Jenkins v. Widmer et al

Filing 19

MEMORANDUM OPINION AND ORDER that: 1. Jenkins's Motion to Remand 7 is GRANTED; 2. This case is REMANDED to the Circuit Court of Macon County, Alabama; 3. The Clerk is DIRECTED to take appropriate steps to effect the remand; and 4. Ms. Jenkins's request for costs and fees is DENIED. Signed by Honorable William Keith Watkins on 10/20/2009. Certified copy of this Order mailed to the Circuit Clerk for Macon County. (Attachments: # 1 Civil Appeals Checklist)(br, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA EASTERN DIVISION W A N D A JENKINS, P la in tif f , v. K E V IN F. WIDMER, et al., D e f e n d a n ts. ) ) ) ) ) ) ) ) )

C A S E NO. 3:09-CV-629-WKW [WO]

M E M O R A N D U M OPINION AND ORDER T h is automobile-accident case was removed from the Circuit Court of Macon C o u n ty, Alabama, on July 7, 2009, by Defendants Kevin F. Widmer, a North Dakota citizen, a n d E.W. Wylie Corporation ("Wylie Corp."), a North Dakota corporation (the "North D a k o ta Defendants"). (Doc. # 1-1.) The North Dakota Defendants argue that removal is p ro p e r because Plaintiff Wanda Jenkins fraudulently joined Macon County and the Macon C o u n ty Commission ("Macon County") to destroy complete diversity. Before the court is M s . Jenkins's Motion to Remand. (Doc. # 7.) The matter is fully briefed (Docs. # 15-18), a n d the court finds that the Motion to Remand is due to be granted. I . FACTUAL BACKGROUND AND PROCEDURAL HISTORY O n July 19, 2008, Ms. Jenkins was driving on County Road 22 ("CR-22") in Macon C o u n ty. Mr. Widmer was driving a tractor-trailer owned by Wylie Corp. along U.S. H ig h w a y 80 ("US-80"). Ms. Jenkins's vehicle collided with Mr. Widmer's truck at or near th e intersection of CR-22 and US-80. Ms. Jenkins, an Alabama citizen, filed a complaint

in the Circuit Court of Macon County against Mr. Widmer and Wylie Corp., both North D a k o ta citizens; Titan Indemnity Company, a foreign corporation; Macon County; the M a c o n County Commission; and numerous fictitious defendants.1 T h e Complaint alleges that Macon County negligently, recklessly, and wantonly f a ile d to maintain CR-22; failed to correct a known defect with the roadway; and negligently h ire d , trained, and supervised its employees charged with maintaining CR-22. The North D a k o ta Defendants filed a Notice of Removal (Doc. # 1-1), and Ms. Jenkins filed a Motion to Remand. (Doc. # 7.) After the North Dakota Defendants responded to Ms. Jenkins's M o tio n to Remand, Macon County's response admitted that a Macon County employee i n s t a l l e d the stop sign on CR-22 at the intersection of CR-22 and US-80, and that, eight m o n th s before the accident, a county employee installed a device called "a three button d e lin e a to r" on the signpost below the stop sign. (Doc. # 17.) I I. STANDARD OF REVIEW F e d e ra l courts are courts of limited jurisdiction. See Kokkonen v. Guardian Life Ins. C o . of Am., 511 U.S. 375, 377 (1994); Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th C ir. 1994). "[R]emoval statutes are construed narrowly; where [the parties] clash about ju ris d ic tio n , uncertainties are resolved in favor of remand." Burns, 31 F.3d at 1095; Brooks v . Paulk & Cope, Inc., 176 F. Supp. 2d 1270, 1274 (M.D. Ala. 2001). Removal is proper

For purposes of removal, the court does not consider the citizenship of fictitious defendants in assessing complete diversity. See 28 U.S.C. § 1441(a); Davis v. Gen. Motors Corp., 353 F. Supp. 2d 1203, 1205 n.3 (M.D. Ala. 2005).

