Morgan et al v. Foshee et al

Filing 47

MEMORANDUM OPINION and ORDER: it is ORDERED as follows: 1. The Plaintiffs' motion to remand (doc. 30 ) is GRANTED; 2. This case is REMANDED to the Circuit Court of Butler County, Alabama; 3. The Clerk of the Court is DIRECTED to take all steps necessary to effectuate the remand to the Circuit Court of Butler County, Alabama. Signed by Chief Judge Emily C. Marks on 3/27/2024. (certified copy of order/docket sheet mailed to CC of Butler County) (CWL)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
HAYLE MORGAN, et al.,
Plaintiffs,
v.
RICHARD FOSHEE, et al.,
Defendants.

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)
)
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) CIVIL CASE NO. 2:23-cv-419-ECM
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[WO]
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)
)

MEMORANDUM OPINION and ORDER
I. INTRODUCTION
Plaintiffs Hayle Morgan (“Morgan”), Roma Fox (“Fox”), James Whited (“James”),
Katelin Whited (“Katelin”), and Malana Whited (“Malana”) 1 (collectively, “Plaintiffs”) 2—
all Alabama citizens—originally brought this action in the Circuit Court of Butler County,
Alabama, seeking damages arising out of a multivehicle accident which resulted in
numerous deaths and injuries. The Plaintiffs bring state law negligence and wantonness
claims against Defendant General Motors LLC (“GM”), a Michigan and Delaware citizen;
Defendant Fiat Chrysler Automobiles US, LLC (“FCA”), a Netherlands and United
Kingdom citizen; and Defendant Richard Foshee (“Foshee”), an Alabama citizen.

The Court refers to the Whited plaintiffs by their first names not out of familiarity but instead for clarity
since they share a surname.

1

Hayle Morgan brings claims individually and as administratrix of the estate of minor child A.F., now
deceased, and as mother and next friend of her living minor child, B.M.; Roma Fox brings claim as
administratrix of the estate of Cody Wayne Fox, deceased; James Whited and Katelin Whited bring claims
individually and as the parents and next friends of their minor children, E.W. and G.W.; and Malana Whited
brings claims individually.

2

1

On July 12, 2023, GM and FCA removed the action to this Court, asserting diversity
jurisdiction pursuant to 28 U.S.C. § 1332. (Doc. 1). In the notice of removal, GM and FCA
assert that the Plaintiffs fraudulently joined nondiverse defendant Foshee in an effort to
defeat federal jurisdiction, and thus the Court should ignore Foshee’s citizenship. GM and
FCA further assert that complete diversity exists among the Plaintiffs and the properly
joined defendants—GM and FCA—and that the amount in controversy exceeds $75,000.
The Plaintiffs subsequently filed a motion to remand (doc. 30), arguing that Foshee was
not fraudulently joined and that the notice of removal suffers from additional procedural
defects.
The Plaintiffs’ motion is fully briefed and ripe for review. 3 For the reasons
explained below, the Court concludes that the Defendants have not met their heavy burden
to establish that Foshee was fraudulently joined, and thus the Court lacks subject matter
jurisdiction over this action. Therefore, the Plaintiffs’ motion to remand is due to be
granted, and this case is due to be remanded to the Circuit Court of Butler County,
Alabama. 4
II. BACKGROUND
This action arises out of multivehicle accident in June 2021 in Butler County,
Alabama, which resulted in the deaths of ten people and many others suffering injuries.
Several different iterations of lawsuits arising out of this accident have been filed in federal
GM and FCA filed a response in opposition, (doc. 37), and Foshee also filed an opposition in which he
“join[ed], adopt[ed], incorporate[d], and reallege[d]” the arguments in GM and FCA’s response, (doc. 38).
3

Additional motions are also pending before the Court. Because the Court concludes that it lacks subject
matter jurisdiction over this action, it also lacks jurisdiction to rule upon the pending motions.

