Faulk v. Husqvarna Consumer Outdoor Products N.A., Inc. et al
MEMORANDUM OPINION AND ORDER that Plaintiffs' Motion to Remand 5 is DENIED and Plaintiff's claims against Defendant Bobby Daffin are DISMISSED with prejudice. Signed by Honorable Judge Mark E. Fuller on 3/27/2012. (Attachments: # 1 Civil Appeals Checklist)(jg, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
HUSQVARNA CONSUMER OUTDOOR )
PRODUCTS N.A., INC., et al.,
CASE NO. 2:11-cv-1117-MEF
[WO – Publish]
MEMORANDUM OPINION AND ORDER
This cause is before the Court on a December 28, 2011 Notice of Removal (Doc. #
1) filed by Defendant Husqvarna Consumer Outdoor Products N.A., Inc. (“Husqvarna”) and
a Motion to Remand (Doc. # 5) filed by Plaintiff Billy Faulk. The issues having been fully
briefed, and after careful consideration of the law and the arguments of counsel, the Court
finds that Plaintiffs’ motion to remand is due to be DENIED.
On March 16, 2011, Plaintiff filed suit in the Circuit Court for Barbour County,
Alabama, against Electrolux Home Products, Inc. (“Electrolux”), Bobby Daffin, and
numerous fictitious defendants. Husqvarna, as successor in interest to Electrolux, was
substituted as defendant in the Second Amended Complaint. Plaintiff’s pleadings allege that
he was injured while using an Electrolux-made lawn mower, which he had purchased from
his first cousin, Bobby Daffin. (Compl. ¶ 6; Daffin Dep. 25 (Doc. # 1-4).) Prior to
Plaintiff’s purchase, however, Daffin had allegedly “removed the rear flap on the [lawn
mower] that covers the rear of the blade.” (First Am. Compl. ¶ 8.) As Plaintiff attempted
to mow a hillside, the mower blade severed two of his toes. Plaintiff’s claims are for
negligence and wantonness, as well as a claim under the Alabama Extended Manufacturer’s
Liability Doctrine (“AEMLD”). All three claims are asserted against both Husqvarna and
Bobby Daffin. Discovery, however, suggests that the rear flap did not contribute to
Plaintiff’s accident or injuries. Indeed, Plaintiff’s own expert testified at his deposition that
he “[does not] believe [the presence or absence of the rear flap] would have affected the
outcome of this particular accident. The injury would have been either the same or
equivalent.” (Sevart Dep. 131 (Doc. # 1-6).)
On September 19, 2011, the Circuit Court of Barbour County set the case for trial in
early January, 2012. (Doc. # 1-2, at 34.) The court also set the case for a pretrial hearing on
December 13, 2011, and ordered that the parties submit a proposed pretrial order, which was
to include a set of trial contentions summarizing the respective cases of the parties. As of
December 28, 2011, the date Husqvarna removed the case to this Court, Plaintiff had not
served Bobby Daffin, despite the fact that Daffin had appeared for a deposition at the offices
of Plaintiff’s counsel on November 28, 2011. Husqvarna’s attached Alacourt party detail
summary reveals that Plaintiff last attempted service on Daffin in May of 2011.
In the Notice of Removal, Husqvarna alleges that Plaintiff is a citizen of Alabama for
purposes of diversity jurisdiction. Husqvarna is alleged to be citizens of both Delaware and
North Carolina. See 28 U.S.C. § 1332(c)(1). And although Bobby Daffin is a citizen of
Alabama, Husqvarna contends that his citizenship should be disregarded for purposes of
diversity jurisdiction because he is fraudulently joined. Husqvarna also alleges that the
amount in controversy exceeds $75,000.
On January 24, 2012, within thirty days of removal, 28 U.S.C. § 1447(c), Plaintiff
filed his motion to remand, alleging that the removal is both procedurally defective and that
subject matter jurisdiction does not exist as a substantive matter.
II. STANDARD OF REVIEW
“[F]ederal courts have a strict duty to exercise the jurisdiction that is conferred upon
them by Congress.” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996). However,
“[f]ederal courts are courts of limited jurisdiction.” Burns v. Windsor Ins. Co., 31 F.3d 1092,
1095 (11th Cir. 1994); see also Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375
(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 absolutely clear.
