United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
WILLIAM O. BERTELSMAN, UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff's motion to
remand. (Doc. 7). Having reviewed this matter, the Court
concludes that oral argument is unnecessary. The Court now
issues the following Memorandum and Order.
AND PROCEDURAL BACKGROUND
Darlene Kelly brings this action against defendants American
Food Groups, LLC (“AFG”), America's Service
Line, LLC (“ASL”), and Luis Alvarado. Plaintiff
alleges a semi-truck driven by Alvarado collided with her
vehicle, causing injuries to her neck, shoulders, and back.
(Doc. 1-1, Complaint, at 2, PageID #: 14). Plaintiff alleges
the accident was a result of Alvarado's “negligence
and/or gross negligence” and negligence per
se. (Id. at 5-6, PageID #: 17-18). Plaintiff
also alleges that AFG and ASL are vicariously liable for the
damages caused by Alvarado. (Id. at 7, PageID #:
19). Additionally, Plaintiff contends that AFG
“and/or” ASL were negligent in their hiring,
supervision, and training of Alvarado. (Id.)
filed her complaint in the Jefferson County Circuit Court on
October 26, 2016. (Doc. 1, Notice of Removal, at 1, PageID #:
1). On November 30, 2016, Defendants removed the case to the
District Court for the Western District of Kentucky.
(Id.) Due to Plaintiff's employment with the
Clerk's office in that Court, the case was reassigned to
the undersigned. (Doc. 11, Defendant's Response, at 2,
PageID #: 114). Defendant invokes federal jurisdiction under
28 U.S.C. § 1332, alleging that the parties have
complete diversity and the amount in controversy exceeds $75,
000. (Doc. 1, Not. of Rem. at 2, PageID #: 2).
employed Alvarado at the time of the accident, and ASL also
owned the semi-truck. (Doc. 11-1, Affidavit of Dominick
Driano, Jr., at 1, PageID #: 124). AFG owned the truck's
cargo. (Id.) ASL is also the in-house carrier of
AFG, which AFG has described as a “division” of
the company in past judicial filings. See Kirkvold v.
Dakota Pork Indus., Inc., Civ. No. 97-4166, 1997 WL
34862262, at *3 (D.S.D. Dec. 15, 1997). Furthermore, AFG has
more than a 10 percent ownership interest in ASL. (Doc. 7-1,
Pl.'s Memo. in Supp., at 6, PageID #: 77). AFG's
general counsel avers that AFG did not personally
“hire, train, supervise, or control Mr. Alvarado”
at the time the accident occurred, and that ASL was
Alvarado's sole employer. (Doc. 11-1, Driano Aff., at 2,
PageID #: 125).
is and was at all relevant times a citizen of Kentucky. (Doc.
1-1, Compl., at 2, PageID #: 14). Defendant Alvarado is and
was a citizen of Pennsylvania. (Id. at 3, PageID #:
15). ASL is a limited liability company with its principal
place of business in Wisconsin, registered in Delaware.
(Id. at 2, PageID #14). Like ASL, AFG is a limited
liability company with its principal place of business in
Wisconsin, registered in Delaware. (Id.) AFG has two
members, Rosen's Diversified, Inc., and RDI Shareholder,
LLC. RDI Shareholder is a limited liability company whose
members consist of sixteen (16) trusts, with at least one
trustee being a citizen of Kentucky. (Id. at 3,
PageID #:15). Plaintiff also asserts that ASL is citizen of
Kentucky through AFG, as ASL is a “division” of
AFG, and additionally AFG is a “principal member”
of ASL. (Doc. 13, Pl.'s Repl., at 2, PageID #: 129).
AFG is not a “Nominal Party” for
argue that AFG should not be relevant for diversity purposes
because it is a “nominal party”. (Doc.11,
Def.'s Resp., at 4, PageID #: 116). In support, defendant
relies on Mortenson Fam. Dental Ctr. v. Heartland Dental
Care, Inc. 526 F. App'x 506 (6th Cir. 2013).
Mortenson, the Sixth Circuit held, in a dispute
between two parties over ownership rights in an LLC, that the
citizenship of the LLC should not be considered for diversity
purposes. Id. at 509. The Court stated that
“[w]hen determining whether diversity jurisdiction
exists, a federal court must disregard nominal parties and
decide jurisdiction only on the citizenship of the real
parties in interest.” Id. at 508. The Sixth
Circuit defines “a real party in interest [a]s one who
is entitled to enforce the right asserted in the suit, that
in turn depends on whether the party could actually obtain
substantive relief.” Id. at 508 (quoting
Certain Interested Underwriters at Lloyd's v.
Layne, 26 F.3d, 39, 42-43 (6th Cir. 1994)). “In
contrast, a nominal party has no interest in the result of
the suit and need not be a made a party.” Id.
at 508 (citing Maiden v. N. Am. Stainless, L.P., 125
F. App'x. 1, 3 (6th Cir. 2004)).
in Mortenson was only relevant because the dispute
concerned ownership in it under the terms of an operating
agreement. Id. at 508. Neither of the parties
contesting ownership claimed the LLC itself had engaged in
any improper conduct, nor was the LLC even a party to the
operating agreement. Id. The LLC “[did not
assert] any rights and [would] not get any relief from the
outcome of the suit.” Id. Put another way,
“The LLC is only a spectator on the sideline. That it
will give a trophy to the winner does not make it a player in
the game.” Id. at 509. The Court thus
determined the LLC was not a “real party in
interest” and excluded it for diversity purposes.
present case is fundamentally different. Plaintiff is
asserting multiple causes of action against AFG, with some
direct claims and some vicarious liability claims. (Doc. 1-1,
Compl., at 7-8, PageID #: 19-20). In Mortenson,
neither party asserted any claim against the LLC.
Here, Defendants argue that a “plain reading” of
Plaintiff's complaint shows “the only theory of
liability against both ASL and AFG is the allegation that
both Defendants hired, trained, supervised, and/or employed
Luis Alvarado at the time of the subject accident.”
(Doc. 11, Def.'s Resp., at 3, PageID #: 115).
incorrect. A plain reading of Plaintiff's complaint shows
that Plaintiff is also alleging that, “as a result of
the managerial control American Foods Group exercises of
America's Service Line and its employees, it is jointly
and severally liable.” (Doc. 1-1, Compl., at 7, PageID
#: 19). Plaintiff further alleges that “America's
Service Line and/or American Food Groups selected and
required Alvarado to take an unsafe route.”
(Id.) The affidavit of AFG's general counsel
states only that ASL was the sole employer of Alvarado at the
time of the accident, but it is silent on these other claims
against AFG. (Doc. 11-1, Driano Aff., at 1-2, PageID #:
124-125). If the allegations against AFG have any ...