United States District Court, E.D. Kentucky, Southern Division, London
OPINION AND ORDER
E. Wier United States District Judge.
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.
alleges that she is a Kentucky resident, id. ¶
1, and Lowe's does not dispute Clark's Kentucky
citizenship. 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,
though both parties proceed as though Johnson is a Kentucky
citizen and therefore non-diverse from Clark.
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.
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.
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.
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.
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).
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).
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.
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.
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 ...