Frankum v. Active Day KY, Inc. et al

Filing 12

MEMORANDUM OPINION & ORDER denying 6 Motion to Remand. Signed by Chief Judge Joseph H. McKinley, Jr on 5/6/2015. cc: Counsel(JBM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:15CV-00131-JHM
ANNA FRANKUM

PLAINTIFF

V.
ACTIVE DAY KY, INC., ET AL.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter is before the Court on a motion by Plaintiff, Anna Frankum, to remand this
action to state court pursuant to 28 U.S.C. § 1447(c) for lack of subject matter jurisdiction. [DN
6]. Fully briefed, this matter is ripe for decision.
I. BACKGROUND
Plaintiff, Anna Frankum, filed an action on January 15, 2015, in Jefferson Circuit Court
asserting a negligence claim against Active Day KY, Inc., d/b/a Active Day Hikes Point, and
Friendly Harbor Services, Inc., d/b/a Active Day Kentucky Transportation. On February 6,
2015, Defendants, Active Day KY and Friendly Harbor Services, removed this action to this
Court based on diversity jurisdiction. In their notice of removal, Defendants allege that Active
Day KY is a citizen of both Delaware and Pennsylvania and that Friendly Harbor Services is a
citizen of both Massachusetts and Pennsylvania. On February 18, 2015, Plaintiff moved to
remand the action to the Jefferson Circuit Court arguing that Friendly Harbor Services is actually
a resident of Kentucky with a principal place of business of Louisville, Kentucky, and therefore,
diversity of citizenship under 28 U.S.C. § 1332(a) does not exist.
II. STANDARD OF REVIEW
As a general matter, a civil case brought in a state court may be removed by a defendant

to federal court if it could have been brought there originally. 28 U.S.C. § 1441(a). In order for a
defendant to remove a case to federal court based upon diversity jurisdiction, there must be
complete diversity of citizenship both at the time the case is commenced and at the time that the
notice of removal is filed. See Jerome–Duncan, Inc. v. Auto–By–Tel, L.L.C., 176 F.3d 904, 907
(6th Cir. 1999); 28 U.S.C. § 1332(a). “The party invoking federal court jurisdiction -- in this
case, [Defendants], as removing party -- has the burden of demonstrating by competent proof
that the complete-diversity and amount-in-controversy requirements are met.” Cleveland
Housing Renewal Project v. Deutsche Bank Trust Co., 621 F.3d 554, 559 (6th Cir. 2010).
III. DISCUSSION
Plaintiff filed this motion for an order of remand claiming this Court does not have
jurisdiction over this cause of action. The federal diversity jurisdiction statute states that “a
corporation shall be deemed to be a citizen of every State . . . by which it has been incorporated
and of the State . . . where it has its principal place of business.” 28 U.S.C. § 1332(c)(1).
Plaintiff does not contest the amount in controversy. And while Plaintiff stipulates that Active
Day KY is a citizen of another state, Plaintiff contends that Friendly Harbor Services, Inc., d/b/a
Active Day Kentucky Transportation, is a citizen of Kentucky because its operations in
Kentucky have a mailing address of Louisville, Kentucky. Accordingly, at issue is whether
Defendant, Friendly Harbor Services, Inc., is a diverse party.
Craig O. Mehnert, Chief Operating Officer and Director of Friendly Harbor Services,
avers that Friendly Harbor is a foreign corporation incorporated under the laws of the
Commonwealth of Massachusetts and has its principal place of business in Trevose,
Pennsylvania. Mehnert further states that Friendly Harbor Services does business in Kentucky
under the assumed name of Active Day Kentucky Transportation. Mehnert represents that for its

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operations in Kentucky, Friendly Harbor Services has a mailing address in Louisville, Kentucky
and that Active Day Kentucky Transportation is an assumed name and is not a separate business
entity from Friendly Harbor Services. (Craig Mehnert Aff. ¶¶ 7-10.) Defendant submits the
Annual Report of Friendly Harbor Services as further support of its place of incorporation and its
principal place of business. (Annual Report of Friendly Harbor Services).
After a review of the affidavit of Craig Mehnert and the Annual Report of Friendly
Harbor Services, the Court finds that Defendants have satisfied their burden of demonstrating
that there is complete diversity of citizenship between the parties. Plaintiff is a citizen of
Kentucky. Active Day KY is a citizen of both Delaware and Pennsylvania, and Friendly Harbor
Services is a citizen of both Massachusetts and Pennsylvania. Accordingly, the Court has subject
matter jurisdiction over Plaintiff’s action, and the motion to remand is denied.
IV. CONCLUSION
For the reasons set forth above, IT IS HEREBY ORDERED that the motion by
Plaintiff, Anna Frankum, to remand this action to state court pursuant to 28 U.S.C. § 1447(c) for
lack of subject matter jurisdiction [DN 6] is DENIED.

cc: counsel of record

May 6, 2015

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