Fletcher et al v. Cooper Tire & Rubber Company et al
OPINION AND ORDER directing as follows: (1) the 14 MOTION to Remand is denied; (2) defendant Robert Simmons (d/b/a Simmons Used Cars) is dismissed and terminated as a party; (3) defendant estate of Tara Denita Sanders if realigned as a plaintiff. Signed by Honorable Judge Myron H. Thompson on 5/23/13. (Attachments: # 1 civil appeals checklist)(djy, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
administratrix of the
estate of Frank Carter,
deceased; KWAMIKA FLETCHER, )
individually; and ROSITA
COOPER TIRE & RUBBER
COMPANY, a foreign
SIMMONS d/b/a Simmons Used )
Cars; and the ESTATE OF
TARA DENITA SANDERS,
CIVIL ACTION NO.
OPINION AND ORDER
Asserting state-law claims arising out of a one-car
accident, the plaintiffs (administratrix of the estate of
initially filed this lawsuit in state court against the
defendants (Cooper Tire & Rubber Company, Robert Simmons
(d/b/a Simmons Used Cars), and the estate of Tara Denita
Carter, Fletcher, Boyd, and Sanders were
injured or killed.
Pursuant to 28 U.S.C. § 1441, Cooper
Tire removed this lawsuit from state to federal court,
asserting diversity jurisdiction under 28 U.S.C. § 1332.
plaintiffs’ motion to remand.
For the reasons that
follow, the motion will be denied.
I. REMAND STANDARD
Federal courts are courts of limited jurisdiction.
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375
(1994); Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095
(11th Cir. 1994).
A federal court may hear a case only
if it is authorized to do so by federal law.
While the plaintiffs named the estate of Tara
Denita Sanders as a defendant, Sheryl Smith (in her
capacity as administratrix of the estate of Tara Denita
Sanders) responded with an answer to the complaint and a
crossclaim against Cooper Tire. Because the plaintiffs
are the ones who initiated this lawsuit, the court will
refer to the defendant as the estate of Tara Denita
Sanders, rather than as Sheryl Smith as administratrix of
the estate of Tara Denita Sanders.
511 U.S. at 377.
The party seeking removal has the
Burns, 31 F.3d at 1095.
burden of establishing it.
removal statute must be strictly construed because it
raises significant federalism concerns.
Shamrock Oil &
Gas Corp. v. Sheets, 313 U.S. 100 (1941).
about federal-court jurisdiction should be resolved in
favor of a remand to state court.
Burns, 31 F.3d at
This case involves a one-car accident in which all
Driving the car was Sanders, who is now deceased.
estate has been named as a defendant; she is charged with
contributing to the accident through unsafe driving.
passengers were Sanders’s husband, Carter, who is also
Fletcher, Boyd, and the Carter estate administratix are
They claim that besides Sanders (whose
estate is named as a defendant), two other parties (both
named as defendants too) contributed to the accident:
Cooper Tire is charged with manufacturing a defective
tire that was a substantial cause of the accident, and
Simmons, who sold Carter the car and provided subsequent
maintenance, is charged with negligently failing to have
discovered the defect in the tire when he should have
The Sanders estate has filed a crossclaim
against Cooper Tire that is essentially identical to the
In removing the state-court lawsuit to this federal
court pursuant to 28 U.S.C. § 1441, Cooper Tire invoked
this court’s diversity-of-citizenship jurisdiction under
28 U.S.C. § 1332.
In order for diversity jurisdiction to
be proper, there must be complete diversity between the
parties, which means that no plaintiff may be a citizen
of the same State as any defendant.
Curtiss, 7 U.S. 267 (1806).
Here, there is not complete
While Cooper Tire is a citizen of Delaware
and Ohio, all three of the plaintiffs and two of the
citizens of Alabama.
Cooper Tire contends that Simmons and the Sanders
estate, the two Alabama defendants, were fraudulently
joined to defeat diversity jurisdiction; that is, the
company argues that the plaintiffs do not actually intend
to pursue claims against Simmons and the Sanders estate
in good faith, but have rather named them as defendants
solely for the purpose of defeating complete diversity.
See, e.g., Henderson v. Washington Nat. Ins. Co., 454
F.3d 1278, 1281 (11th Cir. 2006) (discussing fraudulent
determining diversity jurisdiction.
A removing party who contends that a defendant has
been fraudulently joined carries a “heavy” burden of
There are three ways a party charging
resident (non-diverse) defendant”; (2) by establishing
jurisdictional facts”; or (3) by establishing that “a
diverse defendant is joined with a non-diverse defendant
as to whom there is no joint, several or alternative
defendant has no real connection to the claim against the
Triggs v. John Crump Toyota,
Inc., 154 F.3d 1284, 1287 (11th Cir. 1998).
