               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 11a0739n.06

                                          No. 09-5318

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


JOHN WALKER, Individually and as                                                FILED
Administrator for estate of Ann-Ashia Maddox;                               Oct 31, 2011
GREG MCKINNEY, Individually and as
Administrator for estate of Deashia McKinney;                         LEONARD GREEN, Clerk
estate of Nakiya McKinney; JANET TONGUE, as
Administratrix for estate of Sherry Lynn Maddox;
estate of Crystal Maddox; estate of Demita Wise;
PATRICK NETHERTON, as Guardian and Next
Friend of Y.M. and as Administrator for estate of       ON APPEAL FROM THE UNITED
Heaven Maddox; estate of Earth Maddox; CARLA            STATES DISTRICT COURT FOR THE
SPARROW, Individually and as Administrator for          WESTERN DISTRICT OF KENTUCKY
estate of Dariyel Maddox; ROGER HARDIN, JR.,
as Guardian and Next Friend of N.H.;
ELIZABETH MADDOX; DARYL MADDOX;                                     OPINION
MICHAEL TAYLOR, Individually; PATRICK
NETHERTON, as Guardian and Next Friend of
Y.M. and as Administrator for estate of Heaven
Maddox; estate of Earth Maddox,

       Plaintiffs - Appellants,

v.

PHILIP MORRIS USA, INC., GAIL BROTHERS;
MICKEY BROTHERS; ALTRIA GROUP, INC.;
PHILIP MORRIS INTERNATIONAL, INC.;
NATHAN JOHNSON; JACKSON FURNITURE
INDUSTRIES, INC.,

      Defendants - Appellees.
______________________________

BEFORE: KETHLEDGE and WHITE, Circuit Judges, and BECKWITH, District Judge.*

       *
         The Honorable Sandra S. Beckwith, Senior United States District Judge for the Southern
District of Ohio, sitting by designation.
        HELENE N. WHITE, Circuit Judge. Plaintiffs, the surviving relatives and administrators

of the estates of the victims of a house fire, appeal the district-court orders denying their motion to

remand this diversity case to the Kentucky state court and granting Defendants’ 12(b)(6) motions

to dismiss. Because we conclude the district court erred in denying the motion to remand, we

VACATE the district court’s orders of dismissal, and remand for entry of an order remanding the

case to state court.

                                        I. BACKGROUND

        A. Factual Background

        On February 6, 2007, at approximately 3:51 a.m., a fire broke out at 235 Guthrie Drive, a

residence in Bardstown, Kentucky. Daryl Maddox, who lived at the premises, was the first to notice

the fire; although intoxicated, he tried to rouse the other inhabitants, then fled outside to seek help.

Maddox alerted the neighbors, who tried unsuccessfully to enter the burning house and rescue those

remaining inside. By the time the blaze was brought under control, ten persons – four adults and six

children – were dead.

        The official report lists the cause of the fire as unknown, but suggests that the most likely

source of ignition was “smoking material.” Investigators traced the origin of the fire to an area in

the living room where Johnny Litsey, a deceased tenant, usually sat in an upholstered chair. Friends

and family described Litsey as a moderate to heavy smoker, who spent most of his days (and many

nights) sitting in “his” chair. No one who responded to the fire recalled hearing a smoke detector

sounding an alarm. An investigative report states that Maddox told investigators that there was a

smoke detector in the hallway, but he “tested it and it did not work.”




                                                   2
       Defendant Nathan Johnson owned the Guthrie Drive property and rented it to Sherry

Maddox, a victim of the fire. Johnson hired his cousin Mickey Brothers and Brothers’s wife, Gail,

to maintain the property and perform all repairs. According to service records, the Brothers tested

the smoke and carbon monoxide detector in January 2006, while performing other maintenance

work, but it had not been checked since.

