Howard v. Pearl Interactive Network, Incorporated et al

Filing 38

OPINION AND ORDER: The Court DISCHARGES the show-cause orders (DE 22 & 34 ), FINDS diversity jurisdiction exists, and DISMISSES Dft Scully w/o prejudice, per Rule 4(m). The case proceeds btwn only Howard and Removing Dfts. Signed by Judge Robert E. Wier on 7/12/2018.(SCD)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
LEXINGTON
JASON HOWARD,
Plaintiff,
v.
PEARL INTERACTIVE NETWORK
INC., et al.,
Defendants.

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No. 5:16-CV-362-REW

OPINION AND ORDER

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In this Opinion, the Court (1) evaluates the basis for (and ultimately assures itself
of the existence of) diversity jurisdiction in this case, and (2) dismisses Defendant Scully
under Rule 4(m). The topics arise from the issuance of two show-cause orders, see DE
##22 & 34, and an order providing notice to Plaintiff of the potential 4(m) dismissal, see
DE #33. The Court has evaluated full record, including the parties’ briefing on the issues.
See DE ##23, 24, 35, 36, & 37. The matters are ripe for consideration.
I.

FACTUAL AND PROCEDURAL BACKGROUND
In August 2016, Jason Howard sued Pearl Interactive Network, Inc. (Pearl),

Robert (Todd) Scully, Merry Korn, and Diane Schrimpf in Clark Circuit Court. See DE
#1-1 (Complaint). Within a month, Pearl, Korn, and Schrimpf (collectively, Removing
Defendants) removed the case to this court, putatively premised on the diversity of the
parties. See DE #1 (Notice of Removal); see also DE #4 (Answer).1 Judge Caldwell

1

Removing Defendants have never attempted to justify removal based on federal
question jurisdiction, see also DE ##25-1, at 2 n.2; 26, at 7-8, and the Court does not
analyze that topic in this Opinion.
1

ultimately instituted a case schedule, DE #13 (Scheduling Order), and the case proceeded
on a normal course of litigation. The Complaint centers on Howard’s allegedly
tumultuous employment relationship with Pearl (including, at least initially, accusations
of discrimination, harassment, intentional infliction of emotional distress, retaliation, and
breach of contract), which came to a head during the period between September 2014 and
December 2015. Todd Scully, Howard’s “former supervisor,” DE #23, at 1, though
enduring as a named defendant, has never appeared or participated in the case.
On the mid-discovery call, in September 2017, the undersigned (then the case’s
referred magistrate judge) raised some “doubts” concerning the existence of diversity
jurisdiction. See DE #22, at 1. Specifically, as relevant here, the Court flagged the issue
that considering Scully’s citizenship “would destroy complete diversity,” id. at 2-3, and
ordered briefing on any relevant topic. The parties complied, DE ##23 & 24, and Judge
Caldwell’s case transfer, DE #31, sent the issues to the undersigned. Post-transfer, the
Court identified yet another basis to doubt the existence of subject-matter jurisdiction
and, again, ordered briefing. DE #34. The parties, again, complied. DE ##35 & 37.
II.

LAW & ANALYSIS
This scenario necessitates consideration of a number of related or interlocking

jurisdiction-related concepts. The ultimate question is whether the Court has diversity
jurisdiction in this case.
A.

Background Legal Principles

District courts “have original jurisdiction of all civil actions where the matter in
controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is
between,” as relevant here, “citizens of different States.” 28 U.S.C. § 1332(a)(1); see also

