United States District Court, E.D. Kentucky, Lexington
MEMORANDUM OPINION AND ORDER
M. HOOD SENIOR U.S. DISTRICT JUDGE
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
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
Facts and Procedural History
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
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
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
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].
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.
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.”).
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).
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].
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 ...