complaint.
`
`38.
`
`This Notice of Removal complies with the unanimity requirement of 28 U.S.C. §
`
`1446(a) in that Cargill and Central Salt jointly seek the removal of this case and the Good Entities
`
`consent to the removal. See Exhibit I.
`
`
`
`
`
`7
`
`
`
`Case: 3:20-cv-00273-DRC Doc #: 1 Filed: 07/01/20 Page: 8 of 11 PAGEID #: 8
`
`39.
`
`Venue is proper pursuant to 28 U.S.C. §§ 1391(b)(2) and 1446(a) because this
`
`Court is the United States District Court for the district and division within which the State Court
`
`action is pending and all the alleged events and omissions giving rise to the claims took place. In
`
`that regard, Plaintiff’s former wellfield, the salt storage facility alleged to have contaminated that
`
`wellfield, and Plaintiff’s new public water system are all located in Preble County, Ohio.
`
`40.
`
`Cargill and Central Salt will give prompt written notice of the filing of this Notice
`
`of Removal to Plaintiff.
`
`41.
`
`Cargill and Central Salt will file a copy of this Notice of Removal with the Clerk
`
`of the Court of Common Pleas of Preble County.
`
`42.
`
`By filing this Notice of Removal, Cargill and Central Salt do not waive any
`
`defenses.
`
`THE JOINDER OF THE GOOD ENTITIES WAS FRAUDULENT
`
`43.
`
`Even in the absence of complete diversity, a federal District Court may exercise
`
`subject matter jurisdiction if the resident defendants were fraudulently joined.
`
`44.
`
`The general purpose of diversity jurisdiction is to protect out-of-state defendants
`
`from local prejudice when sued in a local court. Hertz Corp. v. Friend, 559 U.S. 77, 85 (2010).
`
`45.
`
`To this end, out-of-state defendants have a right to remove their case to federal
`
`court when 28 U.S.C. § 1332 is satisfied.
`
`46.
`
`“[C]ourts should be vigilant to protect the rights of litigants to proceed in the
`
`federal court[.]” Brady v. Indemnity Insurance Co. of North America, 68 F.2d 302, 303 (6th Cir.
`
`1933).
`
`
`
`
`
`8
`
`
`
`Case: 3:20-cv-00273-DRC Doc #: 1 Filed: 07/01/20 Page: 9 of 11 PAGEID #: 9
`
`47.
`
`And, the “right of removal cannot be defeated by a fraudulent joinder of a resident
`
`defendant having no real connection with the controversy.” Wilson v. Republic Iron & Steel Co.,
`
`257 U.S. 92, 97 (1921).
`
`48.
`
`In fraudulent joinder cases, there are two underlying reasons for removal: 1) when
`
`there is no factual basis on which to claim the resident defendant is jointly liable or 2) when there
`
`is such liability, but there is no purpose to prosecute the action against the resident defendant in
`
`good faith. Brady, 68 F.2d at 303 (citing Wilson, 257 U.S. at 97).
`
`49.
`
`50.
`
`Here, the second of these reasons applies.
`
`The sequence of events leading to this Removal demonstrate Plaintiff’s lack of
`
`intent to prosecute claims against the Good Entities: Plaintiff filed a complaint against Cargill
`
`and Central Salt, and then, after learning of their intended removal, Plaintiff voluntarily
`
`dismissed the action. Subsequently, Plaintiff filed an identical complaint but added the Good
`
`Entities as resident defendants to prevent removal.
`
`51.
`
`Plaintiff’s approach reveals its intent to pursue claims against Cargill and Central
`
`Salt and involve the Good Entities only to prevent the out-of-state Defendants from exercising
`
`their right to defend in a federal forum.
`
`52.
`
`Two of the three Good Entities – Good Enterprises and Good Rail – no longer
`
`existed when Plaintiff added them to the lawsuit. Both are dissolved entities well past their
`
`winding up period.
`
`53.
`
`The core purpose of diversity jurisdiction is to prevent prejudice to out-of-state
`
`parties, yet this case involves a dispute between out-of-state businesses and the ultimate insider:
`
`a municipality within the County where the state action is pending. Few factual scenarios are
`
`riper with potential prejudice to the out-of-state parties in this case.
