United States District Court, E.D. Kentucky, Central Division, Frankfort
JOSEPH DANIEL HALL & MAGO CONSTRUCTION COMPANY, LLC, Plaintiff,
CHARLES S. TAYLOR, et al., Defendants. and KENTUCKY ASSOCIATES GENERAL CONTRACTOR'S SELF-INSURER'S FUND, Intervening Plaintiff,
OPINION & ORDER
GREGORY F.VAN TATENHOVE UNITED STATES DISTRICT JUDGE.
U.S.C. § 1446(b)(3) explains what to do when a state
court action that was not initially removable somehow becomes
removable later on in the lawsuit. Specifically, the statute
allows for an action to be removed within thirty days after
the defendants to the suit receive “through service or
otherwise, a copy of an amended pleading, motion, order or
other paper from which it may first be ascertained that the
case is one which is or has become removable.”
case, the parties challenge the meaning of the phrase
“other paper.” Defendants obtained knowledge that
all actual parties to the lawsuit were completely diverse
through a post-complaint letter but believed that letter did
not trigger § 1446(b)(3). Once a more official notice
was filed in the record, they removed to this Court.
Plaintiffs now contend the thirty-day deadline to remove the
case runs from the date of the post-complaint letter, and
they argue Defendants' notice of removal is untimely. For
the reasons that follow, the Court finds in favor of
Plaintiffs and GRANTS their motion to remand.
personal injury action was initially filed in Kentucky state
court. Mr. Hall was operating an asphalt paving machine on
the side of a highway in Anderson County when Defendant
Charles Taylor, who was driving an interstate
tractor-trailer, crashed into him. Hall and the owner of the
asphalt paving machine, the Mago Construction Company, filed
a lawsuit against Charles Taylor and Kirk Nationalease, the
owner of the tractor-trailer. [R. 1-3.] The Plaintiffs later
amended their complaint to include AK Industries, Inc., as a
defendant. By information and belief, the tractor-trailer
involved in the collision was owned by Kirk Nationalease but
leased by AK Industries. [R. 1-4.]
out, there are two AK Industries, Inc. One has an office in
Lexington, Kentucky, and the other is an unrelated Indiana
corporation. [Compare Id. with R. 1-5; see
also R. 1-1.] Plaintiffs meant to sue only the Indiana
AK Industries, but both corporations were accidently served
with the complaint. [See R. 1-1.] The Indiana AK
Industries obtained the same counsel as Defendant Charles
Taylor and, along with Mr. Taylor, filed an answer to the
complaint. [R. 1-10.] But before anyone could get in touch
with the Kentucky AK Industries to explain the mistake, the
Kentucky corporation also filed an answer. [R. 1-11; see
also R. 1-1 at 3.]
Plaintiffs' counsel sought to clarify the matter by
reaching out to the two AK Industries' attorneys. In a
letter dated July 28, 2016, attorney Michelle Buckley Sparks
informed the Kentucky AK Industries lawyer Jeffrey A. Taylor
that his corporation was served in error. [See R.
1-1 at 3-4.] The letter indicated Plaintiffs' counsel had
spoken with the Indiana AK Industries lawyer Jillian House
and that Ms. House agreed there was no need for Jeffrey
Taylor or the Kentucky AK Industries to participate in the
lawsuit. [Id. at 3.] A copy of the letter was also
sent to Ms. House. [Id. at 4.] Nothing was filed in
the Anderson Circuit Court record explaining the mishap at
that time. However, going forward, the Indiana AK Industries
participated in discovery, but the Kentucky AK Industries did
[Id. at 1.]
October 11, 2016, Plaintiffs' counsel filed a notice of
clarification, formally explaining the AK Industries mix-up
but noting the Indiana corporation had answered the
complaint, propounded discovery, and responded to discovery
requests as it should. [R. 1-1 at 1.] The July 28 letter to
Jeffrey Taylor was filed along with the notice. [Id.
at 3-4.] Ten days later, Defendants removed the case to
federal court on the basis of diversity jurisdiction. [R. 1.]
question before the Court is in great part one of timing.
Defendants maintain the case could not be removed until the
notice of clarification was filed in the record, because
complete diversity of parties could not be established
without that “official filing.” [R. 13 at 3.] But
Plaintiffs insist the July 28 letter, which all parties
received, was sufficient to prove complete diversity.
Plaintiffs' theory renders the notice of removal untimely
and requires remand.
general, a defendant may remove a civil action brought in
state court 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.
This Court has original diversity jurisdiction over all civil
actions in which “the matter in controversy exceeds the
sum or value of $75, 000, exclusive of interest and costs,
and the dispute is between” parties who are
“citizens of different states.” See 28
U.S.C. § 1332(a)(1).
order for diversity jurisdiction to attach, “all
parties on one side of the litigation [must be] of a
different citizenship from all parties to the other side of
the litigation.” Coyne v. Amer. Tobacco Co.,
183 F.3d 488, 492 (6th Cir. 1999) (quoting SHR Ltd.
Partnership v. Braun, 888 F.2d 455, 456 (6th Cir.
1989)). When removal is based on diversity of the parties,
the removing defendant has the burden to prove the diversity
requirements are satisfied by a preponderance of the
evidence. Everett v. Verizon Wireless, Inc., 460
F.3d 818, 829 (6th Cir. 2006). If a case is not removable
based on its initial pleadings but later becomes removable,
28 U.S.C. § 1446(b)(3) requires the notice of removal to
be filed within thirty days after the defendant receives
“through service or otherwise, a copy of an amended
pleading, motion, order or other paper from which it may
first be ascertained that the case is one ...