Coward v. Volvo Group North America, Inc. et al

Filing 24

MEMORANDUM OPINION AND ORDER, granting 12 MOTION to Remand filed by Nebraska Coward; this case is remanded to the CC of Bullock Co., AL; and 3) The Clerk of the Court is directed to take appropriate steps to effect the remand. Signed by Honorable William Keith Watkins on 4/6/09. (Attachments: # 1 appeals checklist)(vma, )(cert copy/CC Bullock Co., AL)

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION N E B R A S K A COWARD, P la in tif f , v. V O L V O GROUP NORTH AMERICA, IN C ., d/b/a VOLVO TRUCKS NORTH A M E R IC A N , INC., e t al., D e f e n d a n ts. ) ) ) ) ) ) ) ) ) ) )

C A S E NO. 2:08-CV-744-WKW[WO]

M E M O R A N D U M OPINION AND ORDER I . INTRODUCTION B e f o re the court is Plaintiff Nebraska Coward's ("Coward") Motion to Remand (Doc. # 12). In that motion, Mr. Coward seeks remand of this action to the Circuit Court of B u llo c k County, Alabama, for lack of diversity jurisdiction, 28 U.S.C. § 1332(a). He asserts th a t complete diversity of citizenship does not exist because RCS Ambulance Services (" R C S " ) is a non-diverse Defendant. The motion is accompanied by a brief. (Doc. # 15.) The Goodyear Tire & Rubber Co., Veyance Technologies, Inc., and Volvo North America, In c . (collectively "Defendants"), as the removing Defendants, filed a response in opposition t o the motion (Doc. # 16), arguing that, in the absence of fraudulent joinder, complete d iv e rsity exists. Mr. Coward filed a reply. (Doc. # 18.) For the reasons to follow, the m o tio n is due to be granted.

II. STANDARD OF REVIEW " [ F ]e d e ra l courts have a strict duty to exercise the jurisdiction conferred on them by C o n g re s s ." Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996). However, "[f]ederal c o u r t s are courts of limited jurisdiction." Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (1 1 th Cir. 1994). Thus, with respect to cases removed to this court pursuant to 28 U.S.C. § 1441, the law of the Eleventh Circuit favors remand where federal jurisdiction is not a b s o lu te ly clear. "[R]emoval statutes are construed narrowly; where plaintiff and defendant c la s h about jurisdiction, uncertainties are resolved in favor of remand." Burns, 31 F.3d at 1095. I I I . BACKGROUND T h e following background is pertinent to RCS, the allegedly fraudulently-joined D e f e n d a n t. On December 12, 2005, Mr. Coward, who worked as a tractor-trailer driver, was s e rio u sly injured when his hand became pinned between the frame and axle of his tractor.1 (C o m p l. ¶ 10 (Ex. to Pet. Removal (Doc. # 1)).) With his other hand, Mr. Coward was able to reach his radio, which was in his shirt pocket, and call for an ambulance. (Compl. ¶ 11; P l. Dep. 97, 104-05 (Ex. B to Mot. Remand Br. (Doc. # 15).) In response to this call, RCS a rriv e d at the accident scene and transported Mr. Coward to Troy Regional Medical Center in Troy, Alabama. (Compl. ¶ 11; Pl. Dep. 108-09.) Because Troy Regional Medical Center

Seven miles outside of Brundidge, Alabama, Mr. Coward pulled off on the side of the highway because a gauge located inside the tractor indicated that the tractor's air pressure was dropping. (Pl. Dep. 81-82.) At the time of the accident, he was underneath the tractor attempting to find the source of the air leak. (Pl. Dep. 85.)

