Thompson v. Dakkota Integrated Systems, LLC et al

Filing 9

MEMORANDUM OPINION AND ORDER granting 7 Motion to Remand. This action is REMANDED to the Jefferson Circuit Court. Signed by Senior Judge John G. Heyburn, II on 8/27/2014. cc: Counsel, JCC(JBM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CIVIL ACTION NO. 3:14-CV-323-H

JILL THOMPSON

PLAINTIFF

V.
DAKKOTA INTEGRATED SYSTEMS and
TINA LEWIS

DEFENDANTS

MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff Jill Thompson’s motion to remand her case to Kentucky state
court. Plaintiff filed her action in Jefferson Circuit Court on April 17, 2013, alleging various
state law claims against her former employer, Dakkota Integrated Systems (“Dakkota”) and Tina
Lewis, one of her former supervisors, in connection with her leg injury at work. These claims
include workers’ compensation retaliation, discriminatory and wrongful discharge on the basis of
a disability, failure to accommodate, retaliation, and intentional infliction of emotional distress.
Almost one year later on April 17, 2014, Defendants removed the case to federal court on
the basis of diversity jurisdiction. Plaintiff moves to remand on two grounds: (1) removal was
not timely and (2) there is not complete diversity. In response, Defendants argue that removal
was timely and that Tina Lewis was fraudulently joined in an attempt to avoid federal diversity
jurisdiction. This exchange has exposed some interesting and difficult procedural questions
concerning the timing of Defendants’ removal.
For the reasons stated below, the Court will sustain Plaintiff’s motion to remand.
I.
The relevant facts according to Plaintiff are these.

Plaintiff began working for Dakkota in 2009 as a production worker. In 2013, she
sustained an on-the-job injury to her leg, which substantially limited her ability to work. After
medical treatment, Plaintiff’s physician released her to return to work. She attempted to pursue a
workers’ compensation claim in connection with her leg injury but was terminated before she
could do so.
Subsequent to the injury, Dakkota regarded Plaintiff as disabled. Tina Lewis personally
mocked her about her disability. Lewis called a meeting with her and threatened her job.
Although Dakkota had accommodated other injured employees by giving them a variety of light
duty work assignments, it did not accommodate Plaintiff.
Plaintiff complained to officials at Dakkota about Lewis’s behavior, alleging
discrimination, but no action was taken. After her complaints, Lewis terminated her, telling her
that she was terminated because of her complaints about discrimination and because she was a
union steward.
Plaintiff and Lewis are Kentucky residents. Dakkota is a Michigan corporation.
II.
The Court will first discuss the timeliness of Defendants’ removal.
A defendant may remove a civil case to federal court if the case could have originally
been brought in federal court. 28 U.S.C. § 1441(a). Federal district courts have subject matter
jurisdiction over causes of action arising under federal law, as well as over actions between
parties that are citizens of different states when the amount in controversy exceeds $75,000. 28
U.S.C. §§ 1331, 1332. Generally, a defendant must file a notice of removal within thirty days
after receiving a copy of the initial pleading. 28 U.S.C. § 1446(b). If, however, “the case stated
by the initial pleading is not removable,” the defendant can remove within thirty days of the