4

2

and state courts in Alabama. In this case, the Plaintiffs allege that Morgan was driving a
2020 Ford Explorer (“Ford Explorer”) north on Interstate 65 near Greenville, Alabama.
The Ford Explorer was occupied by Morgan, Cody Fox, and minor children B.M. and A.F.
Prior to the crash, the Ford Explorer was completely stopped in the right lane on the
interstate due to upcoming traffic. A 2020 Volvo Truck tractor/trailer owned by Royal
Truck Leasing, LLC, and operated by Hansen & Adkins Auto Transport (“Hansen &
Adkins”) and its driver and agent, James B. Woodfork (“Woodfork”), d/b/a Woodfork
Enterprises, Inc., was travelling behind the Ford Explorer. Woodfork allegedly was
traveling too fast for existing conditions; failed to keep a lookout; was not paying close
enough attention; failed to timely apply his brakes; failed to timely stop; failed to take
timely evasive action; and failed to abide by Rules of the Road as required by Alabama
law. As a result, Woodfork struck the Ford Explorer, injuring Morgan and B.M. and killing
Fox and A.F. After striking the Explorer, Woodfork traveled into the left lane; allegedly
failed to slow, stop, or take evasive action; and struck the 2017 Kia Sedona operated by
James and containing Katelin, E.W., G.W., and Malana, causing them injuries.
According to the Plaintiffs, GM and FCA contracted with Hansen & Adkins to
transport GM and FCA vehicles within the State of Alabama. Foshee was the Terminal
Manager for Hansen & Adkins’ Birmingham terminal and Woodfork’s supervisor. Foshee
allegedly had a duty to supervise and correct Woodfork’s hours of service violations,
falsified logs, and unsafe driving habits, such as speeding and driving while fatigued. As
a result of Foshee’s allegedly negligent and wanton failure to supervise Woodfork,
Woodfork was allowed to “routinely work over his hours of service by falsifying his logs
3

dozens of times in the six months before the crash,” leading to Woodfork consistently
driving while fatigued. (Doc. 1-4 at 42). Foshee’s failure to supervise Woodfork also
allowed Woodfork to recklessly operate his vehicle, resulting in him committing numerous
negligent and wanton actions which caused the crash resulting in the Plaintiffs’ injuries.
According to the Plaintiffs, Foshee’s failure to terminate Woodfork before the crash
violated Hansen & Adkins’ “internal policy to terminate drivers who have more than five
violations, who falsify their logs, and who operate their trucks in negligent or careless
manner so as to endanger life, limb, or property.” (Id. at 43).
Additionally, Foshee testified in a related state court action that, in his role as
Terminal Manager, his job duties are “pretty much all encompassing” and he “oversee[s]
most of the operations of the terminal and the employees there,” including the drivers.
(Doc. 30-1 at 4). He also testified that it is “[his] job as terminal manager” to monitor the
logs of all the drivers at the Birmingham terminal to ensure safety, (id. at 6; 45:6–19), and
that he would be notified by email if any driver drove more than 11 hours in a 24-hour
period, which constitutes an hours-of-service violation (id. at 5; 43:12–23, 44:1–23).
Foshee elaborated that if a driver violation was recorded in the electronic systems, he would
get an email about it, and he also independently logged on and checked the system several
times daily for violations. (Id. at 4; 20:12–16). He also acknowledged that he would be
notified about each of Woodfork’s hours of service violations and that he had discussed
hours of service violations with Woodfork over the years. (Doc. 40-1 at 14; 51:18–23,
52:1–19). Foshee further testified that there should be additional training when violations
occur. (Id. at 15; 54:19–23, 55:1–2).
4