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was not equipped to treat Mr. Coward's injury, Mr. Coward was transported to Southeast A la b a m a Medical Center in Dothan, Alabama. (Compl. ¶ 11; Pl. Dep. 108-112.) In Count Four of his Complaint,2 Mr. Coward brings a claim against RCS under the A la b a m a Medical Liability Act ("AMLA"), see Ala. Code §§ 6-5-480 to -488; Ala. Code § § 6-5-541 to -552. Mr. Coward alleges that RCS "negligently and/or wantonly failed to p ro v id e [him] with the professional medical services, care and treatment that an ambulance s e rv ic e , EMT/EMS, nurse, or other similarly situated health care provider within the medical c o m m u n ity possessing and exercising ordinary and reasonable medical knowledge and skills w o u ld have provided." (Compl. ¶ 39.) Mr. Coward says that RCS breached the standard of c a re because it failed to assess, diagnosis and relay to Troy Regional Medical Center the s e v e rity of his injuries, failed properly to "clean, sanitize and/or stabilize" his injuries at the s c e n e , and failed to transport Mr. Coward to a medical facility equipped to treat his injuries. (Compl. 17.) As a consequence of RCS's alleged negligence, Mr. Coward avers that there w a s a delay in his diagnosis and treatment and that the delay, in addition to the inadequate tre a tm e n t he received while under RCS's care, resulted in infection and gangrene in his hand a n d , ultimately, the amputation of his hand. (Compl. 19.) D e f e n d a n ts say they first learned that RCS was fraudulently joined after taking Mr. C o w a rd 's and Dr. O. H. Chitwood's ("Chitwood") deposition on August 12, 2008, and A u g u s t 13, 2008, respectively. Dr. Chitwood was the surgeon who performed multiple
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The Complaint originally was filed on December 20, 2007, in the Circuit Court of Bullock County, Alabama.

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surgeries on Mr. Coward's injured hand, including its amputation, and provided post-surgery tre a tm e n t to Mr. Coward. (Pet. Removal. ¶ 3; Chitwood Dep. 8-16 (Ex. C to Mot. Remand B r.).) Dr. Chitwood is an "orthopaedic hand surgeon" and is board-certified in orthopaedic s u rg e ry. (Chitwood Dep. 7, 34.) On September 11, 2008, Defendants removed this case on the basis of diversity ju r i s d i c t i o n , see 28 U.S.C. §§ 1332(a), 1441(b). (Pet. Removal 2.) As the ground for re m o v a l, Defendants assert that RCS, although an Alabama citizen, is fraudulently joined to th is action and that, therefore, its "citizenship should be ignored for diversity purposes," and th a t, without RCS, complete diversity of citizenship exists. (Pet. Removal ¶¶ 3, 5.) Excerpts f ro m the deposition testimonies of Dr. Chitwood and Mr. Coward were submitted with the re m o v a l petition as evidentiary support for the fraudulent joinder argument. (Exs. A & G to P e t. Removal.) On October 8, 2008, Mr. Coward filed a motion to remand, asserting that RCS "is a n o n -d iv e rse defendant that has not been fraudulently joined" and that, therefore, "diversity o f citizenship does not exist in this case." (Mot. ¶ 3 (Doc. # 12).) Mr. Coward also filed e x c e rp ts from his and Dr. Chitwood's deposition testimonies in support of his position. (Exs. B & C to Mot. Remand. Br.) IV. DISCUSSION D e f e n d a n ts assert that Mr. Coward "is unable to produce any evidence to support or s u b s ta n tia te his claims against RCS" because Dr. Chitwood testified that RCS "did not