2

U.S. Const. Art. III § 2 (“The judicial power shall extend . . . to controversies . . .
between citizens of different states[.]”). Courts refer to this concept as “diversity
jurisdiction,” a form of subject-matter jurisdiction in a case. See Grupo Dataflux v. Atlas
Global Grp., LP, 124 S. Ct. 1920, 1925-26 (2004).
Exercising diversity jurisdiction “require[s] complete diversity of citizenship,”
i.e., “the citizenship of each plaintiff” must be “diverse from the citizenship of each
defendant.” Caterpillar Inc. v. Lewis, 117 S. Ct. 467, 472 (1996). Thus, phrased another
way, for diversity to exist, “no plaintiff” can be “a citizen of the same state as any
defendant.” V & M Star, LP v. Centimark Corp., 596 F.3d 354, 355 (6th Cir. 2010).
“[C]omplete diversity,” though, “is not a constitutional requirement.” Owen Equip. &
Erecting Co. v. Kroger, 98 S. Ct. 2396, 2402 n.13 (1978).
Importantly, “Federal courts are courts of limited jurisdiction,” and “the burden of
establishing” a jurisdictional basis “rests upon the party asserting jurisdiction.” Kokkonen
v. Guardian Life Ins. Co. of Am., 114 S. Ct. 1673, 1675 (1994). Based on these
foundational principles, the Court has an omnipresent “duty to consider [its] subject
matter jurisdiction in regard to every case and may raise the issue sua sponte.” Answers
in Genesis of Ky., Inc. v. Creation Ministries Int’l, Ltd., 556 F.3d 459, 465 (6th Cir.
2009). Indeed, that is just what the Court did in DE ##22 & 34 and continues to do in this
Opinion. See also Hertz Corp. v. Friend, 130 S. Ct. 1181, 1193 (2010) (“Courts have an
independent obligation to determine whether subject-matter jurisdiction exists, even
when no party challenges it.”). The Court resolves “all doubts” concerning the existence
of subject-matter jurisdiction “against removal.” Her Majesty The Queen in Right of the
Province of Ontario v. City of Detroit, 874 F.2d 332, 339 (6th Cir. 1989); Fenger v. Idexx

3

Labs., Inc., 194 F. Supp. 2d 601, 602-03 (E.D. Ky. 2002) (“Where there is doubt as to
federal jurisdiction, the doubt should be construed in favor of remanding the case to the
State court[.]”).
B.

Pearl is a citizen only of Ohio.

The Court first addresses Pearl’s citizenship. The parties initially made conflicting
citizenship allegations as to Pearl. Compare DE #1, at ¶ 7 (Pearl alleging Ohio
citizenship), and DE #4, at ¶ 2 (same), with DE #1-1, at ¶ 2 (Howard alleging facts that
would establish Kentucky and Ohio citizenships). Neither party presented proof on the
issue. If Pearl, in fact, has Kentucky citizenship, it would not be diverse from Howard,
see DE #22, at 1, leaving the Court without subject-matter jurisdiction.
“A defendant removing a case has the burden of proving the diversity jurisdiction
requirements.” Rogers v. Wal-Mart Stores, Inc., 230 F.3d 868, 871 (6th Cir. 2000). When
“allegations of jurisdictional facts are challenged,” the party invoking the Court’s
jurisdiction “bears the burden of supporting the allegations by competent proof.” Janzen
v. Goos, 302 F.2d 421, 424 (8th Cir. 1962). Here, conflicting record allegations suggested
an equal likelihood that Pearl is, or is not, a citizen of Kentucky. See, e.g., Walden v.
Broce Constr. Co., 357 F.2d 242, 244 (10th Cir. 1966) (repeating prior holding that “an
allegation of diversity of citizenship alone, when challenged, is not enough”); cf. Citizens
Bank v. Plasticware, LLC, 830 F. Supp. 2d 321, 325 (E.D. Ky. 2011) (holding that
Plasticware “prove[d] its citizenship lies outside of Kentucky by a preponderance” when
Citizens Bank “did not contradict” the defense’s allegations).
In the briefing the show-cause order prompted, Pearl contended, per a specific
analysis, that it is a citizen only of Ohio. DE #35, at 2-3. In support, Pearl attached an

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affidavit of its CEO, a certificate of good standing from the Ohio Secretary of State, and
various other documents. DE #35-1, at 1-6. These items of proof do, indeed, support the
claim that Pearl possesses solely Ohio citizenship. Howard, assessing the same
evidentiary offerings, concedes the point and no longer claims Pearl has Kentucky
citizenship. See DE #37, at 1. Accordingly, per Pearl’s (now) unchallenged assertion of
solely Ohio citizenship and the solid proof Pearl tendered, the Court concludes, under the
applicable standard, that Pearl is a citizen only of Ohio.
C.

The Court must consider the citizenship of Scully, an unserved and
nonparticipating defendant, in the jurisdictional analysis.