2

receipt of a document “from which it may first be ascertained” that the case is removable. Id.
For cases in which removal is sought based on diversity of citizenship, the time to remove is
limited to one year after the commencement of the action, unless the court finds that the plaintiff
has acted in bad faith to prevent removal. 28 U.S.C. § 1146(c).
“The removal statutes are strictly construed so that § 1446(b) commences the thirty-day
period from the date that a defendant has solid and unambiguous information that a case is
removable.” Mozee v. Dugger, 616 F. Supp. 2d 672, 673 (W.D. Ky. 2009) (citing McCraw v.
Lyons, 863 F. Supp. 430, 434 (W.D. Ky. 1994); see Holston v. Carolina Freight Carriers Corp.,
936 F.2d 573, at *3 (6th Cir. 1991); Broaddus v. Walmart Stores E., LP, 3:13-CV-00832-H,
2013 WL 6511922, at *2 (W.D. Ky. Dec. 12, 2013). In Peters v. Lincoln Electric Company, the
Sixth Circuit explained that the purpose of § 1446(b) is to “make sure that a defendant has an
opportunity to assert the congressionally bestowed right to remove upon being given notice in
the course of the case that the right exists.” 285 F.3d 456, 466 (6th Cir. 2002) (quoting Huffman
v. Saul Holdings Ltd. P’ship, 194 F.3d 1072, 1077 (10th Cir. 1999)) (internal quotation marks
omitted). “Unquestionably, information elicited during a deposition may serve that purpose.”
Id. The court further explained:
“Holding that a plaintiff’s deposition testimony may be an ‘other paper’ under §
1446(b) is consistent with the purpose of the removal statute to encourage prompt
resort to federal court . . . .” [. . . W]e hold that if a defendant is able to ascertain
for the first time from the plaintiff’s deposition testimony that a case is
removable, then a notice of removal is properly filed if it is filed within 30 days of
that deposition.
Id. (quoting Addo v. Globe Life & Accident Ins. Co., 230 F.3d 759, 762 (5th Cir. 2000)). The
Sixth Circuit reiterated that the relevant date is the “date of [the] deposition.” Id.

3

A.
Here, Plaintiff argues that Defendants untimely removed more than thirty days after the
initiation of this action. However, Plaintiff did not specify the specific amount of damages she
was seeking in her Complaint, pursuant to Kentucky Rule of Civil Procedure 8.01(2). It was not
clear from the Complaint itself whether the amount in controversy did exceed the $75,000
jurisdictional floor. Not until Plaintiff’s deposition on March 13, 2014 did Defendants clearly
know that her damages could exceed $75,000.
Also at that deposition, Plaintiff’s testimony revealed for the first time that Lewis had
potentially been fraudulently joined to this action to avoid federal diversity jurisdiction. This,
too, was not clear from the Complaint, which “‘unambiguously’ asserted claims against [a] nondiverse defendant[ ].” Walker v. Philip Morris USA, Inc., 443 F. App’x 946, 950 (6th Cir. 2011).
Plaintiff does not contest that Defendants first learned this information during Plaintiff’s
deposition. Therefore, the initial thirty-day limit does not apply here.
B.
The only remaining question is whether Defendants’ April 17 removal complied with the
deadlines set forth in § 1446(b)(3). The date of the deposition was March 13, 2014. The date of
removal was April 17, 2014, over thirty days after the deposition. Defendants’ removal based
upon the discovery of the amount in controversy is therefore untimely under § 28 U.S.C. § 1446.
The analysis under § 1446 is also logically applicable to Defendants’ allegation of
fraudulent joinder. The Sixth Circuit in Walker v. Philip Morris USA explained:
[A defendant] could not divine that the case was removable based only on a
complaint that ‘unambiguously’ asserted claims against non-diverse defendants.
Section 1446(b) allows the filing of a notice of removal within 30 days after
receipt of a document “from which it may first be ascertained” that the case is
removable. Here, Defendants’ basis for asserting fraudulent joinder was not

4

ascertainable until receipt of co-Defendants’ answers. Thus, Defendants’ removal
notice was timely filed [28 days after receipt of those answers].
443 F. App’x at 950 (emphasis in original) (citations omitted).

Under this construction,

Defendants should have removed within thirty days of Plaintiff’s deposition, which put them on
notice of potentially fraudulent joinder.
Because Defendants here did not timely remove the action, the Court need not analyze
whether the fraudulent joinder doctrine applies.
Being otherwise sufficiently advised,
IT IS HEREBY ORDERED that Plaintiff’s motion to remand is SUSTAINED and this
case is REMANDED to Jefferson Circuit Court.

August 27, 2014

cc:

Counsel of Record
Jefferson Circuit Court

5