Sallee et al v. Ford Motor Company et al

Filing 25

MEMORANDUM OPINION AND ORDER that Plfs' #17 Motion to Remand is GRANTED, and that this action is REMANDED to the Circuit Court of Montgomery, Alabama; DIRECTING the Clerk to take appropriate steps to effectuate the remand. Signed by Chief Judge William Keith Watkins on 4/16/2014. (wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
TARA D. SALLEE, et al.,
Plaintiffs,
v.
FORD MOTOR COMPANY, et al.,
Defendants.

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CASE NO. 2:13-CV-806-WKW
[WO]

MEMORANDUM OPINION AND ORDER
Defendants have removed this action for the second time pursuant to 28
U.S.C. §§ 1441(a) and 1446(b)(3), alleging that the Amended Complaint and a
recently received affidavit show that this action is within the court’s original
diversity jurisdiction under 28 U.S.C. § 1332(a). Before the court is Plaintiffs’
Motion to Remand. (Doc. # 17.) The motion is fully briefed (Docs. # 17, 22, 24),
and the matter is ready for adjudication. Based upon the arguments of counsel and
the relevant law, Plaintiffs’ motion to remand is due to be granted.
I. BACKGROUND
A.

The Parties
The Plaintiffs are: (1) Tara D. Sallee, the administratrix of the estate of her

deceased sister, Latonya Joyce Sallee (“Sallee”), and personal representative and
next of friend of G.T., the minor child of Sallee; and (2) Ed Parish, Jr., the

administrator of the estate of deceased Derrick Sagers (“Sagers”), and personal
representative and next friend of K.N.S., the minor child of Sagers (collectively,
“Plaintiffs”). Plaintiffs are citizens of Alabama. See 28 U.S.C. § 1332(c)(2).
The Defendants are Ford Motor Company (“Ford”), Bridgestone Americas,
Inc., Bridgestone Americas Tire Operations, LLC, doing business as Firestone
(“Bridgestone Defendants”), Woodmere Motors, Inc. (“Woodmere”), and M&D
Automotive, Inc. (“M&D Automotive”). The Bridgestone Defendants and Ford
are not citizens of Alabama, but Woodmere and M&D Automotive are. See 28
U.S.C. § 1332(c)(1).
B.

Facts as Alleged in the Amended Complaint
This case arises from an accident in July 2011 involving a 1995 Ford

Explorer, bearing a Bridgestone tire also manufactured in 1995. Woodmere sold
the vehicle to Sagers.
In December 2008, after Woodmere sold the Ford Explorer to Sagers but
before the accident, Woodmere filed articles of dissolution with the Alabama
Secretary of State. Just days before the July 2011 accident, M&D Automotive
entered the picture.

It inspected the vehicle and the sixteen-year-old tire,

previously serving as a spare, and installed the tire without warning Sagers of its
allegedly defective condition.

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Days later, Sagers and Sallee headed north from the Montgomery, Alabama
area on Interstate 85. Shortly after they crossed into Georgia, the tire detreaded.
Sagers, who was driving, lost control of the vehicle, and both Sagers and Sallee
died.
C.

Procedural History
Plaintiffs originally brought suit in the Circuit Court of Montgomery

County, Alabama. The Bridgestone Defendants – with Ford’s consent – removed
this action to this court on December 14, 2012, on the basis that Woodmere and
M&D Automotive were fraudulently joined to defeat federal diversity jurisdiction
and that, in their absence, complete diversity existed (“First Removal”).

See

§ 1441(a) (allowing removal of civil actions over which the district courts have
original jurisdiction); § 1332(a) (defining original jurisdiction as including civil
actions where the amount in controversy exceeds $75,000 and there is complete
diversity). Plaintiffs moved to remand on January 11, 2013, arguing there was no
fraudulent joinder, and therefore complete diversity was lacking.