III. LEGAL STANDARD
This Court, like all federal courts, is a “court[] of limited jurisdiction” and
“possess[es] only that power authorized by Constitution and statute.” Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A defendant may remove an
action initially filed in state court to federal court if the federal court has original
jurisdiction over the action. 28 U.S.C. § 1441(a); Caterpillar Inc. v. Williams, 482 U.S.
386, 392 (1987). As relevant here, federal jurisdiction exists—and removal is proper—if
the parties are completely diverse and the amount in controversy exceeds $75,000. 28
U.S.C. §§ 1332(a)(1), 1441(a); Caterpillar Inc., 482 U.S. at 392. “[T]he burden of
establishing removal jurisdiction rests with the defendant seeking removal.” Scimone v.
Carnival Corp., 720 F.3d 876, 882 (11th Cir. 2013). “Because removal jurisdiction raises
significant federalism concerns,” federal courts must “construe removal statutes strictly,”
and all doubts about the existence of federal jurisdiction “should be resolved in favor of
remand to state court.” Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 411 (11th Cir.
1999).
The removing defendant’s burden to prove fraudulent joinder is a “heavy one.”
Stillwell v. Allstate Ins. Co., 663 F.3d 1329, 1332 (11th Cir. 2011) (per curiam) (quoting
Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997)). The defendant must prove by
clear and convincing evidence “that either: (1) there is no possibility the plaintiff can
establish a cause of action against the resident defendant; or (2) the plaintiff has
fraudulently pled jurisdictional facts to bring the resident defendant into state court.” Id.
(quoting Crowe, 113 F.3d at 1538). “If there is even a possibility that a state court would
5

find that the complaint states a cause of action against any one of the resident defendants,
the federal court must find that the joinder was proper and remand the case to the state
court.” Id. at 1333 (citation omitted).
The pleading standard for surviving fraudulent joinder “is a lax one.” Id. at 1332–
33. Rather than the plausibility standard, see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009),
a plaintiff can defeat an assertion of fraudulent joinder by showing that their complaint has
“a possibility of stating a valid cause of action,” Stillwell, 663 F.3d at 1333 (quoting Triggs
v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998)). “In considering
possible state law claims, possible must mean ‘more than such a possibility that a
designated residence can be hit by a meteor tonight. That is possible. Surely, as in other
instances, reason and common sense have some role.’” Legg v. Wyeth, 428 F.3d 1317, 1325
n.5 (11th Cir. 2005) (emphasis in original) (citation omitted). In other words, “[t]he
potential for legal liability ‘must be reasonable, not merely theoretical.’” Id. (citation
omitted). Moreover, any uncertainties about state substantive law must be resolved in the
plaintiff’s favor. Stillwell, 663 F.3d at 1333.
To determine whether the complaint possibly states a valid cause of action, this
Court must look to the “pleading standards applicable in state court,” not federal court. Id.
at 1334. The Alabama Supreme Court has explained that “a Rule 12(b)(6) dismissal is
proper only when it appears beyond doubt that the plaintiff can prove no set of facts in
support of the claim that would entitle the plaintiff to relief.” Haywood v. Alexander, 121
So. 3d 972, 974–75 (Ala. 2013) (citation omitted).

6

IV. DISCUSSION
The issue before the Court is whether it has subject matter jurisdiction over this
action. The Defendants contend that Foshee was fraudulently joined because Alabama law
permits a negligent supervision claim only against an employer and not against an
individual supervisor like Foshee. Thus, according to the Defendants, Foshee’s citizenship
should be disregarded, thereby preserving federal diversity jurisdiction. The Plaintiffs
argue that Foshee was not fraudulently joined because their claims are premised upon the
theory that Foshee is directly liable for his own negligent conduct in supervising Woodfork,
rather than a theory of respondeat superior or vicarious liability.
Alabama law recognizes that a “master” may liable for the “incompetency” of its
“servant” when it is “established by affirmative proof that [the servant’s] incompetency
was actually known by the master or that, had [the master] exercised due and proper
diligence, [the master] would have learned that which would charge [the master] in the law
with such knowledge.” Big B, Inc. v. Cottingham, 634 So. 2d 999, 1002–03 (Ala. 1993)
(citation omitted), superseded by statute on other grounds as stated in Horton Homes, Inc.
v. Brooks, 832 So. 2d 44, 57 (Ala. 2001); see also Lane v. Central Bank, N.A., 425 So. 2d
1098, 1100 (Ala. 1983). Citing Big B and Lane, the Defendants contend that a negligent
or wanton supervision claim properly lies only against an employer and not a supervisor
because the existence of a master-servant relationship is an element of a negligent or
wanton supervision claim and establishing a master-servant relationship requires an
employment relationship. But Lane and Big B “involved undisputed master-servant
relationships” between the complaining employee and their employer, and “no individual
7

