United States District Court, W.D. Kentucky, Bowling Green Division
N. Stivers, Judge
matter is before the Court on Plaintiff's Motion to
Remand (DN 9), Defendants' Motion for Leave to File
Sur-Reply (DN 18), and Defendants' Motion for Oral
Argument (DN 17). For the reasons outlined below, the motion
to remand is GRANTED but the request for attorneys' fees
and costs is DENIED; the motion for leave to file is GRANTED;
and the motion for oral argument is DENIED.
STATEMENT OF FACTS AND CLAIMS
October 16, 2013, Plaintiff Gary Larue (“Larue”)
was seriously injured in a one-car accident in which his 2002
Volkswagen Golf left the roadway, crossed over both lanes of
traffic, and rolled at least one time before coming to a stop
in a field. (Notice Removal Ex. 1, at 360, DN 1-1). As a
result of the accident, Larue is an incomplete quadriplegic.
(Notice Removal Ex. 1, at 360).
October 14, 2014, Larue filed suit in Warren Circuit Court
against Volkswagen Group of America, Inc.; Volkswagen, A.G.,
and Volkswagen do Brasil Limitada alleging design defect and
negligence claims relating to the 2002 Volkswagen
Golf. (Notice Removal Ex. 1, at 360-64). Larue
also named various individuals employed by the Kentucky
Transportation Cabinet (“KTC Defendants”)
asserting claims of negligence and strict liability against
them in their individual and official capacities. (Notice
Removal Ex. 1, at 364-68). Approximately a month before trial
was to take place in state court, on January 3, 2017, VW
Defendants removed the action to federal court pursuant to 28
U.S.C. §§ 1441 and 1446 on the basis of fraudulent
joinder. (Pl.'s Mot. Remand Ex. 4, at 1, DN 9-6; Notice
Removal 5-7, DN 1). Larue has since moved to remand this case
to state court. (Pl.'s Mot. Remand, DN 9).
Plaintiff's Motion to Remand
moves to remand this matter to state court on the basis that
the removal was untimely under 28 U.S.C. § 1446(c) and
requests an award of attorneys' fees and costs for
improper removal. (Pl.'s Mem. Supp. Mot. Remand 2-10, DN
9-2). In general, “[n]othing is to be more jealously
guarded by a court than its jurisdiction.” Douglas
v. E.G. Baldwin & Assocs., Inc., 150 F.3d 604, 606
(6th Cir. 1998) (quoting In re Mooney, 841 F.2d
1003, 1006 (9th Cir. 1988)), abrogated on other grounds
by Thomas v. Miller, 489 F.3d 293 (6th Cir. 2007)
(internal quotation marks omitted). “[R]emoval statutes
are to be strictly construed, and doubts regarding the
propriety of removal should be resolved in favor of remanding
the case to state court.” Smith v. Giant Food,
LLC, 931 F.Supp.2d 717, 721 (D. Md. 2013) (citation
omitted). “[A]ny disputed questions [of] fact and [all]
ambiguities in the controlling state law [should be resolved]
. . . in favor of the nonremoving party.” Walker v.
Philip Morris USA, Inc., 443 F. App'x 946, 951 (6th
Cir. 2011) (alterations in original) (internal quotation
marks omitted) (quoting Alexander v. Elec. Data Sys.
Corp., 13 F.3d 940, 949 (6th Cir. 1994)).
Timeliness of Removal
Defendants removed the case from state court to this Court,
more than one year had passed since the commencement of this
action. Federal law, however, prohibits the removal of cases
in which federal jurisdiction is based on diversity after
more than one year has passed since the commencement of the
lawsuit. See 28 U.S.C. § 1446(c). VW Defendants
oppose Plaintiff's motion to remand back to state court
on the basis that Larue acted in bad faith by naming KTC
Defendants, who are non-diverse defendants, to preclude
timely removal. (Defs.' Resp. Pl.'s Mot. Remand 12,
DN 14). VW Defendants point to Larue's failure to develop
discovery in support of his claims against KTC Defendants and
argue that Larue failed to fulfill a continuing obligation to
develop and reevaluate his claims. (Defs.' Resp.
