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Ballinger v. Amazon.Com, Inc.

United States District Court, W.D. Kentucky, Louisville Division

January 22, 2018

NICOLE BALLINGER, as Guardian of T.B., a Minor PLAINTIFF



         This matter is before the Court on Plaintiff's Motion to Remand (DN 21) and Defendant's Motion to Dismiss (DN 24). For the reasons set forth below, Plaintiff's motion is GRANTED and Defendant's motion is DENIED AS MOOT.

         I. BACKGROUND

         The events giving rise to the pending motions are as follows: T.B., a minor and citizen of Kentucky, invited two of his friends-J.K. and Defendant M.S., also a citizen of Kentucky-to his home after school at which time he exhibited a sword originally purchased from Defendant Inc.'s (“Amazon”) website.[1] (Compl. ¶¶ 10-18, DN 1-1). The three friends decided to “use the sword to chop plastic water bottles tossed into the air [and] to film their activities, ” with M.S. acting “as director, choreographer and videographer” of the stunt. (Compl. ¶ 19). As J.K. swung the sword, its blade “disengaged from the handle, flew as much as twenty feet, and struck [T.B.], effectively impaling him through the forehead.” (Compl. ¶ 20).

         As a result, Plaintiff Nicole Ballinger (“Plaintiff”), T.B.'s guardian, filed suit in Oldham Circuit Court alleging, inter alia, that the negligence of Amazon and M.S. (collectively “Defendants”) caused T.B.'s injuries.[2] (Compl. ¶¶ 32-37, 59-63). In particular, Plaintiff alleged that M.S. had a duty “to exercise ordinary care for the safety and well-being of others in her company, ” and that M.S. violated that duty when she: (1) “acted . . . as an active director, choreographer and videographer of the stunt that injured [T.B.], ” (2) “encouraged . . . two fifteen-year-old boys to engage in reckless . . . behavior, ” and (3) “failed to ascertain . . . whether the sword . . . was suitable for the use being made of it at the time of [T.B.'s] injury.” (Compl. ¶¶ 60-61). Plaintiff also alleged that M.S.'s breach caused T.B.'s injury. (Compl. ¶¶ 62-63).

         A few weeks later, Amazon removed the action to this Court on the basis of diversity jurisdiction. In its Notice of Removal, Amazon argued that, though Plaintiff, T.B., and M.S. are all Kentucky citizens-which would ordinarily defeat complete diversity of citizenship and deprive this Court of subject-matter jurisdiction over Plaintiff's state-law claims, see 28 U.S.C. § 1332(a)(1)-the Court must disregard M.S.'s citizenship in determining whether diversity jurisdiction exists because, given that Plaintiff's claim against M.S. is frivolous, Plaintiff fraudulently joined M.S. to the lawsuit.[3] (Notice Removal 4-7).

         After removal, Plaintiff moved the Court to remand her suit to state court. (Pl.'s Mot. Remand, DN 21). In her motion, Plaintiff argues that, because she has a valid negligence claim against M.S., M.S. is a proper defendant and therefore this Court lacks subject-matter jurisdiction over her action and must remand it. (Pl.'s Mem. Supp. Mot. Remand 6-8, DN 21-1).

         Both Amazon and M.S. submitted responses to Plaintiff's Motion to Remand, and M.S. moved to dismiss Plaintiff's claim against her. (See Def. Amazon's Opp'n Pl.'s Mot. Remand, DN 22; Def. M.S.'s Opp'n Pl.'s Mot Remand, DN 23; Def. M.S.'s Mot. Dismiss, DN 24). Defendants' respective responses to Plaintiff's Motion to Remand largely mirror each other and reiterate the fraudulent joinder argument Amazon raised in its Notice of Removal. (Def. Amazon's Opp'n Pl.'s Mot. Remand 4; M.S.'s Opp'n Pl.'s Mot. Remand 6). In addition, M.S. argues in her motion that she must be dismissed from Plaintiff's suit because, among other reasons, Plaintiff failed to present factual allegations sufficient to state a claim against her. (Def. M.S.'s Mem. Supp. Mot. Dismiss 3-10, DN 24-1).

         The parties have fully briefed the issues related to Plaintiff's Motion to Remand (DN 21) and M.S.'s Motion to Dismiss (DN 24). Thus, these motions are ripe for adjudication.


         A. Motion to Remand

         Generally, when a lawsuit involving opposing parties who share a state of citizenship with a plaintiff is removed to federal court on the basis of diversity jurisdiction, the court must remand it. See Chase Manhattan Mortg. Corp. v. Smith, 507 F.3d 910, 913 (6th Cir. 2007) (citing 28 U.S.C. § 1447(c)); see also 28 U.S.C. §§ 1332(a)(1), 1441(a). Indeed, in such a situation, complete diversity of citizenship does not exist between each plaintiff and defendant, and, therefore, the court lacks subject-matter jurisdiction over the action. See 28 U.S.C. §§ 1332(a)(1), 1447(c).

         The Sixth Circuit, however, has recognized that remand is not required where the plaintiff fraudulently joins a non-diverse defendant. Coyne v. Am. Tobacco Co., 183 F.3d 488, 493 (6th Cir. 1999). “To prove fraudulent joinder, the removing party must present . . . evidence that [the] plaintiff could not have established a cause of action against non-diverse defendant[] under state law.” Id. (citation omitted). This is a rather high burden. As the Sixth Circuit and sister courts have explained: if “a reasonable basis exists for predicting that the plaintiff's claims against the non-diverse defendant could succeed under state law, ” then the non-diverse defendant is a proper (rather than fraudulent) party to the action, and the court must remand it to state court. In re Darvocet, Darvon & Propoxyphene Prods. Liab. Litig., 889 F.Supp.2d 931, 940 (E.D. Ky. 2012) (emphasis omitted) (citation omitted); see also Coyne, 183 F.3d at 493.

         B. Moti ...

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