Wimpsett et al v. FSL Management, Inc. et al
Filing
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MEMORANDUM OPINION AND ORDER by Judge John G. Heyburn, II on 4/10/2013; 5 Motion to Remand is SUSTAINED; action remanded to Jefferson Circuit Court. cc:counsel, Jefferson Circuit Court (TLB)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CIVIL ACTION NO. 3:13-CV-00008-H
TAMMY WIMPSETT, ET AL.,
PLAINTIFFS
V.
FSL MANAGEMENT, LLC, ET AL.,
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiffs, Tammy Wimpsett and Tammy McNear
Willett’s motion to remand. In support of their motion, Plaintiffs claim that this Court lacks original
diversity jurisdiction because Plaintiffs fraudulently joined non-diverse Defendant, Jason Sullivan.
Pursuant to 28 U.S.C. § 1447, and for the reasons set forth below, the Court will sustain Plaintiffs’
motion and this matter will be remanded to Jefferson Circuit Court.
I.
Kentucky residents Wimpsett and Willett filed this action in the Jefferson Circuit Court
against FSL Management, LLC (“FSL Management”), a foreign corporation, and Sullivan, a
Kentucky resident, alleging that they failed to maintain the premises, Angel’s Rock Bar, in a
reasonably safe condition for Plaintiffs’ use as invitees. As a result, Plaintiffs slipped and fell on
a foreign substance, sustaining severe and permanent injuries. FSL Management owned and
operated Angel’s Rock Bar, and Sullivan was its general manager.
II.
A defendant may remove a civil action filed in state court to federal court only when the
action is one in which a federal court could have exercised original jurisdiction. See 28 U.S.C. §§
1441, 1446. Pursuant to 28 U.S.C. § 1332, federal district courts have original diversity jurisdiction
over civil actions when “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).1 For
diversity jurisdiction to properly attach, it is imperative that “all parties on one side of the litigation
are of a different citizenship from all parties to the other side of the litigation.” SHR Ltd. P’ship v.
Braun, 888 F.2d 455, 456 (6th Cir. 1989). The removing party bears the burden of establishing
diversity jurisdiction. Coyne v. Am. Tobacco Co., 183 F.3d 488, 493 (6th Cir. 1999).
Here, Plaintiffs and Defendant Sullivan are citizens of Kentucky, which destroys the
complete diversity requirement of 28 U.S.C. § 1332. However, Defendants assert that Sullivan’s
citizenship should be ignored for diversity purposes since he was fraudulently joined to this action.
Fraudulent joinder is “a judicially created doctrine that provides an exception to the requirement of
complete diversity.” Id. (internal quotation omitted). The doctrine may be invoked by the removing
party where there is no “reasonable basis for predicting that state law might impose liability”
against the non-diverse defendant. Alexander v. Electronic Data Sys. Corp., 13 F.3d 940, 949 (6th
Cir. 1994)(internal quotation omitted); see Smith v. SmithKline Beecham Corp., 2011 WL 2731262,
*5 (E.D. Ky. July 13, 2011)(“If the plaintiff has no hope of recovering against the non-diverse
defendant, the court infers that the only possible reason for the plaintiff’s claim against [that
defendant] was to defeat diversity and prevent removal.”). The Sixth Circuit holds that
1
The parties do not dispute that the amount-in-controversy requirement has been met.
2
[t]o 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. However, if there is a colorable basis for predicting that
a plaintiff may recover against non-diverse defendants, this Court must remand the
action to state court. The district court must resolve all disputed questions of fact
and ambiguities in the controlling . . . state law in favor of the non removing party.
All doubts as to the proprietary of removal are resolved in favor of remand.
Coyne, 183 F.3d at 493 (internal quotations omitted)(emphasis added). “This standard creates a
very high burden for the removing party.” Taco Bell Corp. v. Dairy Farmers of Am., Inc., 727 F.
