Fletcher et al v. Cooper Tire & Rubber Company et al

Filing 51

OPINION AND ORDER: (1) The motion to remand 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. (3) Defendant estate of Tara Denita Sanders is realigned as a plaintiff. Signed by Honorable Judge Myron H. Thompson on 7/25/2013. (Attachments: # 1 Civil Appeals Checklist)(jg, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

DARLENE FLETCHER,
)
administratrix of the
)
estate of Frank Carter,
)
deceased; KWAMIKA FLETCHER, )
individually; and ROSITA
)
BOYD, individually,
)
)
Plaintiffs,
)
)
v.
)
)
COOPER TIRE & RUBBER
)
COMPANY, a foreign
)
corporation; ROBERT
)
SIMMONS d/b/a Simmons Used )
Cars; and the ESTATE OF
)
TARA DENITA SANDERS,
)
)
Defendants.
)

CIVIL ACTION NO.
2:13cv156-MHT
(WO)

OPINION AND ORDER
Asserting state-law claims arising out of a one-car
accident, the plaintiffs (administratrix of the estate of
Frank

Carter,

Kwamika

Fletcher,

and

Rosita

Boyd)

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

Sanders).1

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.
This

matter

is

now

before

plaintiffs’ motion to remand.

the

court

on

the

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.

Kokkonen,

1.
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.
2

511 U.S. at 377.

The party seeking removal has the
Burns, 31 F.3d at 1095.

burden of establishing it.

The

removal statute must be strictly construed because it
raises significant federalism concerns.

Shamrock Oil &

Gas Corp. v. Sheets, 313 U.S. 100 (1941).

All doubts

about federal-court jurisdiction should be resolved in
favor of a remand to state court.

Burns, 31 F.3d at

1095.

II. BACKGROUND
This case involves a one-car accident in which all
persons

riding

in

the

car

had

familial

connections.

Driving the car was Sanders, who is now deceased.

Her

estate has been named as a defendant; she is charged with
contributing to the accident through unsafe driving.

The

passengers were Sanders’s husband, Carter, who is also
now

deceased,

and

two

nieces,

Fletcher

and

Boyd.

Fletcher, Boyd, and the Carter estate administratix are
all plaintiffs.

They claim that besides Sanders (whose

3

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 or some other dangerous
condition when he should have done so.

The Sanders

estate has filed a crossclaim against Cooper Tire that is
essentially identical to the plaintiffs’ claim that the
company manufactured a defective tire.

III. DISCUSSION
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

4

of the same State as any defendant.
Curtiss, 7 U.S. 267 (1806).
diversity.

Strawbridge v.

Here, there is not complete

While Cooper Tire is a citizen of Delaware

and Ohio, all three of the plaintiffs and two of the
defendants

(Simmons

and

the

Sanders

estate)

are

all

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
joinder).
fraudulently
citizenship

If

Simmons

joined
is

not

as

and

the

Cooper

considered

Sanders
Tire
for

determining diversity jurisdiction.

5

estate

alleges,
the

See id.

were
their

purpose

of

A removing party who contends that a defendant has
been fraudulently joined carries a “heavy” burden of
proof.

fraudulent

joinder

establishing
plaintiff

There are three ways a party charging

Id.

that

can

may

satisfy

“there

prove

a

is

no

cause

its

burden:

possibility

of

action

(1)

by

that

the

against

the

resident (non-diverse) defendant”; (2) by establishing
“outright

fraud

in

the

plaintiff’s

pleading

of

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
liability

and

[that]

the

claim

against

the

diverse

defendant has no real connection to the claim against the
non-diverse defendant.”

Triggs v. John Crump Toyota,

Inc., 154 F.3d 1284, 1287 (11th Cir. 1998).
In making that determination, the court must examine
the

plaintiff’s

pleadings

at

the

time

of

removal,

supplemented by any affidavits, deposition transcripts,
and other evidence submitted by the parties.

6

Legg v.

Wyeth, 428 F.3d 1317, 1322-23 (11th Cir. 2005).2

The

court must resolve all genuine factual disputes in favor
of the plaintiffs.

Id.

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. The Estate of Tara Denita Sanders
First, the court will determine whether “there is [a]
possibility that the plaintiff[s] can prove a cause of
action against” the Sanders estate.