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deviate from any generally accepted standard of care" and that "[t]he actions of RCS did not c a u s e or contribute to [Mr. Coward's] injuries," and because Mr. Coward's deposition te s tim o n y establishes that he cannot remember much of what occurred once RCS arrived on th e scene. (Resp. 5 (Doc. # 16).) Defendants assert that, "[t]o support his Motion to R e m a n d , Mr. Coward was obligated to offer or produce evidence that would support his c o n te n tio n s that RCS deviated from the generally recognized standard of care, and that such d e v ia tio n (s ) caused or contributed to his injuries." (Resp. 8.) According to Defendants, Mr. C o w a rd 's "failure to do so leaves the testimony of Dr. Chitwood as the only evidence" a v a ila b le to Mr. Coward to support his Motion to Remand. (Resp. 8.) Moving to remand this case to state court, Mr. Coward argues that Defendants have n o t met their heavy burden of proving that RCS is fraudulently joined to this action (Mot. R e m a n d Br. 1), and that Defendants impermissibly have shifted to him the burden of proof o n removal (Reply 6 (Doc. # 18)). Mr. Coward points out that Defendants "rely solely upon th e testimony" of Mr. Coward and Dr. Chitwood, but argues that their testimony does not f o re c lo s e the possibility that he can recover against RCS under the AMLA. (Mot. Remand B r. 8.) Rebutting Defendants' argument that Dr. Chitwood's testimony establishes no breach o f the standard of care by RCS, Mr. Coward points to Dr. Chitwood's deposition testimony th a t, "without [RCS's] records," he (Dr. Chitwood) did not "have an opinion one way or the o th e r as to whether the paramedics mistreated Mr. Coward." (Mot. Remand Br. 11 (citing P l. Dep. 45-46).) In any event, Mr. Coward asserts that Defendants have not demonstrated

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that Dr. Chitwood is a "similarly situated [health care] provider as required by the [AMLA]." (Mot. Remand Br. 12.) Mr. Coward also contends that, on the issue of whether there is a p ro x im a te causal connection between RCS's acts or omissions and his injuries, Dr. C h itw o o d 's testimony does not address all of the Complaint's allegations against RCS for n e g lig e n c e . (Reply 3.) A. F r a u d u le n t Joinder

If non-diverse parties are fraudulently joined to an action, their citizenship will not be c o n s id e re d for purposes of determining diversity jurisdiction. Tedder v. F.M.C. Corp., 590 F .2 d 115, 117 (5th Cir. 1979) (per curiam).3 The Eleventh Circuit recognizes three forms of f ra u d u le n t joinder. Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998) (c itin g Coker v. Amoco Oil Co., 709 F.2d 1433, 1440 (11th Cir. 1983), superseded by statute o n other grounds as stated in Georgetown Manor, Inc. v. Ethan Allen, Inc., 991 F.2d 1533, 1 5 4 0 (11th Cir. 1993)). The one relevant to this case is fraudulent joinder "when there is no p o s s ib ility that the plaintiff can prove a cause of action against the resident (non-diverse) d e f e n d a n t." Id. The removing party bears the burden of proving fraudulent joinder, and the burden is "heavy." Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997) (internal quotation m a rk s and citation omitted). "[A]ll factual issues and questions of controlling substantive

In Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions handed down by the former Fifth Circuit prior to October 1, 1981.

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law" must be viewed in the light most favorable to the plaintiff. Coker, 709 F.2d at 1440-41; a c c o r d Pacheco de Perez v. AT&T Co., 139 F.3d 1368, 1380 (11th Cir. 1998). "[I]f there is a n y possibility that the state law might impose liability on a resident defendant under the c irc u m s ta n c e s alleged in the Complaint, the federal court cannot find that joinder of the re s id e n t defendant was fraudulent, and remand is necessary." Florence v. Crescent Res., L L C , 484 F.3d 1293, 1299 (11th Cir. 2007). Although for purposes of determining

f ra u d u le n t joinder, courts may consider affidavits and deposition transcripts submitted by e ith e r party, in addition to the plaintiff's pleadings at the time of removal, Legg v. Wyeth, 428 F .3 d 1317, 1322 (11th Cir. 2005), "the jurisdictional inquiry must not subsume substantive d e te rm in a tio n ," Crowe, 113 F.3d at 1538 (internal quotation marks and citation omitted). Courts must be "certain" of their jurisdiction and "are not to weigh the merits of a plaintiff's c la im beyond determining whether it is an arguable one under state law." Id. (internal q u o ta tio n marks and citation omitted). B. R e m o v a l Burden

