Denise Pollington v. G4S Secure Solutions (USA)

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 18a0094n.06
Case No. 17-1567
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Feb 27, 2018
DENISE POLLINGTON, )
DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
G4S SECURE SOLUTIONS (USA) INC.; ) MICHIGAN
KEVIN BAKER, )
)
Defendants-Appellees. )
BEFORE: BOGGS, BATCHELDER, and THAPAR, Circuit Judges.
THAPAR, Circuit Judge. Denise Pollington sued her former employer, G4S Secure
Solutions, and former supervisor, Kevin Baker, for alleged violations of Michigan law. She
brought her suit in Michigan state court. G4S removed the case to federal court, claiming
diversity jurisdiction. One problem: The parties’ filings suggest that both Pollington and Baker
are Michigan citizens. See Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996) (noting that the
citizenship of each plaintiff must be diverse from the citizenship of each defendant to create
diversity jurisdiction); see also 28 U.S.C. § 1332. In its notice of removal, G4S claimed that the
district court should “disregard” Baker’s citizenship because Pollington failed to properly serve
him, and in any event, that his presence in the suit would amount to fraudulent joinder. Instead
Case No. 17-1567
Pollington v. G4S Secure Solutions
of addressing these arguments and their effect on its jurisdiction, the district court allowed the
litigation to proceed and ultimately granted both defendants summary judgment.
The district court should not have proceeded to summary judgment until it resolved these
lingering questions about its jurisdiction. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574,
583 (1999). Jurisdiction must be established as a threshold matter—“inflexibl[y] and without
exception.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998). So anytime a
defendant removes to federal court, it must show that it has the right to be there. See Eastman v.
Marine Mech. Corp., 438 F.3d 544, 549 (6th Cir. 2006). And it cannot do so merely by pointing
to the other party’s consent or waiver. See Ins. Corp. of Ir. v. Compagnie des Bauxites de
Guinee, 456 U.S. 694, 702 (1982). As such, even in the absence of an objection by Pollington,
the district court was obligated to consider its jurisdiction sua sponte, at which point it could
have done one of two things. Had it determined that Baker was improperly served or
fraudulently joined, it should have dismissed him from the suit. See Fed. R. Civ. P. 4(m);
Probus v. Charter Commc’ns, LLC, 234 F. App’x 404, 407 (6th Cir. 2007). Alternatively, had it
found that Baker was a proper party to the suit, it should have remanded the case to state court.
See Saginaw Hous. Comm’n v. Bannum, Inc., 576 F.3d 620, 624 (6th Cir. 2009). It should not,
however, have skipped over these jurisdictional issues and ruled on the merits.
Accordingly, we VACATE the judgment of the district court and REMAND the case for
a determination of whether diversity jurisdiction exists.
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