Triggs, 154 F.3d at

2. Throughout their briefing, the plaintiffs insist
that the court should look to nothing more than their
complaint to determine whether they have asserted a
plausible claim. See, e.g., Pls.’ Br. (Doc. No. 30) at
8-9 (arguing that the court cannot find fraudulent
joinder because the “complaint states a cause of
action”). No matter how many times the plaintiffs repeat
it, that is simply not the law.
The Eleventh Circuit
Court of Appeals has explained on numerous occasions that
fraudulent joinder decisions “must be based upon the
plaintiff’s
pleadings
at
the
time
of
removal,
supplemented by any affidavits and deposition transcripts
submitted by the parties.”
Legg, 428 F.3d at 1322
(emphasis in original).
7

1287.

In this lawsuit, the plaintiffs charge decedent

Sanders

with

accident.

unsafe

driving

that

contributed

to

the

In support, they have submitted an accident

report stating that Sanders “over steered” before she
“lost control” of the vehicle.
Report (Doc. No. 14-2).
to

support

the

Ala. Unif. Traffic Crash

If there is admissible evidence

contention

contained

in

the

accident

report, it would be plausible that the plaintiffs may
receive a judgment against the estate.

The report alone,

however, is not enough since it is inadmissible hearsay.
See Fed. R. Evid. 801(c).

And here, the plaintiffs have

shown no corroborating evidence to support the report’s
hearsay.

In

other

words,

the

record

is

devoid

of

admissible evidence that the claim against the Sanders
estate has even plausible merit.
In fact, to the extent that the record contains any
admissible evidence relating to Sanders’s possibly unsafe
driving, the evidence is to the contrary.
depositions,

the

plaintiffs

8

in

this

During their

case

expressed

surprise and confusion about the fact that they had sued
the estate of their family member.

Boyd, who rode in the

car, testified that she did not think her aunt Sanders,
the driver, “did anything wrong” or “caused the accident
in any way.”

Boyd Dep. (Doc. No. 1-12) at 102:6-103:6.

In fact, Boyd thought that there was nothing that Sanders
“could have done to prevent the accident.”
5.

Id. at 30:3-

Sanders, she said, “tried to prevent the accident as

best she could.”

Id. at 30:14-16.

Boyd did not even

know that she had sued the Sanders estate until Cooper
Tire informed her of that fact in the deposition.
28:15-29:3.

She could not explain why she had.

Id. at

Id.

(By

contrast, she understood that she had sued Cooper Tire
and she clearly articulated her reasons for doing so:
because

they

sold

a

“bad

tire.”

Id.

at

63:8-19.)

Fletcher was aware that the Sanders estate was named as
a defendant, but she, like Boyd, did not know why, as she
thought her aunt drove safely and carefully “[t]o the
best of her ability” and did nothing wrong.

9

K. Fletcher

Dep. (Doc. No. 1-13) at 46:2-47:3.

The administratrix of

Carter’s estate could also not explain why she had sued
the estate of Carter’s wife.

See D. Fletcher Dep. (Doc.

No. 1-14) at 81:9-88:21.
These depositions are relevant for several reasons.
For one, they reveal that the actual plaintiffs did not
knowingly authorize their attorneys to bring the claim
against the Sanders estate.

Under the Alabama Rules of

Professional 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.”
1.2(a).

Ala. R. Prof. Conduct

Here, it is clear that the attorneys did not, at

even the most basic level, consult with their clients as
to which claims should be pursued.

Of course, the court

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

10

entirely reasonable that the client entrust the lawyer
with those decisions.
cases.

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 estate of their family member who
drove

them

on

the

day

of

the

accident.

That

is

compelling evidence of fraudulent joinder.
More importantly, the depositions constitute actual,
affirmative, and, critically 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, and, here, they
have

shown

that

they

believe

driving actually occurred.

that

no

such

reckless

If this case were to proceed

to trial, Boyd and Fletcher would surely be called to
testify and their perceptions of the accident would be
admissible

evidence.

Based

on

evidence

from

two

witnesses who were not only present at the accident but
also have testified against their own interest in seeking
recovery, this claim does not have plausible merit.
11

In

sum, the plaintiffs not only lack any admissible evidence
supporting plausible merit, but they have actually put
into the record affirmative evidence that their claim is
meritless.
The plaintiffs’ attorneys argue that the disastrous
deposition transcripts are not as bad for the plaintiffs
as they first appear because, they explain, despite what
the transcripts may seem to say, the plaintiffs were
actually doing nothing more than indicating that they
lack personal knowledge of the facts underlying their
claim and they want their attorneys to speak on their
behalf regarding factual matters.

After the depositions

occurred, the attorneys submitted affidavits signed by
their

clients

stating

the

following:

“I

have

no

independent knowledge regarding the legal claims that
have been asserted on my behalf by my attorneys” and “I
have relied on my attorneys to pursue any and all claims
on my behalf.”