This court

granted Plaintiffs’ motion on June 27, 2013, and remanded the case back to
Montgomery County Circuit Court. See Sallee v. Ford Motor Co., 2:12-CV-1086WKW, 2013 WL 3280325 (M.D. Ala. June 27, 2013) (order granting remand). It
found that although Woodmere indisputably dissolved in 2008, its dissolution did
not prevent Plaintiffs’ claims against it; thus, it was unnecessary to analyze the
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allegedly fraudulent joinder of M&D Automotive because Woodmere’s presence
defeated diversity jurisdiction.
On October 10, 2013, in state court Plaintiffs filed a motion to amend their
Complaint to reflect that Ed Parish, Jr., had been substituted for Mary Coleman as
the administrator of the estate of Sagers and as the personal representative and next
friend of K.N.S. On October 23, 2013, Plaintiffs’ motion was granted, and the
Amended Complaint was allowed.
The Bridgestone Defendants filed their Second Notice of Removal (“Second
Removal”) in this court on October 30, 2013 (Doc. # 2), on the basis of the
Amended Complaint and an affidavit the Bridgestone Defendants received from
John Fitzgerald, the former president and director of Woodmere, a non-diverse coDefendant.

In the affidavit (“Fitzgerald Affidavit”), Fitzgerald states that

Woodmere was a wholesaler at the time it owned and sold the subject vehicle.
Fitzgerald alleges that Woodmere neither made any inspection of the subject
vehicle nor gave any warranties at the time of the sale. (Doc. # 2, Ex. E.) The
Bridgestone Defendants argue that this new information demonstrates that there is
no possibility that Plaintiffs can prove their claims against Woodmere due to its
status as a wholesaler. (Doc. # 2, at 5.)
The court finds this case in its lap again as predicted; though unexpectedly,
Defendants make the same substantive arguments regarding their fraudulent
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joinder argument – that Woodmere and M&D Automotive are fraudulently joined
defendants, though their arguments regarding Woodmere are slightly different. 1
Plaintiffs have moved to remand for a second time, and that motion is pending.
Plaintiffs do not dispute that § 1332(a)’s amount-in-controversy requirement is
met; however, they again argue against a finding of fraudulent joinder. Before the
substance of the fraudulent joinder argument can be addressed, Defendants must
meet the procedural requirements of removal according to § 1446(b)(3).
II. STANDARD OF REVIEW
A.

Generally
“[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). Thus, with
respect to cases removed to this court pursuant to § 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.” Id. at 1095.

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Defendants contend that “since this Court previously did not address whether M&D is
a fraudulently joined defendant, that argument remains a basis for removal.” (Defs.’ Second
Not. of Removal Doc. # 2, at 5.)
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B.

Removal
When a case is removed on the basis of diversity jurisdiction, a successful

removal requires a defendant to jump through both procedural and substantive
hoops. As to the procedural hoop, the removing party must satisfy the “how” and
“when” dictates of 28 U.S.C. § 1446. See Pretka v. Kolter City Plaza II, Inc., 608
F.3d 744, 756 (11th Cir. 2010). Section 1446(a), which “answers the question of
how removal is accomplished,” Lowery v. Ala. Power Co., 483 F.3d 1184, 1212
(11th Cir. 2007), provides that a removing defendant “shall file in the district court
of the United States for the district and division within which such action is
pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of
Civil Procedure and containing a short and plain statement of the grounds for
removal . . . .” § 1446(a).
Section 1446(b) “answers the question of when an action is removable.”
Lowery, 483 F.3d at 1212. It “governs the timeliness of removal in civil cases.”
Pretka, 608 F.3d at 756. It is well established that “[t]he untimeliness of a removal
is a procedural, instead of a jurisdictional, defect.” In re Uniroyal Goodrich Tire
Co., 104 F.3d 322, 324 (11th Cir. 1997); accord Moore v. N. Am. Sports, Inc., 623
F.3d 1325, 1329 (11th Cir. 2010). Section 1446(b) contains two subsections that

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are relevant to the discussion in this case.2 Under § 1446(b)(1), a defendant may
rely on the initial pleading, filing a notice of removal “after the receipt by the
defendant . . . of a copy of the initial pleading setting forth the claim for
relief . . . .”

§ 1446(b)(1).

However, if the initial pleading does not provide

grounds for removal, a defendant may later file under § 1446(b)(3) a notice of
removal “after receipt by the defendant . . . of a copy of an amended pleading,
motion, order or other paper from which it may first be ascertained that the case is
one which is or has become removable.” § 1446(b)(3).
C.

