Douglas v. Texas Eastern Transmission, LP et al

Filing 28

MEMORANDUM OPINION & ORDER: 1) NDT Global LLC's Motion to Dismiss (DE [10) is DENIED WITHOUT PREJUDICE. 2) Plaintiff's Motion to Remand to State Court (DE 11 )is GRANTED. 3) Pursuant to 28 USC 1447(c) the Clerk of Court shall mail a certified copy of this order to the Lincoln Circuit Court Clerk. Case Terminated. Signed by Judge Joseph M. Hood on 07/16/2021.(JER)cc: COR, Lincoln Circuit Court Clerk via US Mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
JOANNIE DOUGLAS,
Plaintiff,
v.
TEXAS EASTERN TRANSMISSION,
LP, et al.,
Defendant.

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Civil Case No.
5:20-cv-376-JMH
MEMORANDUM
OPINION AND ORDER

***
This matter comes before the Court on Defendant NDT Global,
LLC’s (“NDT Global”) Motion to Dismiss [DE 10] pursuant to Federal
Rules of Civil Procedure 12(b)(2) and 12(b)(6) for alleged lack of
personal jurisdiction and failure to state a claim upon which
relief can be granted. In addition to NDT Global’s request for
relief, Plaintiff Joannie Douglas moves the Court to remand this
case to the Lincoln Circuit Court. [DE 11]. The Court will deny
NDT Global’s Motion to Dismiss [DE 10] without prejudice and grant
Plaintiff’s Motion to Remand to State Court [DE 11].
I. DISCUSSION
This case arises from an August 1, 2019, pipeline explosion.
Plaintiff initially filed her Complaint [DE 1-1, at 7-25] on July
30, 2020, in the Lincoln Circuit Court, against Defendants Texas
Eastern

Transmission,

LP

(“TETLP”),

Spectra

Energy

Operating

Company, LLC, Spectra Energy Transmission Resources, LLC, Spectra

Energy Transmission Services, LLC, Spectra Energy Corp., Enbridge
(U.S.) Inc., NDT Systems & Services (America), Inc., NDT Services
& Systems, LLC, NDT Global, LLC, Unknown Danville Compressor
Station

Operator(s)

(“the

Operator”),

and

Unknown

Corporate

Defendants. On August 3, 2020, Plaintiff filed her First Amended
Complaint [DE 1-1, at 27-45] in Lincoln Circuit Court, which added
Defendant Michael B. Clem. However, on September 4, 2020, TETLP
filed a Notice of Removal [DE 1] in this Court arguing Clem, the
Operator, and the Unknown Corporate Defendants were fraudulently
joined to destroy diversity. Aside from Plaintiff, Clem, the
Operator, and the Unknown Corporate Defendants, no other party is
alleged to be a Kentucky resident or citizen, to be incorporated
in Kentucky, or to have a principal place of business in Kentucky,
so the joinder question is crucial to the determination of whether
complete diversity exists to give this Court jurisdiction over
this matter.
A. MOTION TO DISMISS
The Court agrees with Plaintiff and Defendants TETLP, Spectra
Energy

Operating

Company,

LLC,

Spectra

Energy

Transmission

Resources, LLC, Spectra Energy Transmission Services, LLC, Spectra
Energy

Corp.,

Enbridge

(U.S.)

Inc.

(collectively

the

“TETLP

Defendants”), see [DE 12; DE 13], that NDT Global’s Motion to
Dismiss [DE 10] was filed prematurely and will, therefore, be
denied without prejudice. See Allen v. Ferguson, 791 F.2d 611,
2 

