United States District Court, W.D. Kentucky, Louisville
MEMORANDUM OPINION AND ORDER
JOHN G. HEYBURN, II, Senior District Judge.
Before the Court is Plaintiff Jill Thompson's motion to remand her case to Kentucky state court. Plaintiff filed her action in Jefferson Circuit Court on April 17, 2013, alleging various state law claims against her former employer, Dakkota Integrated Systems ("Dakkota") and Tina Lewis, one of her former supervisors, in connection with her leg injury at work. These claims include workers' compensation retaliation, discriminatory and wrongful discharge on the basis of a disability, failure to accommodate, retaliation, and intentional infliction of emotional distress.
Almost one year later on April 17, 2014, Defendants removed the case to federal court on the basis of diversity jurisdiction. Plaintiff moves to remand on two grounds: (1) removal was not timely and (2) there is not complete diversity. In response, Defendants argue that removal was timely and that Tina Lewis was fraudulently joined in an attempt to avoid federal diversity jurisdiction. This exchange has exposed some interesting and difficult procedural questions concerning the timing of Defendants' removal.
For the reasons stated below, the Court will sustain Plaintiff's motion to remand.
The relevant facts according to Plaintiff are these.
Plaintiff began working for Dakkota in 2009 as a production worker. In 2013, she sustained an on-the-job injury to her leg, which substantially limited her ability to work. After medical treatment, Plaintiff's physician released her to return to work. She attempted to pursue a workers' compensation claim in connection with her leg injury but was terminated before she could do so.
Subsequent to the injury, Dakkota regarded Plaintiff as disabled. Tina Lewis personally mocked her about her disability. Lewis called a meeting with her and threatened her job. Although Dakkota had accommodated other injured employees by giving them a variety of light duty work assignments, it did not accommodate Plaintiff.
Plaintiff complained to officials at Dakkota about Lewis's behavior, alleging discrimination, but no action was taken. After her complaints, Lewis terminated her, telling her that she was terminated because of her complaints about discrimination and because she was a union steward.
Plaintiff and Lewis are Kentucky residents. Dakkota is a Michigan corporation.
The Court will first discuss the timeliness of Defendants' removal.
A defendant may remove a civil case to federal court if the case could have originally been brought in federal court. 28 U.S.C. § 1441(a). Federal district courts have subject matter jurisdiction over causes of action arising under federal law, as well as over actions between parties that are citizens of different states when the amount in controversy exceeds $75, 000. 28 U.S.C. §§ 1331, 1332. Generally, a defendant must file a notice of removal within thirty days after receiving a copy of the initial pleading. 28 U.S.C. § 1446(b). If, however, "the case stated by the initial pleading is not removable, " the defendant can remove within thirty days of the receipt of a document "from which it may first be ascertained" that the case is removable. Id. For cases in which removal is sought based on diversity of citizenship, the time to remove is limited to one year after the commencement of the action, unless the court finds that the plaintiff has acted in bad faith to prevent removal. 28 U.S.C. § 1146(c).
"The removal statutes are strictly construed so that § 1446(b) commences the thirty-day period from the date that a defendant has solid and unambiguous information that a case is removable." Mozee v. Dugger, 616 F.Supp.2d 672, 673 (W.D. Ky. 2009) (citing McCraw v. Lyons, 863 F.Supp. 430, 434 (W.D. Ky. 1994); see Holston v. Carolina Freight Carriers Corp., 936 F.2d 573, at *3 (6th Cir. 1991); Broaddus v. Walmart Stores E., LP, 3:13-CV-00832-H, 2013 WL 6511922, at *2 (W.D. Ky. Dec. 12, 2013). In Peters v. Lincoln Electric Company, the Sixth Circuit explained that the purpose of § 1446(b) is to "make sure that a defendant has an opportunity to assert the congressionally bestowed right to remove upon being given notice in the course of the case that the right exists." 285 F.3d 456, 466 (6th Cir. 2002) (quoting Huffman v. Saul ...