Next, the Court addresses issues concerning Defendant Scully. To review, the
record indicates that (1) Howard is, and at all times relevant was, a Kentucky citizen, see
DE #22, at 1; (2) Pearl, Korn, and Schrimpf are, and were at all times relevant, citizens of
Ohio, see DE ##4, at ¶ 2; 1-1, at ¶¶ 4-5; discussion supra in Section II.B; and (3) Scully
“is a citizen . . . of the Commonwealth of Kentucky,” DE #1-1, at ¶ 3. Thus, on the face
of the pleadings, Howard, the plaintiff, shares a common citizenship with Scully, a
named defendant, rendering the case one without complete diversity and depriving the
Court of subject-matter jurisdiction.2
A potential wrinkle, though, is that Scully has not appeared or participated, in any
way, in this case; indeed, the parties agree that proper service has not occurred. See DE
##23, at 2; 24, at 1. Does the Court, nevertheless, have to consider his citizenship in
assessing the existence of diversity jurisdiction? The answer, as the cases harmoniously
indicate, is yes.
2

Neither party has suggested a basis to believe that Scully’s citizenship may have
changed post-removal, even if he is now “residing” internationally. DE #24, at 2, 4; see
Kaiser v. Loomis, 391 F.2d 1007, 1009 (6th Cir. 1968).
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Simply put, courts, “in determining the propriety of removal based on diversity of
citizenship, must consider all named defendants, regardless of service.” Pecherski v. Gen.
Motors Corp., 636 F.2d 1156, 1160-61 & n.6 (8th Cir. 1981); see also, e.g., Darsie v.
Cone, No. 5:10-CV-154-KSF, 2010 WL 2923285, at *4-5 (E.D. Ky. July 22, 2010)
(same, and collecting cases); New York Life Ins. Co. v. Deshotel, 142 F.3d 873, 883 (5th
Cir. 1998) (“Broussard’s non-diverse citizenship cannot be ignored simply because he
was an unserved defendant. A non-resident defendant cannot remove an action if the
citizenship of any co-defendant, joined by the plaintiff in good faith, destroys complete
diversity, regardless of service or non-service upon the co-defendant. Whenever
federal jurisdiction in a removal case depends upon complete diversity, the existence of
diversity is determined from the fact of citizenship of the parties named and not from the
fact of service.”); Cripps v. Life Ins. Co. of N. Am., 980 F.2d 1261, 1266 n.4 (9th Cir.
1992) (describing the Ninth Circuit’s precedent as holding “that a defendant could not
ignore an unserved, nondiverse co-defendant in seeking to remove a case to federal court
based on diversity”); Beritiech v. Metropolitan Life Ins. Co., 881 F. Supp. 557 (S.D. Ala.
1995) (remanding to state court on same basis); Worthy v. Schering Corp., 607 F. Supp.
653, 655 (E.D.N.Y. 1985) (“It is well established that an action based on state law cannot
be removed to federal district court if any nondiverse defendant is joined in the
complaint, even if the nondiverse defendant was never served. . . . Where the nondiverse
defendant has not been served, the action cannot be removed unless and until that
defendant has been formally dropped from the case.”); cf. Lincoln Prop. Co. v. Roche,
126 S. Ct. 606, 610 (2005) (approving diversity-based removal if, inter alia, “there is
complete diversity between all named plaintiffs and all named defendants” (emphasis

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added)); K.M.B. Warehouse Distribs., Inc. v. Walker Mfg. Co., 61 F.3d 123, 130 (2d Cir.
1995) (same focus on the citizenship of “all named defendants”).
Removing Defendants’ principal argument, concerning application of the forum
defendant rule, see DE #23, at 3-5; see also DE #1, at ¶¶ 11-16, fundamentally
misapprehends the relevant inquiry and requires no analysis (at least at this stage). The
current question is not the propriety of removal under 28 U.S.C. § 1441; the question is
the existence of subject-matter jurisdiction under § 1332. See also § 1441(a) (authorizing
removal only of “civil action[s] brought in a State court of which the district courts of the
United States have original jurisdiction”); § 1441(b)(2) (predicating applicability of
forum defendant rule on the case “otherwise” being “removable . . . on the basis of the
jurisdiction under section 1332(a)”); § 1447(c) (“If at any time before final judgment it
appears that the district court lacks subject matter jurisdiction, the case shall be
remanded.”); Pecherski, 636 F.2d at 1160 (“Section 1441(b) does not qualify the
requirement of complete diversity[.]”); Lively v. Wild Oats Mkts., Inc., 456 F.3d 933, 939
(9th Cir. 2006) (stating that the forum defendant rule is “[s]eparate and apart from the
statute conferring diversity jurisdiction” and is an “additional limitation on diversitybased removal jurisdiction”). The Court must, therefore, consider the citizenship of
Scully, a named defendant, in evaluating the existence of subject-matter jurisdiction.
D.

