And v. Great Wolf Lodge of Kan. City, LLC

• Decision Date: 18 November 2016
• Docket Number: Case No. 16-2297
• Parties: SCOTT CULBERTSON and, ROBIN CULBERTSON Plaintiffs, v. GREAT WOLF LODGE OF KANSAS CITY, LLC, et al., Defendants.
• Court: U.S. District Court — District of Kansas

SCOTT CULBERTSON and, ROBIN CULBERTSON Plaintiffs, v. GREAT WOLF LODGE OF KANSAS CITY, LLC, et al., Defendants.

Case No. 16-2297

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

November 18, 2016

MEMORANDUM AND ORDER

Plaintiffs originally filed this action in the District Court of Wyandotte County, in Kansas City, Kansas seeking redress for plaintiffs' injuries, damages and losses suffered by plaintiffs when plaintiff Scott Culbertson was allegedly injured at a Great Wolf Lodge. (Doc. 1, at 1.) Great Wolf Lodge is a resort featuring a hotel with an indoor waterpark located in Kansas City, Kansas. The waterpark contains waterslides and tubes that guests can slide down.

After plaintiffs filed suit, defendant Great Wolf Lodge of Kansas City, LLC ("Great Wolf Lodge") removed the action to this court pursuant to 28 U.S.C. §§ 1441 and 1446. Defendant's removal of this action is based upon diversity of citizenship pursuant to 28 U.S.C. 1332. (Id. at 2-3.) Defendant argues that defendant Matt Lawrence was fraudulently joined and his presence in this case can be disregarded. (Id. at 4-5.) However, plaintiffs filed a Motion to Remand, and claim that defendant Lawrence was not fraudulently joined and this case cannot be removed to federal court under 28 U.S.C. § 1441(b)(2). (Doc. 3, at 1-3.) Defendant Lawrence also filed a motion to dismiss alleging that plaintiffs' petition states no cause of action against him. (Doc. 4.)

I. Factual Background

Plaintiff Scott Culbertson was injured on the Triple Twist waterslide at the Great Wolf Lodge resort located in Kansas City on April 20, 2014. (Doc. 1-1, 5-6.) As plaintiff Scott Culbertson and his cousin were sliding down the Triple Twist, the raft they were riding on flew out from under them and plaintiff Scott Culbertson hit his head on the surface of the Triple Twist. (Id. at 6.)

Plaintiffs allege that the Triple Twist has special lighting effects that are harmful to people who are sensitive to light and its manufactured conditions are not reasonably safe for customers of defendants' business. Plaintiffs claim that as a direct and proximate result of defendants' negligence, plaintiff Scott Culbertson struck his head resulting in severe and permanent injuries both physical and mental in nature. (Id. at 7.) Plaintiffs claim that plaintiff Scott Culbertson has sustained past medical expenses and loss of income. He also faces future medical expenses and his future earning capacity has been reduced. Plaintiffs present claims of negligence, premises liability, res ipsa loquitur, strict product liability, and loss of consortium against defendants. (Doc. 1-1.) Plaintiffs seek damages in excess of $75,000. (Id. at 25.)

II. Legal Standards

A defendant may remove to federal court "any civil action brought in a State court of which the district courts of the United States have original jurisdiction." 28 U.S.C. § 1441(a). "Only state-court actions that originally could have been filed in federal court may be removed to federal court by the defendant." Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). Federal courts have original jurisdiction over civil actions where the amount in controversy exceeds $75,000 and each defendant is a resident of a different state than each plaintiff. 28 U.S.C. § 1332(a); Caterpillar, Inc. v. Lewis, 519 U.S. 61, 68 (1996). However, "[r]emoval jurisdiction over diversity cases is more limited than jurisdiction over diversity cases originally brought in federal court because removal based on diversityis available only if none of the defendants is a citizen of the state in which the action is brought." Wolf Creek Nuclear Operating Corp. v. Framatome ANP, Inc., 416 F. Supp. 2d 1081, 1085 (D. Kan. 2006); see also 28 U.S.C. § 1441(b) (providing that an action based on anything other than original jurisdiction is only removable "if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.").

Because this is a court of limited jurisdiction, the court must refrain from exercising jurisdiction unless it is certain that such jurisdiction has been granted by Congress. See Adams v. Reliance Standard Life Ins. Co., 225 F.3d 1179, 1182 (10th Cir. 2000) ("In light of the limited subject matter jurisdiction granted to the federal courts by Congress, we have a duty to satisfy ourselves that jurisdiction is appropriate."). The removing defendant carries the burden of demonstrating that removal was proper and that the federal court has original jurisdiction. See McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936). Federal removal jurisdiction is statutory in nature, and the governing statutes are to be strictly construed. Shamrock Oil & Gas v. Sheets, 313 U.S. 100, 108-09 (1941); Merrell Dow Pharm., Inc. v. Thompson, 478 U.S. 804, 814 (1986). It is well-settled that the presumption is against removal jurisdiction. Coca-Cola Bottling of Emporia, Inc. v. S. Beach Beverage Co., 198 F. Supp. 2d 1280, 1285 (D. Kan. 2002). Doubtful cases must be resolved in favor of remand. Fajen v. Found. Reserve Ins. Co., 683 F.2d 331, 333 (10th Cir. 1982).