614-16 (7th Cir. 1986) (finding that a district court erred in
deciding a defendant’s motion to dismiss for want of personal
jurisdiction

before

determining

whether

complete

diversity

existed); Walker v. Philip Morris USA, Inc., 443 F. App’x 946 (6th
Cir. 2011) (finding that in denying the plaintiffs’ motion to
remand to state court and granting the defendants’ motions to
dismiss, the district court had, in essence, decided there were no
genuine issues of material fact prior to the parties participating
in discovery). If the Court were to decide that complete diversity
does not exist, it would lack subject matter jurisdiction to
address the merits of Plaintiff’s claim under Rule 12(b)(6). See
Walker, 443 F. App’x at 956 (“Because there was no fraudulent
joinder, there was no diversity. Thus, the district court lacked
subject matter jurisdiction to address the merits of Plaintiffs'
claim.”). NDT Global utilizes an attached Affidavit [DE 10-1] from
its Vice President, Thomas Redlinger, to attempt to show that NDT
Global

has

never

owned,

controlled,

operated,

supervised,

or

maintained any natural gas pipeline in Kentucky, including the
pipeline that is presently at issue, as Plaintiff alleges. See [DE
10]. However, as Plaintiff correctly asserts, discovery is needed
before NDT Global’s arguments regarding its connection, or lack
thereof, to the pipeline can be proved or disproved. [DE 12, at
4]; see also Walker, 443 F. App’x at 956 (“In rejecting Plaintiffs'
evidence as insufficient to overcome the Kentucky Defendants'
3 

affidavits, the court . . . inquired whether Plaintiffs had
adequate evidentiary support for their claim, the traditional Rule
56 inquiry. But Rule 56 motions for summary judgment are decided
after discovery, not shortly after filing.”). While the TETLP
Defendants “believe that complete diversity exists in this case,”
they “echo Plaintiff’s objection that the parties have not had the
opportunity to explore the assertions in NDT Global’s Motion to
Dismiss.” [DE 13, at 2]. For the forgoing reasons, the Court will
deny NDT Global’s Motion to Dismiss [DE 10] without prejudice and
consider Plaintiff’s Motion to Remand [DE 11].
B. MOTION TO REMAND
Plaintiff argues that the Court should remand this matter to
the Lincoln Circuit Court because Clem, the Operator, and Unknown
Corporate Defendants were not fraudulently joined and complete
diversity does not exist. See [DE 11-1].
Federal courts have limited jurisdiction. Gross v. Hougland,
712 F.2d 1034, 1036 (6th Cir. 1983). If there are any doubts as to
whether

federal

jurisdiction

exists,

the

decision

should

be

construed in favor of remanding the matter to state court. Shamrock
Oil & Gas Corp. v. Sheets, 313 U.S. 100, 109 (1941); Cole v. Great
Atlantic & Pacific Tea Co., 728 F. Supp. 1305, 1307 (E.D. Ky. 1990)
(citations omitted); Allen v. Frasure Creek Mining Co., Civil No:
12-110-GFVT, 2012 WL 12924816, at *1 (E.D. Ky. Sept. 19, 2012).
In determining whether to remand a case to state court, courts
4 

must consider whether federal jurisdiction existed at the time the
removing party filed the notice of removal. Ahearn v. Charter Twp.
of Bloomfield, 100 F.3d 451, 453 (6th Cir. 1996).
“A defendant may remove a civil action brought in state court
to federal court only if the action is one over which the federal
court could have exercised original jurisdiction.” Allen, 2012 WL
12924816, at *1 (citing 28 U.S.C. §§ 1441, 1446). District courts
have original diversity jurisdiction over all civil actions where
“the matter in controversy exceeds the sum or value of $75,000,
exclusive of interest and costs, and is between . . . citizens of
different states.” 28 U.S.C. § 1332(a)(1). Diversity jurisdiction
requires that “‘all parties on one side of the litigation [must
be] of a different citizenship from all parties to the other side
of the litigation.’” Coyne v. Amer. Tobacco Co., 183 F.3d 488, 492
(6th Cir. 1999) (citations omitted); see also Lincoln Property Co.
v. Roche, 546 U.S. 81, 89 (2005). The burden of establishing the
right to removal is on the removing party. See Coyne, 183 F.3d at
493. “Section 1441 provides that ‘the citizenship of defendants
sued under fictitious names shall be disregarded,’ 28 U.S.C. §
1441(a), unless the ‘‘complaint provide[s] a description of a
fictitious defendant in such a way that his identity could not be
reasonably questioned.’’” Allen, 2012 WL 12924816, at *2 (quoting
Harrison v. Allstate Indem. Co., 2012 WL 1029437, at * 2 (E.D. Ky.
2012) (quoting Musial, 2008 WL 2559300, at *3)).
5 

