MEMORANDUM OPINION AND ORDER
This matter is presently before the court pursuant to two motions: (1) a motion by the plaintiff, Kenneth Muth, to remand the action to the Jefferson County, Kentucky, Circuit Court (DN 6), and (2) a motion by the defendants, Integrated Manufacturing and Assembly, LLC ("IMA") and Scott A. Norris, for partial summary judgment (DN 4). For the reasons stated herein, the court finds that the action must be remanded to the Jefferson Circuit Court.
Muth was employed as an Information Technology Manager for IMA. Norris was the Human Resources Manager at the company. In his complaint, Muth brought a claim against IMA for discrimination based on disability or perceived disability under KRS § 344.040, and claims against both IMA and Norris for intentional infliction of emotional distress ("IIED").
In Muth's complaint, he alleged that he suffered from "asthma, Meniere's disease, hypothyroidism, deviated septum, and work related stress as diagnosed by Melissa Hardin, ARNP." According to Muth, around June of 2010, he had to take time off work due to his conditions. He received short-term disability benefits for that time off. Then, in August of 2010, he had a sinus surgery, after which he could not work for a period of time; he received short-term disability benefits through mid-September for time he could not work while he recovered from the surgery. According to Muth's complaint, ARNP Hardin suggested workplace restrictions for Muth for when he returned to his position at IMA. Norris told Muth that IMA could not accommodate the restrictions, but Norris and Muth supposedly came to an agreement for Muth to receive both short-term and long-term disability benefits.
However, Muth alleges, in December of 2010 he was informed that Prudential (which was apparently the disability benefits administrator for IMA) had made a determination that his short-term disability benefits were terminated retroactively as of September 20, 2010 and that his claim for long-term disability benefits was disallowed. In February of 2011, Muth underwent an independent medical examination by Dr. Dale Haller, Jr., who disagreed with ARNP Hardin's recommended workplace restrictions for Muth. According to Muth's complaint, IMA informed Muth that, based on Dr. Haller's examination, it would terminate his employment at the company unless ARNP Hardin changed the recommended restrictions. Muth then allegedly spoke to Dr. Haller about ways to monitor his condition to obtain medically verifiable information about the effects of Muth's workplace activities on his health. According to Muth, ARNP Hardin agreed to lift his workplace restrictions if IMA would provide such monitoring. However, on March 23, 2011, IMA terminated Muth's employment.
On October 31, 2011, Muth filed this action in Jefferson Circuit Court. A little over eight months later, on July 6, 2012, the defendants removed to this court based on its diversity jurisdiction. Four days after that, the defendants moved for partial summary judgment as to the IIED claim against Norris. On August 3, 2012, Muth filed a motion to remand the action to the state court.
Pursuant to 28 U.S.C. § 1441, a defendant may remove a case from a state court to a federal district court in any civil action in which the federal court would have original jurisdiction. As stated above, the defendants assert jurisdiction premised on diversity of citizenship, the requirements of which are that the suit is between citizens of different states and the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a). Complete diversity of citizenship is required, i.e., the citizenship of each plaintiff in a case must be diverse from the citizenship of each defendant. Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996).
Here, as the defendants acknowledge in their notice of removal, Muth and Norris are both citizens of Kentucky. Thus, complete diversity appears to be lacking.*fn1 However, the defendants argue that Norris' citizenship should be disregarded on the basis that he was fraudulently joined.
The "fraudulent joinder of non-diverse defendants will not defeat removal on diversity grounds." Coyne v. Am. Tobacco Co., 183 F.3d 488, 493 (6th Cir. 1999). A removing defendant bears a heavy burden to prove fraudulent joinder. Walker v. Philip Morris USA, Inc., 443 F. App'x 946, 953 (6th Cir. 2011) (quoting 16 JAMES W. MOORE ET AL. MOORE'S FEDERAL PRACTICE--CIVIL § 107.14(2)(c)(iv)(B) (3d ed. 1997)). To show a fraudulent joinder of a non-diverse defendant, the removing party must establish that there is no "colorable cause of action" against the non-diverse defendant. Saginaw Housing Comm'n v. Bannum, Inc., 576 F.3d 620, 624 (6th Cir. 2009). In assessing whether a non-diverse defendant was fraudulently joined, a district court must resolve any ambiguities in the controlling state law in favor of the non-removing party. Coyne, 183 F.3d at 493. "All doubts as to the propriety of removal are resolved in favor of remand." Id.
The court finds that the defendants have not met their heavy burden of proving fraudulent joinder. In support of their fraudulent joinder argument, the defendants rely on Muth's deposition testimony. In particular, the defendants assert that Muth's deposition testimony is insufficient to show that Norris engaged in "outrageous and intolerable" conduct that "offends against generally accepted standards of decency and morality." See Gilbert v. Barkes, 987 S.W.2d 772, 777 (Ky. 1999). The defendants focus their argument on a portion of Muth's deposition testimony in which Muth was asked what particular actions Norris took that were outrageous and intended to cause Muth severe emotional distress. Muth responded that Norris had sent a letter to Dr. Haller, an independent medical expert, misrepresenting Muth's medical condition. When asked if there was any other of Norris's conduct that Muth was claiming was outrageous or offended accepted standards of decency, Muth stated there was nothing else. The defendants argue that the letter, by itself, is insufficient to meet the standard for outrageous conduct.
The defendants point to two cases that they suggest conclusively show that the conduct identified by Muth was not sufficiently outrageous: Humana of Kentucky, Inc. v. Seitz, 796 S.W.2d 1 (Ky. 1990) and Appel v. PACCAR, Inc., 2006 WL 2873434 (W.D.Ky. Oct. 4, 2006). In Humana, the Kentucky Supreme Court held that it was not outrageous for a nurse to tell a distressed patient who had given birth to a stillborn baby to "shut up" and that the baby would be "disposed of" at the hospital. 796 S.W.2d at 2-4. And in Appel, the court found that there was no colorable claim in a case where it was alleged that the plaintiff's supervisor, inter alia: told a Human Resources representative that the plaintiff had complained about the representative and disliked the supervisor; accused the plaintiff of setting the supervisor up for failure; made derogatory statements about the plaintiffs' work; failed to tell the plaintiff certain information about new hires and raises that other employees received; told the plaintiff to choose between resignation and being placed on a performance improvement plan; informed the plaintiff that he would ensure that the plaintiff would not survive the performance improvement plan; and told the plaintiff that he would watch the plaintiff "go up in flames." 2006 WL 2873434, at *2-*3.
While it is true that those cases provide significant guideposts for a court to assess whether certain conduct is sufficiently outrageous, it is also clear that neither case is directly on point. Neither of the cases clearly addresses the alleged situation here: a supervisor intentionally misrepresenting an employee's medical condition to an independent medical examiner whose opinion will be used by the company to make a determination as to whether to continue to employ the employee. Even though in some cases such guideposts may be sufficient for a court to conclude that a particular claim is not colorable, this is not such a case. Keeping in mind that a district court assessing whether a claim is colorable must draw all unresolved issues of state law in favor of the plaintiff, the court finds that there is at least a reasonable basis for believing that Norris's alleged conduct in misrepresenting Muth's medical condition would be outrageous enough that Norris might be liable under Kentucky law. That is all that is required to overcome an argument of fraudulent joinder.*fn2
The court similarly rejects the defendants' argument that Norris's letter to Dr. Haller could not have caused Muth any emotional distress. The court finds that there is a reasonable basis for concluding that Muth might be able to establish the causal element of an IIED claim against Norris by showing that Norris's alleged misrepresentations to ...