“[R]emoval statutes are construed narrowly; where plaintiff and defendant clash about
jurisdiction, uncertainties are resolved in favor of remand.” Burns, 31 F.3d at 1095. “In
evaluating a motion to remand, the removing party bears the burden of demonstrating federal
jurisdiction.” Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 n.4 (11th Cir. 1998)
(citing Pacheco de Perez v. AT&T Co., 139 F.3d 1368, 1373 (11th Cir. 1998)).
Abandonment and/or Lack of Good Faith Pursuit of Claims Against Bobby
A party may abandon claims against a non-diverse defendant by never serving them
with the lawsuit, thereby making a case removable. See Insigna v. LaBella, 845 F.3d 249,
251 n.1 (11th Cir. 1988) (finding that non-diverse defendant was effectively voluntarily
dismissed from the case where the plaintiff stipulated that it had no intention of ever serving
the non-diverse defendant). Furthermore, a plaintiff may abandon claims against a nondiverse defendant by preparing to proceed to trial without ever serving the non-diverse
defendant. S. Pac. Co. v. Haight, 126 F.2d 900 (9th Cir. 1942). In Haight, the plaintiff
announced that she was ready for trial without having served the resident defendants. The
Ninth Circuit found that the plaintiff voluntarily abandoned the joint character of the
proceedings, with the result that the case could be removed. Id.; see also Insinga, 845 F.3d
In order to demonstrate voluntary abandonment, “there need not be a formal dismissal
of the non-diverse party,” Ramirez v. Michelin N.A., Inc., No. 07cv228, 2007 WL 2126635,
at *3 (S.D. Tex. July 19, 2007), but the defendant must show “a definite or unequivocal
expression of intent to discontinue the action against the resident party.” Naef v. Masonite
Corp., 923 F. Supp. 1504, 1510 (S.D. Ala. 1996); see also Bourque v. Nan Ya Plastics Corp.,
906 F. Supp. 348, 352 (M.D. La. 1995) (“The defendants can avoid remand of the case if
they can show that [the] plaintiff has voluntarily abandoned his claims against the non
diverse defendants by clear and unambiguous acts.”).
Plaintiff’s course of conduct unequivocally has demonstrated voluntary abandonment
of his claims against Bobby Daffin. As of the date of the pretrial conference, less than a
month before trial in state court, Plaintiff had not served Bobby Daffin. Plaintiff had not
even attempted to serve Bobby Daffin since early May of 2011. This is despite an impending
trial date and clear opportunities to effect service, such as Bobby Daffin’s deposition in late
November of 2011, which took place at Plaintiff’s counsel’s law office. The omission of
service on that date is a clear expression of intent to abandon pursuit of claims against Bobby
Daffin. Futhermore, Plaintiff’s pretrial contentions, which were prepared for the pretrial
order (reproduced in the notice of removal), assert no claims against him. This is another
expression of intent to discontinue the case against Daffin. Finally, as if Plaintiff’s actions
pre-removal were not enough, Plaintiff essentially argues in support of remand that
Husqvarna should have realized that Bobby Daffin was fraudulently joined earlier in the
case. (Mot. to Remand 2-3 (“Husqvarna has known since the filing of this case that the
Plaintiff’s claims against Defendant Daffin were defective . . . . The removing Defendant
knew at the time the lawsuit was filed that the accident was not caused by the actions of the
In fact, by making such an argument, Plaintiff, and Plaintiff’s counsel, potentially have
exposed themselves to sanctions under Rule 11(b), or at the very least, to an award to Husqvarna
of its costs and fees for having to litigate the motion to remand.
In addition to constituting clear acts of voluntary abandonment, the Court also finds
that remand is unwarranted because Plaintiff lacks a good faith intention to pursue his claims
against Daffin. See Ramirez, 2007 WL 2126635, at *3 n.8 (citing cases); see also Davis v.
Am. Med. Sec., Inc., 334 F. Supp. 2d 1292, 1293 (N.D. Ala. 2004) (“There is a countervailing
principle that arguably prevents a plaintiff from avoiding a diversity removal if his failure
to pursue a non-diverse defendant is deliberate and calculated. Such a course of non-action
might be described as a subterfuge or the belated equivalent of fraudulent joinder.”); In re
Briscoe, 448 F.3d 201, 216 (3d Cir. 2006) (stating that “‘joinder is fraudulent if ‘there is . . .
no real intention in good faith to prosecute the action against the defendant or seek a joint
judgment’” (quoting Abels v. State Farm Fire & Cas. Co., 770 F.2d 26, 32 (3d Cir. 1985))).