Boyd Aff. (Doc. No. 14-12); K. Fletcher

Aff. (Doc. No. 14-8) (same); D. Fletcher (Doc. No. 14-7)
(same).

According to the plaintiffs’ attorneys, the
12

situation is like that in Shields v. Washington Nat’l
Ins.

Co.,

375

F.

(Albritton, J.).

Supp.

2d

1346

(M.D.

Ala.

2005)

There, when the plaintiff was asked

what the allegedly fraudulently joined defendant did
wrong, he answered, “I’ll leave that up to my attorneys.”
Id. at 1350.3

Despite the attorneys’ attempted gloss on

what happened here, the two cases are nothing alike.

The

plaintiff in Shields referred factual matters to his
attorneys to explain on his behalf; by contrast, the
plaintiffs here stated, based on their own first-hand
perceptions,

what

they

thought

the

facts

were:

that

Sanders drove as safely as possible and did nothing

3.
In that civil fraud case, the plaintiff also
answered “no” when asked whether the defendant made any
false statements or concealed information, but, as the
district
court
explained,
that
answer
was
not
inconsistent with the “innocent fraud” claim the
plaintiff asserted, which charged that the defendant
passed along a brochure that misled the plaintiff because
of contextual circumstances even though the defendant did
not himself make misleading statements. See Shields, 375
F. Supp. 2d at 1349-50.
13

wrong.4

To the extent that the affidavits attempt to

contradict and erase the damaging deposition testimony,
they are unavailing.

Cf. Van T. Junkins & Assocs., Inc.

v. U.S. Indus., Inc., 736 F.2d 656, 656 (11th Cir. 1984)
(“Although there may be some occasions where a party may
by affidavit clarify testimony given in his deposition
..., we ... hold a district court may find an affidavit
which contradicts testimony on deposition a sham when the
party merely contradicts its prior testimony without
giving any valid explanation.”).
The

plaintiffs,

seeming

to

recognize

that

the

complete lack of evidence supporting the claim against
the Sanders estate is problematic, note that they had not
yet taken depositions of the investigating police officer

4. The plaintiffs also turn to Maxwell v. E-Z-Go, a
Div. of Textron, Inc., 843 F. Supp. 2d 1209 (M.D. Ala.
2012) (Fuller, J.), but that case is no more availing.
That case involved the plaintiff’s lack of personal
knowledge regarding the facts underlying his claim. As
explained, here, the testimony involved in this case does
not evince a lack of personal knowledge but rather
evinces personal knowledge that the claim asserted is
meritless.
14

or

“any

expert

accident

reconstructionist”

and

circumstances may be different if they had done so.
Pls.’ Br. (Doc. No. 14) at 12.

In cases like this, where

the plaintiffs argue that they need further discovery,
the plaintiffs “must be able to provide some showing that
[their]

claim

against

the

resident

defendant

...

is

likely to have evidentiary support after a reasonable
opportunity

for

further

investigation

or

discovery.”

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.5

Indeed, when Cooper Tire

removed the case to this court, the state court had
already ordered that discovery conclude in a little over
two months.

If there is indeed evidence supporting a

claim against the Sanders estate for negligent driving,
it strains credibility to imagine that the evidence had

5. 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.
15

not been uncovered in a year of discovery but would be in
the final remaining two months.

That is particularly

true here, where the actual eyewitnesses to the accident,
the plaintiffs themselves, claim that the driving was
safe and without fault.

The plaintiffs, through their

attorneys, provide no particulars as to what they think
they will uncover and how it will support their claim.
While the attorneys still make promises that the claim
will be supported some time later, those promises are
naked ones.

Because the plaintiffs have not adequately

shown that the case against the Sanders estate is likely
to survive with further opportunity for discovery, there
seems to be no reasonable possibility that the claim will
have merit and the court must conclude that the estate
has been fraudulently joined.
While the court finds fraudulent joinder on the basis
of

the

claim

lacking

plausible

merit

and

not

being

reasonably likely to become meritorious after further
discovery, it is worth noting that there are additional
circumstances supporting the fraudulent joinder finding.
16

For one, even if one were to assume a declaration of
liability against the estate may be obtained, it seems
that recovery of monetary compensation, which is what the
plaintiffs ostensibly seek in this lawsuit, is a complete
impossibility. The administratrix for the Sanders estate
testified that the estate currently has no assets.
Smith Dep. (Doc. No. 1-15) at 18:1-19:18.