Supp. 2d 604, 606-07 (W.D. Ky. 2010); see Collins v. Montpelier U.S. Ins. Co., 2011 WL 6150583,
*1 (E.D. Ky. Dec. 12, 2011); Gibson v. Am. Min. Ins. Co., 2008 WL 4602747, *5 (E.D. Ky. Oct. 16,
2008); Parker v. Crete, 914 F. Supp. 156, 159 (E.D. Ky. 1996)(“Claims of fraudulent joinder must
be asserted with particularity and supported by clear and convincing evidence.”).
III.
Bearing in mind this standard, the issue before the Court is whether the Plaintiffs have a
colorable basis under Kentucky law for their claims against Sullivan. The Plaintiffs’ Complaint
asserts claims of premises liability and negligent supervision against both Defendants. Plaintiffs
allege that Defendants FSL Management and Sullivan breached their duty to inspect the premises
owned and operated by FSL Management for dangerous conditions and to eliminate those dangers,
or to warn invitees thereof. Additionally, Plaintiffs claim that both Defendants breached their duty
to “adequately train and supervise persons under their control to inspect, warn, and prevent
dangerous conditions.” ECF No. 1-1.
Defendants maintain that there is no possible scenario in which Plaintiffs could establish a
colorable cause of action against Sullivan. Specifically, Defendants argue that all of Plaintiffs’
claims arise from allegations of premises liability and, as such, Defendant FSL Management, as
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owner and possessor of Angel’s Rock Bar, would be responsible and liable for any resulting
damages. As Defendant Sullivan neither owned nor possessed the premises, he cannot be held liable
for the claims Plaintiffs have asserted.
In Kentucky, “the owner of premises to which the public is invited has a general duty to
exercise ordinary care to keep the premises in a reasonably safe condition.” Rogers v. Prof’l Golfer
Ass’n of Am., 28 S.W.3d 869, 872 (Ky. Ct. App. 2000)(citing McDonald v. Talbott, 447 S.W.2d 84,
86 (Ky. 1969)). In limited circumstances, Kentucky courts have extended this duty to managers of
premises such that Sullivan could be held liable in his capacity as manager of Angel’s Rock Bar.
See Bradford v. Lexington Fayette Urban Cnty. Gov’t, 2005 WL 327177, *5 (Ky. Ct. App. Feb. 11,
2005). In Bradford, the Kentucky Court of Appeals held that Central Parking, in its capacity of
manager of the parking garage, owed a duty to plaintiff, as an invitee to the garage.2 In determining
whether a manager owes legal duties to an invitee, Kentucky courts examine the level of “control
and supervision over the premises” on a spectrum. Bradford, 2005 WL 327177, at *4. At one end,
the manager owes no duty where he or she is just an agent collecting rents and receiving complaints.
See Peterson v. Brune, 273 S.W.2d 278, 285 (Mo. 1954). At the other end, managers can assume
the duties of an owner or possessor of land where they, among other things, consult with the owner
regarding “the management, operation, maintenance, repair and promotion” of the premises.
Bradford, 2005 WL 327177, at *1.
2
In its analysis, the Kentucky Court of Appeals cited the following passage from a Texas case that this Court finds
worth reiterating:
The law places upon the owner occupant of land the duty to use reasonable care to make and keep
the premises safe for the use of person invited to use the premises for business purposes . . . When
the owner puts some other person in control of the premises or a part of them, such person likewise
has the duty to keep the premises under his control in safe condition . . . Where the duty to keep
premises in a safe condition is imposed on a person in control of them, this duty may include the
duty to inspect the premises to discover dangerous conditions.
Smith v. Henger, 226 S.W.2d 425, 431 (Tex. 1950).
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It is unclear where Sullivan falls within this spectrum and there are significant differences
between our case and Bradford. Our case is in its infancy, and the record does not detail the scope
of Sullivan’s responsibilities as manager of Angel’s Rock Bar. Recently, the Eastern District of
Kentucky decided a case based on similar facts where the defendant, an individual gas station
manager, claimed to be fraudulently joined. She argued that there was not a colorable basis under
Kentucky law for liability against her because as manager, she did not owe duties to an invitee akin
to an owner of the premises. Citing Bradford, the court held that the case was
not appropriate for a finding of fraudulent joinder . . . Simply put, accepting the
factual allegations of the complaint as true and construing the complaint in the light
most favorable to the plaintiff, it is not clear that no relief could be granted to the
[plaintiffs].