       Plaintiffs commenced this action in the Circuit Court for Nelson County, Kentucky, alleging

negligence on the part of Johnson and the Brothers,1 and product-liability claims against the cigarette

manufacturer, Philip Morris USA, its parent entities, Philip Morris International, Inc., and Altria

Group, Inc. (together, “Philip Morris”), and the manufacturer of the chair that initially caught fire,

Jackson Furniture Industries, Inc. (“Jackson Furniture”).2 Plaintiffs claim the fire could have been

prevented if the Kentucky Defendants had maintained a working smoke detector in the rental home,

and if Philip Morris and Jackson Furniture used safer designs for their products. In particular,

Plaintiffs contend that the fire would not have occurred if Johnny Litsey had been smoking “reduced

ignition propensity” cigarettes (“RIPC”), which are less likely than regular cigarettes to cause

smoking fires,3 and that the existence of a safer alternative cigarette design rendered Philip Morris’s


       1
       Nathan Johnson and Gail and Mickey Brothers are referred to collectively as “the Kentucky
Defendants,” or “the non-diverse Defendants.”
       2
        Philip Morris USA and its parent company, Altria Group, Inc., are Virginia corporations
with their principal place of business in New York. Philip Morris International, Inc. is a Delaware
corporation with its principal place of business in New York. Jackson Furniture is a Tennessee
corporation with its principal place of business in Tennessee.
       3
         At the time of the fire, RIPC cigarettes were not available for purchase in Kentucky.
Plaintiffs assert that Philip Morris began selling RIPC cigarettes in 2004, in New York and Canada.
Philip Morris states that, at the time of the fire, New York, Vermont and California were the only
states that required cigarettes sold in those states to meet certain standards for reduced ignition
propensity. On April 1, 2008, the Kentucky legislature adopted a similar law, effectively banning

                                                  3
regular cigarettes unreasonably dangerous. Plaintiffs also allege that Jackson Furniture should have

used fire-retardant products in manufacturing Litsey’s upholstered chair.

       B. Procedural History

       Philip Morris was served the complaint on February 4, 2008. On March 14 and 24, 2008,

Philip Morris received the Brothers’ and Johnson’s Answers denying Plaintiffs’ allegations. On

April 9, 2008, Philip Morris received copies of three signed affidavits in which Nathan Johnson, Gail

Brothers and Mickey Brothers denied assuming a duty to maintain or inspect the smoke detector.

The Brothers’ affidavits state that Mickey Brothers checked the smoke detector on one occasion

when asked to do so by Sherry Maddox, and that there were no other requests to check or service the

smoke detector made by Maddox or any other resident. Mickey Brothers’ affidavit adds that on that

one occasion, he “told Sherry Maddox to check [the smoke detector] in the future whenever she

changed the time on her clocks in the spring and the fall.”

       On April 11, 2008, with the support of all Defendants, Philip Morris removed the case to the

Federal District Court for the Western District of Kentucky pursuant to 28 U.S.C. § 1446(b). Philip

Morris argued that the Kentucky Defendants were fraudulently joined, and that, in their absence, the

complete-diversity requirement of 28 U.S.C. § 1332(a)(1) was met. On April 17, Philip Morris

moved to dismiss Plaintiffs’ claims. On May 1, 2008, Plaintiffs filed a motion to remand, arguing

that Philip Morris’s removal notice was untimely and that the district court lacked subject-matter

jurisdiction over the case because the joinder of the non-diverse Defendants was not fraudulent.

Plaintiffs supported their motion to remand with Daryl Maddox’s affidavit stating that he and his

mother “relied on the maintenance people overseeing the property to test and service the smoke


the sale of non-RCIP cigarettes. See Ky. Rev. Stat. §§ 227.770-784.

                                                 4
detector. We believed the maintenance people tested the smoke detector when they checked the

furnace filters and serviced other items in the home.”

        The district court denied Plaintiffs’ motion to remand on August 28, 2008.

                                          II. DISCUSSION

        A. Removal/Remand Issue

        Plaintiffs contend that the district court erred in denying their motion to remand because: (1)

the notice of removal was untimely; and (2) the Kentucky Defendants were properly joined in the

lawsuit.