See

Although the

estate has filed a crossclaim against Cooper Tire which
may have merit, even if that claim results in recovery,
the funds the estate receives will pass directly to
Sanders’s

heirs

plaintiffs.

and

will

not

be

recoverable

by

the

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

decedent’s estate.”).

and

are

not

part

of

the

Sanders did not have any insurance

that may pay out claims against her.6

In short, there is

6. 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
(continued...)
17

nothing in the record indicating that the plaintiffs
could in any way recover from the Sanders estate.

The

plaintiffs do not argue otherwise, apparently conceding
that doing so is impossible.
recover

is

joinder,

by

it

itself

not

nevertheless

While the inability to

enough

to

find

fraudulent

buttresses

the

fraudulent

joinder finding the court has already made.

See 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

fraudulent....
likelihood

of

more,

does

not

render

his

joinder

[T]he crucial question pertains to the
liability,

not

the

likely

success

of

collection efforts.”).
Second, there is no evidence in the record that the
plaintiffs have pursued any discovery against the estate,

6(...continued)
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
insurance).
That the plaintiffs were unaware of that
after a year of discovery is telling.
18

although they have had a year to do so.

During Cooper

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
apply here.
person

Under that statute, speaking generally, a

offering

a

ride

to

another

without

payment

therefor cannot be held liable for injuries the guest
incurs in an accident unless a very high legal standard
is met.

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
held liable.
this

court

(And it would also increase the chance of
finding

that

the
19

estate

was

fraudulently

joined, as it would mean that the plaintiffs brought a
claim with a very unlikely chance of success.)

On the

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
liable.

(And a corresponding lesser chance of this court

finding fraudulent joinder, as the claim would appear
more likely to have potential merit.)
It

is

unnecessary

to

recount

the

various

legal

arguments for whether the guest statute should apply or
not, as the answer is besides the point at this stage.
See

Crowe,

113

F.3d

at

1538

(“[T]he

jurisdictional

inquiry must not subsume substantive determination.”).
For the reasons already explained, regardless of which
legal standard applies, the evidence in the record shows
that their claim is meritless either way.

Instead, the

point is this: Although the argument that the guest
statute should apply is at least colorable, the defendant
estate, on the contrary, has taken and argued the same
position as the plaintiffs, that the guest statute does
20

not apply and the estate should be open to liability.
The estate 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.
It is not often that a plaintiff and a defendant coalesce
to

jointly

liability.

argue
This

for

the

evidence

defendant’s
of

collusion

exposure

to

between

the

plaintiffs and the Sanders estate further establishes
that the claim between them is, at best, a sham.
In sum, the plaintiffs themselves, as opposed to
their lawyers, do not understand why they have sued the
estate of their family member and one plaintiff was
surprised to learn that she had; after a full year of
discovery, the plaintiffs have not yet identified any
admissible evidence supporting the claim their lawyers
asserted on their behalf against the estate; the only
relevant and admissible evidence in the record indicates
that the claim is most likely meritless; there has been
no reasonable showing that the plaintiffs will uncover
actual supporting evidence later; the plaintiffs seem to
21

have never bothered to look into whether actual recovery
from the estate is a possibility and they now do not
challenge the conclusion that recovery is impossible;
and, finally, the estate’s conduct in this litigation
raises

suspicions

about

possible

collusion

plaintiffs to defeat diversity jurisdiction.
plausible

merit

alone

is

enough

to

find

with

the

The lack of
fraudulent

joinder, but here, in light of those other circumstances,
the

conclusion

require

this

common sense.”

is

court

obvious;
to

deciding

“suspend

otherwise

reality”

and

would

“shelve

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, J.)).
Although the Sanders estate has been fraudulently
joined, the court will not dismiss the estate from the
case.

That

is

because

the

crossclaim against Cooper Tire.

estate

has

asserted

a

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
22

other

plaintiffs,

pursue

against Cooper Tire.

the

products-defect

claim

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).

B. Robert Simmons
Again, the court will determine whether “there is [a]
possibility that the plaintiff[s] can prove a cause of
Triggs, 154 F.3d at 1287.

action against” Simmons.

Here, the plaintiffs charge that Simmons, who sold Carter
the car involved in this case and provided subsequent
maintenance, negligently failed to identify a defect in
the tire or other dangerous condition of some sort when
he should have done so.
that

Simmons,

as

Before the court is evidence

alleged,

sold

Carter

subsequently provided certain maintenance.

the

car

and

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,

even if Simmons had examined the tire in question, there
would

have

been

some

reasonable

possibility

of

identifying a defect or other dangerous condition.

his

Under

basic principles of negligence law, if the danger 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 it.”).

Whether the alleged danger in question

is one that Simmons should have been expected to find
with due care cannot be discerned from the record before
this court.