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if a federal court would have had original jurisdiction over the initial action. 28 U.S.C. § 1441(a); Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998). The re m o v in g defendant has the burden of establishing the existence of federal jurisdiction. Leonard v. Enter. Rent a Car, 279 F.3d 967, 972 (11th Cir. 2002). With respect to diversity ju ris d ic tio n , a federal court has original jurisdiction over an action where there is complete d iv e rsity between the parties and the amount in controversy exceeds $75,000. 28 U.S.C. § 1332. When a defendant removes a case based on allegations of fraudulent joinder, the d e f e n d a n t's burden is a "heavy one," and the court must evaluate all factual issues as well a s resolve any uncertainties about substantive state law in favor of the plaintiff. Crowe v. C o le m a n , 113 F.3d 1536, 1538 (11th Cir. 1997); Nabors v. Transouth Fin. Corp., 928 F. S u p p . 1085, 1089 (M.D. Ala. 1996) (remanding a case where it was unclear whether a cause o f action existed under Alabama law). Where a defendant shows that "there is no possibility th e plaintiff can establish a cause of action against the resident defendant," the plaintiff is s a id to have fraudulently joined the non-diverse defendant. Henderson v. Wash. Nat'l Ins. C o ., 454 F.3d 1278, 1281 (11th Cir. 2006) (citing Crowe v. Coleman, 113 F.3d 1536, 1538 (1 1 th Cir. 1997)). In such a situation, the federal court must dismiss the non-diverse d e f e n d a n t. See Florence v. Crescent Res., LLC, 484 F.3d 1293, 1297 (11th Cir. 2007). Although when assessing fraudulent joinder courts may consider, in addition to the p la i n t i f f ' s pleadings, affidavits and deposition transcripts submitted by either party, Legg

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v. Wyeth, 428 F.3d 1317, 1322 (11th Cir. 2005), "the jurisdictional inquiry must not s u b s u m e substantive determination," Crowe, 113 F.3d at 1538 (internal quotation marks and c ita tio n omitted). I I I . DISCUSSION D e s p i t e the lack of complete diversity necessary for removal pursuant to Section 1 3 3 2 , the North Dakota Defendants argue that Macon County's nondiverse citizenship s h o u ld be ignored for removal purposes because Ms. Jenkins fraudulently joined Macon C o u n ty to destroy complete diversity and prevent removal.2 The North Dakota Defendants c la im that there is no possibility that Ms. Jenkins can prove any cause of action against M a c o n County because Macon County's responses to Ms. Jenkins's first interrogatories s h o w that the Alabama Department of Transportation ("ALDOT"), and not Macon County, w a s in exclusive control of and responsible for maintaining the roadway in question. Because ALDOT was in exclusive control of the roadway where the accident occurred, the N o rth Dakota Defendants argue that Macon County did not have any duty to keep the ro a d w a y where the accident occurred in a reasonably safe condition or to remedy any d e f e c ts on receipt of notice of those defects. See Harris v. Macon County, 579 So. 2d 1295,
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Ms. Jenkins argues that the removal was not timely because it should have been removed by June 13, 2009, thirty days after Wylie Corp. was served with the complaint. The North Dakota Defendants assert that their notice of removal is timely because it was submitted within thirty days of the receipt of other papers from which they first ascertained that the case was removable. See 28 U.S.C. § 1446(b). Additionally, the North Dakota Defendants argue that despite Ms. Jenkins's pleading unspecified damages, the amount-in-controversy requirement is satisfied. However, the court need not decide the timeliness and amount-in-controversy issues because it ultimately finds a lack of complete diversity, which alone defeats diversity jurisdiction.

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1297 (Ala. 1991); Perry v. Mobile County, 533 So. 2d 602, 604 (Ala. 1988). Ms. Jenkins a rg u e s that this case should be remanded because Macon County was not fraudulently joined a n d complete diversity is lacking. "Fraudulent joinder" is a legal term of art, reflecting not the integrity of the parties in bringing the action, but rather the viability of the theories against the nondiverse d e f e n d a n t. See, e.g., Parks v. N.Y. Times Co., 308 F.2d 474, 478 (5th Cir. 1962).3 The re m o v in g party alleging fraudulent joinder has the burden of demonstrating that one of the f o llo w in g circumstances exists: (1) there is no possibility the plaintiff can prove a cause of a c tio n against the nondiverse defendant; (2) there is outright fraud in the plaintiff's pleading o f jurisdictional facts; or (3) "a diverse defendant is joined with a nondiverse defendant as to whom there is no joint, several or alternative liability and . . . the claim against the diverse d e f e n d a n t has no real connection to the claim against the nondiverse defendant." Triggs, 1 5 4 F.3d at 1287; see also Henderson, 454 F.3d at 1281. The North Dakota Defendants s u b m it a theory of fraudulent joinder under the first Triggs prong only: that there is no p o s s ib ility that Ms. Jenkins can prove a cause of action against Macon County. The North Dakota Defendants' reasons for removal are focused on issues, such as s c o p e of responsibility, which would require consideration of the underlying merits of the M s . Jenkins's claims. While brief and vague answers to Ms. Jenkins's interrogatories ­ for

The Eleventh Circuit has adopted all prior decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981, as binding precedent. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).