Pl.'s Mot. Remand 18-23).
ruling on this motion, the Court must consider the effect of
a relatively recent statutory amendment. Effective in 2012,
Congress amended 28 U.S.C. § 1446(c) to allow the
removal of cases more than one year after commencement when
“the district court finds that the plaintiff has acted
in bad faith in order to prevent a defendant from removing an
action.” See Federal Courts Jurisdiction
and Venue Clarification Act of 2011, Pub. L. No. 112-63,
§ 103(b), 125 Stat. 758, 760-61 (2011) (codified as 28
U.S.C. § 1446(c)(1)). The amendment also clarifies that
the statute is procedural in nature and can be waived or
equitably tolled. See Ehrenreich v. Black, 994
F.Supp.2d 284, 288 (E.D.N.Y. 2014) (“The amendment
confirms that the limitation is procedural, excusable by
federal courts upon a proper showing of bad faith.”).
Court has had few opportunities to consider what constitutes
bad faith under that statute. See Taylor ex rel. McNeill v.
King, No. 5:12-CV-1, 2012 WL 3257528, at *4-5 (W.D. Ky.
Aug. 8, 2012). As this Court has noted in construing the
appropriate standard for bad faith by a plaintiff:
The Sixth Circuit has not clearly defined the meaning of
“bad faith” in the amended statute, however
federal courts that have examined the new language agree that
the issue is whether the plaintiff engaged in intentional
conduct to deny the defendant the chance to remove the case
to federal court.
Hiser, 2014 WL 6885433, at *4 (citation omitted). As
a sister court has stated, “[t]he determination of bad
faith is left to the discretion of the district court, but
‘the exception to the bar of removal after one year is
limited in scope.'” Bryson v. Wells Fargo Bank,
N.A., No. 1:16-CV-28, 2016 WL 1305846, at *4 (E.D. Tex.
Mar. 31, 2016) (quoting H.R. Rep. No. 112-10, at 15,
reprinted in 2011 U.S.C.C.A.N. 576).
Defendants argue that Larue engaged in bad faith when he
failed to actively litigate his claims against KTC
Defendants, which prevented VW Defendants from timely
removing this matter to federal court. In their response, VW
Defendants generally argue that KTC Defendants were
fraudulently joined. As the Sixth Circuit has explained,
fraudulent joinder is “a judicially created doctrine
that provides an exception to the requirement of complete
diversity.” Coyne v. Am. Tobacco Co., 183 F.3d
488, 493 (6th Cir. 1999) (citation omitted) (internal
quotation marks omitted). Fraudulent joinder exists where
“it [is] clear that there can be no recovery under the
law of the state on the cause alleged or on the facts in view
of the law . . . .” Alexander v. Elec. Data Sys.
Corp., 13 F.3d 940, 949 (6th Cir. 1994) (citation
omitted). Defendants can avoid remand “by demonstrating
that the non-diverse party was fraudulently joined.”
Probus v. Charter Commc'n, LLC, 234 F. App'x
404, 406 (6th Cir. 2007) (citation omitted) (internal
quotation marks omitted). “However, if there is a
colorable basis for predicting that a plaintiff may recover
against non-diverse defendants, [the federal] [c]ourt must
remand the action to state court.” Coyne, 183
F.3d at 494. “[A] claim is colorable ‘if the
state law might impose liability on the resident
defendant under the facts alleged.'” Kent State
Univ. Bd. of Trs. v. Lexington Ins. Co., 512 F.
App'x 485, 489 (6th Cir. 2013) (citing Filla v.
Norfolk S. Ry. Co., 336 F.3d 806, 810 (8th Cir. 2003)).
See also Alexander v. Elec. Data Sys., 13 F.3d 940,
949 (6th Cir. 1994) (“[T]he question is whether there
is arguably a reasonable basis for predicting that the state
law might impose liability on the facts involved.”).
standard for fraudulent joinder is similar to that for
motions to dismiss under Fed.R.Civ.P. 12(b)(6). Courts
analyzing those motions consider only pleadings and attached
documents. See Bassett v. Nat'l Collegiate Athletic
Ass'n, 528 F.3d 426, 430 (6th Cir. 2008). All
allegations in the complaint are assumed true. See Great
Lakes Steel v. Deggendorf, 716 F.2d 1101, 1105 (6th Cir.