Howard fraudulently joined Scully.

That might ordinarily end the analysis and require remand, but Removing
Defendants offer an apt rejoinder: they argue that Howard “fraudulently joined” Scully to
the suit. DE #23, at 5-10. Such analysis is relevant because “fraudulent joinder of nondiverse defendants will not defeat removal on diversity grounds.” Coyne v. Am. Tobacco

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Co., 183 F.3d 488, 493 (6th Cir. 1999) (also calling this doctrine “an exception to the
requirement of complete diversity”); see also Jerome-Duncan, Inc. v. Auto-By-Tel, LLC,
176 F.3d 904, 907 (6th Cir. 1999); Murriel-Don Coal Co., Inc. v. Aspen Ins. UK Ltd., 790
F. Supp. 2d 590, 597 (E.D. Ky. 2011).
“To prove fraudulent joinder, the removing party must present sufficient evidence
that a plaintiff could not have established a cause of action against [a] non-diverse
defendant[] under state law.” Coyne, 183 F.3d at 493. Thus, to establish fraudulent
joinder and avoid remand, Removing Defendants must establish that there is no
“colorable basis for predicting that [Howard] may recover against” Scully. See id. If the
claim(s) against Scully have “even a glimmer of hope, there is no fraudulent joinder.”
Murriel-Don, 790 F. Supp. 2d at 597 (internal quotation marks removed).3 The Court
resolves “all disputed questions of fact and ambiguities in the controlling state law in
favor of the non removing party,” Howard. Coyne, 183 F.3d at 493. This test is “similar
to, but more lenient than,” a 12(b)(6) analysis. Casias v. Wal-Mart Stores, Inc., 695 F.3d
428, 433 (6th Cir. 2012).
Removing Defendants’ first subsidiary argument—that “there can be no claims
asserted against a person against whom no legal action has been commenced” and that
“no action has been commenced against Todd Scully because he was never served”—is
frivolous. See DE #23, at 7. Under either federal or state law (although Removing
Defendants made the argument only “under Federal Rule 4(m),” see id.), Howard plainly
3

The Court notes, without further commenting or expounding on, Judge Thapar’s
extensive, foundational criticism of the fraudulent joinder doctrine. Murriel-Don, 790 F.
Supp. 2d at 594-97; see also Gaither v. Beam Partners, LLC, No. 3:16-cv-94-GFVT,
2017 WL 1217166, at *3-4 (E.D. Ky. Mar. 31, 2017) (Judge Van Tatenhove agreeing).
As Judge Thapar concluded, “[f]raudulent joinder is still the law of this circuit, and until
the law changes, this Court will faithfully apply it.” Murriel-Don, 790 F. Supp. 2d at 597.
8

