Bouier v. Lewis Trucking Company et al

Filing 32

MEMORANDUM OPINION AND ORDER as follows: (1) The 27 Motion to Remand is GRANTED; (2) This case is REMANDED to the Circuit Court of Montgomery County, AL; (3) The Clerk is DIRECTED to take appropriate steps to effect the remand; (4) Any pending motions other than the motion to remand are left for resolution by the Circuit Court of Montgomery County, AL. Signed by Hon. Chief Judge Mark E. Fuller on 3/9/2009. (Attachments: # 1 Civil Appeals Checklist)(cb, )

IN THE UNTIED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION K E N D R A BOUIER, as wife and ) A d m in is tra trix of the Estate of Julius Erving ) B o u ie r, deceased, ) ) P L A IN T IF F , ) ) v. ) CASE NO. 2:08-cv-987-MEF ) L E W IS TRUCKING COMPANY, et al., ) (W O -N o t Recommended for Publication) ) DEFEN DANTS. ) M E M O R A N D U M OPINION AND ORDER T h is cause is before the Court on the Motion to Remand (Doc. # 27) filed by Plaintiff o n February 3, 2009. This lawsuit was originally filed in the Circuit Court of Montgomery C o u n ty, Alabama. Arguing that Plaintiff had fraudulently joined Defendants Kenneth Jones (" Jo n e s" ) and Leeposey Daniels ("Daniels"), Defendant Swift Transportation Co. ("Swift") a n d Johnny Nunez ("Nunez") removed the action from state to federal court. Plaintiff seeks re m a n d of this action contending that Jones and Daniels were not fraudulently joined and that th e requisite amount in controversy necessary to support diversity jurisdiction has not been su ff icien tly demonstrated. For the reasons set forth in this Memorandum Opinion and Order, th e Court finds that the Motion to Remand is due to be GRANTED because Jones and D a n ie ls were not fraudulently joined. Federal courts are courts of limited jurisdiction. See, e.g., Kokkonen v. Guardian Life I n s . Co. of Am., 511 U.S. 375, 377 (1994); Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095

(1 1 th Cir. 1994); Wymbs v. Republican State Executive Comm., 719 F.2d 1072, 1076 (11th C ir. 1983). As such, federal courts only have the power to hear cases that they have been a u th o riz e d to hear by the Constitution or the Congress of the United States. See Kokkonen, 5 1 1 U.S. at 377. Because federal court jurisdiction is limited, the Eleventh Circuit favors re m a n d of removed cases when federal jurisdiction is not absolutely clear. See Burns, 31 F .3 d at 1095. R e m o v a l of a case from state to federal court is proper if the case could have been b ro u g h t originally in federal court. See 28 U.S.C. § 1441(a). The removing defendant has th e burden of establishing that a court has subject matter jurisdiction over an action. See D ia z v. Sheppard, 85 F.3d 1502, 1505 (11th Cir.1996) (stating that the party seeking removal to federal court has the burden of establishing federal jurisdiction). The removing defendants argue that removal was proper because the Court has jurisd ic tio n over this case due to diversity of citizenship. The diversity statute confers ju ris d ic tio n on the federal courts in civil actions between citizens of different states, in which th e jurisdictional amount of greater than $75,000, exclusive of interest and costs, is met. See 2 8 U.S.C. § 1332(a)(1). According to the rule of "complete diversity," no plaintiff may share th e same state citizenship with any defendant. See Riley v. Merrill Lynch, Pierce, Fenner & S m ith Inc., 292 F.3d 1334, 1337 (11th Cir.2002). From the Complaint it appears that there is not complete diversity of citizenship in this c a se because Plaintiff, Jones, and Daniels are all residents of Alabama. The removing