1983). The standard for fraudulent joinder is even more
deferential to the plaintiff than motions under Fed.R.Civ.P.
12(b)(6). See Walker, 443 F. App'x at 954.
Because fraudulent joinder questions the court's
jurisdiction rather than the merits of the claim, in
analyzing motions to remand for fraudulent joinder courts are
empowered to go beyond the pleadings. Id.
Nonetheless, “even if the district court ‘pierces
the pleadings' to consider summary-judgment-type evidence
(such as depositions, affidavits, etc.), the proper standard
for evaluating that evidence remains akin to that of a Rule
12(b)(6) motion to dismiss, and is arguably even more
deferential.” Id. Further, “any contested
issues of fact must be construed in the plaintiff's
favor.” Id. However, “[t]he non-moving
party's motive for joining the non-diverse party to the
lawsuit is ‘immaterial to our determination regarding
fraudulent joinder.'” Id. at 951 (quoting
Jerome-Duncan, Inc. v. Auto-By-Tel, LLC, 176 F.3d
904, 907 (6th Cir. 1999)). The party alleging fraudulent
joinder bears a heavy burden of persuasion. See Id.
at 953 (citation omitted).
their response, VW Defendants concede that Larue had
colorable claims of negligence and strict liability against
KTC Defendants at the outset of this litigation, which
undermines any argument of fraudulent joinder. (Defs.'
Resp. Pl.'s Mot. Remand 2 n.1, 26 n.9). Kentucky law
recognizes that employees of the Kentucky Transportation
Cabinet, Department of Highways may be liable in their
individual capacities for a failure to perform a ministerial
duty relating to highway maintenance. See Hammers v.
Plunk, 374 S.W.3d 324, 330 n.3 (Ky. App. 2011) (en banc)
(“Because the present case involves the maintenance or
repair of existing sections of roadway, rather than a
decision to erect signs or guardrails on same, such action or
inaction may be considered ministerial.”); Estate
of Clark ex rel. Mitchell v. Daviess Cty., 105 S.W.3d
841, 846 (Ky. App. 2003) (holding that county employees sued
in their individual capacities were personally liable for any
failure to perform a ministerial duty like replacing a stop
sign). Thus, Larue had a colorable claim of negligence and
strict liability against KTC Defendants and asserting claims
against those Defendants did not constitute bad faith.
See Johnson v. Dollar Tree Stores, Inc., No.
3:15-cv-706-DJH, 2016 WL 126875, at *2 (W.D. Ky. Jan. 11,
2016) (“The relevant inquiry for a fraudulent joinder
claim is whether [the plaintiff] ‘had at least a
colorable cause of action against' [the alleged
fraudulently joined party] in Kentucky state courts.”
(quoting Jerome-Duncan, Inc., 176 F.3d at 907)).
to VW Defendants' characterizations of KTC Defendants as
token parties, the record reflects that Larue retained two
experts to proffer expert testimony relating to the accident
and the road conditions: Gary M. Chambers, P.E.
(“Chambers”); and Mariusz Ziejewski, Ph.D.
(“Ziejewski”). (Pl.'s Reply Mot. Remand
10-12, DN 16; Pl.'s Mot. Remand Exs. 2-3, DN 9-2 to 9-3).
As an expert witness, Chambers' specialties include
“highway design and highway construction zone issues .
. . .” (Pl.'s Mot. Remand Ex. 2, at 1, DN 9-4).
Ziejewski is an engineer and professor of engineering at
North Dakota State University, and in his curriculum vitae,
he notes that he is a “Fully Accredited Accident
Reconstructionist, Accreditation Commission for Traffic
Accident Reconstruction (ACTAR) #1939.” (Pl.'s Mot.
Remand Ex. 3, at 1, DN 9-5). Ultimately, as Larue has noted,
“Chambers was unable to determine that the roadway
violated any controlling guidelines under AASHTO or FHWA and
thus, he was not named as an expert.” (Pl.'s Mem.
Supp. Mot. Remand 9). In contrast, Ziejewski did prepare an
expert report and was deposed. (Ziejewski Report, DN 14-10;
Ziejewski Dep., Aug. 3, 2016, DN 14-11). Ziejewski testified
Q. Doctor, is it fair to say that your report does not
express any opinions as to the condition or maintenance of