Remand
28 U.S.C. § 1447(c) provides, in relevant part: “A motion to remand the

case on the basis of any defect other than lack of subject matter jurisdiction must
be made within 30 days after the filing of the notice of removal under section
1446(a).” § 1447(c). “If at any time before final judgment it appears that the
district court lacks subject matter jurisdiction, the case shall be remanded.” Id. As
explained in Lowery, Ҥ 1447(c) distinguishes between motions to remand made
within the first thirty days following removal, and challenges to subject matter
jurisdiction brought after that time.” 483 F.3d at 1213 n.64. “Plaintiffs have only
thirty days from the notice of removal to file a motion to remand challenging any
procedural defects in the removal.” Id. In other words, “[t]here is only a thirty2

Prior to the statute’s revision in December 2011, § 1446(b) was divided into two
paragraphs. The second paragraph is now the current § 1446(b)(3).
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day window . . . for a plaintiff to challenge the propriety of the removal itself,
whether that challenge be on the basis of a procedural defect or a lack of subject
matter jurisdiction.” Id.
III. DISCUSSION
Plaintiffs make two arguments in support of their motion to remand. They
argue, first, that Defendants have failed to meet the procedural requirements for
removal and, second, that Defendants have not demonstrated the fraudulent joinder
of Woodmere and M&D Automotive such that complete diversity is lacking.
Because the procedural inquiry is dispositive, it is unnecessary to address the
parties’ substantive arguments regarding fraudulent joinder.
The parties do not dispute that this is a § 1446(b)(3) removal and that
Plaintiffs timely filed their Motion to Remand within the thirty-day window.
Rather, the issue is whether the removal comports with the procedural
requirements of § 1446(b)(3) as dictated by Lowery.
Section 1446(b)(3) states that a “notice of removal may be filed within 30
days after receipt by the defendant, through service or otherwise, of a copy of an
amended pleading, motion, order or other paper from which it may first be
ascertained that the case is one which is or has become removable.” § 1446(b)(3)
(emphasis added). Lowery, which involved a removal under the second paragraph
of § 1446(b) (now § 1446(b)(3)), has compartmentalized this inquiry into three
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elements: “[T]here must be (1) ‘an amended pleading, motion, order or other
paper,’ which (2) the defendant must have received from the plaintiff (or from the
court, if the document is an order) and from which (3) the defendant can ‘first
ascertain’ that federal jurisdiction exists.” 483 F.3d at 1213 n.63 (emphasis added)
(quoting § 1446(b)). All three conditions must be present.
A.

The Fitzgerald Affidavit
The second element of the Lowery inquiry pertaining to the “receipt from the

plaintiff” rule is pivotal when analyzing whether the Fitzgerald Affidavit triggered
the removal clock. Plaintiffs argue that the Fitzgerald Affidavit did not provide a
basis for removal because it was not received from Plaintiffs. Defendants respond
that § 1446(b)(3) does not mandate that the “other paper” be received from
Plaintiffs.
An understanding of the “receipt from the plaintiff” rule requires discussion
of Pretka. In Pretka, the Eleventh Circuit held that, as to removals based on
§ 1446(b)’s first paragraph (now § 1446(b)(1)), no limitations exist as to the
evidence a federal court may consider when the removal is timely. In so holding,
Pretka rejected Lowery’s dicta that a removal under the first paragraph of
§ 1446(b) must be based on a document received from the plaintiff. See 608 F.3d
at 761 (“Lowery’s ‘receipt from the plaintiff’ rule has no application to cases . . . ,
which are removed under the first paragraph of § 1446(b)).
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Hence, under