D e f e n d a n ts assert that, to avoid removal, it was incumbent upon Mr. Coward to p re s e n t evidence sufficient to support the elements of his AMLA claim against RCS. (Resp. 5 .) This argument, however, ignores the threshold question of what Defendants must prove to invoke diversity jurisdiction in a removal action based upon a fraudulent joinder theory. A plaintiff who disputes removal made on the basis of fraudulent joinder does not h a v e the burden of proving that § 1332's complete diversity requirement is lacking; instead,

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the removing defendant bears the "heavy" burden of proving fraudulent joinder, Crowe, 113 F .3 d at 1538 (internal quotation marks and citation omitted). In Travis v. Irby, 326 F.3d 644 (5 th Cir. 2003), the Fifth Circuit concluded that a motion to remand based upon a fraudulent jo in d e r argument should not have been granted on the basis that the plaintiff "`ha[d] failed to present any evidence in support of a claim against [the resident defendant].'" Id. at 649 (c ita tio n omitted). That opinion aptly explains why Defendants' argument in this case is f la w e d : Where "the defendant has the burden of establishing fraudulent joinder and the p la in tif f can clearly state a claim upon which relief can be granted as to the non-diverse d e f e n d a n t, the lack of substantive evidence as to the non-diverse defendant does not support a conclusion that he was fraudulently joined." Id. at 650. "In order to establish that [the re s id e n t defendant] was fraudulently joined, the defendant must put forward evidence that w o u ld negate a possibility of liability on the part of [the resident defendant]." Id.; see also L e g g , 428 F.3d at 1324 (The affidavit from the allegedly fraudulently-joined drug re p re se n ta tiv e that "he never promoted or sold Redux" demonstrated that it was not possible f o r the plaintiffs to establish a cause of action against the sales representative for allegedly n e g lig e n tly misrepresenting that Redux was a drug that was safe to ingest; the plaintiffs did n o t submit contrary evidence, and, thus, removal was proper.). Here, there is no argument that the allegations of the Complaint fail to state a claim u p o n which relief can be granted against RCS under the AMLA. Rather, Defendants say, "it is the fact that [Mr. Coward] cannot offer any evidence to support any of the allegations

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against RCS in his Complaint that makes the joinder of RCS fraudulent." (Resp. 3 n.4.) To th e extent that Defendants have attempted to shift the burden of disproving fraudulent joinder to Mr. Coward, the court rejects that argument based upon the clear and persuasive reasoning o f Travis.4 C. AM LA