                1. Whether Philip Morris’s Removal Notice was Timely Filed

        Whether there is a defect in the removal procedure is a purely legal question that we review

de novo. Loftis v. United Parcel Serv., Inc., 342 F.3d 509, 514 (6th Cir. 2003). Plaintiffs contend

that Philip Morris’s removal to federal district court was untimely. Philip Morris filed its notice of

removal 65 days after being served with Plaintiffs’ Complaint, and 28 days after receiving the

Brothers’ Answer to the Complaint.

        In relevant part, the federal removal statute provides that a notice of removal “shall be filed

within thirty days after the receipt by the defendant . . . of a copy of the initial pleading . . . .” 28

U.S.C. § 1446(b). If, however, “the case stated by the initial pleading is not removable, a notice of

removal may be filed within thirty days after receipt by the defendant . . . of a copy of an amended

pleading, motion, order or other paper from which it may first be ascertained that the case is one

which is or has become removable . . . .” Id.




                                                   5
       Plaintiffs argue that their Complaint contained unambiguous information concerning the

nature of their state-law claims against the Kentucky Defendants, and therefore Philip Morris had

no excuse not to remove within 30 days of service. We disagree.

       Philip Morris 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. Id. (emphasis added); see also Holston v. Carolina Freight

Carriers Corp., 936 F.2d 573 (6th Cir. 1991) (unpublished table case) (“§ 1446(b) starts the thirty-

day period running from the date that a defendant has solid and unambiguous information that the

case is removable.”). Here, Defendants’ basis for asserting fraudulent joinder was not ascertainable

until receipt of co-Defendants’ answers. Thus, Defendants’ removal notice was timely filed.

               2. Whether the District Court Erred in Denying Plaintiffs’ Motion to Remand

       a. The District Court’s Decision.

       As to the Kentucky Defendants, the issue central to liability is whether they voluntarily

assumed a duty of care to maintain and repair a smoke detector that failed to function on the night

of the fire. The parties presented the following evidence on this issue:

1.     According to the property’s service records, the Kentucky Defendants inspected the smoke
       detector in January 2006, while performing other maintenance work. There is no evidence
       of any subsequent inspection.

2.     By affidavit, the Kentucky Defendants claim that they told Sherry Maddox, the main tenant,
       to check the smoke detector twice a year. Sherry Maddox died in the fire.

3.     According to a report, Daryl Maddox told fire investigators that he tested the smoke detector
       some time before the fire and that it did not work.



                                                 6
4.     By affidavit, Daryl Maddox claims that Plaintiffs relied on the Kentucky Defendants to test
       and service the smoke detector, and believed that the Kentucky Defendants did so when they
       checked the furnace filters and serviced other items in the home.

Upon reviewing this evidence, the district court held:

       [I]n light of the evidence submitted by Phillip [sic] Morris USA in support of
       removal, Plaintiffs have failed to present any countervailing evidence that goes to the
       issue of whether the non-diverse Defendants assumed the duty to test the smoke
       detector. Although Plaintiffs replied to Phillip [sic] Morris USA’s response to the
       motion to remand, they tendered no evidence to either refute the non-diverse
       Defendants’ answers and affidavits, or to support their own allegations.

                Plaintiffs reiterate the Affidavit of Daryl Maddox, which states in relevant
       part, “We relied on the maintenance people overseeing the property to test and
       service the smoke detector. We believed the maintenance people tested the smoke
       detector when they checked the furnace filters and serviced other items in the home.”
       These statements do not establish that the non-diverse Defendants assumed the duty
       to test the smoke detector, since mere reliance by one person cannot itself establish
       assumption by another. Moreover, Mr. Maddox’s sworn statement that residents of
       the home relied on the non-diverse Defendants to test the smoke detector contradicts
       his earlier statement to Senior Deputy State Fire Marshal Robert Goodwin, Jr.
                Insomuch as Plaintiffs’ lack of evidence reduces their claims to mere
       conclusory allegations, there is no reasonable basis for predicting that Plaintiffs
       might establish liability in their claims against the non-diverse Defendants.

