United States District Court, E.D. Wisconsin
ORDER GRANTING PLAINTIFFS' MOTION FOR REMAND
(DKT. NO. 11) AND DECLINING TO RULE ON THE DEFENDANT'S
MOTION TO DISMISS DUE TO LACK OF JURISDICTION (DKT. NO.
PEPPER United States District Judge
Chris Hinrichs and Autovation Limited filed suit in Waukesha
County Circuit Court against defendant Dow Chemical Company,
seeking damages on claims of negligent misrepresentation,
intentional misrepresentation, strict responsibility
misrepresentation, and violation of Wis.Stat.
§100.81(1). Dkt. No. 1-1 at 4. The defendant removed the
case to this court. Dkt. No. 1. The plaintiffs filed a motion
for remand. Dkt. No. 11. Less than a month after the
plaintiffs filed their remand motion, the defendant filed a
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6). Dkt. No. 19. The court will grant the motion for
remand, and declines to rule on the motion to dismiss given
its lack of jurisdiction.
Hinrichs developed and owns the patent for
JeeTops-“custom, premium skylight panels built for Jeep
Wranglers equipped with Freedom Top hardtops.” Dkt. No.
1-1 at 5-6. He is also the sole owner of Autovation Limited,
which “for a period of time had a license to
manufacture, distribute, and install JeeTops panels.”
Id. at 6. In 2013, the defendant informed plaintiff
Heinrichs that there was a “potential new Dow primer
for use with the Dow adhesive employed in installing JeeTops
panels;” the Dow representative who told the plaintiff
about the new primer indicated that the defendant was going
to test the primer “with the acrylic used in the
JeeTops product.” Id. at 7. Shortly afterward,
plaintiff Heinrichs informed the representative “that
some customers were experiencing cracks in their JeeTops
panels that had been installed using Dow adhesives.”
Id. The representative responded that the acrylic
had been sent to the defendant's labs for testing.
fall of 2013, the defendant produced a report of the lab
testing, which indicated that the adhesive was
“properly functioning on the acrylic used by”
plaintiff Heinrichs, and that “‘[n]o evidence of
any crazing or surface cracking was observed.'”
Id. at 8. The plaintiffs allege that, in contrast to
this report, “even more JeeTops purchasers started
experiencing cracks in the product.” Id. The
defendant continued to look for “the root cause of the
issue, ” but by October 2014, the plaintiffs allege,
“one-third of all JeeTops panel installations using
Dow's BetaPrime 5504G and BetaTech Plus adhesive system
had failed.” Id. By the time the plaintiffs
determined the source of the problem and replaced the
adhesive, “the negative publicity attendant on the
failure of the JeeTops panels after being attacked by the Dow
adhesive destroyed [plaintiff Hinrichs'] ability to sell
new product.” Id. at 9. Consequently, the
plaintiffs allege that the defendant's misrepresentation
prevents them from selling the JeeTops with the replaced
adhesives. Id. at 10.
DIVERSITY JURISDICTION FACTS
Hinrichs resides in Delafield, Wisconsin. Id. at 5.
The plaintiffs allege in the complaint that plaintiff
Autovation is a Delaware corporation, with its principal
office located in Wisconsin. Id. The complaint
asserts that the defendant is a foreign corporation with its
principal office located in Michigan. Id.
defendant's notice of removal states that the
“[d]efendant is a Delaware corporation, with its
principal place of business in Michigan.” Dkt. No. 1 at
2. Paragraph 5 of that notice of removal says,
“According to Plaintiffs' Complaint, . . .
Plaintiff Autovation Limited is a Delaware corporation with
its principal office located in Wisconsin.”
Id. at 2, ¶5. The defendants did not challenge
Autovation's Delaware citizenship in the notice of
paragraph 7 of that same notice of removal, however, the
This court has original jurisdiction of this action pursuant
to 28 U.S.C. §1332, because the matter in controversy
exceeds the sum of $75, 000, exclusive of interest and costs,
and is therefore greater than the jurisdictional threshold
for diversity jurisdiction. In addition, Plaintiffs are a
Wisconsin resident and a Wisconsin corporation,
respectively, and Defendant is a Delaware corporation, with
its principal place of business in Michigan, meaning there is
complete diversity of citizenship between the parties.
Dkt. No. 1 at 2 (emphasis added).
plaintiffs base their motion for remand on the fact that both
plaintiff Autovation and defendant Dow are corporate citizens
of Delaware; thus, they argue, the parties are not diverse,
and this court does not have jurisdiction. Dkt. No. 13 at 1.
In its opposition to remand, the defendant-who knew as of the
time of removal that Autovation claimed Delaware citizenship,
and did not contest it at that time--argued that the
plaintiff “improperly joined” Autovation, and
that Autovation “has no colorable claim for relief,
meaning that the Court should ignore Autovation's
purported citizenship and retain jurisdiction.” Dkt.
No. 15 at 1.
LAW GOVERNING REMOVAL
28 U.S.C. §1441, a defendant may remove a case from
state court to federal court where the district court has
original jurisdiction. District courts have original
jurisdiction over all civil actions where the matter in
controversy exceeds the sum or value of $75, 000, exclusive
of interests or costs, and is between ...