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example, "See ALDOT," (Doc. # 1-1, Ex. 4) ­ may raise a question of fact as to who has a duty to maintain the roadway, they do not demonstrate that there is no possibility that Ms. J e n k in s can prove a cause of action against Macon County. The state cases, such as Harris a n d Perry, the North Dakota Defendants cite for the proposition that Ms. Jenkins cannot p ro v e a cause of action against Macon County are distinguishable from this case. Neither c a s e was decided in the context of a motion to remand for fraudulent joinder, but rather as d e c is io n s on the merits, on motions for summary judgment after a complete record had been e s ta b lis h e d . Neither case alleged that the accident was caused in whole or in part by the c o u n ty road itself, but focused instead on the intersections of county roads and state h i g h w a ys . In Alabama, "[e]very county is a body corporate, with power to sue or be sued in any c o u rt of record." Ala. Code § 11-1-2 (1975). Counties and county commissions in Alabama a re subject to tort liability for claims concerning the maintenance of county roads. See M a c o n County Comm'n v. Sanders, 555 So. 2d 1054, 1057 (Ala. 1990); Jefferson County v . Sulzby, 468 So. 2d 112, 114 (Ala. 1985). County commissions are charged with a " g e n e ra l superintendence of public roads . . . within their respective counties." Ala. Code § 23-1-80 (1975). Ms. Jenkins was traveling on CR-22, a road within Macon County. Hazardous conditions are alleged to have existed along that roadway, not just at the in te rs e c tio n of CR-22 and US-80, and Ms. Jenkins argues Macon County failed to remedy th o s e hazardous conditions. Additionally, Ms. Jenkins points to a letter from ALDOT dated

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November 25, 2008, indicating that Macon County assumed maintenance of CR-22 from C o u n ty Road 24 to US-80 (Doc. # 7, Ex. E), to demonstrate that Macon County had a duty to maintain CR-22. Although the court expresses no opinion as to whether Macon County d id have a duty to maintain the roadway, the probability that Macon County would be found lia b le is not so small as to make joinder fraudulent as a matter of law. Even if Macon County did not have a duty to maintain CR-22, it may have had a duty to act with due care. When a party voluntarily acts, it is charged with a duty of acting with d u e care. Dailey v. City of Birmingham, 378 So. 2d 728, 729 (Ala. 1979); Herston v. W h ite se ll, 374 So. 2d 267, 270 (Ala. 1979); McGaha v. Steadman, 410 So. 2d 420, 421 (Ala. C iv . App. 1981). The fact that Macon County's employee installed a stop sign at the in te rs e c tio n of CR-22 and US-80 (see Doc. # 18) may be sufficient to give rise to a duty to a c t with due care in installing the stop sign. Because the court must evaluate all factual is su e s as well as resolve any uncertainties about substantive state law in favor of Ms. J e n k in s , it is at least possible that she has stated a valid cause of action against Macon C o u n ty. Accordingly, for the foregoing reasons, the Motion to Remand is due to be g r a n te d .4

Ms. Jenkins's Motion to Remand includes a request for an award of costs and attorney's fees, pursuant to 28 U.S.C. § 1447(c). Having reviewed the record as a whole, the court does not find that the North Dakota Defendants "lacked an objectively reasonable basis for seeking removal." Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). The request for costs and fees is therefore denied.

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IV. CONCLUSION T h e court finds no fraudulent joinder in Ms. Jenkins's naming Macon County as a c o -d e f e n d a n t. Absent fraudulent joinder, complete diversity does not exist. The court does n o t have subject matter jurisdiction, and remand is required. Accordingly, it is ORDERED th a t: 1. 2. 3. 4. M s . Jenkins's Motion to Remand (Doc. # 7) is GRANTED; T h is case is REMANDED to the Circuit Court of Macon County, Alabama; T h e Clerk is DIRECTED to take appropriate steps to effect the remand; and M s . Jenkins's request for costs and fees is DENIED.

D O N E this 20th day of October, 2009. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE

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