commenced an action against Scully via filing a complaint in Clark Circuit Court and
securing the issuance of a summons. The 4(m) service requirement is wholly separate
from whether, at case genesis, an action began. See, e.g., Fed. R. Civ. P. 3 (“A civil
action is commenced by filing a complaint with the court.”); United States v. Wahl, 583
F.2d 285, 289 (6th Cir. 1978) (“[A] civil action is commenced upon the filing of a
complaint, and remains pending in an inchoate state until service is completed[.]”); CR
3.01; KRS 413.250; Eades v. Clark Distrib. Co. Inc., 70 F.3d 441, 442-43 (6th Cir.
1995); DE #1-1, at 2 (State court record indicating summons issuance to Scully on
8/25/16, the same day as Complaint filing). The Court sees no logical or legal basis for
this abbreviated argument.
Moving to substantive claim evaluation, the Court concludes, via the subsequent
analysis, that Howard did not state a colorable claim against Scully.
The Complaint has 5 total Counts: (1) breach of contract; (2) harassment; (3)
retaliation; (4) intentional infliction of emotional distress (IIED); and (5) sexual
discrimination. Only Counts 2, 4, and 5 are reasonably in play concerning Scully. See,
e.g., DE #24 (Plaintiff’s show-cause brief), at 5 (Howard limiting: “The Plaintiff alleged
claims of hostile work environment and intentional infliction of emotional distress
against Scully.”). Count 2 purports to directly apply: “Plaintiff was required to endure
daily offensive conduct from Defendant employee, Mr. Scully as a condition of continued
employment, which created a hostile work environment.” DE #1-1, at ¶ 27 (all as in
original). Count 4, as phrased, also pertains to Scully: “Plaintiff, as a result of Defendants
intentional behavior, workplace harassment and retaliation, suffered depression and
reputational damages; forcing him to seek a medical professional for treatment of his

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issues.” Id. ¶ 32 (all as in original). Count 5, too, facially applies to Scully: “Plaintiff
endured daily offensive comments from Mr. Scully regarding female co-workers’
physical appearance and body structure and received an unwarranted inappropriate sexual
e-mail, which crated an offensive work environment.” Id. ¶ 35.
The Court can quickly dispatch Counts 2 and 5. Neither is colorable. Start with
Count 2, labeled “Harassment.” With Howard’s specific targeting of “a hostile work
environment,” the claim is not colorable against Scully, under the applicable standard.
See, e.g., Conner v. Patton, 133 S.W.3d 491, 492-93 (Ky. Ct. App. 2004) (“[I]ndividual
agents or supervisors who do not otherwise qualify as employers cannot be held
personally liable in their individual capacities under KRS Chapter 344.”); Wathen v. Gen.
Elec. Co., 115 F.3d 400, 404-05 (6th Cir. 1997) (same holding); see also DE ##26, at 5
(Plaintiff abandoning the harassment claim); 23-1, at 5 (Depo. p. 208) (“[W]as Todd
Scully harassing you because of your gender? No ma’am. Just based on my relationship
with in Pearl, being a manager, would be my only explanation. I don’t believe that sex,
gender, age – I don’t think there was any discriminatory reason for harassing me[.]”);
deposition excerpts cited infra.
Count 5, alleging “Sexual Discrimination,” under the standard, also is not
colorable as to Scully. See, e.g., Bd. of Regents of N. Ky. Univ. v. Weickgenannt, 485
S.W.3d 299, 306 (Ky. 2016). Howard describes a difficult boss, but attributes his animus
to bullying or other work demands, not to cognizable discrimination. DE ##25-4, at 76
(Depo. p. 208) (Howard: “I don’t believe that sex, gender, age – I don’t think there was
any discriminatory reason for harassing me other than – if it was harassment, it would’ve
been by bullying or expectation of delivery that I couldn’t meet based on HR policies as a

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manager.”); 23-1, at 3 (Depo. p. 194) (“Nobody treated you differently during your
employment because of your sex? Not that I’m aware of, no.”); see also DE #26, at 5
(Plaintiff abandoning the sexual discrimination claim).
Count 4 is a closer call. In Kentucky, the tort of IIED “is intended to redress
behavior that is truly outrageous, intolerable and which results in bringing one to his
knees.” Osborne v. Payne, 31 S.W.3d 911, 914 (Ky. 2000). Kentucky IIED has four
elements: ‘[1] the wrongdoer’s conduct must be intentional or reckless; [2] the conduct
must be outrageous and intolerable in that it offends against the generally accepted
standards of decency and morality; [3] there must be a causal connection between the
wrongdoer’s conduct and the emotional distress[;] and [4] the distress suffered must be
severe.” Id. at 913-14. The IIED tort requires “more than bad manners” and “hurt
feelings.” Childers v. Geile, 367 S.W.3d 576, 581 (Ky. 2012). It does not cover conduct
that is “cold, callous, and lacking sensitivity.” Goebel v. Arnett, 259 S.W.3d 489, 493
(Ky. Ct. App. 2007). “Liability has been found only where the conduct has been so
outrageous in character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.
Generally, [a] case [resulting in liability] is one in which the recitation of the facts to an
average member of the community would arouse his resentment against the actor, and
lead him to exclaim, ‘Outrageous!’” Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 781,
789 (Ky. 2004), overruled on other grounds by Toler v. Sud-Chemie, Inc., 458 S.W.3d
276 (Ky. 2015) (regarding substantive defamation requirements).
As Removing Defendants argue, a court “may ‘pierce the pleadings’ and consider
summary judgment evidence” in this context. See Casias, 695 F.3d at 433. “The court

