United States District Court, W.D. Kentucky, Louisville
CHARLES R. SIMPSON III, Senior District Judge.
The above-styled action was removed to this Court under our diversity jurisdiction. The matter is now before the Court on Motion by the Plaintiff, Steven Douglas Wimsatt, to Remand (DN 12) this action to Nelson County Circuit Court. Fully briefed, the matter is now ripe for adjudication. Having considered the parties' respective positions, the Court concludes that we lack diversity jurisdiction to hear this matter. We will grant Plaintiff's Motion to Remand (DN 12) for the reasons set forth below.
The Plaintiff, Steven Douglass Wimsatt, is forty-eight-year-old (48) male who identifies as homosexual. He began working for Defendant Kroger Co. on August 2, 2010. Since August 1, 2014, however, he has been on permanent suspension and has not returned to work. Wimsatt claims that this suspension was the final act in a scheme contrived by the Defendants - Kroger Co., Kroger Limited Parnership I ("KLP'), Kayla Adams, Naomi Newton, and Jamie Goings - to discriminate against him on the basis of gender and retaliate against him for engaging in protected activity. He consequently filed suit against the Defendants in Nelson Count Circuit Court alleging violations of the Kentucky Civil Rights Acts ("KCRA"). Ky. Rev. Stat. Ann. §§ 344.040, 344.280.
The Defendants responded by removing the action to this Court under our diversity jurisdiction. In their notice of removal, the Defendants acknowledged that Defendants Kayla Adams, Naomi Newton, and Jamie Goings (the "individual Defendants") are non-diverse defendants, the joinder of which would typically destroy diversity. DN 1. The Notice nevertheless contends that Wimsatt fraudulently joined the individual Defendants and that, resultantly, their joinder should not defeat removal on diversity grounds. Id. Now before this Court, Plaintiff has challenged the Defendants' allegations of fraudulent joinder and asked us to remand the matter to Nelson County Circuit Court.
For a court to have diversity jurisdiction in, no plaintiff may have the same citizenship as any of the defendants. 28 U.S.C. § 1332; SHR Ltd. Partnership v. Braun, 888 F.2d 455, 456 (6th Cir. 1989). If the matter has been removed, as this one has, the removing party bears the burden of proving the existence of federal jurisdiction. See Eastman v. Marine Mechanical Corp., 438 F.3d 544, 550 (6th Cir. 2006); Long v. Bando Mfg. of Am. Inc., 201 F.3d 754, 757 (6th Cir.2000). Removal statutes, moreover, are construed narrowly, and doubts about the propriety of removal are to be resolved in favor of remand. See Long, 201 F.3d at 757. If the Court ultimately finds that diversity is destroyed by the addition of a non-diverse party, however, then we no longer have jurisdiction and must remand the case. 28 U.S.C. § 1447(c).
To that end, Plaintiff Wimsatt argues that he and the individual Defendants, Adams, Newton, and Goings, are all, like Wimsatt, citizens of Kentucky, and thus destroy the complete diversity that is required under 28 U.S.C. § 1332(a)(1). The Defendants do not dispute this contention that Adams, Newton, and Goings are citizens of Kentucky. Instead, the Defendants argue that Wimsatt fraudulently joined them for the purpose of destroying complete diversity. If the Court agrees that their joinder was fraudulent, it will neither defeat the Defendants' removal nor the Court's diversity jurisdiction. See Alexander v. Electronic Data Sys. Corp., 13 F.3d 940, 949 (6th Cir.1994).
To prove fraudulent joinder, the Defendants must present sufficient evidence showing that Wimsatt could not have established a cause of action against Adams, Newton, or Goings under Kentucky law in state court. Coyne v. Am. Tobacco Co., 183 F.3d 488, 493 (6th Cir. 1999); see Alexander, 13 F.3d at 949. But if the Court finds that there is a "colorable basis" for predicting that Wimsatt may recover against these non-diverse defendants, on the other hand, the joinder will not prevent remand. Coyne v. Am. Tobacco Co., 183 F.3d 488, 493 (6th Cir. 1999). In effect, the issue here is "whether there is arguably a reasonable basis for predicting that state law might impose liability on [Adams, Newton, or Goings] given the Plaintiff's allegations." Taylor v. Toys "R" US-Delaware, Inc., No. CIV.A 509CV280KKC, 2010 WL 231683, at *4 (E.D. Ky. Jan. 13, 2010). This is a forgiving standard indeed. See e.g., Philpot v. Best Buy Stores, L.P., No. CIV. A. 308-CV-56-S, 2008 WL 2811972, at *2 (W.D. Ky. July 21, 2008); Green v. G2 Secure Staff, LLC, No. CIV.A. 07-409-C, 2008 WL 782612, at *2 (W.D. Ky. Mar. 21, 2008). What is more, we must resolve "all disputed questions of facts and ambiguities in the... controlling state law in favor of the non removing party" in applying it. Coyne. 183 F.3d. at 493.
The Complaint alleges that Defendants Adams, Newton, and Goings violated Section 344.280 of the Kentucky Civil Rights Act ("KCRA"). DN 1-2, p. 11. This Section of the KCRA provides that:
It shall be an unlawful practice for a person, or for two (2) or more persons to conspire:
(1) To retaliate ... in any manner against a person because he has opposed a practice declared unlawful by this chapter, or because he has made a charge, filed a complaint, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under this chapter.
Ky. Rev. Stat. Ann. § 344.280(1) (emphasis added). In practice, and critical here, the only meaningful distinction between this provision and Title VII's retaliation provision is that "[t]he Kentucky retaliation statute... permits the imposition of liability of individuals." Stevens v. Saint Elizabeth Med. Ctr., Inc., 533 F.Appx. 624, 630 (6th Cir. 2013) (quoting Morris v. Oldham Cnty. Fiscal Court, 201 F.3d 784, 794 (6th Cir. 2000)). Hence, there is no dispute that Wimsatt can pursue retaliation claims against individuals; rather, the question is whether there is arguably a reasonable basis for predicting that Nelson County Circuit Court might impose liability on Adams, Newton, or Goings under KRS. § 344.280(1) based on Wimsatt's allegations. See Taylor, 2010 WL 231683, at *4. We think there is.
The Complaint alleges that Adams, Newton, and Goings conspired with Kroger Co. and KLP to retaliate against Wimsatt. DN 1-2. Under Kentucky law, two or more persons conspire when they unlawfully combine or agree to "do by concert of action an unlawful act, or to do a lawful act by unlawful means." Montgomery v. Milam, 910 S.W.2d 237 (Ky. 1995). Unlawful retaliation, moreover, requires a showing that: 1). the Plaintiff engaged in protected activity; 2). the Defendant was aware of this protected activity; 3). the Defendant took some adverse employment action against him or subjected him to "severe and pervasive retaliatory harassment;" and, 4). a causal connection exists between the protected activity and action or harassment. Bowers v. State Farm Ins. Co., No. 3:09-CR-290, 2011 WL 304578, at *15 (W.D. Ky. Jan. 25, 2011) (citing Morris, 201 F.3d at 792)). For purposes of Wimsatt's claim, however, he need only show that 1). he engaged in protected activity and 2). that some combination of Adams, Newton, and Goings conspired to retaliate against him because of ...