§ 1446(b)(1), “the evidence the defendant may use to establish the jurisdictional
facts is not limited to that which it received from the plaintiff or the court.” Id. at
768.
The Eleventh Circuit emphasized in Pretka that it was considering a removal
under the first paragraph of § 1446(b) (now § 1446(b)(1)). Id. at 747. The Second
Removal in this case, as in Lowery, occurred under § 1446’s provision that reopens
the removal period for thirty days when the defendant receives a document “from
which it may first be ascertained that the case is one which is or has become
removable.” § 1446(b)(3). The Second Removal is not a § 1446(b) first-paragraph
removal (now § 1446(b)(1)) as in Pretka. The procedure for when an action is
removable under the second paragraph of the former § 1446(b) (now § 1446(b)(3))
is not controlled by the decision in Pretka.
Defendants nonetheless contend that Pretka’s “discussion of the purpose of
the removal process is not limited to first paragraph removals,” and that Lowery
should be limited to its facts. (Doc. # 22, at 5–6.) To be sure, Pretka narrowed
Lowery’s breadth by rejecting as dicta Lowery’s statement that the “receipt from
the plaintiff” rule applied to § 1446(b) first-paragraph removals, given that Lowery
“was not a first paragraph removal case.” 608 F.3d at 762; see id. at 767 (“Lowery
is a case in which the removal arose under the second paragraph of 28 U.S.C.
§ 1446(b),” and “we are not persuaded that its rule should apply to § 1446(b) first
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paragraph removals.”).

Pretka found ample reason to distinguish between

Lowery’s second-paragraph removal and the first-paragraph removal with which it
was confronted for purposes of the “receipt from the plaintiff” rule. See, e.g.,
Pretka, 608 F.3d at 760 (contrasting the different language in the first and second
paragraphs of § 1446(b)). But at the same time, Pretka did not encroach upon
Lowery’s “receipt from the plaintiff” rule as Lowery applied it to the secondparagraph removal before it.
On the contrary, Pretka shored up the (b)(3) Lowery holding by reiterating
the traditional rule that “only a voluntary act by the plaintiff may convert a nonremovable case into a removable one.” Id. at 761. “[A]n initially non-removable
case ‘cannot be converted into a removable one by evidence of the
defendant . . . .’” Id. (citing Gaitor v. Peninsular & Occidental Steamship Co., 287
F. 2d 252, 254 (5th Cir. 1961). Defendants’ citation to Lambertson v. Go Fit, LLC,
918 F. Supp. 2d 1283, 1285 (S.D. Fla. 2013), does not persuade otherwise.
Defendants cite Lambertson for its statement that “[t]he definition of ‘other paper’
is broad and may include any formal or informal communication received by a
defendant.” Id. Defendants’ brief disregards, however, the fact that the disputed
“other paper” in Lambertson was received by the defendant from the plaintiff.
Lambertson addressed whether the plaintiff’s pre-suit demand package or the
plaintiff’s response to the defendant’s request for admissions could be considered
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“other paper,” as contemplated by § 1446(b)(3). Both documents were received
from the plaintiff by the defendant, and thus, Lambertson is consistent with
Lowery’s “receipt from the plaintiff” rule.
If a principled reason exists for distinguishing the type of removal in this
case from the type of removal in Lowery for purposes of applying the “receipt from
the plaintiff” rule, the Bridgestone Defendants have not argued it.3 Absent any
other argument from Defendants or a decision from the Eleventh Circuit in a
§ 1446(b)(3) removal case further narrowing Lowery’s “receipt from the plaintiff”
rule, Lowery’s rule will be applied in this § 1446(b)(3) removal. See Jackson v.
Litton Loan Servicing, LP, No. 09cv1165, 2010 WL 3168117, at *4 (M.D. Ala.
Aug. 10, 2010) (“Until the Eleventh Circuit changes the rule set forth in Lowery,
this Court will continue to apply it when considering a notice of removal under the
second paragraph of § 1446(b).”); accord Williams v. Litton Loan Servicing, LP,
No. 10cv951, 2011 WL 521624, at *6 (M.D. Ala. Feb. 15, 2011).
Here, the Bridgestone Defendants received the Fitzgerald Affidavit from the
former president of Woodmere, one of the non-diverse defendants. This affidavit

3

In another case, removed under § 1446(b)(3), the defendant tried to distinguish Lowery,
but without success, by suggesting that Lowery’s “interpretation of §1446’s procedural
requirements only applies to removals based upon the amount in controversy requirement,” not
the diversity of parties requirement. Maxwell v. E–Z–Go, 843 F. Supp. 2d 1209, 1214 n.2 (M.D.
Ala. 2012). The district court rejected the argument, noting that § 1446(b)(3) “makes no
distinction between the procedural requirements for amount in controversy and fraudulent
joinder removals,” and that “Lowery itself does not limit its discussion to removals based upon
the amount in controversy.” Id.
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was not received from Plaintiffs and, thus, violates Lowery’s “receipt from the
plaintiff” rule. See 483 F.3d at 1213. Because Defendants did not receive the
affidavit from Plaintiffs, it cannot be considered “other paper,” and, therefore, the
Fitzgerald Affidavit does not satisfy the requirements of § 1446(b)(3). Removal
based on the affidavit was not proper.4
B.

