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Clark v. Lowe's Home Centers, LLC

United States District Court, E.D. Kentucky, Southern Division, London

October 11, 2019

SHARON CLARK, Plaintiff,
LOWE'S HOME CENTERS, LLC, et al., Defendants.


          Robert E. Wier United States District Judge.

         Plaintiff Sharon Clark filed suit in Perry Circuit Court, asserting negligence claims against Defendant Lowe's Companies, Inc. (which has since been substituted for the proper corporate party of interest, Lowe's Home Centers, LLC, see DE 12) and Teresa Johnson, store manager of the Lowe's in Hazard, Kentucky. DE 1-1. Clark claims that, while a customer at the Lowe's where Johnson is a manager, Clark tripped over a low barrier around an outdoor display and suffered injuries as a result. Id. ¶¶ 3, 6-7. The case sounds in negligence.

         Clark alleges that she is a Kentucky resident, id. ¶ 1, and Lowe's does not dispute Clark's Kentucky citizenship.[1] Lowe's maintains that it is a North Carolina citizen, as Lowe's Home Centers, LLC has only one member, Lowe's Companies, Inc., which identifies North Carolina as its state of incorporation and principal place of business. DE 1 ¶ 9. Neither Clark nor Lowe's explicitly pleads Johnson's citizenship, [2] though both parties proceed as though Johnson is a Kentucky citizen and therefore non-diverse from Clark.

         Proper citizenship allegations are foundational and should not involve guesswork. The Court directed supplementation, DE 13, and the parties complied. The record now shows that both Clark and Johnson were Kentucky citizens at the time of filing and removal. DE 14; DE 15.

         I. Posture

         Lowe's filed a notice of removal, claiming that Clark had fraudulently joined Johnson to defeat diversity in the action. Id. ¶¶ 3-10. Clark moved to remand based on Clark's and Johnson's shared Kentucky citizenship. DE 6. Lowe's responded and supplemented its response. DE 9 & 10.

         II. Discussion

         The subject-matter jurisdiction of federal courts is limited. Kokkonen v. Guardian Life Ins. Co. of Am., 114 S.Ct. 1673, 1675 (1994). There is a presumption against federal subject-matter jurisdiction, which the party seeking to proceed in federal court must overcome. Id.

         Absent a federal question, a party invoking the Court's removal jurisdiction must demonstrate complete diversity of citizenship at the time of removal; that is, all plaintiffs must be diverse from all defendants. 28 U.S.C. § 1332(a)(1); id. § 1441(a); Coyne v. Am. Tobacco Co., 183 F.3d 488, 492 (6th Cir. 1999). The Court must resolve all doubts about the propriety of removal in favor of remand and strictly construe the removal statutes. Eastman v. Marine Mech. Corp., 438 F.3d 544, 549-50 (6th Cir. 2006); Coyne, 183 F.3d at 493.

         When a non-diverse party destroys complete diversity, “the removing defendant may avoid remand only by demonstrating that the non-diverse party was fraudulently joined.” Jerome- Duncan, Inc. v. Auto-By-Tel, LLC, 176 F.3d 904, 907 (6th Cir. 1999) (internal quotation omitted). A removing party faces a heavy burden in demonstrating fraudulent joinder. Kent State Univ. Bd. of Trs. v. Lexington Ins. Co, 512 Fed.Appx. 485, 489-90 (6th Cir. 2013). A non-diverse defendant's joinder is fraudulent only if it is “clear that there can be no recovery [against that defendant] under the law of the state on the cause alleged or on the facts in view of the law.” Alexander v. Elec. Data Sys. Corp., 13 F.3d 940, 949 (6th Cir. 1994) (internal quotation omitted). In other words, the removing party must show that there is no “colorable basis for predicting that a plaintiff may recover against [that defendant].” Coyne, 183 F.3d at 493. “If the plaintiff has even a ‘glimmer of hope,' then any charge of fraudulent joinder fails and the Court must remand the case to state court for want of subject-matter jurisdiction.” Christensen v. ATS, Inc., 24 F.Supp.3d 610, 613 (E.D. Ky. 2014) (internal citation omitted); see also Hartley v. CSX Transp., 187 F.3d 422, 426 (4th Cir. 1999) (“Once the court identifies this glimmer of hope for the plaintiff, the jurisdictional inquiry ends.”). “[T]he plaintiff's actual motive is irrelevant to the fraudulent-joinder inquiry.” Freitas v. McKesson Corp. (In re Darvocet, Darvon & Propoxyphene Prod. Liab. Litig.), 889 F.Supp.2d 931, 936-37 (E.D. Ky. 2012) (citing Jerome-Duncan, 176 F.3d at 907).

         In assessing whether joinder was fraudulent, the Court employs “a test similar to, but more lenient than, the analysis applicable to a Rule 12(b)(6) motion to dismiss.” Casias v. Wal-Mart Stores, Inc., 695 F.3d 428, 433 (6th Cir. 2012). As with a 12(b)(6) motion, the Court “must resolve ‘all disputed questions of fact and ambiguities in the controlling . . . state law in favor of the non [-]removing party.'” Coyne, 183 F.3d at 493 (internal quotation omitted). In evaluating fraudulent joinder, the Court can pierce the pleadings and consider the sort of evidence it would at summary judgment but solely “for the limited purpose of determining whether there are ‘undisputed facts that negate the [plaintiff's] claim.'” Casias, 694 F.3d at 433 (internal quotation omitted).

         Here, Lowe's has not carried its heavy burden to demonstrate that Clark has no “glimmer of hope” in recovering against Johnson under Kentucky law. Therefore, Johnson's joinder in this action was not fraudulent. Diversity of citizenship does not exist, and the Court must remand.

         The Court can assess only the record before it, and Lowe's makes several points with no substantiating basis in the record. The Complaint does not reveal the details about the allegedly faulty display. The record does not indicate the precise relative duties of Johnson, as Lowe's manager. Lowe's contends a contrast between Johnson's duties and those (from relevant authority) of a gas-station manager. All of that is speculative and, given the lack of proof, improper as a decisional basis.

         Lowe's focuses its argument on the fact that Johnson apparently did not control the specifics and organization of the “grill display” at Lowe's, which the defense says is the display over which Clark allegedly tripped. DE 9 & 9-1 (Affidavit of Kevin Stafford, Lowe's District Manager). Lowe's further asserts that Johnson did not have sufficient control over the store to qualify as a land possessor for premises-liability purposes. See DE 9 (citing Grubb v. Smith, 523 S.W.3d 409 (Ky. 2017), for the proposition that store-manager liability for dangerous conditions turns on the manager's degree of control over the premises). Finally, in its supplemental filing, Lowe's leans on a recent case in which a plaintiff fraudulently joined the ...

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