United States District Court, W.D. Kentucky, Owensboro Division
MEMORANDUM OPINION AND ORDER
JOSEPH H. McKINLEY, Chief District Judge.
This matter is before the Court on Plaintiff's motion to remand pursuant to 28 U.S.C. § 1447(c) [DN 12] and on a motion by Defendants to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) [DN 16]. Fully briefed, these matters are ripe for decision.
On June 5, 2014, Plaintiff, Karen Roof, filed this action in the Grayson Circuit Court alleging employment discrimination on the basis of age and sex in violation of KRS § 344.040, retaliation in violation of KRS § 344.280, and other state law claims of promissory estoppel, negligent hiring, and civil conspiracy. Plaintiff began her employment with Defendant Bel Brands USA, Inc., in May of 1995 at its Leitchfield, Kentucky facility. During her employment, Plaintiff was employed as a production floor worker and then a warehouse worker. Plaintiff operated forklifts, unloaded trucks, managed inventory, and transferred material to the production floor by the use of computers. In 2009, Bel Brands obtained a new computer system to manage business operations, SAP, and began to use E-Win, a bar coding software system to track and keep inventory. Plaintiff alleges that she took courses on these software programs. Bel Brands placed the license to use SAP in Plaintiff's name. Plaintiff represents that she and James Nelson were responsible for all aspects of running the software programs.
Plaintiff alleges that she asked for a raise after SAP and E-Win went live because of the extra work she had received. Her request was denied. In 2012, Bel Brands hired Defendant Hyrum Horn as the Supply Chain Manager for Bel Brands' Leitchfield facility. According to Plaintiff, Horn decided to make Plaintiff's existing job duties a coordinator position and represented to Plaintiff that there was no reason she would not get the coordinator position job. Plaintiff claims that on or around the spring of 2013, Defendants began terminating older workers for contrived reasons, including Plaintiff's warehouse supervisor. Bel Brands advertised for the warehouse supervisor position. Plaintiff asked Horn if she should put in for the position, to which Horn responded "go for it." Horn later told Plaintiff that Bel Brands "was seeking to hire outside of the company for the position" and that Bel Brands was going to "make [her] a coordinator because [she was] already doing that job." (Complaint ¶¶ 52-53.) In the summer of 2013, Bel Brands hired Rod Inman for the warehouse supervisor position and instructed Plaintiff to train him to use the warehouse software. Horn represented to Plaintiff that he expected her to be in a coordinator position by December 2013.
Plaintiff contends that Horn told Tiffany Overstreet, Plaintiff's co-worker in the warehouse, that Plaintiff had applied for the warehouse supervisor position. As a result, Overstreet became aggressive toward Plaintiff because "Plaintiff was trying to take her job." Overstreet refused to communicate with Plaintiff causing tensions in the warehouse. Plaintiff asserts that she voiced her concerns to Horn. According to Plaintiff, Overstreet made false allegations against Plaintiff to Horn which Horn knew were false. According to Plaintiff, Horn disqualified Plaintiff and Overstreet from getting a coordinator position. Bel Brands then advertised the coordinator position. Plaintiff was informed by Horn that she would not be considered for the position. Bel Brands hired Paul Myers for the coordinator position. By hiring Myers for the coordinator position, Plaintiff asserts that Bel Brands constructively demoted her from running the warehouse. Additionally, Plaintiff claims that Horn subsequently made frequent threats of suspending Plaintiff for minor infractions.
II. MOTION TO REMAND
Plaintiff, a resident of Kentucky, filed suit against Bel Brands alleging employment discrimination on the basis of age and sex in violation of the Kentucky Civil Rights Act ("KCRA") KRS § 344.040, retaliation in violation of KRS § 344.280, and other state law claims of promissory estoppel, negligent hire/retention/supervision, and civil conspiracy. Bel Brands is a Wisconsin corporation with its principal place of business in Chicago, Illinois. Plaintiff also joined non-diverse defendant, Hyrum Horn, alleging employment discrimination, retaliation, promissory estoppel, and civil conspiracy. Defendants removed this action from the Grayson Circuit Court to this Court on the theory that Plaintiff had fraudulently joined Horn in an effort to defeat federal jurisdiction. Plaintiff now moves the Court to remand the case to the Grayson Circuit Court.