11

may look to material outside the pleadings for the limited purpose of determining
whether there are undisputed facts that negate the claim.” Id. (internal quotation marks
removed).4 Removing Defendants base the argument that Howard’s IIED claim is not
colorable against Scully on Howard’s “deposition testimony.” DE #23, at 9-10.
Howard, in his depositions, repeatedly indicated that he had no direct problem
with Scully. See DE ##25-4, at 67 (Depo. p. 158) (“I had no – I had no problem – I
could’ve worked under Todd [Scully] and been fine. . . . I could’ve stayed there. He was
treating me fine.”); 23-2, at 2 (Depo. p. 46) (“I never once felt like my job was in
jeopardy through Todd at all.”); id. (Depo. p. 48) (“I don’t think he was out for me.”); id.
at 3 (Depo. p. 129) (“I’ve never been yelled at by him. . . . I mean, he’s never once
hollered at me[.]”); id. (Depo. p. 130) (“[I]t was a high-pressure job and nothing that I
would feel personally that he was attacking. I never felt physically threatened or anything
of that, you know.”); id. at 4 (Depo. p. 153) (“He’s not treating me unprofessionally.
We’re not screaming at each other in meetings.”); id. (Depo. p. 156) (“[H]e treated me
okay. . . . I think he treated me like gold compared to some of the other people[.]”).
The type of intentional, outrageous conduct required for a colorable IIED claim
simply does not square with this undisputed factual description, taken from Plaintiff’s
own mouth. See, e.g., Osborne, 31 S.W.3d at 913-14 (targeting “behavior that is truly

4

The Court sees some conflict between these general principles and the Circuit’s
statement in Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co. that “a district court
engages in a factual inquiry regarding the complaint’s allegations only when the facts
necessary to sustain jurisdiction do not implicate the merits of the plaintiff’s claim.” 491
F.3d 320, 330 (6th Cir. 2007). Here, “the facts necessary to sustain jurisdiction” are
simply each party’s citizenship(s). The identity of Scully’s citizenship plainly does “not
implicate the merits of” Howard’s claims. Under Gentek, the Court could potentially
avoid “a factual inquiry” altogether, but, out of an abundance of caution, due to the
dictates of other Sixth Circuit cases and the fraudulent joinder element, engages in one.
12

outrageous, intolerable and which results in bringing one to his knees” and conduct so
“outrageous and intolerable in that it offends against the generally accepted standards of
decency and morality”). Howard plainly does not describe conduct “so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of decency, and
to be regarded as atrocious, and utterly intolerable in a civilized community.” Stringer,
151 S.W.3d at 789.5
Further, in the pleadings and case record, Howard ties the claimed emotional
distress (an element of the claim) only to the job reassignment and discharge. See DE #11 (Complaint), at ¶¶ 20 (“Plaintiff experienced extreme stress, insecurities and sadness as
a result of the restructuring.”), 22 (“Since the termination of employment, Plaintiff has
suffered depression[.]”). In deposition, Plaintiff limited the IIED claim to the events of
termination. See DE #25-4, at 73 (Depo. p. 194) (“You’ve also made a claim for
intentional infliction of emotional distress. Yeah. What is that – what is that based on? I
lost my job[.]”); id. at 74 (Depo. p. 198) (“Well, I’m asking you about intentional
infliction of emotional distress. Okay. And you’re telling me that it’s because of your
termination? Absolutely.”). Critically, though, Howard does not claim that Scully had
5

