United States District Court, W.D. Kentucky, Paducah Division
MEMORANDUM OPINION AND ORDER
THOMAS B. RUSSELL, District Judge.
This matter comes before the Court upon the motion to remand of Plaintiff Earlie Fugate. (Docket No. 6.) Defendants Babcock & Wilcox Conversion Services, LLC, ("B&W" or "the Company") and Joanna Assad have responded, (Docket No. 9), and Fugate has replied, (Docket No. 10). Fully briefed, this matter stands ripe for adjudication. For the reasons set forth below, the Court will GRANT Fugate's motion.
On September 16, 2013, Fugate was hired as a training and curriculum developer at B&W's Paducah, Kentucky, location. Fugate contends that during the hiring process, she explained to the Company that she was pursuing an advanced degree at Murray State University that required her to complete an internship. She alleges that although she worked only a "flex schedule" at B&W during her internship period, B&W personnel nonetheless directed her to record having worked eight hours per day on her timesheets. (Docket No. 11-1 at 8.)
Fugate claims that throughout her employment at B&W, she was subjected to a hostile work environment due to her age, race, and gender. Specifically, she states that Defendants John Wallace and Joanna Assad "ridiculed and harassed" her by making racially charged statements and "sabotaging her training." (Docket No. 11-1 at 8.) Fugate says that when she complained to her superiors of this treatment, they arranged for her to meet with the human resources department. On the day of the scheduled meeting, however, B&W terminated her employment, alleging that she falsified her timesheets. She submits that B&W terminated her based in part upon statements of Assad and Wallace. (Docket No. 11-1 at 9.)
Fugate filed her six-count complaint in the Circuit Court of McCracken County, Kentucky. Her first three claims concern her employment contract with B&W: she alleges that B&W wrongfully discharged her in violation of both public policy and an employment contract and that it violated the covenant of good faith and fair dealing. (Docket No. 11-1 at 9-11.) Fugate further contends that Assad and Wallace,  along with B&W, defamed her, committed the tort of outrage, and discriminated against her in violation of the Kentucky Cavil Rights Act. (Docket No. 11-1 at 11-13.) Defendants timely filed a notice of removal; by way of response, Fugate filed the instant motion to remand.
Generally, a defendant may remove a civil case to federal court only if the action is one over which the federal court could have exercised original jurisdiction. See 28 U.S.C. § 1441, 1446. Because Fugate's complaint raises no federal question, the exclusive basis for federal jurisdiction is 28 U.S.C. §1332, which requires the citizenship of each plaintiff to be diverse from the citizenship of each defendant. See Caterpillar Inc. v. Lewis, 519 U.S. 61, 67-68 (explaining the principle of complete diversity). Fugate, a Kentucky citizen, is indeed diverse from B&W, a Delaware corporation with its principal place of business in Virginia. However, Assad and Wallace are also citizens of Kentucky. Therefore, complete diversity is lacking based on the face of Fugate's complaint. Nonetheless, Defendants insist that Fugate fraudulently joined Assad and Wallace in an effort to defeat diversity jurisdiction and confine the case to state court.
Defendants bear the burden of proving fraudulent joinder. "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. Am. Tobacco Co., 183 F.3d 488, 493 (6th Cir. 1999). To carry this "heavy burden, " Mayes v. Rapoport, 198 F.3d 457, 463 (4th Cir. 1999), Defendants must demonstrate that there is no genuine basis upon which Fugate may be able to recover against Assad and Wallace. See Coyne, 183 F.3d at 493 ("[I]f there is a colorable basis for predicting that a plaintiff may recover against non-diverse defendants, th[e] Court must remand the action to state court."). See also Jerome-Duncan, Inc. v. Auto-By-Tel L.L.C., 176 F.3d 904, 907 (6th Cir. 1999) ("[T]he inquiry is whether [plaintiff] had at least a colorable cause of action.").
Defendants asserting fraudulent joinder confront a higher standard even than that required to prevail upon a motion to dismiss. See Cordle v. Merck & Co., Inc., 405 F.Supp.2d 800, 803 (E.D. Ky. 2005) (citing Little v. Pardue Pharma, L.P., 227 F.Supp.2d 838, 845-46 (S.D. Ohio 2002). As a sister district court in the Sixth Circuit has commented, "[T]he benefit of the doubt given a plaintiff as part of the fraudulent joinder inquiry should be more deferential than even that given under Rule 12(b)(6).... [A] decision overruling a motion for remand where the defendant is claiming fraudulent joinder connotes that a plaintiff's claim, as to the non-diverse defendants, has no basis in law or reason." Little, 227 F.Supp.2d at 846-47.
As is always the case in matters concerning comity and federalism, any ambiguity must be resolved against removal. See Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 534 (6th Cir. 1999) (explaining that "the statutes conferring removal jurisdiction are to be construed strictly because removal jurisdiction encroaches on a state court's jurisdiction" and that ambiguities regarding the scope of removal "should be resolved in favor of remand to the state courts."). Moreover, any ambiguities in the relevant state law must be resolved in the light most favorable to the plaintiff. See Alexander, 13 F.3d at 949.
The Court need not predict whether Fugate will carry the day at trial, nor must it discern Fugate's true motive in joining Assad and Wallace. Rather, the limited question before the Court is whether, resolving all ambiguities in Fugate's favor, Defendants have shown that there is no "glimmer of hope" that she could prevail against the non-diverse defendants in state court. Hartley v. CSX Transp., Inc., 187 F.3d 422, 426 (4th Cir. 1999); see also Jerome-Duncan, 1756 F.3d at 907. Accordingly, the Court must consider the complaint in light of Kentucky law to determine whether Fugate has stated a colorable claim against Assad and Wallace.
Fugate does not dispute that the first three counts of her complaint concern only B&W and assert no claims against Assad and Wallace. The parties' conflict, then, concerns the claims of defamation, intentional infliction of emotional distress, and violation of the Kentucky Civil ...