United States District Court, E.D. Kentucky, Southern Division
MEMORANDUM OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE UNITED STATES DISTRICT COURT
matter is before the Court on motions to remand and for
attorneys' fees and costs filed in the two
above-referenced actions. For the reasons discussed below,
the Court will grant the motions to remand but deny the
motions for attorneys' fees and costs in each action.
are former coal workers who claim that they suffer from
pneumoconiosis-more commonly known as Black Lung-due to the
use of defective dust mask respirators they wore as coal
miners to protect themselves from exposure to coal rock and
sand dust. The Plaintiffs in both actions named as defendants
3M Company, who they allege manufactured the defective
respirators, and Mine Service Company, Inc.
(“MSC”), who they alleged redistributed the masks
in Kentucky. The citizenship of the parties is not in
dispute. The Plaintiffs are all citizens of Kentucky while 3M
and the other respiratory manufacturer defendants are
citizens of other states. The Supplier Defendants, MSC and
KMSC, however, are Kentucky corporations.
to removal, the Plaintiffs' claims were at various stages
in state court litigation. In the Hoskins case, Bud
Napier's claim was set for trial beginning January 22,
2018. Napier and the Defendants' had agreed that expert
witness disclosure would occur by August 22, 2017 and all
pretrial motions and discovery would be completed by October
31, 2017. In accordance with those deadlines, Napier filed
expert disclosures on August 22, 2017. However, he did not
disclose any experts who would specifically address liability
claims against the Supplier Defendants.
Hall case, the claims of Leslie Cox and Michael Cox
were set for trial beginning April 2, 2018, in Knott Circuit
Court. The Coxes disclosed the identity and opinions of their
expert witnesses on November 6, 2017-the Coxes experts were
the same as those previously disclosed by Napier in the
Hoskins case. No. pretrial deadlines have been set
for any other Plaintiffs in either case, and they have not
yet been required to disclose experts.
removed the Hoskins action on November 1, 2017, and
removed the Hall action on January 26, 2018. In both
notices of removal, 3M conceded that the action lacked
complete diversity of citizenship because the Plaintiffs and
the supplier Defendants, MSC in both cases and KMSC in the
Hoskins case, were all Kentucky citizens. 3M claims
that the Hoskins case became removable on October
31, 2017, upon close of discovery for Napier's claim.
Similarly, 3M argues that the Hall case became
removable at the close of discovery, and the grounds for
diversity jurisdiction were not apparent until December 29,
2017, and January 19, 2018- the dates that fact and expert
discovery closed on the Coxes' claims. 3M argues that, on
these dates, it became apparent that MSC, and KMSC as to the
Hoskins case, were fraudulently joined to defeat
diversity, given the Plaintiffs' failure to pursue claims
against these Defendants. 3M further argues that the
remaining Plaintiffs in each case lack a nexus to the claims
of Napier and the Coxes, respectively, and were fraudulently
Standard for removal and fraudulent joinder
courts are courts of limited subject matter jurisdiction.
While the federal removal statute, 28 U.S.C. § 1441,
generally grants defendants the right to remove cases from
state to federal court, removal is proper only if the
district court would have had original jurisdiction over the
case. Id. 1441(a). In an action that does not
involve a federal question, this Court has original
jurisdiction based on diversity of citizenship only if there
is complete diversity between the parties. 28 U.S.C. §
1332(a). That is, no plaintiff and no defendant may be
citizens of the same state. Jerome-Duncan, Inc. v.
Auto-By-Tel, L.L.C., 176 F.3d 904, 907 (6th Cir. 1999).
In order for a defendant to remove a case based on diversity
of citizenship jurisdiction, complete diversity must exist at
both the time the case is commenced in state court and the
time of removal. Id. The burden of establishing
jurisdiction falls on the removing party. Eastman v.
Marine Mech. Corp., 438 F.3d 54, 549 (6th Cir. 2000).
And, because of the federalism concerns implicated by
removal, “all disputed questions of fact or ambiguities
in the controlling . . . state law” must be resolved
“in favor of the non removing party.” Coyne
v. Am. Tobacco Co., 183 F.3d 488, 493 (6th Cir. 1996)
(quoting Alexander v. Elec. Data Sys. Corp., 13 F.3d
940, 949 (6th Cir. 1994)) (alteration in original).
concedes that there was not complete diversity of citizenship
at the time these suits were commenced. All plaintiffs and
the Supplier Defendants are citizens of Kentucky.
Consequently, 3M invokes the “judicially created
doctrine” of fraudulent joinder, which “provides
an exception to the requirement of complete diversity”
as the basis that removal is proper. Coyne, 183 F.3d
at 493 (quoting Triggs v. John Crump Toyota, Inc.,
154 F.3d 1284, 1287 (11th Cir. 1998)). Fraudulent joinder
permits removal of a case that lacks complete diversity if
the removing party demonstrates that “the non-removing
party join[ed] a party against whom there is no colorable
cause of action.” Saginaw Hous. Comm'n v.
Bannum, Inc., 576 F.3d 620, 624 (6th Cir. 2009) (citing
Jerome-Duncan, 176 F.3d at 907). In other words, the
test for fraudulent joinder “is whether there is
arguably a reasonable basis for predicting that the state law
might impose liability on the facts involved.”
Alexander, 13 F.3d at 949 (quoting Bobby Jones
Garden Apartments, Inc. v. Suleski, 391 F.2d 172, 176
(5th Cir. 1968)). If the answer is yes, the federal courts
lack jurisdiction and must remand the action to the state
Plaintiffs' claims against the Supplier Defendants
so-called “middleman” statute provides additional
protection for wholesalers, retailers, and distributors who
are alleged to have sold defective products. Ky Rev. Stat.
§ 411.340. The statute relieves middlemen where:
(1) the manufacturer is “identified and subject to the
jurisdiction of the court[;]” (2) the product was sold
“in its original manufactured condition . . . or in the
same condition such product was in when received . . .”
by the middleman; and, (3) the middleman has neither
“breached an express warranty . . .” nor
“knew or should have known at the time of distribution
or sale ...