III. Analysis

To invoke diversity jurisdiction, "a party must show that complete diversity of citizenship exists between the adverse parties and that the amount in controversy exceeds $75,000." Dutcher v. Matheson, 733 F.3d 980, 987 (10th Cir. 2013) (quoting Symes v. Harris, 472 F.3d 754, 758 (10th Cir. 2006)). Complete diversity is not met when any of the plaintiffs has the same residency as even a single defendant. Id.

Plaintiffs are citizens and residents of Stanton, Iowa. (Doc. 1-1, at 2.) Defendant Great Wolf Resorts, Inc. ("Great Wolf Resorts") is the parent company of defendant and a corporation organized under the laws of Delaware with its principal place of business in Wisconsin. (Doc. 1, at 3.) Defendant is a limited liability company established under the laws of Delaware with its principal place of business in Kansas. However, defendant is a citizen of Wisconsin because its sole member, GWR Operating Partnership, LLP, is a citizen of Wisconsin. See Siloam Springs Hotel, L.L.C. v. Century Sur. Co., 781 F.3d 1233, 1237-38 (10th Cir. 2015) (noting that Supreme Court precedent makes clear that in determining the citizenship of an unincorporated association, such as an LLC, for purposes of diversity, federal courts must include all the entities' members). Defendant ProSlide Technology, Inc. is a corporation organized under the laws of Canada with its principal place of business in Ontario Canada. (Id. at 4.) Defendant Lawrence is a citizen and resident of Kansas.

The citizenships and residencies of each party are not in dispute. Plaintiffs are residents of Iowa. (Doc. 1-1, at 2.) Defendants are residents of Wisconsin, Canada, Delaware, Kansas or currently unknown. (Id. at 2-4.) No plaintiff resides or has citizenship in Wisconsin, Canada, Delaware or Kansas. Therefore, it appears that all adverse parties involved have complete diversity of citizenship. Plaintiffs seek damages in excess of $75,000 and the requirements for jurisdiction under 28 U.S.C. § 1332(a) are met. (Id. at 25.)

A. Forum defendant rule

For proper removal of a civil action to federal court, none of the parties in interest properly joined and served as defendants can be a citizen of the state in which the action is brought, here Kansas. See 28 U.S.C. § 1441(b)(2). "A civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." Id.This is known as the "forum defendant rule" and provides a separate requirement for proper removal. Durbin v. Yellow Transp., 624 F. Supp. 2d 1303, 1304 (D. Kan. 2009).

Defendant Lawrence is a resident of Kansas and the action was brought in Kansas. Removal is not allowed under 28 U.S.C. § 1441(b)(2). However, defendant Great Wolf Lodge claims that defendant Lawrence was fraudulently joined and his presence in this case can be disregarded. (Doc. 1, at 4-5.)

Fraudulently joined parties should be ignored for the purposes of assessing whether removal is permitted. See Dutcher, 733 F.3d at 987-88. To establish fraudulent joinder, the removing party must demonstrate either: "(1) actual fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action against the non-diverse party in state court." Id. at 988. Defendant is seeking removal and bears a heavy burden of proving fraudulent joinder, and all factual and legal issues must be resolved in plaintiffs' favor. Id.

Plaintiffs identify defendant Lawrence as "Defendant Supervisors" in their petition. (Doc. 1-1, at 4.) They name Defendant Supervisors in their premises liability, res ipsa loquitur, negligence, and loss of consortium claims. (Doc. 1-1, at 11, 14, 16, 25). Plaintiffs claim that Defendant Supervisors had control over or the right to control the Triple Twist at the waterpark and owed a duty of reasonable care to maintain the waterpark in a reasonably safe condition. (Id. at 12.) They allege that Defendant Supervisors were the supervisors responsible for the safe operation of the waterpark. Plaintiffs claim that Defendant Supervisors knew or should have known that the Triple Twist was unsafe such that it created an unreasonable risk of harm to customers and that he, she, or they failed to warn or take action to protect plaintiff Scott Culbertson from hitting his head while riding the Triple Twist. (Id. at 13.)

Defendant objects to plaintiffs' identification of defendant Lawrence generally as "Defendant Supervisors" along with other "John Doe Supervisors" in their pleadings. (Doc. 6, at 3.) Defendantargues that plaintiffs failed to raise a specific claim against defendant Lawrence personally or allege any facts indicating involvement by defendant...