supervisor was sued.” Fletcher v. Lupo, 2009 WL 10688890, at *7 (N.D. Ala. Apr. 15,
2009), report and recommendation adopted, 2009 WL 10688967 (N.D. Ala. May 13, 2009)
(making this observation). Cases addressing only the potential liability of a “master” for
negligent supervision are not, by themselves, dispositive on the question of whether or in
what circumstances a supervisor who is not a “master” may be liable on such a claim. See
id. at *5; Nabors v. Transouth Fin. Corp., 928 F. Supp. 1085, 1088 (M.D. Ala. 1996)
(explaining that Big B did not “directly address[] the issue before the court because [the]
case involved a negligent supervision claim brought solely against an employer rather than
against both the employer and the employer’s supervisor-employee” (emphasis in
original)).
While the Plaintiffs concede that a supervisor cannot be vicariously liable for a coemployee’s tort in the absence of a master-servant relationship, they contend that this rule
“does not apply where the supervisor’s liability arises from his own tortious conduct.”
(Doc. 30 at 12). The Plaintiffs further contend that they assert a direct liability claim
against Foshee, seeking to hold him liable for his own tortious conduct in failing to properly
supervise Woodfork, which they allege caused the accident at issue. In support of their
position, the Plaintiffs cite, among other authorities, Machen v. Childersburg
Bancorporation, 761 So. 2d 981 (Ala. 1999); Alabama Supreme Court decisions
recognizing that corporate officers and agents are personally liable for their own torts even
if the tort was committed when they were acting officially, see, e.g., Inter-Connect, Inc. v.
Gross, 644 So. 2d 867 (Ala. 1994); and the Restatement (Second) of Agency § 358(1),
which the Alabama Supreme Court has cited as consistent with state law, see, e.g., Ware
8

v. Timmons, 954 So. 2d 545, 555 (Ala. 2006), as modified on denial of reh’g (Sept. 22,
2006).
In Machen, the Alabama Supreme Court reversed the grant of summary judgment
in favor of an employer bank as well as its chief operations officer (“COO”) and chief
executive officer (“CEO”), all of whom were alleged to be liable for negligence and
wantonness in connection with their supervision of a subordinate employee accused of
sexual harassment. Id. at 986–87. The court held that genuine issues of material fact existed
as to whether the COO and CEO negligently or wantonly “failed to properly investigate,
train, supervise, and discipline [the harasser]” where evidence showed that the COO and
CEO knew about the plaintiff’s allegations of sexual harassment but only verbally
reprimanded the harasser, made no written report, and did not follow up with the plaintiff
to determine whether the harassment had stopped, and the harassment continued. Id. at 987.
The court concluded that a reasonable jury could find that had the COO and CEO
“monitored and/or supervised the situation more carefully, [the harasser] would not have
repeated the acts of misconduct.” Id. The court did not suggest that a negligent or wanton
supervision claim against a supervisor was unavailable as a matter of law, and even if no
party had raised the argument, the court likely could have affirmed on that basis because
the court may affirm the judgment below “on any valid legal ground.” See Smith v. Equifax
Servs., Inc., 537 So. 2d 463, 465 (Ala. 1988) (citation omitted); see also Fletcher, 2009
WL 10688890, at *6 (making this observation about Machen).
The Defendants suggest, in a footnote, that Machen is distinguishable because the
supervisor defendants did not argue that their relationship and control over the subordinate
9