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d e f e n d a n ts argue that, due to fraudulent joinder of Jones and Daniels, the Court should d is re g a rd the citizenship of Jones and Daniels for purposes of diversity jurisdiction and c o n c lu d e that complete diversity between the parties exists. See, e.g., Owens v. Life Ins. Co. o f Ga., 289 F. Supp. 2d 1319, 1325 (M.D. Ala. 2003); Bullock v. United Benefit Ins. Co., 165 F . Supp. 2d 1255, 1247 (M.D. Ala. 2001) (("When a defendant has been fraudulently joined, th e court should disregard his or her citizenship for purposes of determining whether a case is removable based upon diversity of citizenship."). Thus, in order to determine whether co m p lete diversity exists in this case, the Court must address the issue of fraudulent joinder. A s the United States Supreme Court has long recognized, a defendant's "right to re m o v a l cannot be defeated by a fraudulent joinder of a residential defendant having no real c o n n e ctio n to the controversy." Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97 (1921). T h e Eleventh Circuit has articulated that joinder may be deemed fraudulent in three s it u a t io n s : T h e first is when there is no possibility that the plaintiff can p ro v e a cause of action against the resident (non-diverse) d e f en d a n t1 . . . The second is when there is outright fraud in the p la in tif f 's pleading of jurisdictional facts . . . [A third situation a r is e s ] where a diverse defendant is joined with a nondiverse d e f en d a n t as to whom there is no joint, several or alternative lia b ility and where the claims against the diverse defendant has n o real connection to the claim against the nondiverse

"The plaintiff need not have a winning case against the allegedly fraudulent d e f en d a n t; he [or she] need only have a possibility of stating a valid cause of action in order f o r the joinder to be legitimate." Triggs v. John Crump Toyota, 154 F.3d 1284, 1287 (11th C ir. 1998) (emphasis in original). 3

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d e f e n d a n t. T r ig g s , 154 F.3d at 1287. A removing defendant bears the burden of proving fraudulent jo in d e r. See Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997) (citation omitted). T h i s burden on the defendant is a heavy one. It requires the court to evaluate the parties' f a ctu a l allegations in the light most favorable to the plaintiff and resolve all uncertainties a b o u t state substantive law in favor of the plaintiff. See id. If there is a possibility that a s t a te court would find that the complaint states a cause of action against any one of the r e sid e n t defendants, the federal court must find that the joinder is proper and remand the case to the state court. See Coker v. Amoco Oil Co., 709 F.2d 1433, 1440 (11th Cir. 1983).2 In o ther words, a motion to remand should be denied only if the court is convinced that there i s "no possibility that the plaintiff can establish any cause of action against the resident d e f en d a n t." See Cabalceta v. Standard Fruit Co., 883 F.2d 1553,1561 (11th Cir. 1989). The Court has carefully reviewed the claims against the resident defendant and the a rg u m e n ts of the parties, and it must conclude that Jones and Daniels have not been

It is important to note that the Court should determine its jurisdiction over the case " b a se d upon the plaintiff's pleadings at the time of removal," Coker, 709 F.2d 1433, 1440 ( 1 1 th Cir. 1983), supplemented by any affidavits or deposition transcripts filed by the parties. " W h ile `the proceeding appropriate for resolving a claim of fraudulent joinder is similar to th a t used for ruling on a motion for summary judgment under Fed. R. Civ. P. 56(b),' the ju ris d ic tio n a l inquiry `must not subsume substantive determination'. . . When considering a motion for remand, federal courts are not to weigh the merits of a plaintiff's claim beyond d e te rm in in g whether it is an arguable one under state law." Crowe v. Coleman, 113 F.3d 1 5 3 6 , 1538 (11th Cir. 1997) (citations omitted). 4

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f ra u d u le n tly joined.3 This decision is consistent with the decisions reached by other judges o f this Court in related cases. See, e.g., Taylor v. Lewis Trucking Co., et al., 2:08cv986M H T ; Fenn v. Lewis Trucking Co., et al., 2:08cv-989-MHT; and Wynn v. Lewis Trucking C o ., et al., 2:08cv990-WKW. Accordingly, this Court must remand the case to the Circuit C o u rt of Montgomery County, Alabama. I t is hereby ORDERED as follows: (1 ) (2 ) P la in tif f 's Motion to Remand (Doc. # 27) is GRANTED. This case is REMANDED to the Circuit Court of Montgomery County, A la b a m a . (3 ) (4 ) The Clerk is DIRECTED to take appropriate steps to effect the remand. Any pending motions other than the motion to remand are left for resolution b y the Circuit Court of Montgomery County, Alabama. D O N E this the 9th day of March, 2009. /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE

Because of the Court's conclusion that the diversity of citizenship requirement has n o t been met, it need not and will not address the parties contentions about whether the a m o u n t in controversy requirement is satisfied. 5

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