A p p lyin g AMLA's standards in light of Defendants' burden on removal, the court tu rn s to whether Defendants have met that burden by submitting evidence demonstrating that M r. Coward has no possibility of recovery against RCS under the AMLA. An AMLA claim re q u ire s proof of "1) the appropriate standard of care, 2) [the health care provider's] d e v ia tio n from that standard, and 3) a proximate causal connection between the [health care p ro v id e r's ] act or omission constituting the breach and the injury sustained by the plaintiff." Giles v. Brookwood Health Servs., Inc., ___ So. 2d ___, 2008 WL 2554287, at *11 (Ala. 2 0 0 8 ). With exceptions not argued in this case, expert testimony is required to establish that a defendant health care provider failed to meet the standard of care, but "such expert
Defendants also suggest that, to avoid removal, Mr. Coward was trying to stall the discovery process in state court by answering certain discovery requests with assertions that "discovery is incomplete," that his "investigation is ongoing," and that answers are "subject to expert testimony." (Resp. 5 n.7; see also Resp. 8 n.10.) They, however, have not cited any authority that, on the basis of these discovery responses viewed in the context of the entire record, they are excused from meeting their burden of proving fraudulent joinder. Indeed, in Travis, a similar argument was rejected. See 326 F.3d at 649-50 (holding that the plaintiff's discovery responses that at that time she did not have an expert witness or all facts necessary to her claim should not have been construed "as admissions that she had no factual basis or evidence in support of her claims against [the resident defendant]"); cf. Sabo v. Dennis Techs., LLC, No. 07-cv-283, 2007 WL 1958591, at *4 (S.D. Ill. July 2, 2007) (rejecting post-removal discovery on fraudulent misjoinder issue and observing that "in cases filed in state court in which the existence of federal jurisdiction is doubtful, use of discovery in state court to establish the prerequisites for the exercise of federal jurisdiction before removal furthers the congressional goal of fostering judicial economy").
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testimony is allowed only from a `similarly situated health care provider.'" Holcomb v. C a r r a w a y , 945 So. 2d 1009, 1012 (Ala. 2006). Under the AMLA, a "similarly situated h e a lth care provider" is defined as one who: "(1) [i]s licensed by the appropriate regulatory b o a rd or agency of this or some other state[;] (2) [i]s trained and experienced in the same d is c ip lin e or school of practice[;] [and] (3) [h]as practiced in the same discipline or school o f practice during the year preceding the date that the alleged breach of the standard of care o c c u rre d ." Ala. Code § 6-5-548(b) (brackets added). The plaintiff also must "`prove by e x p e rt testimony that . . . the breach proximately caused the plaintiff's injury.'" Giles, ___ S o . 2d at ___, 2008 WL 2554287, at *11 (quoting Univ. of Ala. Health Servs. Found. v. Bush, 6 3 8 So. 2d 794, 798 (Ala. 1994)). 1. S im ila r ly Situated Health Care Provider

Defendants contend that Dr. Chitwood's testimony affirmatively establishes that R C S did not breach the standard of care in its treatment of Mr. Coward and, thus, that it is n o t possible for Mr. Coward to recover against RCS under the AMLA.5 Defendants,

In Billingsley v. McWhorter Farms, LLC, No. 3:06cv795, 2007 WL 1219724 (M.D. Ala. April 25, 2007) (Watkins, J.), an action removed on the basis that an ambulance service was fraudulently joined on an AMLA claim, this court noted the absence of "any published Alabama opinion holding that an action against an ambulance service is governed by the AMLA." Id. at *3; see also id. at *2 ("Noticeably absent in the [AMLA] and precedent is the inclusion of ambulance services."). As observed in Billingsley, "This appears to be an issue of first impression, and because Alabama law is unsettled, this case is one that should be remanded." Id. (citing Florence, 484 F.3d at 1293 (Remand is appropriate when state law is unsettled as to an issue in the complaint.)). The issue still appears to be novel, but has not been raised by either party. Defendants, however, implicitly assume the AMLA's applicability to RCS in making their arguments, and the court therefore will do the same so that Defendants' arguments for removal can be addressed.

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however, have not argued, or cited any authority establishing, that Dr. Chitwood is a similarly s itu a te d health care provider. Although not analogous on all points, the decision in Estate of Bradley ex rel. Bradley v . Mariner Health, Inc., is instructive on the requirements for establishing a similarly situated h e a lth care provider. See 315 F. Supp. 2d 1190 (S.D. Ala. 2004), aff'd 138 F. App'x 298 (1 1 th Cir. 2005). In that AMLA lawsuit, one of the determinative liability issues was " w h e th e r [the defendants] exercised such reasonable care, skill and diligence as other nursing h o m e s would ordinarily exercise under similar circumstances[.]" Id. at 1194. Applying § 6-5-548(b), the court opined that, because the "standard of care allegedly breached by D e f e n d a n ts [was] `hands-on' nursing care and treatment, whether by a registered nurse, lic e n s e d practical nurse, or certified nursing assistant, in a nursing home setting from m id -1 9 9 8 to mid-1999," id. at 1195, a similarly situated health care provider would be " s o m e o n e trained and experienced in the provision of `hands-on' nursing care and treatment in a nursing home, [and] . . . someone who has practiced such `hands-on' care during the year p re c e d in g mid-1998 up and until mid-1999," id. The plaintiff offered expert testimony from a physician that the nursing home breached the standard of care to one of its patients, but the p h ys ic ia n was not a nurse, had never practiced as a nurse, had no education or experience in n u rs in g , and did not hold himself out as an expert in nursing. Id. at 1196. The physician also h a d not cared for patients in a nursing home, made rounds in a nursing home or supervised th e provision of care in a nursing home. Id. The court concluded on those facts that the

