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Boustani v. General Motors, LLC

United States District Court, W.D. Kentucky, Bowling Green Division

October 8, 2019

JOHN R. BOUSTANI PLAINTIFF
v.
GENERAL MOTORS, LLC; and BRIAN PALMER DEFENDANTS

          MEMORANDUM OPINON AND ORDER

          Greg N. Stivers, Chief Judge

         This matter is before the Court on Defendant's Motion to Dismiss (DN 4), Plaintiffs Motion for Leave to File Amended Complaint (DN 6), Plaintiffs Motion to Hold Defendant's Motion in Abeyance (DN 7), and Plaintiffs Motion to Remand (DN 8). The motions are ripe for decision. For the reasons provided below, Plaintiffs motion to remand is GRANTED, and the remainder of the motions are DENIED AS MOOT.

         I. BACKGROUND

         Plaintiff John R. Boustani ("Boustani") was employed by Defendant General Motors LLC ("GM") in its Corvette assembly plant in Bowling Green, Kentucky, and at the time of his termination was under the supervision of Defendant Brian Palmer ("Palmer"). (Compl. ¶¶ 1-3, 9, DN 1-1). Boustani and Palmer are residents of Warren County, Kentucky, and GM is incorporated in Delaware with its principal office in Detroit, Michigan. (Compl. ¶¶1-3; Notice Removal 1, DN 1).

         Boustani claims that when he arrived at the Bowling Green assembly plant in 2008 after decades of working his way through the ranks of GM, he was "repeatedly harassed, cursed, and threatened with termination" while under the supervision of Tony Lawson. (Compl. ¶ 12). Boustani further alleges he "became the subject of racial slurs, derogatory remarks, and discriminatory conduct" from the United Auto Workers union president, Eldon Renault. (Comp. ¶ 15). Despite these issues, Boustani states that he had a good working relationship with his quality manager, Steve Grilli ("Grilli"), and was not subject to any discipline while under Grilli's supervision. (Compl. ¶ 18). That changed when Palmer was made quality director upon Grilli's retirement. (Compl. ¶ 19). As Boustani alleges, "[f]rom the first day on the job, it became clear that Palmer disliked [Boustani]. Palmer treated [Boustani] as if he were incompetent because of his Lebanese accent." (Compl. ¶ 20). Palmer also allegedly made derogatory comments concerning Boustani's speech and accent. (Compl. ¶ 21).

         On March 15, 2018, GM notified Boustani that he was being terminated for "creating a hostile work environment by engaging in aggressive behavior by yelling repeatedly, pointing [his] finger, and threatening to fire [an employee]." (Compl. ¶ 23 (alterations in original)). Boustani denied the allegations in the letter and appealed his termination through GM's open-door policy. (Compl. ¶¶ 23-24). Following the denial of his appeal, Boustani filed a charge with the Kentucky Commission on Human Rights and was issued a right to sue letter on November 7, 2018. (Compl. ¶¶ 24-25).

         Boustani initially filed this action in Warren Circuit Court on January 30, 2019, alleging violations of the Kentucky Civil Rights Act ("KCRA") and asserting claims of outrageous conduct, intentional infliction of emotional distress ('TIED"), and defamation. (Compl. ¶¶ 26-42). Defendants subsequently removed this action to this Court claiming that Palmer had been fraudulently joined as a defendant to defeat diversity jurisdiction. (Notice Removal 2, DN 1). Palmer now contends Boustani's claims must be dismissed because he was not Boustani's employer under the KCRA, any defamatory statements made by him were never published, and Boustani has failed to allege any outrageous conduct. (PL's Mem. Supp. Mot. Dismiss 2, DN 4-1).

         In response to Palmer's motion, Boustani seeks leave to amend the Complaint to add a fourth count against Palmer for retaliation in further violation of the KCRA. (PI. Mot. Leave File Am. Compl. 1, DN 6; PL's Mot. Leave File Am. Compl. Ex. 1, at 6-7, DN 6-1). Boustani contends "Kentucky Law clearly allows an individual claim to be asserted against a supervisor who retaliates against an employee for filing a complaint regarding a discriminatory practice." (PL's Mot. Leave File Am. Compl. 2). Boustani also seeks to hold Palmer's motion in abeyance "[b]ecause there is a pending issue regarding federal court jurisdiction, [that] the Court hold in abeyance motion to dismiss until a decision has been rendered on subject matter jurisdiction." (PL's Mot. Hold Defs.' Mot. Abeyance ¶ 3, DN 7 [hereinafter PL's Mot. Abeyance]). Finally, Boustani moves to remand this matter to state court arguing that Palmer was properly joined and that the parties in this case are not completely diverse. (PL's Mot. Remand ¶¶ 6-7). Palmer urges the Court to deny Boustani's amendments as futile in light of their motion to dismiss and to deny his motion to remand because no viable claims against Palmer have been asserted. (Defs Resp. PL's Mot. Amend 1, DN 9; Defs Resp. PL's Mot. Remand 1, DN 11).

         II. DISCUSSION

         A. Plaintiffs Motion to Remand

         Boustani has moved to remand this matter to state court on the basis that this case was improperly removed. (PL's Mot. Remand 2-3, DN 8). Defendants contend that Palmer was fraudulently joined as a party to this action to defeat diversity and preclude removal to federal court. (Notice Removal 2-4, DN 1; Defs.' Resp. PL's Mot. Remand 2-6, DN 11).

         As a preliminary matter, this Court must determine whether this case was properly removed based on diversity jurisdiction under 28 U.S.C. § 1332. While GM is diverse from Boustani, both Boustani and Palmer are Kentucky residents, which would destroy complete diversity between the parties. (Comp. ¶¶ 1-3). If Palmer were fraudulently joined, diversity jurisdiction would exist and removal would be proper. If Palmer were properly joined, this case would not be subject to removal, and the Court would have to remand this matter to state court.

         The Sixth Circuit has held that "fraudulent joinder of non-diverse defendants will not defeat removal on diversity grounds." Coyne ex rel. Ohio v. Am. Tobacco Co., 183 F.3d 488, 493 (6th Cir. 1999) (citing Alexander v. Elec. Data Sys. Corp., 13 F.3d 940, 949 (6th Cir. 1994)). "To 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." Id. (citing Alexander, 13 F.3d at 949). Therefore, "the question 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 (internal quotation marks omitted) (citation omitted). In determining whether a non-diverse defendant has been fraudulently joined, "all disputed questions of fact and ambiguities in the controlling state law [should be resolved] in favor of the nonremoving party." Id. (alteration in original) (internal quotation marks omitted) (citations omitted).

         The removing party bears the burden of establishing fraudulent joinder-a burden that has been described as "a heavy one." Id.; In re Darvocet, Darvon & Propoxyphene Prods. Liab. Litig., 889 F.Supp.2d 931, 937 (E.D. Ky. 2012) (internal quotation marks omitted) (citation omitted). Moreover, as courts within the Sixth Circuit have recognized, "[t]he benefit of the doubt given a plaintiff as part of the fraudulent joinder inquiry should be more deferential than even that given under Rule 12(b)(6) . . . ." Fugate v. Babcock & Wilcox Conversion Servs., LLC, No. 5:14-CV- 00172-TBR, 2015 WL 1758063, at *2 (W.D. Ky. Apr. 17, 2015) (internal quotation marks omitted) (citation omitted). "An assertion of fraudulent joinder must 'be directed toward the joinder, not ...


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