Here,
Unknown

Plaintiff’s

Corporate

descriptions

Defendants

are

of

such

the

Operator

that

the

and

the

individuals’

identities can be reasonably questioned. Regarding the Operator,
the Operator at TETLP’s Danville Compressor Station may have closed
the valve the day of the explosion, but it is also possible that
other personnel may have closed the valve. Plaintiff’s own Amended
Complaint [DE 1-1] specifies, “Personnel at the Danville, Kentucky
compressor station, including but not limited to the Defendant,
Michael B. Clem, and/or the Unknown Danville Compressor Station
Operator(s), eventually closed the Pipeline discharge valve at the
Danville compressor station located about 3.5 miles from the site
of the explosion.” [DE 1-1, at 34]. The fact that the person who
closed the valve could have been the Operator or other personnel
at the Danville Compressor Station, including Clem, leaves the
identity of the fictitious Operator too ambiguous for purposes of
diversity jurisdiction.
Moreover, while it might be reasonable to infer that a TETLP
employee who works in a central Kentucky city, like Danville, is
a

resident

of

Kentucky,

Section

1441(a)

requires

a

strict

interpretation, so the Operator must be disregarded for purposes
of diversity jurisdiction. See Allen, 2012 WL 12924816, at *2
(citing Alexander v. Electronic Data Systems Corp., 13 F.3d 940,
948 (6th Cir. 1994); Curry v. U.S. Bulk Transp., Inc., 462 F.3d
536, 539 (6th Cir. 2006) (“Although asserting that the employees
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are residents of Kentucky might be a reasonable inference to draw
from the facts included in the complaint, Section 1441(a) compels
strict interpretation and consequently the unknown agents shall be
disregarded for purposes of diversity jurisdiction.”)). The Court
cannot presume that someone working on a jobsite in Kentucky on
one specific day is a resident and citizen of Kentucky. Plaintiff’s
claims against the Unknown Corporate Defendants also fail to
adequately

describe

their

identities,

as

Plaintiff

merely

describes them as follows:
The Unknown Corporate Defendants are upon information
and belief Kentucky corporations or limited liability
companies, or foreign corporations and limited liability
companies, who have participated in the installation,
maintenance, repair, and/or inspection of the Pipeline
which is the subject of this litigation. These Unknown
Corporate Defendants will be more accurately named once
the identities of the same can be more discovered through
discovery. Registered Agent for Service of Process is
unknown at this time.
[DE 1-1, at 31-32]. Therefore, the Court will not consider the
Operator or the Unknown Corporate Defendants when making its
determination on diversity jurisdiction.
Now, the Court turns its attention to Clem, the only properly
identified Defendant whose inclusion in this matter allegedly
results in a lack of complete diversity necessitating a remand to
Lincoln Circuit Court. In Plaintiff’s Amended Complaint [DE 1-1,
at

27-45],

she

claims

Clem’s

“acts

and/or

omissions

.

.

.

contributed to the injuries and damages sustained by Plaintiffs,

7 

including

but

not

limited

to

the

operation

of

the

pipeline

discharge valve of the pressurized onshore gas pipeline system
that is the subject of this litigation.” [DE 1-1, at 30-31].
Plaintiff

further

alleges

that

Clem’s

“negligent,

grossly

negligent, wanton and/or reckless actions . . . contributed to the
injuries and damages sustained by the Plaintiff,” id. at 32, and
“[t]hat the doctrine of respondeat superior applies to Defendants
for

the

negligent,

reckless,

and/or

intentional

acts

and/or

failure to act of their employees,” such as Clem, id. at 42.
1. FRAUDULENT JOINDER
The TETLP Defendants argue Plaintiff’s request for the Court
to remand this matter to Lincoln Circuit Court must be denied
because “Plaintiff has not stated a colorable claim against Michael
Clem or the Unknown Operators under Kentucky Law.” [DE 14, at 8].
For reasons stated previously herein, Plaintiff’s claims against
the Operator have no bearing on the Court’s determination of
whether to remand this case, so the Court need not consider them.
A non-diverse defendant who is fraudulently joined to an
action “will not defeat removal on diversity grounds.” Coyne, 183
F.3d at 493 (citing Alexander, 13 F.3d 940 at 949). “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.”