Walker v. Phillip [sic] Morris USA Inc., No. 3:08-CV-191-S, 2008 WL 4066064, at *3-4 (W.D. Ky.

Aug. 28, 2008) (footnote omitted). The district court concluded that the Kentucky Defendants were

fraudulently joined and denied Plaintiffs’ motion to remand.

       b. Standard for Ruling on a Motion to Remand where Fraudulent Joinder is Alleged.

       A party who removes a case involving non-diverse parties to federal court on diversity

grounds will defeat a motion to remand if it can show that the non-diverse parties were fraudulently

joined. Saginaw Hous. Comm’n v. Bannum, Inc., 576 F.3d 620, 624 (6th Cir. 2009) (citing Coyne

v. Am. Tobacco Co., 183 F.3d 488, 493 (6th Cir. 1999)). “Fraudulent joinder occurs when the non-



                                                 7
removing party joins a party against whom there is no colorable cause of action.” Id. (citing

Jerome-Duncan, Inc. v. Auto-By-Tel, L.L.C., 176 F.3d 904, 907 (6th Cir. 1999)). The non-moving

party’s motive for joining the non-diverse party to the lawsuit is “immaterial to our determination

regarding fraudulent joinder.” Jerome-Duncan, 176 F.3d at 907.

       This court’s fraudulent-joinder law is derived from the Fifth Circuit’s discussion in Bobby

Jones Garden Apartments, Inc. v. Suleski, followed by this court in Alexander v. Electronic Data

Systems Corp., 13 F.3d 940, 949 (6th Cir. 1994). In Bobby Jones, the Fifth Circuit held:

       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 or on the facts in view of the law . . . .
       One or the other at least would be required before it could be said that there was no
       real intention to get a joint judgment, and that there was no colorable ground for so
       claiming.

391 F.2d 172, 176 (5th Cir. 1968) (citation and internal quotation marks omitted). In adopting the

Fifth Circuit’s analysis, this court explained that “the question is whether there is arguably a

reasonable basis for predicting that the state law might impose liability on the facts involved.”

Alexander, 13 F.3d at 949 (quoting Bobby Jones, 391 F.2d at 176). In other words, “the question

[is] whether there was any ‘reasonable basis for predicting that [the plaintiff] could prevail.’” Id.

(quoting Tedder v. F.M.C. Corp., 590 F.2d 115, 117 (5th Cir. 1979)). Further, “‘[A]ny disputed

questions and fact and ambiguities in the controlling state law [should be resolved] . . . in favor of

the nonremoving party.’” Id. (quoting Carriere v. Sears Roebuck & Co., 893 F.2d 98, 100 (5th Cir.),

cert. denied, 498 U.S. 817 (1990)) (emphasis removed).

       In Coyne, this Court relied on Alexander in clarifying the standard for resolving claims of

fraudulent joinder:




                                                   8
       To 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. See Alexander, 13 F.3d at 949. 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.” Id. All doubts as to the propriety of removal are resolved
       in favor of remand. See id.

Coyne, 183 F.3d at 493 (emphasis added). Coyne thus states that the removing party may “present

. . . evidence” showing the absence of a state-law claim, but does not elaborate on the proper

approach when considering such evidence. The Coyne court resolved the question before it by

scrutinizing the pleadings to determine that, as alleged, the facts would not have supported a cause

of action under state law.4

       In Gentek Building Products, Inc. v. Sherwin-Williams Co., 491 F.3d 320 (6th Cir. 2007), in

the context of a case removed from state court based on the defendant’s assertion of jurisdiction

under the Magnuson-Moss Act, this court observed:

               Questions of removal . . . may involve facial and factual inquiries. When
       ruling on a motion to remand, a court generally looks to the plaintiff’s complaint, as