employee was insufficient to sustain a negligent supervision claim. The Machen court did
observe that it was not addressing whether the COO and CEO “had the authority to
investigate, train, supervise, and discipline [the harasser]” because the COO and CEO
argued only that they were not negligent or wanton and not that they lacked authority or
control. 761 So. 2d at 986 n.6. But whether a sufficient relationship and control has been
shown is a different question from whether a negligent supervision claim against a
supervisor is categorically barred as a matter of state law. Moreover, the Defendants’
argument does not change the fact that the Alabama Supreme Court permitted a negligent
supervision claim to proceed against individual supervisors and did not conclude that such
a claim was unavailable, thus undercutting the Defendants’ position that the claim against
Foshee in this case is foreclosed as a matter of Alabama law. See Stillwell, 663 F.3d at 1333
(explaining that any uncertainty in the state substantive law must be resolved in the
plaintiff’s favor when analyzing fraudulent joinder).
Even if the Defendants are correct that a “negligent supervision” claim can only be
brought against an employer, or that this claim requires a master-servant relationship and
such relationship is not present here, this conclusion would not end the inquiry as to
whether the Plaintiffs have “a possibility of stating a valid cause of action” against Foshee.
See id. (emphasis added) (citation omitted). As the Plaintiffs point out, “[i]t is a well settled
rule in [Alabama] that a person is liable for the torts which he or she commits, regardless
of the capacity in which that person acts.” Inter-Connect, Inc. v. Gross, 644 So. 2d 867,
869 (Ala. 1994) (citation omitted); see also Ex parte McInnis, 820 So. 2d 795, 798–99
(Ala. 2001) (“A corporate agent who personally participates, albeit in his or her capacity
10

as such agent, in a tort is personally liable for the tort.” (quoting Sieber v. Campbell, 810
So. 2d 641, 645 (Ala. 2001))). “When a person commits a tort, it is wholly immaterial
upon the question of his liability[] whether he was acting officially or personally. The
reason for finding personal liability is that the agent personally has committed a wrong,
independent of the principal’s wrongdoing.” Inter-Connect, 644 So. 2d at 869. This rule,
moreover, applies to torts committed by a corporation’s agents in the management of the
corporation’s affairs. Id. Citing this line of cases, the Plaintiffs contend that their claims
against Foshee are premised upon the theory that he is directly liable for his own negligent
conduct in supervising Woodfork in his capacity as Hansen & Adkins’ Terminal Manager.
The Defendants do not meaningfully respond to this argument, other than citing cases
explaining that “a master-servant relationship is a subgroup of principal-agent
relationships,” which appears to help rather than hurt the Plaintiffs’ argument on this point.
(Doc. 37 at 9) (quoting Ware, 954 So. 2d at 552).
A related principle regarding agency liability appears in Section 358(1) of the
Restatement (Second) of Agency, which the Alabama Supreme Court has cited and applied
as consistent with state law, see, e.g., Ware, 954 So. 2d at 555. Section 358(1) provides:
“The agent of a disclosed or partially disclosed principal is not subject to liability for the
conduct of other agents unless he is at fault in appointing, supervising, or cooperating with
them.” RESTATEMENT (SECOND) OF AGENCY § 358(1) (emphasis added). The court in
Fletcher observed that while § 358(1) “rejects the idea that co-employees are vicariously
liable for one another’s torts,” § 358(1) plainly contemplates liability for a supervisor

11

where he is himself “at fault” in “supervising” subordinate co-agents. Fletcher, 2009 WL
10688890, at *6 (quoting Ware, 954 So. 2d at 555). 5
The Defendants do not address the Restatement (Second) of Agency. They rely on
Ware, 954 So. 2d at 560, for the proposition that unless Foshee “had the ability, in his
individual capacity, to select and dismiss” Woodfork, he cannot be held liable for
Woodfork’s conduct. But the theory of liability at issue in Ware was vicarious liability.
See 954 So. 2d at 553–54 (“Vicarious liability stemming from a master-servant
relationship—respondeat superior liability—is usually a question of fact for the jury.”). So
while Ware may stand for the proposition that holding Foshee vicariously liable for
Woodfork’s conduct requires showing that Foshee had the ability to select and dismiss
Woodfork, Ware does not directly speak to whether the Plaintiffs have stated a possible
direct liability claim against Foshee for his own negligence under the agency principles
articulated in cases such as McInnis and Inter-Connect and found in the Restatement
(Second) of Agency. 6

