United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
J. Hale, Judge.
Teresa Gipe filed suit on behalf of her incapacitated son in
state court against six defendants,  alleging that her son
experienced a seizure and traumatic brain injury due to an
over-delivery of insulin caused by malfunctions of his
insulin pump and infusion set. (Docket No. 1-1, PageID # 33)
Gipe alleges that Medtronic, Inc.; Unomedical Devices, SA de
CV; and their respective subsidiaries (the Products Liability
Defendants) designed, manufactured, marketed and sold the
insulin pump and infusion set. (Id.) As to Defendant
Greenhaven Apartments, Gipe claims that the apartment complex
assumed a duty of protection when it installed multiple
surveillance cameras on the premises. (Id., PageID #
43) Defendant Medtronic, Inc. removed the case to this Court
and filed a motion to sever Greenhaven. (D.N. 1; D.N. 4) In
response, Gipe filed a motion to remand. (D.N. 14) Defendant
Medtronic MiniMed, Inc. then filed its own notice of removal
(D.N. 18) and motion to sever Greenhaven (D.N. 19). Gipe
responded with a second motion to remand. (D.N. 31) Because
the Court finds that it lacks subject-matter jurisdiction
over this case, Gipe’s initial motion to remand will be
granted and her second motion to remand will be denied as
moot, as will both motions to sever.
to the complaint, Gipe’s son, William, is a Type I
diabetic who used a mechanical pump and associated infusion
set to administer insulin. (D.N. 1-1, PageID # 32) On July
26, 2017, he experienced severe hypoglycemia and suffered a
seizure due to an over-delivery of insulin and experienced a
delay in treatment, resulting in a traumatic brain injury.
(Id., PageID # 33) The parties dispute whether the
seizure alone, the delay in treatment, or some combination of
the two ultimately caused the son’s brain injury.
alleges that the seizure was caused by a malfunctioning
MiniMed Insulin Pump and Mio Infusion Set that her son was
wearing at the time. (Id.) Medtronic announced a
voluntary recall of all its MiniMed Infusion Sets less than
two months after William’s seizure, allegedly due to a
defect in the vent membrane which Medtronic determined could
lead to over-delivery of insulin. (Id.) Gipe alleges
that the Products Liability Defendants designed,
manufactured, marketed, and sold the insulin pump and
infusion set used by her son. (Id.) Gipe asserts six
claims against the Products Liability Defendants: negligence,
strict liability, breach of warranty, failure to warn, a
claim under the Kentucky Consumer Protection Act, and a claim
for punitive damages. (Id., PageID # 34-43, 44-45)
Greenhaven, Gipe alleges that the apartment complex
voluntarily assumed a duty to provide a reasonable measure of
protection to her son when it installed multiple surveillance
cameras on the premises. (Id., PageID # 43) She
contends that Greenhaven breached that duty when more than
two hours passed before the property manager viewed the
surveillance camera footage and discovered William after his
seizure. (Id., PageID # 44) This led to a delay in
treatment that Gipe alleges caused, contributed to, or was a
substantial factor in bringing about her son’s
permanent brain injury. (Id.)
Notice of Removal, Medtronic asserts that the Court has
subject-matter jurisdiction because there is complete
diversity among all “properly joined and severed”
parties and the amount in controversy exceeds $75, 000.
(Id., PageID # 1) Gipe filed both a response to
Medtronic’s Notice of Removal (D.N. 12) and a motion to
remand (D.N. 14), arguing that (1) the Court does not have
subject-matter jurisdiction because complete diversity does
not exist; (2) Medtronic failed to obtain the consent of all
defendants prior to removal; (3) the Court should not sever
Greenhaven; (4) Greenhaven was not fraudulently joined; and
(5) there is no fraudulent misjoinder. (D.N. 12) Gipe argues
that complete diversity does not exist because she and
Greenhaven are both citizens of Kentucky. (D.N. 1-1, PageID #
32; D.N. 12, PageID # 111) MiniMed then filed its own notice
of removal (D.N. 18) and motion to sever (D.N. 19), which are
almost identical to Medtronic’s filings. (D.N. 19) Gipe
argued that MiniMed could not file this second motion to
sever (D.N. 29, PageID # 361), but then also filed a second
motion to remand. (D.N. 31)
argues that removal was proper for three reasons. (D.N. 1,
PageID # 2) First, it asserts that the Court may retain
jurisdiction of this matter by severing the claims against
the non-diverse party, Greenhaven, pursuant to Rule 21.
