Workman et al vs Texas Eastern Transmission, LP et al

Filing 24

ORDER: DENYTING WITH PREJUDICE 10 Motion to Remand to State Court; DENYING WITHOUT PREJUDICE 9 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Joseph M. Hood on 07/19/2021. (JER)cc: COR

Case: 5:20-cv-00396-JMH Doc #: 24 Filed: 07/19/21 Page: 1 of 11 - Page ID#: 296

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
CHARLES M. WORKMAN, et al.,
Plaintiffs,
v.
TEXAS EASTERN TRANSMISSION,
LP, et al.,
Defendants.

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Civil Case No.
5:20-cv-396-JMH
MEMORANDUM
OPINION AND ORDER

***
This matter comes before the Court on Defendant NDT Global
LLC’s (“NDT Global”) Motion to Dismiss [DE 9] 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, Plaintiffs move the Court to add Michael B. Clem, a
Kentucky citizen, as a Defendant pursuant to Federal Rules of Civil
Procedure 19 and 20 and remand this case to the Lincoln Circuit
Court. [DE 10]. The Court will deny NDT Global’s Motion to Dismiss
[DE 9] without prejudice and deny Plaintiffs’ Motion to Remand to
State Court [DE 10] with prejudice.
I. DISCUSSION
This case arises from an August 1, 2019, pipeline explosion.
Plaintiffs filed their Complaint [DE 1-1, at 6-32] on July 31,
2020, in the Lincoln Circuit Court, against Defendants Texas

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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 Systems
and Services LLC, NDT Global LLC, and Unknown Danville Compressor
Station Operator (“the Operator”). However, on September 24, 2020,
TETLP filed a Notice of Removal [DE 1] in this Court arguing the
Operator was fraudulently joined to destroy diversity. Aside from
Plaintiffs and the Operator, 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

Plaintiffs

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 11; DE 12], that NDT Global’s Motion to
Dismiss [DE 9] was filed prematurely and will, therefore, be denied
without prejudice. See Allen v. Ferguson, 791 F.2d 611, 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.
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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

Plaintiffs’ 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 9-1] 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 Plaintiffs allege. See [DE 9]. However,
as Plaintiffs correctly assert, discovery is needed before NDT
Global’s arguments regarding its connection, or lack thereof, to
the pipeline can be proved or disproved. [DE 11, at 4]; see also
Walker, 443 F. App’x at 956 (“In rejecting Plaintiffs' evidence as
insufficient to overcome the Kentucky Defendants' 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
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shortly after filing.”). While the TETLP Defendants “believe that
complete diversity exists in this case,” they “echo Plaintiffs’
objection that the parties have not had the opportunity to explore
the assertions in NDT Global’s Motion to Dismiss.” [DE 12, at 2].
For the forgoing reasons, the Court will deny NDT Global’s Motion
to Dismiss [DE 9] without prejudice and consider Plaintiffs’ Motion
to Remand [DE 10].
B. MOTION TO REMAND
Plaintiffs argue that the Court should add Michael B. Clem,
a Kentucky citizen, as a Defendant pursuant to Federal Rules of
Civil Procedure 19 and 20 and remand this case to the Lincoln
Circuit Court. 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 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).
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“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)).
Here, Plaintiffs’ description of the Operator is such that
the

individual’s

identity

can

be

reasonably

questioned.

The

Operator may have closed the valve the day of the explosion, but
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it is also possible that other personnel may have closed the valve.
Plaintiffs’ own Complaint [DE 1-1, at 6-32] specifies, “Personnel
at the Danville, Kentucky compressor station, including but not
limited

to

the

Unknown

Danville

Compressor

Station

Operator,

eventually closed the Pipeline discharge valve north of the failure
site, and other personnel later closed a valve elsewhere on the
line.” [DE 1-1, at 14]. The fact that the person who closed the
valve could have been the Operator or other personnel at the
Danville Compressor Station, allegedly 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
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
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one specific day is a resident and citizen of Kentucky. Therefore,
the

Court

will

not

consider

the

Operator

when

making

its

determination on diversity jurisdiction. Instead, the Court turns
its attention to Clem, whose inclusion in this matter would result
in a lack of complete diversity necessitating a remand to Lincoln
Circuit Court.
1. FRAUDULENT JOINDER
The TETLP Defendants argue Plaintiffs’ request for the Court
to add Clem as a Defendant and remand this matter to Lincoln
Circuit Court must be denied because “despite statements to the
contrary in their Motion to Remand, Plaintiffs’ Complaint does not
contain any specific allegations against Michael B. Clem,” and
“Plaintiffs seek to ‘add Michael B. Clem of Stanford Kentucky as
a necessary party . . . to this action’ in a further effort to
destroy diversity.” [DE 15, at 1]. For reasons stated previously
herein, Plaintiffs’ 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.
“Congress allows the federal courts to exercise discretion in
allowing amendments when the amendment would divest the court of
jurisdiction

through

the

joinder

of

additional

parties.”