Where the plaintiff’s collective litigation actions, viewed objectively, clearly demonstrate a
lack of good faith intention to pursue a claim to judgment against a non-diverse defendant,
the court should dismiss the non-diverse defendant and retain jurisdiction over the case. As
the preceding paragraph makes clear, the non-service – indeed, the non-attempt of service
since practically the inception of the case – was intentional. Service on Bobby Daffin could
have been achieved at his deposition at Plaintiff’s counsel’s law office with a minimum of
effort. The failure to attempt to serve Bobby Daffin is compounded by Plaintiff’s pretrial
submissions and correspondence, which also indicate that Plaintiff does not intend to pursue
claims against Bobby Daffin at trial. In addition, Plaintiff’s argument in support of remand
(conceding that no viable cause of action exists) indicates that Plaintiff will not pursue claims
against Bobby Daffin in state court in the event of remand. In Davis, Judge Acker
considered the plaintiff’s post-removal attempt to serve the non-diverse defendant as
evidence of a good faith pursuit of the plaintiff’s claims. 334 F. Supp. 2d at 1293. To the
contrary, Plaintiff’s unusual post-removal argument in favor of remand reveals and explains
the lack of a good faith effort (both prior to removal and if the Court were to grant a remand)
to pursue claims against Bobby Daffin to judgment. Bobby Daffin is fraudulently joined
because of Plaintiff’s failure to pursue in good faith his claims against him.
Section 1332(a) also requires that the “matter in controversy exceed[ ] the sum or
value of $75,000, exclusive of interest and costs . . . .” Id. Where the complaint alleges
unspecified damages, the removing party bears the burden of establishing the jurisdictional
amount as a substantive matter by a preponderance of the evidence. Pretka v. Kolter City
Plaza II, Inc., 608 F.3d 744, 752 (11th Cir. 2010); Lowery v. Ala. Power Co., 483 F.3d 1184,
1207 (11th Cir. 2007) ; see also Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1356-57
(11th Cir. 1996) (“[W]e hold that where a plaintiff has made an unspecified demand for
damages in state court, a removing defendant must prove by a preponderance of the evidence
that the amount in controversy more likely than not exceeds the jurisdictional requirement.”
(emphasis added)), overruled on other grounds by Cohen v. Office Depot, Inc., 204 F.3d
1069, 1072 (11th Cir. 2000).
To meet its substantive burden of establishing the amount in controversy by a
preponderance of the evidence,2 Husqvarna presents an email from Plaintiff’s counsel
wherein counsel states: “My client has authorized me to resolve this case for $375,000.”
(Doc. # 7-2.) When considering a demand letter to establish the amount in controversy, the
court should leave some room for posturing, but also should view the amount demanded as
relevant evidence of the true amount in controversy. Burns v. Windsor Ins. Co., 31 F.3d
1092, 1097 (11th Cir. 1994) (“While [a] settlement offer, by itself, may not be determinative,
it counts for something.”). Furthermore, the Eleventh Circuit has instructed the district
courts to make “reasonable deductions, reasonable inferences, or other reasonable
extrapolations” from the removal evidence. Roe v. Michelin N.A., Inc., 613 F.3d 1058, 106162 (11th Cir. 2010). Combining the amount demanded, five times the jurisdictional amount,
with the nature of Plaintiff’s injuries, the Court concludes that Husqvarna has established that
the amount in controversy exceeds $75,000 by a preponderance of the evidence.
Because Plaintiff has abandoned and not pursued in good faith his claims against
Bobby Daffin, and because the amount in controversy exceeds $75,000, it is ORDERED that
Husqvarna contends that it discovered that the amount in controversy exceeded $75,000
prior to discerning that Bobby Daffin was fraudulently joined. As the later-discovered condition
of removability, Husqvarna need not comply with § 1446 and Lowery’s procedural requirements.
In any case, settlement offers from the plaintiff’s counsel constitute other paper received from the
plaintiff. Lowery, 483 F.3d at 1212 n.62 (citing Addo v. Globe Life & Accident Ins. Co., 230
F.3d 759, 761-62 (5th Cir. 2000)). Furthermore, the demand letter in this case “unambiguously
establishes” the amount in controversy. Id. at 1213 & n.63.
Plaintiffs’ Motion to Remand (Doc. # 5) is DENIED and Plaintiff’s claims against Defendant
Bobby Daffin are DISMISSED with prejudice.
DONE this 27th day of March, 2012.
/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE
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