United States District Court, W.D. Kentucky, Bowling Green Division
JOHN R. BOUSTANI PLAINTIFF
GENERAL MOTORS, LLC; and BRIAN PALMER DEFENDANTS
MEMORANDUM OPINON AND ORDER
N. Stivers, Chief Judge
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.
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).
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).
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).
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).
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).
Plaintiffs Motion to Remand
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).
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.
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)
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 ...