United States District Court, E.D. Kentucky, Northern Division, Ashland
DANIEL J. CAREY II, D.C., et al., PLAINTIFFS,
CSX TRANSPORTATION, INC., et al., DEFENDANTS.
MEMORANDUM OPINION AND ORDER
R. Wilhoit, Jr., Judge
matter is before the Court on its own motion based on the
Court's inherent power and duty to insure the
requirements for subject matter jurisdiction are satisfied in
of Removal [Docket No. 1] in the above-styled action states
that this Court may exercise subject matter jurisdiction over
this matter pursuant to 28 U.S.C. §1332. Upon review of
the Notice, this Court found that a serious question existed
as to whether it may properly exercise jurisdiction over this
matter. Specifically, in setting forth the basis for removal,
Defendants maintain that certain Defendants have been
fraudulently joined as parties so as to defeat federal
jurisdiction. This Court directed the parties to submit
briefs in this regard. Having reviewed the parties'
submissions, the Court finds that Defendants have not met the
stringent requirements for establishing fraudulent joinder,
and, as such, remand is warranted.
Daniel J. Carey II and Shannon M. Johnson, are duly licensed
chiropractors who frequently see and treat patients suffering
from various ailments and working in various local
industries, including the railroad industry.
mid-2017, Defendants began investigating Drs. Carey and
Johnson, contending that they had conspired with their
railroad patients to falsify medical records for the purpose
of fraudulently obtaining health benefits.
14, 2017 CSX chief medical officer, Dr. Craig Heligman, sent
the first of a series of letters to the U.S. Railroad
Retirement Board (RRB), private health insurance provides,
and the Kentucky and Ohio chiropractic licensing boards
stating that Plaintiffs had engaged in excessive,
inappropriate, and fraudulent treatment practices
(collectively, the "Heligman Letters").
also charged CSX employees who were treated by Plaintiffs
during a certain time period with having engaged in
dishonesty and fraud. Pursuant to the relevant labor
agreements between the company and the respective unions, a
series of internal disciplinary hearings were subsequently
held. During these hearings, certain Defendants republished
the Heligman Letters in pursuing charges of dishonesty and
fraud against various CSX employees based on these
statements. The charged individuals were ultimately dismissed
J. Carey II, D.C.; Carey Chiropractic and Rehabilitation,
Inc.; and Shannon M. Johnson, D.C., d/b/a Johnson
Chiropractic (collectively, "Plaintiffs") filed
this civil action against CSX, Dr. Heligman and various CSX
employees in Greenup County Circuit Court in the case styled
Daniel J. Carey II, D.C.; Carey Chiropractic and
Rehabilitation, Inc.; and Shannon M. Johnson, D.C., d/b/a
Johnson Chiropractic Case v. CSX Transportation, Inc.; CSX
Corporation; Craig Heligman, M.D.; Gus Thoele; Curt Shogren;,
Milton Storm; Dillon Doug Jones; Tom DeAngelo; Shawn Lusk;
Elizabeth Creedon; and Kenneth Ray Emerson No. 18-CI-
their Complaint, Plaintiffs allege that the Defendants
published known false and defamatory information about
Plaintiffs, and that Defendants CSXT, CSX Corp. and Heligman,
tortiously interfered with Plaintiffs' business
filed their Notice of Removal under 28 U.S.C. §§
1332 and 1441 based. 28U.S.C.§1332 requires that the
parties be citizens of different states and that the amount
in controversy exceeds $75, 000. 28 U.S.C. § 1332(a). In
order for this Court to have diversity jurisdiction under 28
U.S.C. § 1332, there must be complete diversity, in
other words, no defendant may have the same citizenship as
the plaintiff. See Lincoln Property Co. v. Roche,
546 U.S. 81, 89(2005).
parties appear to have no quarrel as to the requisite amount
in controversy, agreeing that it exceeds the jurisdictional
minimum. As for diversity of citizenship, however, on the
face of the Complaint, complete diversity does not exist.
Plaintiffs are citizens of Kentucky and/or Ohio. [Complaint,
Docket No. 1-1, ¶¶ 1-3]. Defendants CSXT and CSX
Corp. are incorporated in Virginia and have their principal
places of business in Florida. Id. ¶¶ 4
and 5. Defendant Heligman, the Chief Medical Officer for
CSXT, is a citizen and resident of Florida. Id.
¶ 6. Defendant Thoele is a citizen and resident of
Georgia. Id. ¶ 7. Defendant Shogren is a
citizen and resident of West Virginia. Id. ¶ 8.
Defendant DeAngelo is a citizen and resident of West
Virginia. Id. ¶ 11. Complete diversity exists
between Plaintiffs and these Defendants.
the remaining Defendants are not diverse from Plaintiffs.
Defendants Storm, Jones, Lusk, Creedon and Emerson are
citizens and resident of Kentucky and/or Ohio. Id.
¶ ¶ 9, 10, 12, 13 and 14. Defendants argue that
these Defendants have been fraudulently joined and, as such,
their citizenship of these non-diverse parties ...