The Amended Complaint and New Information
The third element of the Lowery inquiry is dispositive when analyzing

whether the Amended Complaint is a proper removal document.

While

§ 1446(b)(3) permits removal based upon “an amended pleading,” Plaintiffs argue
that Defendants’ reliance on the Amended Complaint as an alternative basis for
removal is improper because the Amended Complaint does not provide any new
information sufficient for Defendants to “first intelligently ascertain that this action
is removable.” (Doc. # 17, at 12.) Defendants contend, however, that “only after
analyzing the allegations in the Amended Complaint in light of the evidence in this

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Even assuming that the “receipt from the plaintiff” rule did not apply and that the
Fitzgerald Affidavit qualified as “other paper” under § 1446(b)(3), the Bridgestone Defendants
have not demonstrated that the information contained in the affidavit was not available to them
prior to the First Removal. The Bridgestone Defendants cite no authority for their suggestion
that for purposes of removal, they were entitled to wait to “beg[i]n their investigation in earnest”
of Woodmere’s joinder until after this court rejected their initial argument for Woodmere’s
fraudulent joinder asserted as the basis for the First Removal. See Taylor Newman Cabinetry,
Inc. v. Classic Soft Trim, Inc., 436 F. App’x 888, 893 (11th Cir. 2011) (observing that the
removal was untimely under § 1446(b)(3) when there was “no reason” that the removing
defendants could not have obtained discovery earlier revealing the allegedly fraudulent joinder of
the non-diverse defendant). Hence, the removal based upon the Fitzgerald Affidavit is not timely
for this additional reason.
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case, including the Fitzgerald affidavit . . . , did it become clear this case had
become removable.” (Doc. # 22, at 3.)
As discussed above, Defendants cannot rely on the Fitzgerald Affidavit since
it does not satisfy the “receipt from the plaintiff” rule, and thus, Defendants must
rely on the Amended Complaint. In order for removal to be procedurally proper,
Defendants must establish that the new information in Plaintiffs’ Amended
Complaint allowed Defendants to “‘first ascertain’ that federal jurisdiction exists.”
Lowery, 483 F.3d at 1213 n.63.
The Amended Complaint contains two amendments. First, it substitutes Ed
Parish, Jr. (“Parish”) as the administrator of the estate of Sagers, and as personal
representative and next friend of K.N.S., the minor child of Sagers. Where an
estate is a party, the citizenship that counts for diversity purposes is that of the
decedent. 28 U.S.C. § 1332(c)(2); see also King v. Cessna Aircraft Co., 505 F.3d
1160, 1170 (11th Cir. 2007). The decedent is alleged to be a citizen of Alabama,
and thus, this amendment does not provide any new information relevant to the
citizenship of the parties.

Second, the Amended Complaint includes a new

demand for relief, but at no time have Plaintiffs denied that the amount in
controversy exceeds the jurisdictional minimum; hence, this amendment likewise
fails to provide new information relevant to whether federal jurisdiction exists.
Indeed, Defendants have failed to point to any new information in the Amended
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Complaint from which it can be “first ascertained” that federal jurisdiction exists.
§ 1446(b)(3).
Accordingly, the removal is procedurally improper, and the case is due to be
remanded. Because the procedural requirements are dispositive, it is unnecessary
to discuss the substantive arguments relating to fraudulent joinder.
IV. CONCLUSION
Based on the foregoing, Defendants have failed to satisfy the procedural
requirements for removal under 28 U.S.C. § 1446(b)(3) as required by Lowery.
Accordingly, it is ORDERED that Plaintiffs’ Motion to Remand (Doc. # 17) is
GRANTED, and that this action is REMANDED to the Circuit Court of
Montgomery, Alabama. The Clerk of the Court is DIRECTED to take appropriate
steps to effectuate the remand.
DONE this day 16th of April, 2014.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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