5

The Defendants argue that the Plaintiffs’ reliance on Fletcher—to which the Court will refer in this
footnote as Fletcher I—is misplaced because a later decision in that same case analyzed the plaintiffs’
negligent supervision claim as a respondeat superior claim. In an opinion granting summary judgment in
favor of the defendants, the district court observed that the plaintiffs’ claim “against [the supervisor] is
premised on a theory of respondeat superior.” Fletcher v. Lupo, 2011 WL 13233198, at *6 (N.D. Ala. July
5, 2011), report and recommendation adopted sub nom. Major Gen. Paul Fletcher v. Lupo, 2011 WL
13233423 (N.D. Ala. Sept. 8, 2011) (“Fletcher II”). In support of this statement, the Fletcher II court cited
the plaintiffs’ response in opposition to summary judgment. See id.; (see also doc. 45 at 12 in Fletcher v.
Lupo, 2:08-cv-01844-RDP (M.D. Ala. June 17, 2020)). That the Fletcher II court’s analysis was driven by
the plaintiffs’ own framing of their theory of liability is not dispositive here. Even assuming arguendo that
Fletcher II undermines Fletcher I, Fletcher II does not undermine the relevance of the Plaintiffs’ other
authorities.

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The Court observes that the words “direct” or “direct liability” appear nowhere in
the Defendants’ responses to the motion to remand. (See generally docs. 37, 38). While
the Defendants do suggest that a negligent supervision claim is necessarily a respondeat
superior claim, the Plaintiffs say they are not bringing a respondeat superior or vicarious
liability claim against Foshee. Instead, they seek to hold Foshee liable for his own
negligent conduct in connection with supervising Woodfork. That courts have analyzed
claims against employers with the label “negligent supervision” or that federal district
courts have determined “negligent supervisions claims” cannot lie against an individual
supervisory employee does not change the substance of the Plaintiffs’ allegations in this
case or that the Plaintiffs seek to hold Foshee directly liable for his own conduct. It is wellsettled that a plaintiff is the master of his or her complaint. See Ex parte J.E. Estes Woods
Co., 42 So. 2d 104, 111 (Ala. 2010); Holmes Grp., Inc. v. Vornado Air Circulation Sys.,
535 U.S. 826, 831 (2002).
Other federal district courts in Alabama have recognized the viability of the
Plaintiffs’ arguments. For example, in Fletcher, the court concluded that the Alabama
Supreme Court would hold “that an individual may in some circumstances be liable for his
own negligence in connection with his supervision of a co-agent,” notwithstanding the lack
In the context of employer liability for an employee’s intentional torts, the Alabama Supreme Court
recognizes a distinction between vicarious and direct liability:
6

The employer is vicariously liable for acts of its employee that were done for the
employer’s benefit, i.e., acts done in the line and scope of employment or for acts done for
the furtherance of the employer’s interest. The employer is directly liable for its own
conduct if it authorizes or participates in the employee’s acts or ratifies the employee’s
conduct after it learns of the action.
Potts v. BE & K Constr. Co., 604 So. 2d 398, 400 (Ala. 1992).

13

of a master-servant relationship between them, citing (1) “the lack of Alabama authority
holding or even stating that a master-servant relationship is a necessary element of a
negligent supervision claim,” (2) that Alabama observes the general rule that corporate
agents are personally liable for the torts they commit, (3) that Ware cited the Restatement
(Second) of Agency § 358(1) with approval, and (4) statements in Machen. Fletcher, 2009
WL 10688890, at *7.

