United States District Court, E.D. Kentucky, Southern Division, Pikeville
MEMORANDUM OPINION & ORDER
GREGORY F. VAN TATENHOVE UNITED STATES DISTRICT JUDGE.
parties in a case are otherwise diverse, a plaintiff may not
avoid federal diversity jurisdiction by also suing a
non-diverse employee of a defendant corporation. Here,
Deborah Gayheart has attempted to keep her tort lawsuit in
Kentucky state courts by joining Mickey Gilley, a Wal-Mart
employee, as a defendant. Because she has failed to state a
claim upon which relief may be granted against Mr. Gilley,
Ms. Gayheart's Motion to Remand is
DENIED and Mr. Gilley's Motion to
Dismiss is GRANTED.
Deborah Gayheart, a citizen of Kentucky, sued Wal-Mart,
Wal-Mart Stores East, WSE Management, and Mickey Gilley after
she slipped and fell in the Wal-Mart Super Center in
Pikeville, Kentucky. [R. 1-2 at 2-7.] According to Ms.
Gayheart, water had puddled on the floor of the shopping
facility due to a leaky ceiling. Id. As to Mr.
Gilley specifically, Ms. Gayheart claims he had a duty to
notify her of the dangerous conditions but failed to take
appropriate action. Id. at 4-5.
Inc., is a corporation with citizenship in Delaware and
Arkansas. [R. 1 at 2.] WSE Management is a limited liability
company, and its sole member is Wal-Mart Stores East.
Id. Wal-Mart Stores East is also a limited liability
company with only one member, Wal-Mart, Inc. Id. The
citizenship of a limited liability company has the
citizenship of each of its members. Varsity Brands, Inc.
v. Star Athletica, LLC, 799 F.3d 468, 494 (6th Cir.
2015). Thus, both WSE Management and Wal-Mart Stores East are
also citizens of both Delaware and Arkansas, leaving Mr.
Gilley the only non-diverse defendant.
Gayheart filed suit on July 31, 2018, in Pike Circuit Court
in Pike County, Kentucky. [R. 1-2 at 1.] On August 20, all
defendants filed a joint answer to Ms. Gayheart's
complaint, in which their first defense was failure to state
a claim upon which relief could be granted. Id. at
12. The answer did not state defenses specific to each
defendant, but rather for Wal-Mart generally. Id. at
12-17. Ten days later, the diverse defendants filed a notice
of removal and Mr. Gilley filed a motion to dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(6). Id. at
20. On September 5, Mr. Gilley refiled his motion to dismiss
before this Court, and on September 29, Ms. Gayheart filed a
motion to remand to Pike Circuit Court. [R. 5; R. 7.] The
Defendants claim that Mr. Gilley had no legal duty to Ms.
Gayheart, and therefore, he must be dismissed.
reaching the merits of both parties' motions, Ms.
Gayheart first argues that Mr. Gilley's motion to dismiss
is untimely, since he did not file the motion before he filed
his answer. [R. 6 at 3.] Ms. Gayheart asserts that Mr. Gilley
has waived this motion. Id. However, only defenses
pursuant to Federal Rule of Civil Procedure 12(b)(2)-(5) are
considered waived by failure to make a motion or include the
specific defense in the responsive pleading. Fed. R. Civ.
Pro. 12(b)(h)(1). A defense under Rule 12(b)(6) or a motion
to state a legal defense may be made in a pleading, in a
motion under Rule 12(c), or even at trial. Fed. R. Civ. Pro.
12(h)(2). Simply because Mr. Gilley asserted this defense
after answering does not mean he waived it. Because he has
submitted an answer to Ms. Gayheart's complaint, the
Court will consider his motion to dismiss as a motion for
judgment on the pleadings. Scheid v. Fanny Farmer Candy
Shops, Inc., 859 F.2d 434, n.1 (6th Cir. 1988).
action is in federal court on the basis of removal and
diversity jurisdiction. 28 U.S.C. § 1332. Ms. Gayheart
contests this removal because Mr. Gilley is a Kentucky
citizen, but the Defendants believe Mr. Gilley is improperly
joined. The Court must first determine whether it has
jurisdiction to hear the matter.
issues of state law, a Federal District Court only has
jurisdiction if the amount in controversy exceeds $75, 000
and there is complete diversity among parties. 28 U.S.C.
§ 1332. Under this rule, Ms. Gayheart's case should
be remanded because Mr. Gilley, as a citizen of Kentucky,
destroys complete diversity. However, if Mr. Gilley was
fraudulently joined, the Court could ignore his non-diverse
citizenship and consider removal to be proper. Coyne v.
American Tobacco Co., 183 F.3d 488, 493 (6th Cir. 1999).
In order to demonstrate fraudulent joinder, the Defendants
must introduce sufficient evidence that Mr. Gayheart could
not establish a cause of action against Mr. Gilley under
Kentucky state law. Id. If there is even a
“colorable basis” to predict such success, the
Court must remand.
of whether the case is remanded or remains before this Court
on the basis of diversity jurisdiction, Kentucky is the forum
state and its substantive law will be followed. Rawe v.
Liberty Mut. Fire Ins. Co., 462 F.3d 521, 526 (6th Cir.
2006). So long as the case remains in federal court, federal
procedural law will govern as applicable, including in
establishing the appropriate standards for fraudulent joinder
and dismissal. Weaver v. Caldwell Tanks, Inc., 190
Fed.Appx. 404, 408 (6th Cir. 2006).
Gilley is an hourly employee of Wal-Mart in Pikeville. [R.
1-2 at 27.] He asserts, and Ms. Gayheart does not
contest, that he has never owned or possessed the building,
he has never had managerial responsibilities for Wal-Mart,
and he has never been responsible for maintenance or upkeep
of the building. [R. 12 at 2-3.] Instead, Ms. Gayheart merely
asserts that he had control “over the area of the
store” involving her injury. [R. 7-1 at 6-7.] In
Kentucky, a plaintiff must demonstrate four elements to
establish negligence: duty, breach, causation, and damages.
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