(Id.) Second, it argues that the Court should
disregard Greenhaven’s citizenship because the
apartment complex is fraudulently joined. (Id.)
Finally, Medtronic argues that the Court should disregard
Greenhaven’s citizenship because Greenhaven is
fraudulently misjoined under Rule 20. (Id.)
Medtronic also argues that Greenhaven’s consent was not
required or alternatively that the consent issue is moot
because MiniMed filed its own notice of removal to which both
Greenhaven and Medtronic consented. (D.N. 17, PageID # 171;
D.N. 18; D.N. 18-7) The parties’ respective arguments
across the various motions and responses are largely
identical. (See D.N. 1; D.N. 4; D.N. 12; D.N. 14;
D.N. 17; D.N. 18; D.N. 19; D.N. 20; D.N. 28; D.N. 29; D.N.
30; D.N. 31; D.N. 32; D.N. 33; D.N. 34; D.N. 35)
defendant may remove any civil action “of which the
district courts of the United States have original
jurisdiction.” 28 U.S.C. § 1441(a). Removing
defendants bear the burden of establishing federal
subject-matter jurisdiction by a preponderance of the
evidence. Everett v. Verizon Wireless, Inc., 460
F.3d 818, 829 (6th Cir. 2006). In a diversity case, the
removing party must show (1) that “all parties on one
side of the litigation are of a different citizenship from
all parties on the other side of the litigation, ” and
(2) that the jurisdictional minimum amount in controversy is
met. Coyne v. Am. Tobacco Co., 183 F.3d 488, 492
(6th Cir. 1999) (quoting SHR Ltd. P’ship v.
Braun, 888 F.2d 455, 456 (6th Cir. 1989)); see
28 U.S.C. § 1332(a). Once a case is removed, a plaintiff
may bring a motion to remand under 28 U.S.C. § 1447(c).
Griffin v. Middlefork Ins. Agency, No. 17-215-DLB,
2017 U.S. Dist. LEXIS 164274, at *2 (E.D. Ky. Oct. 4, 2017).
Removal statutes are to be narrowly construed. Long v.
Bando Mfg. of Am., Inc., 201 F.3d 754, 757 (6th Cir.
2000). Accordingly, “all doubts as to the propriety of
removal are resolved in favor of remand.”
Coyne, 183 F.3d at 493.
considering a motion to remand, the Court must examine
whether the case was properly removed to federal court.
See Graves v. Standard Ins. Co., 66 F.Supp.3d 920,
922 (W.D. Ky. 2014). “In a case removed to federal
court, ‘[t]he existence of subject matter jurisdiction
is determined by examining the complaint as it existed at the
time of removal.’” Arrington v. Nationwide
Mut. Fire Ins. Co., No. 3:14-cv-322-DJH, 2015 U.S. Dist.
LEXIS 23082, at *2 (W.D. Ky. Feb. 26, 2015) (quoting
Harper v. AutoAlliance Int’l, 392 F.3d 195,
210 (6th Cir. 2004)). “In order to remove an action
based solely on diversity jurisdiction, all properly joined
defendants must consent to removal, and no properly joined
defendant may be a citizen of the state in which the action
is brought.” Staubus v. Purdue Pharma, L.P.,
No. 2:17-CV-122-TAV-CLC, 2017 U.S. Dist. LEXIS 173759, at *5
(E.D. Tenn. Oct. 20, 2017) (citing 28 U.S.C. §§
1441(b)(2), 1446(b)(2)(A)). This is known as the rule of
unanimity. See Loftis v. United Parcel Serv., Inc.,
342 F.3d 509, 516 (6th Cir. 2003). If a non-diverse party has
been joined as a defendant, then “the removing
defendant may avoid remand only by demonstrating that the
non-diverse party was fraudulently joined” to defeat
diversity. Casias v. Wal-Mart Stores, Inc.,
695 F.3d 428, 432 (6th Cir. 2012) (quoting Jerome-Duncan,
Inc. v. Auto-By-Tel, LLC, 176 F.3d 904, 907 (6th Cir.