A. STANDARD OF REVIEW
"Fraudulent joinder occurs when the non-removing party joins a party against whom there is no colorable cause of action.'" Walker v. Philip Morris USA, Inc. , 443 F.Appx. 946, 951 (6th Cir. 2011)(quoting Saginaw Housing Comm'n v. Bannum, Inc. , 576 F.3d 620, 624 (6th Cir. 2009)). "The non-moving party's motive for joining the non-diverse party to the lawsuit is immaterial to our determination regarding fraudulent joinder.'" Id . (quoting JeromeBDuncan, Inc. v. Auto-By-Tel, L.L.C. , 176 F.3d 904, 907 (6th Cir. 1999)). The burden is on the Defendants to show fraudulent joinder, and as with any dispute over removal, all doubts are resolved in favor of remand. Brierly v. Alusuisse Flexible Packaging, Inc. , 184 F.3d 527, 534 (6th Cir. 1999); Alexander v. Electronic Data Sys. Corp. , 13 F.3d 940, 949 (6th Cir. 1994).
"To prove fraudulent joinder, the removing party must present sufficient evidence that a plaintiff could not have established a cause of action against non-diverse defendants under state law." Coyne v. American Tobacco Co. , 183 F.3d 488, 493 (6th Cir. 1999). "Therefore the question is whether there is arguably a reasonable basis for predicting that the state law might impose liability on the facts involved." Probus v. Charter Communications, LLC , 234 F.Appx. 404, 407 (6th Cir. 2007)(internal citation omitted). See also Walker , 443 F.Appx. at 952. In making this determination, the Sixth Circuit recognizes that the district court may "pierce the pleadings and conduct a summary inquiry" to determine whether a plaintiff's complaint has misstated or omitted " discrete and undisputed facts " that would determine the propriety of joinder. Walker , 443 F.Appx. at 953 (citation omitted). In adopting the approach articulated by the Fifth Circuit, the Sixth Circuit in Walker stated in relevant part:
[A]lthough the fraudulent joinder and Rule 12(b)(6) standards appear similar, the scope of the inquiry is different. For Rule 12(b)(6) motions, a district court may only consider the allegations in the complaint and any attachments. For fraudulent joinder, the district court may... "pierce the pleadings" and consider summary judgment-type evidence in the record, but must also take into account all unchallenged factual allegations, including those alleged in the complaint, in the light most favorable to the plaintiff. Any contested issues of fact and any ambiguities of state law must be resolved in [the plaintiff's] favor. The burden of persuasion on those who claim fraudulent joinder is a heavy one.
Id. (quoting Travis v. Irby , 326 F.3d 644, 648B49 (5th Cir. 2003)). Therefore, A[w]hen deciding a motion to remand, including fraudulent joinder allegations, we apply a test similar to, but more lenient than, the analysis applicable to a Rule 12(b)(6) motion to dismiss.@ Casias v. Wal-Mart Stores, Inc. , 695 F.3d 428, 433 (6th Cir. 2012)(citing Walker , 443 F.Appx. at 952B54)).
Plaintiff argues that the instant case should be remanded because Defendants have failed to prove the fraudulent joinder of Horn. The Defendants, on the other hand, contend that Horn was fraudulently joined because Plaintiff has no colorable cause of action for sex or age discrimination, retaliation, or conspiracy against Horn. Specifically, Defendants argue that (1) individuals or agents who do not independently qualify as employers under the KCRA may not be held personally liable for sex or age discrimination; (2) Plaintiff's allegations establish that she has no colorable retaliation claim against Horn; and (3) Plaintiff's civil conspiracy claim is not a free-standing claim, and therefore because her KCRA claims ...