Conner v. HH Gregg et al
MEMORANDUM OPINION & ORDER: (1) pltf's 45 Motion to Remand to State Court is GRANTED; (2) this matter is REMANDED to Madison Circuit Court; (3) Clerk shall STRIKE this matter from the active docket. Signed by Judge Joseph M. Hood on 11/15/2011.(RJD)cc: COR,Madison Circuit Court(via US Mail)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
PEGGY W. CONNER,
HH GREGG, et al.,
Civil Action No. 5:11-47-JMH
MEMORANDUM OPINION AND ORDER
This matter is before the Court upon Plaintiff’s Motion to
Remand to State Court [DE 45].
Defendants have filed responses,
stating their objections [DE 46, 47], and Plaintiff has filed a
Reply in further support of her Motion [DE 52].
resident of the Commonwealth of Kentucky, argues that the diversity
of the parties to this action was destroyed with the addition of
Defendant Allan Cunningham, also a resident of the Commonwealth of
Kentucky, by her Amended Complaint.
The Court is adequately
advised, and this motion is ripe for decision.
For the reasons
which follow, the Court agrees, and this action will be remanded to
the Madison Circuit Court.
Plaintiff originally filed a Complaint alleging injury due to
exposure to a gas leak in her home as the result of the faulty
installation of a gas stove.
She averred that “HH Gregg”, 3PD,
Inc., Unknown Employees of 3PD, Inc., and Whirlpool Corporation
were liable to her for her injuries on a number of theories of
Plaintiff filed a Motion to Amend her Complaint [DE 27] to include
claims against Charles Sanders, the sole proprietor of Money
Getters, and Allan Cunningham, an employee of Money Getters.
time for response expired, no objections to the Motion to Amend
were filed by any of the Defendants, and the Court granted the
Motion to Amend [DE 28].
The Amended Complaint lists the address for Allan Cunningham
as “Money Getters, 1309 E. 9th Street, Jeffersonville, Indiana
47130,” and avers that he “delivered and installed a gas range at
the Plaintiff’s home” on December 30, 2009, causing natural gas to
leak into her home during that process. [DE 29 at ¶¶ 18, 21.]
was not immediately clear from the Amended Complaint whether this
Court’s jurisdiction based on diversity remained intact following
the amendment because the citizenship of Defendant Cunningham was
not averred in that document.
For this reason, Magistrate Judge
Robert E. Wier entered a Minute Entry and Order [DE 42] “not[ing]
that the Amended Complaint does not plead the citizenship of . . .
Allan Cunningham,” requiring a curative filing under 28 U.S.C. §
1653, and directing the parties to “consider the impact, if any, of
the supplemental filing on federal jurisdiction.”
Plaintiff filed a § 1653 Amendment of Pleadings to Show
Jurisdiction [DE 44] in which she set forth that she was domiciled
in and a citizen of the Commonwealth of Kentucky at all relevant
times and that Defendant Allan Cunningham was also domiciled in and
a citizen of Kentucky at all relevant times.
On a motion to remand, this Court is required to resolve all
questions of fact and law in favor of the non-removing party.
Coyne v. Am. Tobacco Co., 183 F.3d 488, 493 (6th Cir. 1999)
(quoting Alexander v. Elec. Data Sys. Corp., 13 F.3d 940, 949 (6th
Further, the party removing an action to federal
requirements are satisfied.
Coyne, 183 F.3d at 493.
An action may be removed from state to federal court only if
the federal court would have had jurisdiction over the case in the
citizenship and an amount in controversy greater than $75,000. See
28 U.S.C. §§ 1332, 1441(a).
If at any time before a final judgment
jurisdiction, the case shall be remanded. See 28 U.S.C. § 1447(c).
This includes situations in which a complaint is amended in such a
way as to call jurisdiction based on diversity into question after
a case is removed, even if jurisdiction is soundly established at
the time of removal.
As the United States Court of Appeals for the
Sixth Circuit explained in Curry v. United States Bulk Transport,
Inc., 462 F.3d 536, 540 (6th Cir. 2006):
“Diversity of citizenship, the basis for
jurisdiction in the present case, exists only
when no plaintiff and no defendant are
citizens of the same state.” Jerome-Duncan,
Inc. [v. Auto-By-Tel, LLC,] 176 F.3d [904,]
907 [(6th Cir. 1999)]. The general rule is
that diversity is determined at the time of
the filing of a lawsuit. See Smith v.