Smith v. Grubb, No. 6:08CV049(GFVT)(E.D. Ky. June 25, 2008); see also Smith v. Grubb, 2012
WL 2160192, *7 (Ky. Ct. App. June 15, 2012)(“Liability based on the ‘control and supervision’
theory should be only applied after scrutiny of the facts and when there is actual control and
supervision, either by contract or otherwise an assumption of the premises owner’s duties to
maintain the premises in a reasonably safe condition.”).3
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The Court is not unaware of the fact that the Kentucky Court of Appeals, in Smith v. Grubb, ultimately held that
the manager did not have sufficient control or supervision over the gas station to impose liability. 2012 WL
2160192, at *7. However, this finding came after discovery and trial. In fact, after discovery and before trial, the
manager moved for summary judgment arguing that as a local manager of a convenience store that she did not own
or control, as a matter of law, she had no duty to premise invitees; the trial court denied this motion. The Court here,
like the Eastern District of Kentucky Court, does not have the benefit of discovery to decide whether Sullivan had
sufficient control and supervision over Angel Rock’s Bar to impose the legal duties of a premises owner. Again, if
Plaintiffs’ claim against Sullivan has even a “glimmer of hope,” remand is warranted. Murriel-Don Coal Co. v.
Aspen Ins. UK Ltd., 790 F. Supp. 2d 590, 597 (E.D. Ky. 2011)(quoting Hartley v. CSX Transp., Inc., 187 F.3d 422,
426 (4th Cir. 1999); Coyne, 183 F.3d at 493 (“[D]istrict court must resolve all disputed questions of fact and
ambiguities in the controlling . . . state law in favor of the non removing party [and] [a]ll doubts as to the propriety
of removal are resolved in favor of remand.”).
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Plaintiffs’ Complaint sets forth factual allegations against Sullivan that, if true, may impart
such duties to Sullivan.4 The Court finds that Plaintiffs have a colorable basis for a state law claim
against Sullivan, and that Defendants have failed to meet their heavy burden of proving fraudulent
joinder by clear and convincing evidence. See Alexander, 13 F.3d at 949 (“There can be no
fraudulent joinder unless it be clear that there can be no recovery under the law of the state on the
cause alleged . . . .”)(internal quotation omitted). As such, this case lacks complete diversity and
must be remanded.5
IV.
Plaintiffs ask the Court to award it attorney’s fees pursuant to 28 U.S.C. § 1447(c), which
provides that “[a]n order remanding the case may require payment of just costs and actual expenses,
including attorney fees, incurred as a result of the removal.” However, attorney’s fees should be
awarded “only where the removing party lacked an objectively reasonable basis for seeking
removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). Although the Court is
remanding this matter back to state court, Defendants’ arguments were not “objectively
unreasonable.” Accordingly, no fee award is warranted.
Being otherwise sufficiently advised,
IT IS HEREBY ORDERED that Plaintiffs’ Motion to Remand is SUSTAINED, and the
action is REMANDED to Jefferson Circuit Court from which is was removed.
4
For instance, Plaintiffs allege that Sullivan had a duty to eliminate and warn invitees of dangerous conditions,
including foreign substances on the premises; to inspect the premises for dangerous conditions; to follow safety
protocols and take reasonable steps to ensure that the premises were safe; and to adequately train and supervise
employees under his control to inspect, warn and prevent dangerous conditions. See ECF No. 1-1.
5
Pursuant to 28 U.S.C. § 1446(b), if diversity jurisdiction later becomes available because, for whatever reason, the
non-diverse party is dismissed, a defendant may remove the case to federal court if done within one year after the
initiation of the suit.
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April 10, 2013
cc:
Counsel of Record
Jefferson Circuit Court
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