       4
           This court observed in Coyne:
       Upon examination of the record, we find that there was sufficient evidence for the
       district court to conclude that Plaintiffs could not have established a cause of action
       against the non-diverse Defendants under state law, thereby permitting removal of
       this action to federal court. While Plaintiffs’ complaint alleged that the local
       Defendants were liable to Plaintiffs as suppliers pursuant to Ohio Rev. Code §
       2307.78(A)(1), either for the failure to warn about the alleged nicotine defect or for
       the negligent sale of cigarettes, Plaintiffs do not allege that the wholesalers and
       retailers knew of the so-called nicotine defect any sooner than members of the
       general public; thus, the wholesalers and retailers are excluded from product liability
       under § 2307.78(A)(1). . . . Hence, under Ohio law, there was no reasonable basis
       for predicting that, on the facts alleged, the local Defendants could be held liable for
       negligence.
Coyne, 183 F.3d at 493 (emphasis added).

                                                  9
       it is stated at the time of removal, and the defendant’s notice of removal. See, e.g.,
       Miller v. Grgurich, 763 F.2d 372 (9th Cir.1985). But federal courts may look beyond
       the pleadings to assess challenged facts; this may occur, for example, when the
       defendant alleges that the plaintiff fraudulently joined non-diverse defendants to
       destroy diversity jurisdiction. 16 Moore’s Federal Practice § 107.41[1][e][ii]. In that
       context, the court may employ a summary-judgment-like procedure to examine
       affidavits and deposition testimony for evidence of fraud. Id. (citing Great Plains
       Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 311-312 (5th Cir.
       2002)).

491 F.3d at 330. Again, although observing that some fact inquiry and summary-judgment-like

procedure is appropriate where fraudulent joinder is alleged, the court did not elaborate further.

        The Fifth Circuit, however, has on several occasions clarified the approach to be employed

in situations where a fact inquiry is proper. In Smallwood v. Illinois Central Railroad Co., 385 F.3d

568 (5th Cir. 2004) (en banc), the Fifth Circuit explained that there are two ways to establish

improper joinder: “(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 573

(quoting Travis v. Irby, 326 F.3d 644, 646-47 (5th Cir. 2003)). Noting that the second option had

generated “uncertainty” among district courts, the Fifth Circuit distinguished two approaches to

determine whether a plaintiff has a reasonable basis of recovery under state law:

       The court may conduct a Rule 12(b)(6)-type analysis, looking initially at the
       allegations of the complaint to determine whether the complaint states a claim under
       state law against the in-state defendant. Ordinarily, if a plaintiff can survive a Rule
       12(b)(6) challenge, there is no improper joinder. That said, there are cases, hopefully
       few in number, in which a plaintiff has stated a claim, but has misstated or omitted
       discrete facts that would determine the propriety of joinder. In such cases, the district
       court may, in its discretion, pierce the pleadings and conduct a summary inquiry.

Id. (footnotes omitted). However, the court cautioned, “a summary inquiry is appropriate only to

identify the presence of discrete and undisputed facts that would preclude plaintiff’s recovery against

the in-state defendant.” Id. at 573-74 (emphasis added).


                                                  10
       In Travis, the Fifth Circuit discussed in greater detail the appropriate analysis when a district

court pierces the pleadings:

       [A]lthough the fraudulent joinder and Rule 12(b)(6) standards appear similar, the
       scope of the inquiry is different. For Rule 12(b)(6) motions, a district court may only
       consider the allegations in the complaint and any attachments. For fraudulent
       joinder, the district court may . . . “pierce the pleadings” and consider summary
       judgment-type evidence in the record, but must also take into account all
       unchallenged factual allegations, including those alleged in the complaint, in the light
       most favorable to the plaintiff. Any contested issues of fact and any ambiguities of
       state law must be resolved in [the plaintiff’s] favor. The burden of persuasion on
       those who claim fraudulent joinder is a heavy one.

Id. at 648-49 (citations omitted) (emphasis added). Thus, when deciding a motion to remand

involving fraudulent-joinder allegations, the Fifth Circuit applies a test similar to, but more lenient

than, the analysis applicable to a Rule 12(b)(6) motion to dismiss.