Sperling, 354 U.S. 91, 93 & n. 1, 77 S.Ct.
1112, 1 L.Ed.2d 1205 (1957). Notwithstanding
counsels that in a situation such as this
where an amended complaint is filed to include
the identity of a previous unidentified
defendant, diversity must be determined at the
time of the filing of the amended complaint.
No one disputes that there was diversity with respect to the
parties at the time this action was removed from Madison Circuit
Court, on January 28, 2011. Nor does anyone dispute that diversity
no longer exists in this matter nor has it since the date that
Plaintiff’s Amended Complaint [DE 29] was filed, on June 27, 2011.
The question, then, is whether this Court must remand the matter
due to lack of diversity jurisdiction or whether there exists a
mechanism by which this Court may reestablish jurisdiction without
In this regard, the case at bar is strikingly similar to that
presented in Christian v. Works, 3:09-cv-141, 2010 WL 14267299
(E.D. Tenn. Apr. 7, 2010).
See also J.L. Stanhope v. Ford Motor
Credit Company, Inc., 483 F. Supp. 275 (W.D. Ark. 1980) (holding
that remand was appropriate where jurisdiction was destroyed with
addition of non-diverse defendant by amended complaint where no
citizenship was alleged, no opposition was made to motion to amend,
and motion to amend was granted prior to any party bringing issue
to court’s attention).
In both Christian and the instant matter,
defendants removed the case based on diversity jurisdiction and
complete diversity existed at the time of removal.
not oppose Plaintiff’s Motion to Amend the complaint and add the
Defendants were aware of the identity of
the defendant or defendants to be added by the amendment.
In Christian, however, it appears that the defendants were
aware of the domicile and citizenship of the non-diverse defendants
to be added by amendment yet did not object to the motion to amend.
The district court reasoned that, because the defendants did not
object to the amendment at the time it was made, there was no
reason to consider their arguments in response to the plaintiff’s
motion to remand concerning whether the non-diverse defendants were
essential parties or whether the plaintiff would be significantly
disadvantaged, as Defendants ask this Court to do in the present
Unlike the defendants in Christian, however, the Defendants in
this case did not know the domicile of Cunningham, nor did they
attempt to ascertain it.
Neither was it apparent from the face of
the tendered Amended Complaint since not even Plaintiff knew that
information at the time her Motion to Amend was filed.
differences since Defendants had – at all times – the burden of
showing that the jurisdictional requirements were met in this case,
and they were aware that the addition of non-diverse defendants
would destroy this Court’s jurisdiction.
complaint until such time as it could be determined whether the
addition of Defendant Cunningham would impact the jurisdiction of
They did not.
The Court ultimately agrees with the
analysis in Christian and is persuaded of its applicability in the
Because defendants did not oppose the joinder of
the non-diverse defendant in the first place, there is no reason to
consider whether joinder of Cunningham should have taken place in
the first place, and the Court declines to engage in an ex post
facto exercise of its discretion under 28 U.S.C. § 1447(e) on these
The Court is also mindful of the decision reached in Pegourie
v. Werner Enters., Civil Action No. 1:04-cv-138-M, 2005 WL
2243259(W.D. Ky. Sept. 14, 2005), a case relied upon by Defendants.
Where non-diverse plaintiffs were joined upon a motion to which no
objections were filed, the Pegourie court nonetheless elected to
engage in an analysis of whether the non-diverse plaintiffs were
indispensible under Fed. R. Civ. P. 19 such that they could not be
dismissed under Fed. R. Civ. P. 21 in order to maintain diversity
and, thus, jurisdiction. Ultimately, the Pegourie court determined
that the non-diverse parties were dispensible and dropped them from
the suit, preserving its jurisdiction. This Court is not bound by
the decision in Pegourie, however, and concludes that – on the
facts before it – it is better to proceed in the fashion set forth
Accordingly, because complete diversity was destroyed with the
joinder of Cunningham, this Court will remand this action to the
Madison Circuit Court.
See 28 U.S.C. §§ 1447(c) and (e).
For the reasons stated above, the Court concludes that it no
longer has subject-matter jurisdiction in this matter due to a lack
of complete diversity of citizenship following the joinder to this
case of Defendant Cunningham.
Plaintiff’s Motion to Remand to State Court [DE 45] is
This matter is REMANDED to Madison Circuit Court; and
The Clerk shall STRIKE this matter from the active
This the 15th day of November, 2011.
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