In making that determination, the court must examine
supplemented by any affidavits, deposition transcripts,
and other evidence submitted by the parties.
Wyeth, 428 F.3d 1317, 1322-23 (11th Cir. 2005).
court must resolve all genuine factual disputes in favor
of the plaintiffs.
Likewise, if the plausibility of
the plaintiffs’ claims depends on disputes of law, the
court must resolve those legal disputes in favor of the
plaintiffs as well.
Crowe v. Coleman, 113 F.3d 1536,
1538 (11th Cir. 1997).
A. Robert Simmons
First, the court will determine whether “there is [a]
possibility that the plaintiff[s] can prove a cause of
action against” Simmons.
Triggs, 154 F.3d at 1287.
this lawsuit, the plaintiffs charge that Simmons, who
sold Carter the car involved in this case and provided
subsequent maintenance, negligently failed to identify
the defect in the tire when he should have done so.
Before the court is evidence that Simmons, as alleged,
sold Carter the car and subsequently provided certain
It has also been shown that, during the
maintenance, he completely omitted examining the tire
that is alleged to have been defective.
What has not
been shown, however, is that, had Simmons examined the
tire in question, there would have been some reasonable
possibility of his identifying the defect.
principles of negligence law, if the defect in question
was not reasonably identifiable, no liability will be
imposed on a person who failed to find it.
Cf. Tucker v.
Wal-Mart Stores, Inc., 89 So. 3d 795, 801 (Ala. 2012)
(“[A] customer asserting delinquent inspection on the
part of a storekeeper must still prove that the foreign
substance was on the floor for a sufficient period of
time that an adequate inspection would have discovered
Whether the alleged defect in question is one
that Simmons should have been expected to find with due
care cannot be discerned from the record before this
In fact, the record contains entirely no evidence
about the sort of defect the tire is alleged to have had.
In response, the plaintiffs state only that they
“have not had an opportunity to depose Mr. Simmons,”
implying that such a deposition may result in material
evidence to support the negligence claim, and, therefore,
there is “a possibility of recovery” against him.
Reply Br. (Doc. No. 21) at 15-17.
In cases like this,
discovery, the plaintiffs “must be able to provide some
showing that [their] claim against the resident defendant
Sellers v. Foremost Ins. Co., 924 F. Supp.
1116, 1119 (M.D. Ala. 1996) (Thompson, J.).
Here, the court cannot be blind to the fact that
discovery in this case has been ongoing for a full year.2
Indeed, when Cooper Tire removed the case to this court,
2. The case began in state court in March 2012. The
same day the case began, the plaintiffs began sending
discovery requests to Cooper Tire. Cooper Tire removed
the case to this court in March 2013.
conclude in a little over two months.
If there is indeed
negligently failing to identify a reasonably discoverable
evidence had not been uncovered in a year of discovery
but would be in the final remaining two months.
plaintiffs provide no particulars as to what they think
they will uncover and how it will support their claim.
While the plaintiffs still make promises that the claim
will be supported some time later, those promises are
Because the plaintiffs have not adequately
shown that the case against Simmons is likely to survive
with further opportunity for discovery, there seems to be
no reasonable possibility that the claim will have merit
3. The parties focus their attention in their
briefing on whether Simmons had a legal duty to inspect
all four tires on the car or whether his duty was more
limited to only the single tire Carter had asked him to
inspect (which was different from the one the plaintiffs
Additionally, there is another reason to find that
plaintiffs’ attorneys argue vehemently that there is a
potential claim against Simmons, all of the plaintiffs
themselves have stated unequivocally that they do not
personally believe that Simmons committed any wrongdoing.
In her deposition, when asked if she knew anything that
Simmons “did wrong in this, leading up to the accident,”
Boyd answered, “No.”
Boyd Dep. (Doc. No. 1-12) at 62:5-
At the time of her deposition, she was not even
aware that she had sued Simmons.
Id. at 61:12-16.
if she knew “any reasons why [she] would sue Simmons,”
she said that she did not.
Id. at 62:13-18.
contrast, she understood that she had sued Cooper Tire
now contend was defective). Resolving that dispute on
the merits now would be improper. See Crowe, 113 F.3d at
1538 (“[T]he jurisdictional inquiry must not subsume
citation omitted). Besides, it misses the more important
issue: whether, had Simmons examined the tire in question
(regardless of whether he had a legal duty to do so), he
could have reasonably discovered any defect.
and she clearly articulated her reasons for doing so:
wrong,” Fletcher answered, “Nothing.”
K. Fletcher Dep.
administratrix for Carter’s estate was aware that she had
sued Simmons, but she did not know why.
(Doc. No. 1-14) at 39:25-40:7.
D. Fletcher Dep.
The administratrix did
not know of anything Simmons “did wrong.”