       Several other circuits agree:

              Many courts agree that the defendant bears a heavy burden to prove
       fraudulent joinder:

       The standard requiring that the removing party show that the plaintiff cannot
       establish a claim against the allegedly fraudulently joined party, even after resolving
       all issues of law and fact in the plaintiff’s favor, is even more favorable to the
       plaintiff than the standard for ruling on a motion to dismiss.




                                                  11
16 James W. Moore et al., Moore’s Federal Practice - Civil §107.14[2][c][iv][B] (3d ed. 1997)

(emphasis added).5 Other courts do not use as strong language, but nevertheless emphasize the limits

of the inquiry on a motion to remand.6

        Courts also generally agree with the Fifth Circuit that,

        [i]n ruling on a remand motion in a case involving allegations of fraudulent joinder,
        the district court must evaluate all of the factual allegations (in the defendants’
        affidavits and deposition transcripts used to support their removal petition, plaintiff’s
        affidavits and deposition transcripts, and the verified complaint) in the light most
        favorable to the plaintiff, resolving all contested issues of substantive fact in favor
        of the plaintiff.




        5
         Moore’s Federal Practice cites the following Third, Fourth and Seventh Circuit cases: Schur
v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 764 (7th Cir. 2009) (“A defendant faces a ‘heavy
burden’ to demonstrate that the joinder is fraudulent, and some courts, including district courts
within this circuit, have suggested that the burden is even more favorable to the plaintiff than the
standard that applies to a motion to dismiss under [Fed. R. Civ. P.] 12(b)(6)”) (citations omitted);
Hartley v. CSX Transp., 187 F.3d 422, 424 (4th Cir. 1999) (“The party alleging fraudulent joinder
bears a heavy burden -- it must show that the plaintiff cannot establish a claim even after resolving
all issues of law and fact in the plaintiff’s favor. This standard is even more favorable to the plaintiff
than the standard for ruling on a motion to dismiss under Fed. R. Civ. P. 12(b)(6).”) (citation
omitted); Batoff v. State Farm Ins. Co., 977 F.2d 848, 852 (3d Cir. 1992) (“The inquiry into the
validity of a complaint triggered by a motion to dismiss under Rule 12(b)(6) is more searching than
that permissible when a party makes a claim of fraudulent joinder. Therefore, it is possible that a
party is not fraudulently joined, but that the claim against that party ultimately is dismissed for
failure to state a claim upon which relief may be granted.”). See also Montano v. Allstate Indem.,
211 F.3d 1278, 2000 WL 525592, at *2 (10th Cir. 2000) (unpublished table case) (“This standard
is more exacting than that for dismissing a claim under Fed. R. Civ. P. 12(b)(6); indeed, the latter
entails the kind of merits determination that, absent fraudulent joinder, should be left to the state
court where the action was commenced.”) (citation omitted).
        6
        See Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1318 (9th Cir. 1998) (distinguishing
between analysis in cases where plaintiffs fail to state a claim against sham defendants and “inquiry
as to whether those defendants could propound defenses to an otherwise valid cause of action.”);
Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997) (“While ‘the proceeding appropriate for
resolving a claim of fraudulent joinder is similar to that used for ruling on a motion for summary
judgment under Fed. R. Civ. P. 56(b),’ the jurisdictional inquiry ‘must not subsume substantive
determination.’”) (quoting B, Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981)).

                                                   12
Id. at § 107.14[2][c][iv][C] (emphasis added).7

        In sum, courts generally agree on the following two rules when deciding motions to remand

that involve allegations of fraudulent joinder. First, even if the district court “pierces the pleadings”

to consider summary-judgment-type evidence (such as depositions, affidavits, etc.), the proper

standard for evaluating that evidence remains akin to that of a Rule 12(b)(6) motion to dismiss, and

is arguably even more deferential. Second, any contested issues of fact must be construed in the

plaintiff’s favor.

