United States District Court, E.D. Kentucky, Southern Division, Pikeville
matter is before the Court on Plaintiff Fred Williams's
Motion to Remand. (DE 7.) The Court previously entered an
Order granting Williams's motion and remanding this case
to Pike Circuit Court. The Court's reasons for remanding
this case are explained below.
Fred Williams alleges that he contracted coal workers'
pneumoconiosis and/or silicosis (and other injuries) due to
his use of allegedly defective respiratory protective
equipment manufactured by Defendant 3M, a citizen of Delaware
and Minnesota. When he originally commenced this suit,
Williams also alleged that Mine Service Company
("MSC") and Kentucky Mine Supply Company
("KMSC") were liable because they knew or should
have known that the 3M respirators they sold were defective
or unreasonably dangerous when used in a coal mine. Both MSC
and KMSC, collectively the Supplier Defendants, are Kentucky
citizens. Williams also named as Defendants Judith Erickson,
Director of the Division of Workers' Compensation Funds
("the Division"), and the Kentucky Coal
Workers' Pneumoconiosis Fund ("the Coal
Fund"). The Coal Fund is seeking repayment of
$256, 420.20 in benefits that it has or will pay to Williams.
action was commenced on November 2, 2016 in Pike Circuit
Court. It is one of a number of lawsuits, of which at least
fifty are currently pending in state courts in Kentucky and
West Virginia. While these suits are brought against both
respirator manufacturers and distributors, Williams concedes
that the target of these suits are manufacturers such as 3M.
Several of those cases have already come to a close,
including three where the plaintiffs dismissed or abandoned
their claims against the supplier defendants prior to trial,
but later than one-year after the action was commenced.
See Hill v. 3M Co., No. 05-CI-00589 (Perry Cir. Ct);
Couch v. Mine Safety Appliances Co., No. 10-CI-00155
(Knott Cir. Ct.); Collins v. 3MCo., No. 10-CI-00176
(Knott Cir. Ct.). In one case, Overbee v. 3MCo., No.
16-CI-313 (Knott Cir. Ct.), trial was scheduled within
one-year of commencement. At trial, however, the plaintiff
argued that MSC was, at most, one percent at fault for his
injuries and the jury ultimately assigned them zero
its status as a foreign defendant, 3M has repeatedly
attempted to remove these actions to federal court. Most
recently, 3M removed two respirator cases to this Court,
arguing that the Supplier Defendants were fraudulently
joined. See Hoskins v. 3M Co., No. 6:17-CV-304-KKC;
Hall v. 3M Co., No. 7:18-CV-09-KKC. In a joint
Memorandum Opinion and Order, the Court remanded those cases,
finding that the plaintiffs had stated colorable claims
against the Supplier Defendants. Hoskins v. 3M Co.,
No. 6:17-CV-304-KKC & No. 7:18-CV-09-KKC, 2018 WL 1040091
(E.D. Ky. Feb. 23, 2018). Additionally, over a decade ago, a
number of similar cases involving respirator manufacturers
and the supplier defendants were removed to the Western and
Eastern Districts of Kentucky, and almost all were
events giving rise to removal of this action began in
February 2018. First, on February 12, the Pike Circuit Court
entered an order substituting the Coal Fund as a Defendant in
place of Old Republic Insurance. On March 1, Williams filed a
notice of settlement advising that a confidential settlement
was reached with MSC. Williams did not disclose the date of
the settlement in the notice, but, in an affidavit filed with
this Court, his attorney states the claim was settled in
principle on February 23 and became official on February 28.
That same affidavit attests that, on March 22, KMSC informed
Williams that it would file a motion for summary judgment if
it was not dismissed from the case. Williams decided that he
would dismiss the claims and, on May 4, the Supplier
Defendants tendered a proposed agreed order dismissing the
claims against them with prejudice. 3M removed this case on
May 29, 2018, contending that dismissal of the Supplier
Defendants created complete diversity of citizenship.
a defendant may remove a civil action brought in state court
to a federal district court if the district court has
original jurisdiction over the case. 28 U.S.C. §
1441(a). If a case does not involve a federal question,
district courts have original jurisdiction only if the amount
in controversy exceeds $75, 000 and there is complete
diversity of citizenship- that is, no plaintiff and defendant
are citizens of the same state. 28 U.S.C. § 1332(a); 28
U.S.C. § 1441(b)(2); see Jerome-Duncan, Inc. v.
Auto-By-Tel, L.L.L., 176 F.3d 904, 907 (6th Cir. 1999).
"Diversity of citizenship must exist as to a party both
at the time the state action is commenced and at the time the
defendant files for removal." Easley v. Pettibone
Mich. Corp., 990 F.2d 905, 908 (6th Cir. 1993). Removal
on the basis of diversity jurisdiction also requires consent
of all defendants. 28 U.S.C. § 1446(b)(2)(A).
of diversity cases is subject to two statutory deadlines.
First, if a case is not initially removable, the defendant
must file a notice of removal "within 30 days after
receipt" of the paper "from which it may be first
ascertained that the case . . . has become removable."
28 U.S.C. § 1446(b)(2)(3). Second, removal is subject to
an overall deadline of "1 year after commencement of the
action, unless the district court finds that the plaintiff
has acted in bad faith in order to prevent a defendant from
removing the action." Id. at § 1446(c)(1).
burden of establishing jurisdiction falls on the removing
party. Eastman v. Marine Mech. Corp., 438 F.3d 544,
549 (6th Cir. 2000). And, due to 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) (alteration in original) (quoting Alexander v.
Elec. Data Sys. Corp., 13 F.3d 940, 949 (6th Cir.
seeks remand on four bases. First, he argues that 3M failed
to remove this case within one-year of commencement of the
action and that 3M cannot establish that he acted in bad
faith to prevent removal. Second, he claims 3M did not remove
the case within the thirty-days from the time that it was
first apparent the case was removable. Third, he claims that
the Division and the Coal Fund are Kentucky citizens and
therefore the case lacks complete diversity. And, fourth, he
claims that the Division and the Coal Fund did not consent to
removal. On an expedited schedule, 3M has filed a response
and Williams has replied. The Court heard oral arguments from
the parties on June 15, 2018, during which the parties
focused on the issue of bad faith. The Court determines that,
based on the evidence currently before the Court, 3M has not
met its burden to show bad faith and therefore remand is
required pursuant to 28 U.S.C. § 1446(c)(1).
3M does not seek removal based on fraudulent joinder
first asserts that this case is controlled by the Court's
decision in Hoskins, which found that the Supplier
Defendants were not fraudulently joined because the
plaintiffs stated colorable claims against them. 2018 WL
1040091, at *3. Hoskins is not controlling over this
case because 3M does not argue that the Supplier Defendants
were fraudulently joined.Fraudulent joinder occurs "[w]hen a
non-diverse party has been joined as a defendant."
Jerome-Duncan, 176 F.3d at 907. Because the Supplier
Defendants are no longer joined, fraudulent joinder is
inapplicable. 3M's basis for removal is that-because the
Supplier Defendants have been dismissed, the Coal Fund
realigned as a plaintiff, and the Division deemed a nominal
party-there is complete diversity.
Bad faith analysis is broader than fraudulent ...