This jibes with specific prior scenarios. For example, courts have not found the
elements of IIED when an individual told a plaintiff, who had just delivered a stillborn
baby and was hysterical, to “shut up” and that the baby would be “disposed of” at the
hospital, when a person shot and killed a beloved family dog, when a person chained a
high school student to a tree by his ankle and neck, and when a person erected a billboard
referencing a person’s status as a child molester. Stringer, 151 S.W.3d at 790-91. Even an
improper burial does not qualify as “outrageous and intolerable.” Keaton v. G.C.
Williams Funeral Home, Inc., 436 S.W.3d 538, 545 (Ky. Ct. App. 2013). If those
examples do not count, surely having a demanding boss, generally unpleasant in the
workplace, also would not count. See, e.g., Kastor v. Cash Express of Tenn., LLC, 77 F.
Supp. 3d 605, 615 (W.D. Ky. 2015) (holding that “certainly unpleasant” workplace
behavior does not rise to the level of IIED); Farmer v. Dixon Elec. Sys. & Contracting,
Inc., No. 10-326-ART, 2013 WL 2405547, at *7 & 7 n.4 (E.D. Ky. May 31, 2013)
(same).
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any role or hand in the restructuring or eventual termination. Further, in Kentucky,
“[m]ere termination clearly does not rise to the level of outrageous conduct required to
support an IIED claim.” Benningfield v. Pettit Envtl., Inc., 183 S.W.3d 567, 572 (Ky. Ct.
App. 2005).
Thus, per Plaintiff himself, Scully did not directly target Howard, and Howard’s
emotional harm, if any, came from acts and decisions not involving Scully. See Osborne,
31 S.W.3d at 913-14 (including as an IIED element that “there must be a causal
connection between the wrongdoer’s conduct and the emotional distress”). Perhaps
cognizant of these obvious faults—and of vital importance—Howard has conceded “that
the evidence is not sufficient to support his claim[] for” IIED. DE #26, at 5
(“abandon[ing]” the IIED claim). Thus, for these cascading reasons, the Court’s
evidentiary review demonstrates that there are “undisputed facts that negate the [IIED]
claim.” Casias, 695 F.3d at 433.6

6

The Court senses some degree of tension in the Sixth Circuit’s pronouncements
on this issue. How can an analysis be more lenient than that applicable to a motion to
dismiss, yet also permit consideration of materials outside the pleadings? Cf. Briggs v.
Ohio Elections Comm’n, 61 F.3d 487, 493 (6th Cir. 1995). Does the Court assume the
Complaint allegations are true, or engage in a summary judgment-style inquiry to probe
verity? Compare Casias, 695 F.3d at 433 (“more lenient than” Rule 12(b)(6) analysis),
with id. (in the next sentence, permitting courts to “consider summary judgment
evidence”). The harmonization likely comes in the following sentence, as the Court has
already described, where Casias instructs to look at material outside the pleadings only
“for the limited purpose of determining whether there are undisputed facts that negate the
claim.” Id. (internal quotation marks removed).
That still, to the Court, sounds mostly in summary judgment analysis, though
perhaps without incorporating the entire Rule 56 rubric. See Walker v. Philip Morris
USA, Inc., 443 F. App’x 946, 952-54 (6th Cir. 2011) (wrestling with the same tension and
adopting the Fifth Circuit’s attempt at synchronization); id. at 955-56 (identifying “at
least two problems with th[e] approach” of “effectively granting summary judgment for
failure to show a genuine issue of material fact” in this context); Winburn v. Liberty Mut.
Ins. Co., 933 F. Supp. 664, 666 (E.D. Ky. 1996) (“noting the limited nature of the Court’s
examination of the merits of the plaintiffs’ claims” in this context). In this circumstance,
14

