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Wells v. Kone, Inc.

United States District Court, E.D. Kentucky, Lexington

November 8, 2019

WELLS, et al., Plaintiff,
KONE, INC., et al ., Defendants.



         This matter is before the Court on the Defendants' notice of removal [DE 1] and the Plaintiffs' motion to remand. [DE 5]. On April 25, 2019, Plaintiffs Roger and Carolyn Wells filed this action in Fayette Circuit Court against KONE, Inc. (“KONE”), KONE Elevators & Escalators of Louisville, Craig Lewis, Tony Dunsmore, and other unknown parties. [DE 1-1 at 2]. Defendants filed a notice of removal to federal court, alleging in part that Kentucky residents Lewis and Dunsmore were fraudulently joined to escape federal jurisdiction. [DE 1]. The Plaintiffs filed a motion to remand the case back to Fayette Circuit Court. [DE 5]. KONE filed a response [DE 6] and the motion is now ripe for the Court's review.

         Because the Plaintiffs have at least a colorable claim against the non-diverse individual Defendants, the Court must remand this case to Fayette Circuit Court for lack of subject-matter jurisdiction.

         A. Facts and Procedural History

         Plaintiffs filed this negligence action in Fayette Circuit Court to recover for injuries suffered when the couple fell down an escalator at Blue Grass Airport in Lexington, Kentucky. They charge that KONE, which had a contract to repair the escalator at issue, and the other Defendants named in the case failed to maintain and repair it. [DE 1-1 at 5]. They claim the lack of proper maintenance by KONE and its former employees led to a malfunction that caused the Plaintiffs to fall.

         Plaintiffs Roger and Carolyn Wells are citizens of Perry County, Kentucky. [DE 1-1 at 3]. KONE is incorporated in Delaware and its principle place of business is in Illinois. [Id.]. Plaintiffs claim that “Kone Elevators & Escalators of Louisville” operates out of an office in Louisville, Kentucky, and that the two individual Defendants listed are Kentucky residents. [Id. at 3-4].

         KONE filed a notice of removal in this Court on behalf of all Defendants. [DE 1]. The company alleged that the Louisville KONE entity is not an independent corporation, but a branch office of KONE's national corporation. [DE 1 at 2]. Second, KONE alleged that the Plaintiffs fraudulently joined the two individual Defendants in an effort to defeat diversity jurisdiction in federal court. [Id. at 2-3].

         After KONE filed its notice of removal, this Court asked the Plaintiffs to respond to the fraudulent-joinder allegation. [See DE 4]. Plaintiffs then filed the motion to remand [DE 5] and the Defendants responded. [DE 6].

         B. Discussion

         The primary claim in this case is for negligence under Kentucky tort law and negligence per se based on Kentucky building-safety statutes. As a cause of action consisting entirely of state-law tort claims, KONE may only achieve federal subject-matter jurisdiction by proving that each party is diverse from the Kentucky Plaintiffs.

         A case filed in state court is removable only if it could have originally been brought in federal court. 28 U.S.C. § 1441(a) (“[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed ... to the district court of the United States for the district and division embracing the place where such action is pending.”); Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005) (“[Section] 1441 ... authorizes removal of civil actions from state court to federal court when the action initiated in state court is one that could have been brought, originally, in federal district court.”).

         Pursuant to 28 U.S.C. § 1332, federal district courts have original jurisdiction over civil actions between citizens of different states where the amount-in-controversy exceeds $75, 000.00, exclusive of interest and costs. 28 U.S.C. § 1332(a). The “statute has been interpreted to demand complete diversity, that is, that no party share citizenship with any opposing party.” Caudill v. N. Am. Media Corp., 200 F.3d 914, 916 (6th Cir. 2000). The burden of establishing diversity jurisdiction is on the removing party. Coyne ex rel. Ohio v. Am. Tobacco Co., 183 F.3d 488, 493 (6th Cir. 1999).

         Plaintiffs admit they seek more than $75, 000 in damages, thus meeting that element of diversity jurisdiction. [DE 5 at 3]. Next, the Court must address the claim that the individual defendants, Lewis and Dunsmore, were fraudulently joined to defeat diversity. The Plaintiffs argue that diversity does not exist because the two individually named defendants are Kentucky residents, are licensed to work on escalators in Kentucky, and did, at some point, work on escalators in Blue Grass Airport. [DE 5 at 4]. Dunsmore and Lewis worked in a maintenance capacity at the airport and are former employees of KONE. [See DE 6 at 5]. KONE argues that because Dunsmore and Lewis did not work at Blue Grass as mechanics close to the time of the incident, there is no reasonable basis for pleading them into the case. [DE 6 at 5].

         Fraudulent joinder is an exception to the complete diversity requirement and applies when a non-diverse defendant was clearly named to avoid federal court. In re Darvocet, Darvon and Propoxphene Prod. Liab. Litig., 889 F.Supp.2d 931, 936 (E.D. Ky. 2012)(citing Coyne ex rel. Ohio v. Am. Tobacco Co., 183 F.3d 488, 493 (6th Cir. 1999)). Plaintiffs may not join resident defendants in a state court case for the sole purpose of defeating federal diversity jurisdiction. Id. To prove what courts have doctrinally titled “fraudulent joinder, ” a removing party must present sufficient evidence that the plaintiff could not establish a cause of action against nondiverse defendants under state law. Salisbury v. Purdue Pharm., L.P., 166 F.Supp.2d 546, 549 (6th Cir. 1994)(citing Sprowls v. Oakwood Mobile Homes, Inc., 119 F.Supp.2d 694, 695-96 (W.D. Ky. 2000)). If the claim against the non-diverse defendant has even a “glimmer of hope, ” there is no fraudulent joinder. Murriel-Don Coal Co., Inc. v. Aspen Ins. UK Ltd., 790 F.Supp.2d 590, 597 (E.D. Ky. 2011)(citing Hartley v. CSX Transp., Inc., 187 F.3d 422, 426 (4th Cir. 1999)). The plaintiff's ...

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