`
`
`
`
`
`9
`
`
`
`Case: 3:20-cv-00273-DRC Doc #: 1 Filed: 07/01/20 Page: 10 of 11 PAGEID #: 10
`
`54.
`
`Thus, the joinder of the Good Entities was fraudulent. Even if these companies
`
`are Ohio citizens, their joinder should be disregarded for diversity purposes and Plaintiff’s ploy
`
`does not defeat removal.
`
`WHEREFORE, Defendants Cargill and Central Salt remove this action to the United States
`
`District Court for the Southern District of Ohio pursuant to 28 U.S.C. §§ 1332, 1441 and 1446.
`
`
`
`
`
`
`
` Respectfully submitted,
`
`
`
`VAN KLEY & WALKER, LLC
`
`
`
`/s/ Jack A. Van Kley
`Jack A. Van Kley (#0016961)
`Trial Attorney
`132 Northwoods Blvd., Suite C-1
`Columbus, Ohio 43235
`Tel: (614) 431-8900
`Fax: (614) 431-8905
`Email: jvankley@vankleywalker.com
`
`Of Counsel:
`
`FAEGRE DRINKER BIDDLE
`& REATH LLP
`
`Jacob D. Bylund (pro hac vice pending)
`801 Grand Avenue, 33rd Floor
`Des Moines, IA 50309-8003
`Tel.: (Direct): (515) 447-4708
`Tel.: (Main): (515) 248-9000
`Fax: (515) 248-9010
`Email: jacob.bylund@FaegreDrinker.com
`
`Julian E. Harrell (pro hac vice pending)
`Faegre Drinker Biddle & Reath LLP
`300 N. Meridian Street, Suite 2500
`Indianapolis, IN 46204
`Tel.: (Direct): (317) 237-1350
`Tel.: (Main): (317) 237-0300
`Fax: (317) 237-1000
`Email: julian.harrell@FaegreDrinker.com
`
`Counsel for Defendant Cargill, Incorporated
`
` Dated: July 1, 2020
`
`
`
`
`ULMER & BERNE, LLP
`
`/s/ Frederic X. Shadley
`Frederic X. Shadley (0028584)
`Trial Attorney
`600 Vine Street, Suite 2800
`Cincinnati, OH 45202-2409
`Telephone: (513) 698-5000
`Facsimile: (513) 698-5015
`Email: fshadley@ulmer.com
`
`Of Counsel:
`
`LATHROP & GAGE, LLP
`
`Jennifer Hannah (pro hac vice pending)
`10851 Mastin, Building 82, Suite 1000
`Overland Park, KS 66210
`Tel.: (816) 292-2000
`Fax: (816) 292-2001
`jhannah@lathropgage.com
`
`Counsel for Defendant Central Salt L.L.C.
`
`
`
`
`
`
`10
`
`
`
`Case: 3:20-cv-00273-DRC Doc #: 1 Filed: 07/01/20 Page: 11 of 11 PAGEID #: 11
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on July 1, 2020, a true and correct copy of the foregoing Notice of
`
`Removal was served upon the following via U.S. Mail:
`
`Stephen N. Haughey
`Danielle E. List
`Frost Brown Todd LLC
`301 E. Fourth Street, Suite 3200
`Cincinnati, OH 45202
`shaughey@fbtlaw.com
`dlist@fbtlaw.com
`
`Attorneys for Plaintiff Village of Camden
`
`Donald J. Rafferty
`Cohen, Todd, Kite & Stanford, LLC
`250 E. Fifth Street, Suite 2350
`Cincinnati, OH 45202
`Telephone: (513) 333-5243
`Facsimile: (513) 241-4490
`Email: DRafferty@ctks.com
`
`Counsel for Defendants Good Rail & Truck Transfer, Inc. and R. Good
`Enterprises, LLC
`
`Matthew A. Rich
`Katz Teller
`255 E. Fifth Street, 24th Floor
`Cincinnati, OH 45202
`Phone: (513) 721-4532
`Fax: (513) 762-0075
`Email: mrich@katzteller.com
`
`Counsel for Defendant R. Good Rentals, LLC
`
`/s/ Jack A. Van Kley
`Jack A. Van Kley
`
`
`
`
`
`11
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`