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physician was not a similarly situated health care provider pursuant to § 6-5-548(b) of the A M L A and, thus, that he could not testify as to the standard of care allegedly breached by th e defendants. Id. at 1197. Here, as pleaded in the Complaint, the standard of care that RCS allegedly breached is not care provided by an orthopaedic hand surgeon, or even by a physician. Rather, it is c a re provided by an emergency medical technician ("EMT") or other comparable provider tra in e d to respond in a medical emergency (typically through a 911 dispatch) to provide u rg e n t care to an injured person while that injured person is in transport to a medical facility. (See Compl. ¶ 39.) Defendants offer no testimony from Dr. Chitwood that, during the year preceding D e c e m b e r 12, 2005, see § 6-5-548(b), he practiced as an EMT or comparable health care p ro v id e r. There likewise is no evidence that, during the relevant time frame, Dr. Chitwood w a s involved in the transport of medically-injured patients, supervised the provision of care f o r medically-injured patients who were being transported in an ambulance or other e m e rg e n c y vehicle to a medical facility, or supervised EMTs or other similar health care p ro v id e rs concerning the location of transport. There also is no testimony from Dr.

C h itw o o d that he holds himself out as an expert concerning the standard of care allegedly b re a c h e d by RCS. Rather, Dr. Chitwood holds himself out as a board-certified orthopaedic h a n d surgeon. (Chitwood Dep. 7 & 34.)

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On these removal facts, there is an absence of evidence that Dr. Chitwood is a " s im ila rly situated health care provider" within the meaning of § 6-5-548(b) of the AMLA. Defendants, therefore, cannot rely on Dr. Chitwood's testimony to demonstrate that there is n o possibility that Mr. Coward can establish that RCS breached the standard of care in its tre a tm e n t of Mr. Coward. 2. P r o x im a te Cause

D e f e n d a n ts' reliance on Dr. Chitwood's testimony as evidence establishing that any n e g lig e n t conduct by RCS did not proximately cause Mr. Coward's injuries (Resp. 12-15) is problematic for at least two reasons. First, at its foundation, Dr. Chitwood's testimony on p ro x im a te cause (or rather the lack thereof) is grounded upon Dr. Chitwood's opinion that R C S did not breach the applicable standard of care. As stated, however, Defendants have n o t demonstrated that Dr. Chitwood is qualified under the AMLA to render that opinion. Nor have they demonstrated that, assuming a breach, Dr. Chitwood would have reached the s a m e conclusion as to the absence of proximate cause. Second, Defendants have not dispelled the possibility of recovery on all theories of n e g lig e n c e set out in the Complaint. Defendants cite Dr. Chitwood's testimony for the p ro p o s itio n that "the delay occasioned by" RCS's decision to transport Mr. Coward to Troy R e g io n a l Medical Center "did not exacerbate Mr. Coward's injuries or affect in any way the tre a tm e n t of those injuries." (Resp. 15.) It may be true that the delay in treatment is Mr. C o w a rd 's main theory of negligence against RCS, but, based upon a liberal construction of