In a scenario (as here) where Plaintiff has abandoned the relevant claims (and for
the other reasons stated), there is not “arguably a reasonable basis for predicting that the
state law might impose liability on the facts involved.” Alexander v. Electronic Data Sys.
Corp., 13 F.3d 940, 949 (6th Cir. 1994). To the contrary, Howard has conceded that there
will, in fact, be no liability on the at-issue claims.7 Plaintiff himself views the record as
not supporting a valid theory as to Scully. DE #26, at 5. The Court simply cannot treat as
valid claims Plaintiff concedes have inadequate support on undisputed facts.
Accordingly, the Court concludes that Removing Defendants have established that
Howard fraudulently joined Scully to the suit. Scully’s inclusion, therefore, does “not
defeat removal on diversity grounds.” Coyne, 183 F.3d at 493. The Court, despite the

the burden remains squarely on the removing party. Coyne, 183 F.3d at 493 (“To prove
fraudulent joinder, the removing party must present sufficient evidence that a plaintiff
could not have established a cause of action against non-diverse defendants under state
law.”); Walker, 443 F. App’x at 956 (“This piercing permits consideration of such
undisputed facts that negate the claim. It is not intended to provide an opportunity to test
the sufficiency of the factual support for a plaintiff’s claim, as is done in a Rule 56
motion.”); id. (criticizing district court for going “beyond the relevant inquiry—whether
Plaintiffs have a colorable claim under Kentucky law—and instead inquir[ing] whether
Plaintiffs had adequate evidentiary support for their claim, the traditional Rule 56
inquiry”).
The procedural posture here surely pushes the pleading-piercing inquiry to its
most extreme point—this case has been, essentially, fully litigated, and the parties have
engaged in plenary summary judgment briefing. Threading Walker’s needle may not
always be an easy task, but the Court, in its treatment here, assiduously hews the line.
The Court has not, despite the pending Rule 56 motion, undertaken a Rule 56 analysis.
Rather, the Court has consulted the summary judgment briefing—i.e., pierced the
pleadings—merely to probe for undisputed facts. The Court found them in, e.g.,
Howard’s own words in deposition and Howard’s (obviously undisputed) concessions
that he has no valid claim against Scully.
7
The Court also feels some institutional responsibility for the manner in which the
litigation has progressed. The Court, then acting as the magistrate judge on the case,
flagged the potential jurisdictional issue in September 2017. No further judicial action
occurred on the question until post-case-transfer, in July 2018. In the interim, the parties
fully briefed a dispositive motion and, the filings indicate, substantially narrowed the
claims in the case.
15

nominal presence of the non-diverse Scully, yet has diversity jurisdiction in this case. See
id.
E.

Satisfied that subject-matter jurisdiction exists, the Court dismisses Scully
under Rule 4(m).

Assured of its own jurisdiction,8 the Court proceeds to consideration of the issues
DE #33 discussed. See also DE #23, at 2 n.1. Rule 4(m), in relevant part, reads:
If a defendant is not served within 90 days after the complaint is filed, the
court—on motion or on its own after notice to the plaintiff—must dismiss
the action without prejudice against that defendant[.]
Here, the parties agree that proper service on Scully has not occurred, see DE
##23, at 2; 24, at 1, well over 90 days have passed since the complaint was filed, and the
Court gave Howard notice of its intent “to dismiss Defendant Robert T. Scully, without
prejudice, for failure of timely service.” DE #33, at 1. Howard did not object to the
proposed dismissal. DE #36, at 1-2. Accordingly, the Court dismisses Defendant Scully,
without prejudice, under Rule 4(m).
III.

CONCLUSION
Per this sequential analysis, the Court DISCHARGES the show-cause orders (DE

##22 & 34), FINDS that diversity jurisdiction exists in this case, and DISMISSES
Defendant Scully, without prejudice, per Rule 4(m). The case proceeds between only
Howard and Removing Defendants.

8

This approach in sequencing avoids potentially thorny questions under Rules 19 and 21,
including assessing Scully’s necessity and / or indispensability, inquiries the parties do
not undertake. See, e.g., Soberay Mach. & Equip. Co. v. MRF Ltd., Inc., 181 F.3d 759,
763 (6th Cir. 1999); Safeco Ins. Co. of Am. v. City of White House, Tenn., 36 F.3d 540,
545 (6th Cir. 1994); Grant Cnty. Deposit Bank v. McCampbell, 194 F.2d 469, 472 (6th
Cir. 1952); see also Pollington v. G4S Secure Solutions (USA) Inc., 712 F. App’x 566,
566 (6th Cir. 2018); Thermoset Corp. v. Bldg. Materials Corp. of Am., 849 F.3d 1313,
1321 (11th Cir. 2017).
16

This the 12th day of July, 2018.

17