Additionally, another judge in this district concluded in the

fraudulent joinder context that it was “unclear whether a cause of action for negligent
and/or wanton supervision against a non-employer exists under Alabama law.” Nabors,
928 F. Supp. at 1089. Nabors cited, among other things, several Alabama Supreme Court
decisions in which a non-employer was sued for negligent supervision and the Alabama
Supreme Court “made no mention of the unavailability of a remedy for negligent
supervision against a non-employer.” Id. at 1088–89. Additionally, Nabors rejected the
defendants’ reliance on cases such as Big B because Big B “involved a negligent
supervision claim brought solely against an employer rather than against both the employer
and the employer’s supervisor-employee.” Id. (emphasis in original).
Ultimately, the Defendants do not cite any decision from the Alabama Supreme
Court or the Alabama Court of Civil Appeals holding that a direct liability claim against a
supervisor premised upon his or her own negligent conduct in supervising a subordinate is
not actionable. Instead, they rely on inferences and suggestions derived from Alabama
court decisions. To be sure, some authority supports the Defendants’ position. But
authority also supports the Plaintiffs’ position, including several Alabama Supreme Court
decisions; the Restatement (Second) of Agency, which has been cited favorably by the
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Alabama Supreme Court (in a decision relied upon heavily by the Defendants, Ware, 954
So. 2d 545); and federal district court opinions.
This Court need not and does not decide whether the Plaintiffs’ claim is viable under
Alabama law, whether as a negligent supervision claim or a more general negligence claim
premised upon Foshee’s own negligent conduct in connection with his supervision of
Woodfork. Instead, the Court must merely determine whether the Defendants have
satisfied their “heavy” burden of proving by clear and convincing evidence that Foshee
was fraudulently joined, or whether the Plaintiffs have met their “lax” burden of showing
a reasonable possibility of stating a valid cause of action against Foshee. See Stillwell, 663
F.3d at 1332–33. In making this determination, the Court must resolve any uncertainty in
Alabama substantive law in the Plaintiffs’ favor, see Stillwell, 663 F.3d at 1333, and the
Court must also resolve all doubts about the existence of federal jurisdiction “in favor of
remand to state court,” see Univ. of S. Ala., 168 F.3d at 411.
To prevail on a negligence claim, a plaintiff must show a duty, a breach of that duty,
that the plaintiff suffered a loss or injury, and that the breach caused the plaintiff’s loss or
injury. Haddan v. Norfolk S. Ry. Co., 367 So. 3d 1067, 1072 (Ala. 2022), reh’g denied
(May 6, 2022). In the fraudulent joinder context, the Defendants must show that “it appears
beyond doubt that [the Plaintiffs] can prove no set of facts in support of the[ir] [negligence]
claim that would entitle [the Plaintiffs] to relief.” See Haywood, 121 So. 3d at 974–75

15

(citation omitted). The Plaintiffs’ allegations 7 and Foshee’s testimony sufficiently shows
that, as Terminal Manager, Foshee had a duty to ensure that the drivers he was overseeing,
including Woodfork, complied with the applicable hours-of-service regulations; that
Woodfork “routinely work[ed] over his hours of service by falsifying his logs dozens of
times in the six months before the crash”; and that Foshee knew or should have known that
Woodfork was driving excessive hours in violation of the hours-of-service regulations,
based on Foshee’s testimony that (1) he was notified by email about hours-of-service
violations, (2) he independently checked for violations daily, and (3) he knew about
Woodfork’s prior violations. Additionally, the Plaintiffs have sufficiently shown that, if
Foshee had properly performed his duty to supervise and monitor Woodfork, Woodfork
“never would have been on the road” the day of the accident when the Plaintiffs were
injured. (Doc. 30 at 20). Consequently, the Court finds that the Plaintiffs have adequately
established a reasonable possibility of stating a valid cause of action for negligence against
Foshee under Alabama law and to satisfy their “lax” burden of defeating the Defendants’

The Defendants argue, in a footnote, that the Court should not consider the allegations in the Plaintiff’s
complaint because they contain no evidentiary support and are not substantiated. This argument
misunderstands the analysis applicable in the fraudulent joinder context. The Eleventh Circuit has
explained that “[t]he determination of whether a resident defendant has been fraudulently joined 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 (alteration in original) (first emphasis added;
second emphasis omitted) (citation omitted). Legg further explains that “[t]he proceeding appropriate ‘for
resolving a claim of fraudulent joinder is similar to that used for ruling on a motion for summary judgment
under Fed. R. Civ. P. 56(b),’” and that “[i]n such a proceeding, the district court must ‘resolve all questions
of fact . . . in favor of the plaintiff.’” Id. at 1322–23 (citations omitted). The Legg court did acknowledge
that when a plaintiff does not dispute a defendant’s affidavit, “the court cannot then resolve the facts in the
[plaintiff’s] favor based solely on the unsupported allegations in the [plaintiff’s] complaint.” Id. at 1323.
Here, the Defendants did not submit affidavits or other evidence to dispute the Plaintiffs’ allegations. Thus,
to the extent that the Defendants argue that the Court should not consider the Plaintiffs’ allegations merely
because they are not supported by evidence, the Court finds this argument unavailing on this record.
7