        B. Whether Plaintiffs Stated a Colorable Claim Against the Kentucky Defendants

        Here, it is unclear which standard the district court applied in ruling on Plaintiffs’ motion to

remand. The court recited the rule set forth in Alexander:

        There can be no fraudulent joinder unless it [is] clear that there can be no recovery
        under the law of the state on the cause alleged or on the facts in view of the law…
        Therefore the question is whether there is arguably a reasonable basis for predicting
        that the state law might impose liability on the facts involved. [Restated,] the


        7
          Moore’s Federal Practice cites the following Third, Fourth, Eighth, Ninth and Eleventh
Circuit cases: Legg v. Wyeth, 428 F.3d 1317, 1323 (11th Cir. 2005) (“In such a proceeding, the
district court must “resolve all questions of fact . . . in favor of the plaintiff.”) (quotation omitted);
Filla v. Norfolk & S. Ry., 336 F.3d 806, 811 (8th Cir. 2003) (“In making such a prediction, the
district court should resolve all facts and ambiguities in the current controlling substantive law in
the plaintiff’s favor.”); Hartley, 187 F.3d at 424; Ritchey, 139 F.3d at 1318; Boyer v. Snap-On Tools
Corp., 913 F.2d 108, 111 (3d Cir. 1990) (“A district court must resolve all contested issues of
substantive fact in favor of the plaintiff and must resolve any uncertainties as to the current state of
controlling substantive law in favor of the plaintiff.”). See also Schur, 577 F.3d at 764 (“Fraudulent
joinder is difficult to establish--a defendant must demonstrate that, after resolving all issues of fact
and law in favor of the plaintiff, the plaintiff cannot establish a cause of action against the in-state
defendant.”) (quotation omitted); Florence v. Crescent Res., LLC, 484 F.3d 1293, 1299 (11th Cir.
2007) (“We hold that, if there is any possibility that the state law might impose liability on a resident
defendant under the circumstances alleged in the complaint, the federal court cannot find that joinder
of the resident defendant was fraudulent, and remand is necessary.”); Briarpatch Ltd., L.P. v.
Phoenix Pictures, Inc., 373 F.3d 296, 302 (2d Cir. 2004) (“The defendant bears the heavy burden
of proving this circumstance by clear and convincing evidence, with all factual and legal ambiguities
resolved in favor of plaintiff.”).

                                                   13
       question [is] whether there was any reasonable basis for predicting that [Plaintiffs]
       could prevail.

Walker, 2008 WL 4066064, at *2 (quoting Alexander, 13 F.3d at 949) (alterations in Walker).

       However, the court denied the motion to remand on the basis that Plaintiffs proffered

insufficient factual support to overcome the Kentucky Defendants’ affidavits denying that they

assumed a duty to conduct additional inspections of the smoke detector. Plaintiffs argue that in

concluding that “they tendered no evidence to either refute the non-diverse Defendants’ answers and

affidavits, or to support their own allegations,” Walker, 2008 WL 4066064, at *2, the district court

erroneously resolved factual controversies in favor of the non-moving parties. We agree.

        Under Kentucky law, a party who breaches a voluntarily assumed duty can be liable in tort.

Grand Aerie Fraternal Order of Eagles v. Carneyhan, 169 S.W.3d 840, 847 (Ky. 2005) (citing

Louisville Cooperage Co. v. Lawrence, 313 Ky. 75, 230 S.W.2d 103, 105 (1950)). “A threshold

inquiry under this doctrine is whether the putative tortfeasor has actually and specifically undertaken

to render the services allegedly performed without reasonable care.” Id. (citing Good v. Ohio Edison

Co., 149 F.3d 413, 420 (6th Cir. 1998)). The scope of the putative tortfeasor’s undertaking “defines

and limits” that person’s duty. Id. (quoting In re Temporomandibular Joint Implants Prod. Liab.

Litig., 113 F.3d 1484, 1493 (8th Cir. 1997)). In other words, providing assistance once does not, in

and of itself, impose a duty to provide the same assistance again in the future.

