The court reviewed this case and remanded it to the State Court on the ground that diversity jurisdiction was lacking because the plaintiff and the defendant were both citizens of Ohio.
The lawsuit arose out of a traffic accident. Plaintiff sued the driver (citizen of Ohio) and his employer (corporation not a citizen of Ohio). The court rejected any claim that the defendant driver was fraudulently joined to create diversity jurisdiction.
The district court explained: “In this case, Plaintiffs can pursue claims against both Kirk and MBI within the same action under Ohio law. Plaintiffs can join Kirk and MBI in the same action because the right to relief arises out of the same transaction or occurrence and common questions of law or fact will arise in the action. The same result would occur under Federal Rule of Civil Procedure 20, which applies the same basic test. See, e.g., Wayman v. Accor North Am., Inc., 486 F.Supp.2d 1280, 1285 (D. Kan. 2007) (holding that plaintiff could join a non-diverse employee and his vicariously liable employer in one action because it satisfied the requirements for joinder under Rule 20)). Plaintiffs, therefore, have not fraudulently joined Defendant Kirk in this action.”
Edward X. Clinton, Jr.