In fact, the record contains entirely no

evidence about the sort of defect or other dangerous
condition the tire is alleged to have had.
defect

in

the

tire

itself,
24

the

record

If not a

contains

no

evidence as to what it is that Simmons should have
uncovered but failed to.

There is, in short, no actual

evidence of what Simmons did wrong, and without such
evidence, the claim lacks plausible merit.7
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.

Pls.’

Again, the plaintiffs

do not make a reasonable showing that further discovery
is likely to change anything.

Once again, the promise of

7. Cooper Tire made this lack-of-evidence argument
only briefly, see Def.’s Resp. Br. (Doc. No. 20) at 8,
instead focusing the bulk of its 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 now contend was
defective). That legal dispute, however, 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 or
other problem.
If there is no evidence that he
reasonably could have discovered anything wrong with the
tire, the claim lacks merit under state law regardless of
whether he had a legal duty to examine the tire or not.
25

future evidentiary support is a naked one made without
any details as to what the plaintiffs think they will
uncover.

After a full year of discovery and in the final

weeks before trial, that is not enough.8

In short, the

plaintiffs have failed to show that the claim against
Simmons has plausible merit, and therefore, the court
must conclude that Simmons has been fraudulently joined.
Additionally, there are other reasons to find that
Simmons

has

been

fraudulently

joined.

Once

again,

although the plaintiffs’ attorneys argue that there is a
potential claim against Simmons, all of the plaintiffs
8.
In fact, the court is having difficulty
discerning what the theory of recovery against Simmons
actually is.
After this court first stated its
understanding that the plaintiffs were charging Simmons
with failing to identify a defect in the tire that Cooper
Tire was responsible for through negligent manufacturing
or design practices, the plaintiffs rebuffed the court,
stating that, “Plaintiffs allege that Simmons should have
inspected for any dangerous condition.” Pls.’ Br. (Doc.
No. 30) at 9 (emphasis in original).
Notably, the
plaintiffs still do not explain what sort of dangerous
condition Simmons was supposed to have found.
It is
telling that at this late stage in the litigation, the
plaintiffs speak in utter generalities and cannot
articulate with clarity the claim they are pursuing, let
alone provide the court with supporting evidence. That
is itself probative of fraudulent joinder.
26

themselves have stated unequivocally that they do not
personally believe that Simmons committed any wrongdoing.
Their deposition testimony regarding Simmons was similar
to their testimony regarding the Sanders estate.

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 62:5-10.

At the time of her

deposition, she was not even aware that she had sued
Id. at 61:12-16.

Simmons.

Asked if she knew “any

reasons why [she] would sue Simmons,” she said that she
Id. at 62:13-18.

did not.
she

thinks

“Nothing.”
93:2.

Simmons

“did

Similarly, when asked what
wrong,”

Fletcher

answered,

K. Fletcher Dep. (Doc. No. 1-13) at 92:17-

Finally, the administratrix for Carter’s estate

was aware that she had sued Simmons, but she did not know
why.

D. Fletcher Dep. (Doc. No. 1-14) at 39:25-40:7.

The administratrix did not know of anything Simmons “did
wrong.”

Id. at 40:8-16.

She sued Simmons only “[a]t the

direction of [her] attorney.”

Id.

Again, the record

reflects that attorneys for the plaintiffs have caused
27

their clients to sue a person the plaintiffs have no
personal interest in suing.
Finally, there is one additional issue that warrants
mention although it does not factor into the court’s
fraudulent joinder analysis: 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.

Simmons Decl. (Doc. No. 1-16).

The

administratrix, through an affidavit submitted by her
attorneys, disputes that this occurred.

As the matter is

disputed, the court accepts the plaintiff’s version that
no such thing occurred, but nevertheless thinks, given
the other circumstances of this case, that the allegation
warrants passing mention.
In sum, there is insufficient evidence in the record
to establish that the claim against Simmons has even
plausible merit.

It is apparent that Simmons was named

as a defendant in this lawsuit solely for the purpose of

28

destroying

Cooper

Tire’s

right

litigated in federal court.

to

have

this

case

Simmons will be dismissed.

IV. CONCLUSION
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
met.

The record here shows that the claims against the

Sanders estate and Simmons are, in basic terms, not ‘for
real’

and

that

these

fraudulently joined.
of

the

two

defendants

have

been

To conclude otherwise in the face

above-recounted

overwhelming

evidence

would

require this court to close its eyes to the obvious.
While the fraudulent joinder standard is high, it is not
so high as to require the court to ignore reality.
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.
29

***
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.
(3)

Defendant

estate

of

Tara

Denita

Sanders

realigned as a plaintiff.
DONE, this the 25th day of July, 2013.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

is