United States District Court, W.D. Kentucky, Louisville Division
RONALD HALL, AS ADMINISTRATOR OF THE ESTATE OF JACKIE HALL, DECEASED PLAINTIFF
THE EVANGELICAL LUTHERAN GOOD SUMARITAN SOCIETY, INC., d/b/a GOOD SAMARITAN SOCIETY-JEFFERSONTOWN, DEFENDANTS
MEMORANDUM OPINION AND ORDER
H. McKinley, Jr., Chief Judge
matter is before the Court on a motion by Plaintiff, Ronald
Hall, to remand this action to state court pursuant to 28
U.S.C. § 1447(c) for lack of subject matter
jurisdiction. [DN 6]. Fully briefed, this matter is ripe for
Ronald Hall, as administrator of the estate of Jackie Hall,
filed an action on March 13, 2017, in Jefferson Circuit Court
asserting negligence, medical negligence, and wrongful death
claims against Defendants, The Evangelical Lutheran Good
Samaritan Society, Inc., d/b/a Good Samaritan
Society-Jeffersontown (hereinafter “Good
Samaritan”), Claude Mapp, in his capacity as
administrator of Good Samaritan, and John Does 1 through 3.
Plaintiff alleges that on August 4, 2013, Jackie Hall was
admitted to Good Samaritan where she resided until June 4,
2016. Plaintiff claims that Jackie Hall suffered personal
injuries and ultimately death as a result of Defendants'
failure to properly care for her.
March 30, 2017, Good Samaritan removed the action to this
Court based on diversity jurisdiction. In its notice of
removal, Good Samaritan alleges that it is a corporation
organized under the laws of North Dakota. Further, Good
Samaritan represents that at the time of the filing of this
action Claude Mapp, the former Administrator at Good
Samaritan, was a resident of Tennessee. (Notice of Removal at
¶ 7, DN 1.) Good Samaritan maintains that the damages
exceed the amount required for federal court diversity
April 7, 2017, Plaintiff moved to remand the action to the
Jefferson Circuit Court arguing that Defendant failed to
establish diversity of citizenship under 28 U.S.C. §
1332(a). Additionally, Plaintiff argues that one of the named
Defendants in the state action, Claude Mapp did not
participate or consent to the removal; and as a result,
removal was accomplished in violation of 28 U.S.C. §
STANDARD OF REVIEW
general matter, a civil case brought in a state court may be
removed by a defendant to federal court if it could have been
brought there originally. 28 U.S.C. § 1441(a). In order
for a defendant to remove a case to federal court based upon
diversity jurisdiction, there must be complete diversity of
citizenship both at the time the case is commenced and at the
time that the notice of removal is filed. See
Jerome-Duncan, Inc. v. Auto-By-Tel, L.L.C., 176 F.3d
904, 907 (6th Cir. 1999); 28 U.S.C. § 1332(a).
“The party invoking federal court jurisdiction -- in
this case, [Good Samaritan], as removing party -- has the
burden of demonstrating by competent proof that the
complete-diversity and amount-in-controversy requirements are
met.” Cleveland Housing Renewal Project v. Deutsche
Bank Trust Co., 621 F.3d 554, 559 (6th Cir. 2010).
filed this motion for an order of remand claiming this Court
does not have jurisdiction over this cause of action.
Plaintiff does not contest that the amount-in-controversy
requirement is met. Instead, Plaintiff contends that the
Defendants have not properly perfected removal. Plaintiff
argues that the Notice of Removal reveals two deficiencies.
First, Plaintiff maintains that remand to the Jefferson
Circuit Court is warranted because the Defendant failed to
produce any evidence that Defendant Mapp resides outside of
Kentucky. Second, Plaintiff contends that the Notice of
Removal clearly reflects that Defendant Mapp did not consent
to or participate in the removal.
Defendant Claude Mapp resided in Tennessee at the time the
case commenced and at the time the notice of removal was
filed. (Claude Mapp Affidavit at ¶ 4, DN 7-1.) While the
Court is aware that the Defendant did not tender Mapp's
affidavit at the time of the removal, the Court finds that it
may still properly consider the affidavit that was attached
to the Defendant's response. “The Supreme Court has
upheld removal where jurisdictional facts required to support
the removal were found in later-filed affidavits rather than
in the notice of removal.” Holiday Drive-In, LLC v.
Liberty Mut. Ins. Co., 2016 WL 868837, *4 (W.D. Ky. Mar.
4, 2016)(quoting USX Corp. v. Adriatic Ins. Co., 345
F.3d 190, 206 (3d Cir. 2003) (citing Willingham v.
Morgan, 395 U.S. 402, 407 n. 3 (1969) (“This
material should have appeared in the petition for removal.
However, for purposes of this review it is proper to treat
the removal petition as if it had been amended to include the
relevant information contained in the later-filed
affidavits.”)). Puri v. Baugh, 2015 WL
3796346, *3 (W.D. Ky. 2015)(citing Holland v. Lowe's
Home Centers, Inc., 1999 WL 993959, *2 (6th Cir. Oct.
21, 1999)(“[t]his Court may consider evidence of the
amount in controversy at the time of removal regardless of
whether that evidence was produced (or available) at the time
of removal.”)); Whitehead v. Dollar Tree Stores,
Inc., 2016 WL 4197582, *3 (E.D. Ky. Aug. 8, 2016). Mapp
was a resident of Tennessee at the time the action was filed
and therefore complete diversity exists.
at the time of removal, Good Samaritan was not required to
obtain consent for removal from Defendant Claude Mapp.
“Unanimity of consent is a judicially crafted rule
derived from the federal removal statute §
1446(b)(2)(A), see Loftis v. United Parcel Serv.,
Inc., 342 F.3d 509, 516 (6th Cir. 2003), that requires
all defendants who have been properly joined or properly
served in an action to consent to, or join in, a petition to
remove an action to federal court.” Polston v.
Millennium Outdoors, LLC, 2017 WL 878230, *3 (E.D. Ky.
Mar. 6, 2017). “One of the exceptions to the general
rule that all defendants must join in or consent to the
removal petition” is where “the non-joining
defendant . . . has not been served at the time the removal
petition is filed.” Jablonski v. Kraft Foods
Global, Inc., 2009 WL 3806784, *1 (E.D. Ky. Nov. 12,
2009)(citing Klein v. Manor Healthcare Corp., 1994
WL 91786, *3 n. 8 (6th Cir. March 22, 1994). See
also 28 U.S.C. § 1446(b)(2)(A); Smith v. Delta
Funding Corp., 2015 WL 7770658, *2 (E.D. Mich. Dec. 3,
2015). Therefore, a defendant who has not received service of
process at the time of removal need not join in the notice of
removal. Mapp falls within this exception to the unanimity of
consent. At the time of removal, Mapp had not been properly
served in this action, and therefore Good Samaritan did not
have to obtain his consent. (Mapp Affidavit ¶ 5.)
Plaintiff does not dispute Mapp's statement regarding
service of process. In fact, Plaintiff did not file a reply
in this matter. Furthermore, in his affidavit filed with the
Court on April 21, 2017, Mapp indicates that he consents to
the removal of this action. (Id. at ¶ 7.)
review of the affidavit of Claude Mapp, the Court finds that
Defendant has satisfied its burden of demonstrating that
there is complete diversity of citizenship between the
parties. Accordingly, the Court has subject matter
jurisdiction over Plaintiff's action, and the motion to
remand is denied.