1994) (citation and internal quotations omitted)). So long as
there is “arguably a reasonable basis for predicting
that state law might impose liability on the facts involved,
” then “joinder is proper, and the Court must
remand the case to state court.” Sandusky v.
Acuity, A Mut. Ins. Co., No. 3:17-cv-516-DJH-CHL, 2018
U.S. Dist. LEXIS 73839, at *5 (W.D. Ky. May 2, 2018)
(citation and internal quotations omitted); see also
Coyne, 183 F.3d at 493 (“Fraudulent joinder of
non-diverse defendants will not defeat removal on diversity
case, it is undisputed that complete diversity is not evident
from the face of the complaint. (See D.N. 1, PageID
# 7) Accordingly, the Court must employ the “judicially
created doctrine of fraudulent joinder, ” which
“provides an exception to the requirement of complete
diversity.” Coyne, 183 F.3d at 493. Here, the
Court finds that Greenhaven was not fraudulently joined, and
removal was therefore improper.
prove fraudulent joinder, the removing party must present
sufficient evidence that a plaintiff could not have
established a cause of action against non-diverse defendants
under state law.” Coyne, 183 F.3d at 493
(citing Alexander v. Elec. Data Sys. Co., 13 F.3d
940, 949 (6th Cir. 1994)). If there is a colorable basis for
predicting that a plaintiff may recover against a non-diverse
defendant, however, then the Court must remand the action to
state court. Id. The sole inquiry is the viability
of the plaintiff’s claim. Estate of Owens v. E.I.
Dupont de Nemours & Co., No. 12-111-DLB, 2013 U.S.
Dist. LEXIS 189836, at *10 (E.D. Ky. June 17, 2013)
(referencing Casias, 695 F.3d at 432-33).
evaluating claims of fraudulent joinder, the Court must
initially evaluate all the factual allegations in the
[plaintiff’s] state court pleadings in the light most
favorable to the [p]laintiff.” Fulton Cty v.
Underwriters Safety & Claims, Inc., No.
5:18-cv-138-TBR, 2019 U.S. Dist. LEXIS 729, at *7 (W.D. Ky.
Jan. 3, 2019) (citing Crowe v. Coleman, 113 F.3d
1536, 1538 (11th Cir. 1997); Poulus v. Naas Foods,
Inc., 959 F.2d 69, 73 (7th Cir. 1992); Green v.
Amerada Hess Corp., 707 F.2d 201, 205 (5th Cir. 1983)).
“The standard to establish fraudulent joinder is a high
one. It is even higher than the standard required by a motion
to dismiss.” Id. (citing Cordle v. Merck
& Co., Inc., 405 F.Supp.2d 800, 803 (E.D. Ky.
2005)). “It is so high that the removing party must
demonstrate that there is no glimmer of hope that the
plaintiff could prevail against the non-diverse defendants in
state court.” Id. (citation and internal
the doctrine of fraudulent joinder, the inquiry is whether
Gipe had at least a colorable cause of action against
Greenhaven in the Kentucky state courts. See
Jerome-Duncan, 176 F.3d at 907 (citing
Alexander, 13 F.3d at 949). Therefore, the Court
must look to Kentucky law to determine whether Gipe has a
colorable claim against Greenhaven in asserting that a
landlord voluntarily assumes a duty to provide a reasonable
measure of protection to ...