Walters v. Lowe's Home Improvement Warehouse of Georgetown, #1736 et al

Filing 44

MEMORANDUM OPINION & ORDER - this matter is REMANDED to Scott Circuit Court where it was removed. Signed by Judge Joseph M. Hood on 08/01/2011.(RJD)cc: COR,D,JC,SCOTT CIRCUIT COURT(via US Mail) Modified on 8/1/2011 (RJD).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
MITCHELL B. WALTERS,

)
)
Plaintiff,
)
)
v.
)
)
LOWE’S HOME IMPROVEMENT
)
WAREHOUSE OF GEORGETOWN, #1736, )
et al.,
)
)
Defendants.
)
)
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**

Civil Action No. 5:10-302-JMH

MEMORANDUM OPINION AND ORDER

**

**

**

On the Court’s own motion, this Court finds that subject
matter jurisdiction was destroyed by the addition of the nondiverse Defendant James Little and this matter shall be remanded to
Scott Circuit Court.
As an initial matter the Court notes that it is required to
consider whether subject matter jurisdiction exists, even without
a plaintiff’s request to remand.
Inc.,

Curry v. U.S. Bulk Transport,

462 F.3d 536 (6th Cir. 2006); Owens v. Brock, 860 F.2d 1363,

1367 (6th Cir. 1988) (“[D]efects in subject matter jurisdiction
cannot be waived by the parties and may be addressed by a court on
its own motion at any stage of the proceedings.”).
Plaintiff filed his original action in Scott Circuit Court on
July

1,

2010,

seeking

relief

against

Defendant,

Lowe’s

Home

Improvement Warehouse of Georgetown #1736 (hereinafter “Defendant
Lowe’s”), for injuries suffered due to a slip and fall at Defendant
Lowe’s on January 3, 2010.

Plaintiff is a resident and citizen of

Kentucky and Defendant, a foreign corporation with its principal
place of business in North Carolina, is a resident of North
Carolina as established by 28 U.S.C. §1332(c)(1). On August 26,
2010,

Plaintiff

filed

a

response

to

requests

for

admission

confirming that he seeks damages exceeding $75,000. The next day,
August 27, 2010, Plaintiff filed a Notice to Amend Complaint, which
would add a non-diverse party defendant.

On August 31, 2010,

Defendant Lowe’s timely filed a Notice of Removal to this Court
pursuant to 28 U.S.C. §§ 1332 and 1441.

Upon filing its Notice of

Removal, Plaintiff’s Notice to Amend Complaint had not yet been
heard or ruled upon and the case was removed to this Court.
Defendant failed to file a response to Plaintiff’s Motion to Amend
the Complaint in this Court or state court.
On December 9, 2010, this Court granted Plaintiff’s unopposed
Motion to Amend Complaint, which joined as Defendants to this
action a non-diverse party, James Little, manager of Defendant
Lowe’s, and additional fictitious parties whose citizenship need
not be considered by the Court for purposes of jurisdiction.
Alexander v. Electronic Data Systems Corp., 13 F.3d 940, 948 (6th
Cir. 1994).

Defendant James Little filed an answer herein.

Subsequently, this Court issued an Order to the parties requesting
them to show cause why this matter should not be remanded to Scott
Circuit Court [Record No. 21].

Defendants have filed a Motion for

Leave to File Amended Notice of Removal [Record No. 27] and

2

Response

to

this

Court’s

Show

Cause

Order

[Record

No.

26].

Plaintiff has filed a Response [Record No. 28] arguing that this
Court lacks jurisdiction.

Defendants have filed a Reply [Record

No. 29] opposing remand.1
Defendants

do

not

argue

that

the

parties

are

diverse.

Defendants instead argue that Defendant Little was fraudulently
joined.

The Court notes that 28 U.S.C. 1447(e), rather than

fraudulent joinder, applies because the non-diverse party was not
added until after removal. While there is some overlap between the
28 U.S.C. 1447(e) factors, see J. Lewis Cooper Co. v. Diageo North
America, Inc., 370 F.Supp.2d 613, 618 (E.D.Mich. 2005), and the
fraudulent joinder analysis, see Alexander v. Electronic Data
Systems Corp., 13 F.3d 940, 949 (6th Cir. 1994), one cannot be
substituted for the other.

See Mackey v. J.P. Morgan Chase Bank,

N.A., 2011 WL 2650600, *1 n.3 (E.D.Mich. July 6, 2011); Bridgepoint
Condominiums, Inc. v. Integra Bank Nat’l Assoc., 2009 WL 700056, *2
(W.D.Ky. March 13, 2009).
Nonetheless,

pursuant

to

28

U.S.C.

1447(e),

“[i]f

after

removal the plaintiff seeks to join additional defendants whose
joinder would destroy subject matter jurisdiction, the court may
deny

joinder

or

permit

joinder

and

remand

to

State

court.”

“Diversity of citizenship, the basis for jurisdiction in the
1

Also pending is an unopposed Motion for Leave to file a
Second Amended Complaint [Record No. 40], filed on July 1, 2011,
which seeks to add additional claims against Defendant Lowe’s and
adds an additional diverse party, Classic Manor Builders, Inc.
3

present case, exists only when no plaintiff and no defendant are
citizens of the same state.”

Jerome-Duncan, Inc. v. Auto-By-Tel,

L.L.C., 176 F.3d 904, 907 (6th Cir. 1999).

“If at any time before

final judgment it appears that the district court lacks subject
matter jurisdiction, the case shall be remanded.”

28 U.S.C.

§1447(c).
In Curry, the Sixth Circuit recognized that, while the general
rule is that diversity of the parties is determined at the time of
the filing of a lawsuit, where an amended complaint is filed which
names a non-diverse party, diversity must be determined at the time
of the filing of the amended complaint.

Curry, 462 F.3d at 540.

Curry, acknowledging that 28 U.S.C. §1447(e) applies to joinder
occurring after removal of a case, also noted that it applies to
situations in which a fictitious party is later identified as a
non-diverse party.

Id. at 541 (citing Casas Office Mach., Inc. v.

Mita Copystar Am., Inc., 42 F.3d 668, 674 (1st Cir. 1994)).

The

Sixth Circuit held that the district court should have remanded the
matter

rather

than

retaining

the

non-diverse

entering judgment on the merits of the case.

defendants

Id. at 541.

and

While

Curry specifically addressed the effect of substituting a nondiverse party for a fictitious defendant, the effect of 28 U.S.C.
§ 1447(e) is the same in this case.

When Defendant Little was

joined as a party, diversity was destroyed as well as this Court’s
jurisdiction.

The parties have failed to demonstrate that subject

4

matter jurisdiction remains after the addition of Defendant Little
as a party.

This matter shall now be remanded to the Scott Circuit

Court for further proceedings.
Accordingly, and for the foregoing reasons,
IT IS ORDERED that this matter be, and the same hereby is,
REMANDED to the Scott Circuit Court from whence it was removed.
This the 1st day of August, 2011.

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