Brandenburg v. Stanton Health Facilities, L.P., No. 5:14-183-DCR,
2014 WL 4956282, at *2 (E.D. Ky. Oct. 2, 2014) (citing 28 U.S.C.
§ 1447(e) (“If after removal the plaintiff seeks to join additional
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defendants

whose

joinder

would

destroy

subject

matter

jurisdiction, the court may deny joinder, or permit joinder and
remand the action to the State court.”); Collins ex rel Collins v.
Nat'l General Ins. Co., No. 10–13344, 2010 WL 4259949 (E.D. Mich.
Oct. 25, 2010)).
The Court will consider the following Hengsgens factors to
determine whether joinder is appropriate:
(i) the extent to which the purpose of the amendment is
to defeat federal jurisdiction; (ii) whether the
plaintiff has been dilatory in seeking amendment; (iii)
whether the plaintiff will be significantly injured if
amendment is not allowed; and (iv) any other equitable
factors.
Brandenburg, 2014 WL 4956282, at *2 (quoting Hensgens v. Deere &
Co., 833 F.2d 1179, 1182 (5th Cir. 1987)). “The first factor is
often of ‘paramount importance’ because the ultimate question is
whether the primary purpose of the proposed joinder is to divest
the federal forum of jurisdiction.” Id. (citations omitted).
Despite the first factor being of “paramount importance,”
Plaintiffs do not treat it as such, as exhibited by Plaintiffs’
assertion that they “have not yet had the opportunity to add Mr.
Clem as a defendant to the suit having only just learned of his
identity’ and their request to add him as a Defendant under Rules
19 and 20, which conflict with the following untrue statement made
by Plaintiffs:
[T]his Court also should remand the above-styled
Complaint to the Lincoln Circuit Court for adjudication.
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The Plaintiff has a colorable claim of negligence
against Defendant, Michael B. Clem, who is a resident of
Lincoln County, Kentucky. The Plaintiff pled Defendant,
Michael B. Clem committed “negligent, grossly negligent,
wanton and/or reckless actions of said Defendant(s) that
contributed to the injuries and damages sustained by the
Plaintiff herein.”
[DE 10-1, at 2, 4 (emphasis added)]. Plaintiffs then continue to
discuss what they pleaded against Clem. See [DE 10-1]. However,
Plaintiffs did not actually plead anything against Clem because
they neither included him in their Complaint [DE 1-1, at 6-32] nor
filed an amended complaint adding him as a Defendant. Indeed, the
purported purpose of Plaintiffs’ Motion to Remand [DE 10] is to
add Clem as a Defendant, but based on Plaintiffs’ Motion to Remand
[DE 10], it appears the only reason Plaintiffs seek to add Clem is
to defeat diversity jurisdiction.
Plaintiffs are unclear about whether Clem was allegedly the
previously unknown Operator found in the Complaint [DE 1-1, at 632], as they claim [DE 10-1, at 2-3], which they attempt to clear
up in their Reply [DE 16], which also includes an attached proposed
amended

complaint

to

correct

what

they

refer

to

as

“easily

correctible error” in not attaching it to their Motion to Remand
[DE 10]. Plaintiffs’ attempts at correcting errors aside, the Court
is more concerned with Plaintiffs previously mentioned untrue
statements found in their Motion to Remand [DE 10], which the fail
to explain in their Reply [DE 16]. However, the Court does not
need

an

explanation

because

it
9 

is

painfully

obvious

that

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Plaintiffs’ counsel has copied and pasted language from another
case involving similar claims against Defendants where Clem was
included as a defendant in either a complaint or an amended
complaint. Such carelessness is both unprofessional and a waste of
Defendants and the Court’s time. It is also a disservice to the
Plaintiffs themselves. If Plaintiffs’ counsel files anything else
before this Court in the present case or any other case, counsel
shall ensure the accuracy of their filings and their applicability
to the matter at hand. Failure to do so may result in the Court
ordering counsel to show cause why they should not be sanctioned.
Considering

Plaintiffs’

egregious

error,

the

Court

will

not

consider the remaining factors to determine whether joinder is
appropriate and will instead use its discretion to deny Plaintiffs’
request to join Clem as a Defendant and deny Plaintiffs’ Motion to
Remand [DE 10-1] in its entirety because complete diversity exists.
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 Motion to Dismiss [DE 9] is
DENIED WITHOUT PREJUDICE; and
(2) Plaintiffs’ Motion to Remand to State Court [DE 10] is
DENIED WITH PREJUDICE.
This 19th day of July, 2021.
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