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the Complaint's theories, Coker, 709 F.2d at 1440-41, it cannot be ruled out that the alleged d e la y is the only theory of negligence against RCS. For example, Mr. Coward also includes a lle g a tio n s challenging the adequacy of RCS's provision of stabilizing emergency care d u rin g transport. (Compl. 17.) At the very least, that theory of negligence remains an a rg u a b le one under the AMLA. See Crowe, 113 F.3d at 1538 (Courts "are not to weigh the m e rits of a plaintiff's claim beyond determining whether it is an arguable one under state la w ." (internal quotation marks and citation omitted)). 3. M r . Coward's Testimony as a Basis for Removal

Defendants cite Sudduth v. Equitable Life Assurance Society, No. 07-0436, 2007 WL 2 4 6 0 7 5 8 (S.D. Ala. Aug. 27, 2007), a removal action, for the proposition that a plaintiff " h a [ s ] no reasonable possibility of recovery against a non-diverse defendant when [he] a d m it[ s ] in his deposition that he ha[s] no memory of the events underlying . . . his claims a g a in s t the non-diverse defendant." (Resp. 7-8.) In Suddoth, the removed complaint c o n ta in e d a fraudulent concealment claim against a resident insurance agent. 2007 WL 2 4 6 0 7 5 8 , at *3. The removing corporate defendants submitted an affidavit from the a lle g e d ly fraudulently-joined agent, who attested that he "had no involvement of any kind w ith the plaintiff" regarding the policy at issue, as well as a declaration and other materials e s ta b lis h in g that a different agent altogether sold the policy to the plaintiff. Id. At that point, in the face of affirmative evidence that demonstrated no possibility of a claim for fraudulent c o n c e a lm e n t against the agent and that sustained the defendants' fraudulent joinder burden,

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the plaintiff could not defeat removal by testifying that he had "no memory" of his c o n v e rs a tio n s with the resident agent. Id. at *5. The plaintiff's testimony was insufficient b e c a u s e "only [the plaintiff] and [the resident agent] could testify as to what transpired b e tw e e n them, [the agent] denie[d] having any conversations with the plaintiff about an o v e rh e a d policy, and the plaintiff ha[d] no memory of what [the agent] did or did not say." Id. (brackets added). The joinder of the resident agent as to the concealment claim, therefore, w a s fraudulent. Id. Suddoth is distinguishable. For one thing, it did not involve an allegation of

f ra u d u le n t joinder on an AMLA claim. For another, Defendants have not demonstrated that t h e fraudulent joinder analysis as to Mr. Coward's AMLA claim rises or falls solely on w h e th e r Mr. Coward can recall the details of the care he received from RCS. As Mr. Coward p o in ts out, an AMLA "plaintiff is often not alert at the time of the [allegedly] negligent c o n d u c t, and thus cannot testify as to the defendant's conduct." (Reply 6 (brackets added).) By pointing out that Mr. Coward cannot remember what care he received from RCS, D e f e n d a n ts have not foreclosed the possibility that facts pertaining to the care RCS provided c a n n o t be garnered from other sources. In Suddoth, to the contrary, the defendants put the p la in tif f at an evidentiary dead end by presenting clear testimony from the only other party to the conversation, and that testimony clearly refuted the plaintiff's allegations of fraudulent c o n c e a lm e n t. Here, differently than the defendants in Suddoth, Defendants have not

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submitted any evidence demonstrating that RCS did not breach the standard of care. On that is su e then, there is no evidence that Mr. Coward must negate to defeat removal. V . CONCLUSION C o n tro llin g precedent requires Defendants to bear the weighty burden of establishing f ra u d u l e n t joinder. See Crowe, 113 F.3d at 1538. That burden has not been met.

A c c o rd in g ly, it is ORDERED that: (1 ) (2) and (3 ) re m a n d . D O N E this 6th day of April, 2009. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE T h e Clerk of the Court is DIRECTED to take appropriate steps to effect the M r. Coward's Motion to Remand (Doc. # 12) is GRANTED; T h is case is REMANDED to the Circuit Court of Bullock County, Alabama;

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