United States District Court, E.D. Kentucky, Southern Division
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For Jack Combs, Rosemary Combs, Plaintiffs: Randall Ancil Campbell, LEAD ATTORNEY, Randy A. Campbell Law Office, Hindman, KY; Nicholas C.A. Vaughn, Law Office of Nick Vaughn, Somerset, KY.
For ICG Hazard, LLC, Arch Coal Inc., Fred Fields, Defendants: Mindy G. Barfield, Patrick Drake Schach, LEAD ATTORNEYS, Dinsmore & Shohl LLP - Lexington, Lexington, KY.
Hanly A. Ingram, United States Magistrate Judge.
REPORT AND RECOMMENDATION AS TO PLAINTIFFS' MOTION TO REMAND AND FOR AN AWARD OF ATTORNEY'S FEES AND COSTS PURSUANT TO 28 U.S.C. § 1447(c) [D.E. 8]
On December 17, 2012, Plaintiffs filed a Motion to Remand and for an Award of
Attorney's Fees and Costs Pursuant to 28 U.S.C. § 1447(c). D.E. 8. Defendants responded in opposition to the Motion (D.E. 11), Plaintiffs have replied (D.E. 18), and therefore the matter is ripe for decision. The presiding District Judge referred the Motion to the undersigned for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). D.E. 21. For the reasons set forth herein, the Court RECOMMENDS that the Motion (D.E. 8) be GRANTED, in part, and DENIED, in part.
On October 17, 2012, Plaintiffs Jack and Rosemary Combs filed a civil complaint in Perry Circuit Court (Action No. 12-CI-504) against Defendants ICG Hazard, LLC, Arch Coal, Inc., and Fred Fields. See D.E. 1-1 (" Complaint" ). Defendants ICG and Arch Coal are alleged to be companies engaged in the business of leasing and mining coal. Id. at 2-3. Plaintiffs further allege that Fred Fields was engaged as a blaster for ICG at its mine site near Plaintiffs' home " [a]t all relevant times herein." Id. at ¶ 4. Plaintiffs allege that, " within the past year," Defendants have conducted blasting activities near Plaintiffs' residence in Perry County, Kentucky. Id. at ¶ ¶ 7-9.
Plaintiffs further allege that, in conducting such blasting activities, Defendants exploded large quantities of explosives in close proximity to Plaintiffs' property and dwelling. Id. at ¶ 9. According to Plaintiffs, these explosives produced " violent concussions and vibrations of the earth" which shook Plaintiffs' land and residence and caused " severe and substantial damage" to their property. Id. at ¶ ¶ 10, 12. Plaintiffs also allege they provided notice to Defendants of the threat to Plaintiffs' property caused by Defendants' blasting activities, but that Defendants " failed to undertake reasonable methods to control the effects of [their] operations." Id. at ¶ 11.
Plaintiffs also allege that " Defendants have allowed dirt, dust, debris and other flyable materials to escape their permitted boundaries and enter upon the Plaintiffs' home, property and contact the Plaintiffs' person," despite the fact that " Defendants have a duty to prevent dirt, dust, debris or other flyable materials from escaping their permitted boundaries and entering upon the Plaintiffs' property and contacting the Plaintiffs' person." Id. at ¶ ¶ 17-18. Plaintiffs claim that Defendants' conduct is an intentional trespass and/or a reckless trespass upon Plaintiffs' person and property and an assault and battery upon Plaintiffs' person. Id. at ¶ ¶ 20-21. Plaintiffs also claim that Defendants are strictly liable to Plaintiffs for the property damage resulting from the blasting activities. Id. at ¶ 13. Plaintiffs state that the damages to their property and health are well in excess of $4,000.00, the jurisdictional amount of the Perry Circuit Court. Id. at ¶ 25. Plaintiffs seek compensatory and punitive damages, a permanent injunction, and costs, including attorney's fees. Id. at ¶ 27.
On November 20, 2012, Defendants removed the action to this Court pursuant to 28 U.S.C. § § 1332, 1441, and 1446. D.E. 1. Defendants claim that the most recent tax-assessed value of the relevant property and Plaintiffs' characterization of the damage to that property as " severe" and " substantial," when considered with the various damages sought, make it more likely than not that the amount-in-controversy exceeds $75,000.00 as required by 28 U.S.C. § 1332(a). See id. at 8-13. Defendants also assert that complete diversity exists between the relevant parties to the lawsuit, again required by § 1332(a). Id. at 2-8. Defendants acknowledge that both
Plaintiffs and Defendant Fields are citizens of Kentucky, a factor that would ordinarily defeat diversity jurisdiction. Id. at 3. However, Defendants claim that Fields's citizenship should be disregarded because he was fraudulently joined in an effort to defeat federal jurisdiction. Id. at 3-4.
On December 17, 2012, Plaintiffs filed the instant Motion to Remand pursuant to 28 U.S.C. § 1447(c). D.E. 8. Plaintiffs claim that Defendants have failed to establish that Fields was fraudulently joined or that the amount in controversy requirement was satisfied at the time of removal. Id.
II. FRAUDULENT JOINDER
Defendants bear the burden of demonstrating that removal of this action is proper. Conrad v. Robinson, 871 F.2d 612, 614 (6th Cir. 1989). Defendants contend that removal is proper pursuant to 28 U.S.C. § 1441(a) because this Court has original jurisdiction as a result of the parties' diversity of citizenship. Under the complete diversity rule, the citizenship of each plaintiff must be diverse from the citizenship of each defendant. Caterpillar Inc. v. Lewis, 519 U.S. 61, 68, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996). Since Plaintiffs and Defendant Fields are not of diverse citizenship, Defendants must establish that Fields was fraudulently joined in order to prevent remand of this case to the Perry Circuit Court. 
A. Standard of Review
" Claims of fraudulent joinder must be asserted with particularity and supported by clear and convincing evidence." Parker v. Crete Carrier Corp., 914 F.Supp. 156, 159 (E.D. Ky. 1996). The inquiry is whether Plaintiffs have at least a colorable cause of action against Fields in state court. Jerome-Duncan, Inc. v. Auto-By-Tel, L.L.C., 176 F.3d 904, 907 (6th Cir. 1999). Defendants must produce " sufficient evidence" that Plaintiffs cannot establish a cause of action against Fields under Kentucky law. Coyne v. Am. Tobacco Co., 183 F.3d 488, 493 (6th Cir. 1999). Stated differently, " the question is whether there is arguably a reasonable basis for predicting that [Kentucky] law might impose ...