Id.

“However, if there is a colorable basis for predicting that a
8 

plaintiff may recover against non-diverse defendants, this Court
must remand the action to state court.” Id.; see also Smith v.
Wyeth Inc., 488 F. Supp. 2d 625, 627 (W.D. Ky. 2007 (quoting
Alexander, 13 F.3d at 949) (“A defendant is fraudulently joined if
there is ‘no reasonable basis for predicting that state law might
impose

liability

on

the

facts

involved.’”).

This

Court

must

“resolve ‘all disputed questions of fact and ambiguities in the
controlling . . . state law in favor of the non removing party.’”
Coyne, 183 F.3d at 493 (quoting Alexander, 13 F.3d at 949). “All
doubts as to the propriety of removal are resolved in favor of
remand.” Id.
Here, the TETLP Defendants argue, “The facts released to date
by the NTSB about the incident, however, demonstrate that the
Improper Defendants could not have proximately caused Plaintiff’s
injuries,” meaning Plaintiff cannot show that Clem’s acts or
omissions amount to a colorable claim of negligence. [DE 14, at
10]. To support this argument, the TETLP Defendants assert that
the Court can take judicial notice of the NTSB’s Preliminary Report
[DE 14-1] and attempt to use “facts” within the NTSB’s Preliminary
Report [DE 14-1] to show that Clem’s acts and omissions cannot
establish proximate cause. Id. Indeed, the Court can, and will,
take judicial notice of the existence of the NTSB’s Preliminary
Report [DE 14-1], but it can only take judicial notice of its
contents, insofar as they “‘prove facts whose accuracy cannot be
9 

reasonably questioned.’” Ashland Inc. v. Oppenheimer & Co., Inc.,
689 F. Supp. 2d 874, 881 (E.D. Ky. 2010) (quoting In re Cardinal
Health, Inc. Sec. Litigs., 426 F. Supp. 2d 688, 712 (S.D. Ohio
2006)). “The court may judicially notice a fact that is not subject
to reasonable dispute because it: (1) is generally known within
the

trial

court’s

territorial

jurisdiction;

or

(2)

can

be

accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.” Fed. R. Evid. 201(b).
Here, the NTSB’s Preliminary Report [DE 14-1] and the TETLP
Defendants’ arguments stemming therefrom are not only reasonably
disputed, but Plaintiff has not even had the opportunity to gather
her own evidence to adequately dispute them because discovery has
not commenced in this action. Moreover, the NTSB’s Preliminary
Report [DE 14-1] is just that: a preliminary report. The NTSB’s
Preliminary Report [DE 14-1] is, therefore, not finalized, as the
investigation

is

still

ongoing,

and

clearly

states,

“The

information in this report is preliminary and will either be
supplemented or corrected during the course of the investigation.”
[DE 14-1, at 2 (emphasis added)]. Accordingly, the Court will not
take judicial notice of the contents of the NTSB’s Preliminary
Report [DE 14-1] because the contents, and their finality, can
reasonably be questioned. Since the TETLP’s arguments rebuking
Plaintiff’s claim against Clem rest on the NTSB’s Preliminary
Report’s [DE 14-1] contents, the Court will find that Plaintiff
10 

has

a

colorable

basis

for

her

claim

against

Clem

and

grant

Plaintiff’s Motion to Remand [DE 11].
II. CONCLUSION
The Court, having considered the matters fully, and being
otherwise sufficiently advised,
IT IS ORDERED as follows:
(1) Defendant NDT Global, LLC’s (“NDT Global”) Motion to
Dismiss [DE 10] is DENIED WITHOUT PREJUDICE;
(2) Plaintiff’s Motion to Remand to State Court [DE 11] is
GRANTED; and
(3) Pursuant to 28 U.S.C. § 1447(c), the Clerk of Court shall
mail a certified copy of this order to the Lincoln Circuit Court
Clerk.
This 16th day of July, 2021.

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