Combs et al v. ICG Hazard, LLC et al
Filing
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ORDER ADOPTING REPORT AND RECOMMENDATIONS: IT IS ORDERED as follows: (1) The Magistrate Judge's Report and Recommendation (Doc. # 23 ) is herebyADOPTED as the Opinion of the Court; (2) Plaintiffs' Motion to Remand and for an Award of A ttorney's Fees and Costs (Doc.# 8 ) is hereby GRANTED IN PART and DENIED IN PART. Plaintiffs' Motion to Remand is hereby GRANTED, and Plaintiffs' Motion for an Award of Attorney's Fees and Costs is hereby DENIED; and (3) This matter is hereby REMANDED to the Perry Circuit Court and STRICKEN from the Court's active docket. Signed by Judge David L. Bunning on 03/21/2013.(KJA)cc: COR, London Diary
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
AT LONDON
CIVIL ACTION NO. 12-230-DLB-HAI
JACK COMBS and ROSEMARY COMBS
vs.
PLAINTIFFS
ORDER ADOPTING REPORT & RECOMMENDATION
ICG HAZARD, LLC, et al.
DEFENDANTS
*** *** *** ***
This matter is before the Court upon the Report and Recommendation (“R&R”) of
the United States Magistrate Judge wherein he recommends that Plaintiffs’ Motion to
Remand be granted and Plaintiffs’ Motion for an Award of Attorney’s Fees and Costs be
denied (Doc. # 23). No objections to the Magistrate Judge’s R&R have been filed, and the
time do so has now expired. Thus, the R&R is ripe for this Court’s consideration.
Plaintiffs Jack and Rosemary Combs, citizens of Kentucky, originally filed this action
in Perry Circuit Court on October 17, 2012 against ICG Hazard, LLC, Arch Coal, Inc., and
Fred Fields. Defendants subsequently removed this suit to this Court on November 20,
2012 pursuant to 28 U.S.C. §§ 1332, 1441, and 1446.
In their notice of removal,
Defendants contend that this Court has diversity jurisdiction over the controversy pursuant
to 28 U.S.C. § 1332 because the properly joined Defendants are diverse from Plaintiffs,
and the amount in controversy exceeds $75,000.00. According to Defendants, ICG
Hazard, LLC and Arch Coal are properly joined parties, and each are residents of Delaware
and Missouri. Defendants acknowledge that Jack Fields is a resident of Kentucky; however
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they assert that he was fraudulently joined and his citizenship should, therefore, be
disregarded for diversity jurisdiction purposes.
Finally, Defendants contend the
jurisdictional amount is satisfied when the Court considers the sum of the compensatory
and punitive damages sought, along with the costs Defendants would sustain if injunctive
relief were granted.
On December 17, 2012, Plaintiffs filed a Motion to Remand to Perry Circuit Court,
along with a Motion for Attorney’s Fees and Costs to compensate Plaintiffs for the “wrongful
removal of this case.” (Doc. # 8). Plaintiffs assert that Jack Fields is properly joined as a
defendant in this matter, and that his Kentucky citizenship destroys diversity. According
to Plaintiffs, they have pled viable state-law claims for assault, battery, trespass, strict
liability, negligence, and vicarious liability against Fields. Additionally, Plaintiffs argue that
Defendants failed to establish the amount in controversy requirement by a preponderance
of the evidence.
On February 11, 2013, this Court referred Plaintiffs’ Motion to Remand and Motion
for Attorney’s Fees and Costs to Magistrate Judge Hanly A. Ingram pursuant to 28 U.S.C.
§ 636(b)(1)(A) for review and preparation of an R&R. After careful consideration of the
parties’ respective arguments, the Magistrate Judge issued his R&R on March 1, 2013,
concluding that Fields was not fraudulently joined because the Plaintiffs pled colorable
claims of assault, battery, trespass and strict liability against Fields. Additionally, the
Magistrate Judge found that Defendants have failed to establish the jurisdictional amountin-controversy requirement by a preponderance of the evidence.
As a result, the
Magistrate Judge recommends that this Court remand this matter to Perry Circuit Court.
However, the Magistrate Judge also recommends that Plaintiffs’ Motion for Attorney’s Fees
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be denied as he could not say that Defendants’ removal of this matter lacked an objectively
reasonable basis.
Having reviewed the Magistrate Judge’s thorough and well-reasoned R&R, the Court
concurs in the recommended disposition of Plaintiffs’ motions.
Plaintiffs have pled
colorable claims of assault, battery, trespass and strict liability against Defendant Fields
under Rule 8.01, Kentucky Rules of Civil Procedure. As a result, Defendant Fields was not
fraudulently joined, and his citizenship must therefore be considered for purposes of
determining whether the Court has diversity jurisdiction. Because Plaintiffs and Defendant
Fields are each citizens of Kentucky, there is not complete diversity between the parties.
Additionally, as the Magistrate Judge concluded, Defendants have failed to establish the
amount-in-controversy requirement by a preponderance of the evidence. Therefore, the
Court cannot exercise subject-matter jurisdiction over this case under 28 U.S.C. § 1332.
Finally, although the Court concludes that this case was improperly removed, the Court
agrees that Defendants removed the case in good faith and with an objectively reasonable
basis. Under these circumstances, Defendants are not responsible for Plaintiffs’ attorneys
fees and costs. Accordingly,
I T IS ORDERED as follows:
(1)
The Magistrate Judge’s Report and Recommendation (Doc. # 23) is hereby
ADOPTED as the Opinion of the Court;
(2)
Plaintiffs’ Motion to Remand and for an Award of Attorney’s Fees and Costs
(Doc.# 8) is hereby GRANTED IN PART and DENIED IN PART. Plaintiffs’ Motion to
Remand is hereby GRANTED, and Plaintiffs’ Motion for an Award of Attorney’s Fees and
Costs is hereby DENIED; and
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(3)
This matter is hereby REMANDED to the Perry Circuit Court and STRICKEN
from the Court’s active docket.
This 21st day of March, 2013.
G:\DATA\ORDERS\London\2012\12-230 Order adopting R&R and remanding to Perry Circuit Court.wpd
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