Id. at 40:8-
She sued Simmons only “[a]t the direction of [her]
Conduct, “A lawyer shall abide by a client’s decisions
concerning the objectives of representation ... and shall
consult with the client as to the means by which they are
to be pursued.”
Ala. R. Prof. Conduct 1.2(a).
is clear that the attorneys did not, at even the most
basic level, consult with their clients as to which
recognizes that in some instances, a case can be so
complex (say, an antitrust case) that a lawyer could not
reasonably be expected to ensure his client understands
all of the claims being pursued on his behalf and it is
entirely reasonable that the client entrust the lawyer
with those decisions.
But, this is not one of those
This case involves a simple car crash and, here,
it is obvious that the actual clients themselves had no
interest in suing the person who provided car maintenance
That is compelling evidence of fraudulent
Lest there be any doubt that Simmons was fraudulently
According to Simmons, after this lawsuit was filed, the
administratrix for Carter’s estate approached him after
church, said, “I’m sorry but I’m not really after you,
I’m after Cooper Tire,” and she then hugged him.
Decl. (Doc. No. 1-16).
that this transpired.
The plaintiffs do not dispute
See Pls.’ Reply (Doc. No. 21) at
15-16 (noting Simmons’s declaration without challenging
It is apparent that Simmons was named as a defendant
in this lawsuit solely for the purpose of destroying
Simmons will be dismissed.
B. The Estate of Tara Denita Sanders
The plaintiffs charge decedent Sanders with unsafe
driving that contributed to the accident.
Sanders “over steered” before she “lost control” of the
Ala. Unif. Traffic Crash Report (Doc. No. 14-
admissible evidence to support the report’s statements,
that the plaintiffs may receive a judgment against the
However, assuming a declaration of liability may be
compensation, which is what the plaintiffs ostensibly
seek in this lawsuit, is a complete impossibility.
administratrix for the Sanders estate testified that the
estate currently has no assets.
1-15) at 18:1-19:18.
See Smith Dep. (Doc. No.
Admittedly, the estate has filed a
crossclaim against Cooper Tire which may have merit, but
even if that claim results in recovery, the funds the
estate receives will pass directly to Sanders’s heirs and
will not be recoverable by the plaintiffs.
See Steele v.
Steele, 623 So. 2d 1140, 1141 (Ala. 1993) (“[D]amages
awarded pursuant to [the Alabama Wrongful Death Act] are
distributed according to the statute of distribution and
are not part of the decedent’s estate.”).
not have any insurance that may pay out claims against
her.4 In short, there is nothing in the record indicating
4. In their brief, the plaintiffs erroneously stated
that Sanders “has liability insurance.” Pls.’ Reply Br.
(Doc. No. 21) at 13 n.8. The undisputed evidence in the
record actually shows that Sanders was completely
uninsured at the time of the accident. First Acceptance
Records (Doc. No. 25-3); see also Smith’s Initial
Disclosures (Doc. No. 25-2) at 5 (disclosing lack of
That the plaintiffs were unaware of that
after a year of discovery is telling.
that the plaintiffs could in any way recover from the
The plaintiffs do not argue otherwise,
apparently conceding that doing so is impossible.
Even though it seems impossible for the plaintiffs to
recover the monetary compensation they ostensibly seek
from the Sanders estate in this lawsuit, that may not be
enough to declare the estate fraudulently joined.
Myers v. Air Serv Corp., 2008 WL 149136, at *2 (E.D. Va.
Jan. 9, 2008) (Kelley, J.) (“A defendant's inability to
pay a judgment, without more, does not render his joinder
[T]he crucial question pertains to the
But there is more.
First, as with Simmons, the plaintiffs in this case
all expressed surprise and confusion about the fact that
they had sued the estate of their family member (Carter’s
wife and Boyd and Fletcher’s aunt).
Boyd testified that
she did not think Sanders “did anything wrong” or “caused
the accident in any way.”
Boyd Dep. (Doc. No. 1-12) at
nothing that Sanders “could have done to prevent the
Id. at 30:3-5.
Sanders, she said, “tried to
prevent the accident as best she could.”
Id. at 30:14-
Until Cooper Tire informed her otherwise in the
deposition, Boyd did not know that she had sued the
Id. at 28:15-29:3.
explain why she had.
She could not
Fletcher was aware that the
Sanders estate was named as a defendant, but she, like
Boyd, did not know why, as she thought Sanders drove
safely and carefully “[t]o the best of her ability” and
did nothing wrong.
K. Fletcher Dep. (Doc. No. 1-13) at
The administratrix of Carter’s estate could
also not explain why she had sued the estate.
Fletcher Dep. (Doc. No. 1-14) at 81:9-88:21.
These depositions are relevant for several reasons.
For one, they reveal, again, that the actual plaintiffs
did not knowingly authorize their attorneys to bring the
claim against the Sanders estate.