16

assertion of fraudulent joinder. See Stillwell, 663 F.3d at 1332–33; see also Machen, 761
So. 2d at 986–87; Fletcher, 2009 WL 10688890, at *9 (concluding that the plaintiffs’
factual allegations concerning a negligent supervision claim were sufficient to survive a
motion to dismiss under the then-applicable notice pleading standard where the plaintiffs
alleged that the supervisor “occupied an important role or roles in [the companies] that
gave rise to ‘a duty to control the individual defendants’ and that [the supervisor] ‘knew or
should have known that the individual defendants . . . were engaging in wrongful conduct
as outlined [in the complaint]’” (fourth alteration in original) (citation omitted)). Put
another way, the Defendants have not shown that “it appears beyond doubt that [the
Plaintiffs] can prove no set of facts in support of the[ir] [negligence] claim that would
entitle [the Plaintiffs] to relief.” See Haywood, 121 So. 3d at 974–75 (citation omitted).
In sum, the Defendants have failed to carry their “heavy” burden to prove fraudulent
joinder by clear and convincing evidence, especially given the Court’s obligation to resolve
any uncertainty in Alabama substantive law in the Plaintiffs’ favor, see Stillwell, 663 F.3d
at 1332–33, and to resolve all doubts about the existence of federal jurisdiction “in favor
of remand to state court,” see Univ. of S. Ala., 168 F.3d at 411. Because Foshee may be
directly liable for his own alleged negligent conduct in supervising Woodfork in his role
as Terminal Manager, the Plaintiffs’ complaint has a reasonable possibility of stating a
claim under Alabama law. See Stillwell, 663 F.3d at 1333; Legg, 428 F.3d at 1325 n.5.
This possibility is sufficient to clear the “low bar” for surviving an assertion of fraudulent
joinder. See Waits v. Kubota Tractor Corp., 2019 WL 4917903, at *4 (N.D. Ala. Oct. 4,
2019); see also Triggs, 154 F.3d at 1287 (“The plaintiff need not have a winning case
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against the allegedly fraudulent defendant; he need only have a possibility of stating a valid
cause of action in order for the joinder to be legitimate.” (emphasis in original)). Because
the Defendants have failed to prove fraudulent joinder, complete diversity of citizenship is
lacking. Therefore, the Court concludes that it lacks subject matter jurisdiction over this
action, and the Plaintiffs’ motion to remand is due to be granted. 8
V. CONCLUSION
For the reasons stated, and for good cause, it is
ORDERED as follows:
1.

The Plaintiffs’ motion to remand (doc. 30) is GRANTED;

2.

This case is REMANDED to the Circuit Court of Butler County, Alabama;

3.

The Clerk of the Court is DIRECTED to take all steps necessary to effectuate

the remand to the Circuit Court of Butler County, Alabama.
DONE this 27th day of March, 2024.
/s/ Emily C. Marks
EMILY C. MARKS
CHIEF UNITED STATES DISTRICT JUDGE

Given the Court’s conclusion that complete diversity of citizenship is lacking, the Court pretermits
discussion of the alleged procedural deficiencies in the notice of removal. Additionally, because the
Plaintiffs’ complaint possibly states a valid negligence claim under Alabama law, the Court pretermits
discussion of the wantonness claim. See Stillwell, 663 F.3d at 1333 (explaining that there is no fraudulent
joinder if there is “a possibility that a state court would find that the complaint states a cause of action
against any one of the resident defendants” (emphasis added) (citation omitted)); see also Waits, 2019 WL
4917903, at *4 n.4 (similarly declining to address the plaintiff’s other claims given the court’s conclusion
that two of the claims possibly stated a valid cause of action).

8

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