       It is not disputed that Plaintiffs’ complaint stated a colorable claim against the Kentucky

Defendants. Indeed, Defendants delayed in removing the case because the complaint itself was

sufficient to withstand a 12(b)(6) motion. Defendants rely on the Kentucky Defendant’s answers and

affidavits in asserting that the Kentucky Defendants were fraudulently joined and the case was



                                                  14
properly removed. Under Kentucky law, Plaintiffs’ case turns on whether the Kentucky Defendants

assumed a duty to maintain and repair the smoke detector, and whether Plaintiffs acted in reliance.

Daryl Maddox filed an affidavit claiming that Plaintiffs relied on the Kentucky Defendants to inspect

and maintain the smoke detector. The Kentucky Defendants claim that they tested the smoke

detector only once, and instructed Sherry Maddox to do so in the future. Acknowledging the

sufficiency of Plaintiffs’ complaint, the district court pierced the pleadings to consider summary-

judgment-type evidence in deciding Plaintiffs’ motion to remand. Upon finding that Maddox’s

affidavit was conclusory and his statement to the fire inspector contradicted his affidavit, the district

court concluded: “[Plaintiffs] tendered no evidence to either refute the non-diverse Defendants’

answers and affidavits, or to support their own allegations.” Walker, 2008 WL 4066064, at *3.

        Whether the Kentucky Defendants assumed a duty under Kentucky law is a factual question

dependent on whether Mickey and Gail Brothers’ self-serving affidavits are truthful and accurate or

whether Daryl Miller’s self-serving and conclusory affidavit is truthful and accurate. No discovery

was taken in this case; all that is known is that the smoke detector was once inspected by the

Kentucky Defendants and that there is reason to believe that Daryl Maddox knew it was not working.

In denying Plaintiffs’ motion to remand and dismissing the claims against the Kentucky Defendants,

the district court effectively granted summary judgment for failure to show a genuine issue of

material fact whether the Kentucky Defendants assumed a duty to conduct further inspections.

        There are at least two problems with this approach. First, the district court’s evaluation of

the nature and sufficiency of the evidence supporting Plaintiffs’ claims against the Kentucky

Defendants went beyond the inquiry contemplated by the limited pleading-piercing exception

recognized as appropriate where an undisputed factual inaccuracy or insufficiency in the plaintiff’s


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claim against the in-state defendant is the basis of removal. The fact-based, summary-judgment-

type inquiry contemplated in such a case is the inquiry that is necessary to bring the true undisputed

facts to the court’s attention. An inquiry into the facts is not permitted in ruling on a motion on the

pleadings; therefore, some piercing of the pleadings and factual presentation must be permitted if

the court is to be informed of undisputed facts that undermine the well-pleaded claim that is

otherwise colorable on its face. This piercing permits consideration of such undisputed facts that

negate the claim. It is not intended to provide an opportunity to test the sufficiency of the factual

support for a plaintiff’s claim, as is done in a Rule 56 motion.

         This leads to the second problem. In rejecting Plaintiffs’ evidence as insufficient to

overcome the Kentucky Defendants’ affidavits, the court went beyond the relevant inquiry – whether

Plaintiffs have a colorable claim under Kentucky law – and instead inquired whether Plaintiffs had

adequate evidentiary support for their claim, the traditional Rule 56 inquiry. But Rule 56 motions

for summary judgment are decided after discovery, not shortly after filing. Plaintiffs were made

subject to a higher standard by Defendants’ removal. Here the district court effectively decided that

there were no genuine issues of material fact on a motion to remand, before discovery. Had

Defendants not removed the case, the sufficiency of Plaintiffs’ factual support would have been

evaluated much later, after discovery.

         Because there was no fraudulent joinder, there was no diversity. Thus, the district court

lacked subject matter jurisdiction to address the merits of Plaintiffs’ claim. We therefore VACATE

the district court’s orders of dismissal, and remand for entry of an order remanding the case to state

court.




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