For another, here, the
depositions constitute actual, affirmative, and, most
importantly, first-hand evidence that the claim against
the estate has no merit.
Two of the three plaintiffs,
Boyd and Fletcher, rode in the car that this lawsuit
charges was driven recklessly (if this case went to
trial, they would surely be the primary witnesses), and,
here, they have shown that they believe that no such
thing actually occurred.
Based on evidence from two
witnesses who were not only present at the accident but
also have testified against their own interest in seeking
There has not been a reasonable showing that further
discovery would provide otherwise.
Second, there is no evidence in the record that the
plaintiffs have pursued any discovery against the estate,
although they have had a year to do so.
Tire’s deposition of the estate’s administratrix, the
plaintiffs did not ask a single question even though the
prior questioning did not touch upon the ability of the
estate to pay a judgment.
If the plaintiffs were truly
seeking recovery from the estate, it stands to reason
that they would have pursued discovery on that topic.
The record reveals no indication that they had.
Third, there is a legal dispute in this case that
seems to be probative, that is, whether Alabama’s socalled “guest statute” (1975 Ala. Code. § 32-1-2) should
Under that statute, speaking generally, a
therefor cannot be held liable for injuries the guest
incurs in an accident unless a very high legal standard
See, e.g., Coffey v. Moore, 948 So. 2d 544 (Ala.
2006) (discussing the statute).
If the statute applies
in this case, it is very unlikely that the estate will be
(And it would also increase the chance of
joined, as it would mean that the plaintiffs brought a
claim with a very unlikely chance of success.)
other hand, if the statute does not apply, ordinary
negligence law principles do instead, and there is a far
greater possibility that the estate could be declared
(And a corresponding lesser chance of this court
finding fraudulent joinder, as the claim would appear
more likely to have potential merit.)
arguments for whether the guest statute should apply or
not, as the answer is besides the point at this stage.
inquiry must not subsume substantive determination.”).
Instead, the point is this: although the argument that
the guest statute should apply is at least colorable, the
opposite position, that the guest statute does not apply
and the estate should be open to liability.
has gone further even, arguing that, under the standing
doctrine, Cooper Tire cannot invoke the defense on the
estate’s behalf when the estate chooses not to.
not often that a plaintiff and a defendant coalesce to
jointly argue for the defendant’s exposure to liability.
This evidence of collusion between the plaintiffs and the
Sanders estate further establishes that the claim between
them is, at best, a sham.
Lastly, that the plaintiffs so clearly fraudulently
joined the estate’s co-defendant Simmons, with one of the
plaintiffs essentially telling Simmons as much, reveals
that fraudulent joinder is not outside the plaintiffs’
evidence of fraudulent joinder of the Sanders estate.
These circumstances, viewed in the aggregate, compel
The plaintiffs never intended to
Here, however, the court will not dismiss the estate from
That is because the estate has asserted a
crossclaim against Cooper Tire.
Rather than dismissal,
it is more appropriate here to realign the parties so
that the estate is named as a plaintiff and may, like the
against Cooper Tire.
See City of Vestavia Hills v.
General Fidelity Ins. Co., 676 F.3d 1310, 1313-14 (11th
Cir. 2012) (“[P]arties cannot avoid diversity by their
designation of the parties.... [I]t is the duty of the
lower federal courts to look beyond the pleadings and
arrange the parties according to their sides in the
dispute.”) (punctuation, emphasis, and citation omitted).
Although proving fraudulent joinder requires a heavy
burden to be satisfied and the court must err on the side
of remand, this is the case in which the burden has been
The record here shows that the claims against
Simmons and the Sanders estate are, in basic terms, not
To conclude otherwise in the face
of the above-recounted evidence, and in particular that
of the plaintiffs themselves (who apparently, unlike
their lawyers, have been forthright) would require this
court to “suspend reality” and “shelve common sense.”
Roe v. Michelin North America, Inc., 613 F.3d 1058, 1062
(11th Cir. 2010) (quoting Roe v. Michelin N. Am., Inc.,
537 F. Supp. 2d 995, 999 (M.D. Ala. 2009) (Thompson,
Accordingly, this court will retain jurisdiction
under 28 U.S.C. § 1332 over the real dispute in this
lawsuit: the claims of the plaintiffs and the Sanders
estate, all citizens of Alabama, against Cooper Tire, a
citizen of Delaware and Ohio.
Accordingly, it is ORDERED as follows:
(1) The motion to remand (Doc. No. 14) filed by
plaintiffs administratrix of the estate of Frank Carter,
Kwamika Fletcher, and Rosita Boyd is denied.
(2) Defendant Robert Simmons (d/b/a Simmons Used
Cars) is dismissed and terminated as a party.
realigned as a plaintiff.
DONE, this the 23rd day of May, 2013.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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