Henderson v. Goodyear Dunlop Tires North America, LTD. et al

Filing 23

MEMORANDUM OPINION AND ORDER that Plaintiff's 9 MOTION to Remand is DENIED; that Plaintiff's 11 MOTION for Leave to Amend Complaint is DENIED with leave to re-file; that Defendants' 19 Motion for Hearing is DENIED as moot. Signed by Chief Judge William Keith Watkins on 8/10/2011. (Attachments: # 1 Civil Appeals Checklist)(cc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
WILLIAM M. HENDERSON,
Plaintiff,
v.
GOODYEAR DUNLOP TIRES
NORTH AMERICA, LTD., et al.,
Defendants.

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) CASE NO. 3:11-CV-295-WKW [WO]
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MEMORANDUM OPINION AND ORDER
Plaintiff William M. Henderson filed this lawsuit in the Circuit Court of
Montgomery County, Alabama, against Defendants Goodyear Dunlop Tires North
America, Ltd. (“GDTNA”), The Goodyear Tire and Rubber Company (“GTRC”),
Harley-Davidson Motor Company Group, LLC (“HDMCG”), Harley-Davidson Motor
Company, Inc. (“HDMC”), and Harley-Davidson of Montgomery, Inc. (“HD
Montgomery”) (collectively referred to in the First Amended Complaint (Doc. # 2,
Attach. 16) as “Defendants”), alleging five causes of action based upon theories of:
the Alabama Extended Manufacturer’s Liability Doctrine (“AEMLD”) (Count I);
negligence (Counts II and V); breach of warranty (Count III); and wantonness (Count
IV). (First Am. Compl. ¶¶ 14-44.) As alleged, Plaintiff was riding his HarleyDavidson when the rear tire suddenly and catastrophically failed, causing Plaintiff to

lose control of the motorcycle and sustain injuries. Defendants removed the case to
this court, pursuant to 28 U.S.C. §§ 1332, 1441, and 1446, contending that HD
Montgomery, the sole non-diverse defendant, was “fraudulently joined in this action
in an attempt to avoid federal diversity jurisdiction.” (Not. of Removal ¶ 6 (Doc. #
2).) Plaintiff filed a Motion to Remand (Doc. # 9) and a Motion for Leave to Amend
Complaint (Doc. # 11). Having considered the parties’ briefs and the relevant law,
Plaintiff’s motion to remand is due to be denied, and Plaintiff’s motion for leave to
amend is due to be denied with leave to re-file.
I. STANDARD OF REVIEW
“[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); see also Kokkonen v. Guardian Life Ins. Co.
of Am., 511 U.S. 375 (1994). Thus, with respect to cases removed to this court
pursuant to 28 U.S.C. § 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.” Burns, 31 F.3d at 1095. “In evaluating a motion to
remand, the removing party bears the burden of demonstrating federal jurisdiction.”
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Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 n.4 (11th Cir. 1998) (citing
Pacheco de Perez v. AT&T Co., 139 F.3d 1368, 1373 (11th Cir. 1998)).
Even if “on the face of the pleadings, there is a lack of complete diversity, an
action may nevertheless be removable if the joinder of the non-diverse party . . . [was]
fraudulent.” Triggs, 154 F.3d at 1287 (citing Tapscott v. MS Dealer Service Corp.,
77 F.3d 1353, 1355 (11th Cir. 1996)). “Fraudulent joinder is a judicially created
doctrine that provides an exception to the requirement of complete diversity.” Id. The
courts have recognized three situations in which joinder may be deemed fraudulent:
(1) when there is no reasonable possibility that the plaintiff can prove a cause of action
against the resident (non-diverse) defendant; (2) when there is outright fraud in the
plaintiff’s pleading of jurisdictional facts; and (3) when there is no real connection to
the claim and the resident (non-diverse) defendant. Id.; see also Legg v. Wyeth, 428
F.3d 1317, 1325 (11th Cir. 2005).
As to the first type of fraudulent joinder, the only type at issue here, “[t]he
plaintiff need not have a winning case against the allegedly fraudulent defendant; he
need only have a [reasonable] possibility of stating a valid cause of action in order for
the joinder to be legitimate.” Triggs, 154 F.3d at 1287; see also Legg 428 F.3d at
1325 n.5 (stating that the “potential for legal liability must be reasonable, not merely
theoretical”) (internal quotation marks omitted).
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“The 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 (quoting Pacheco de Perez, 139 F.3d at 1380). “The
proceeding appropriate ‘for resolving a claim of fraudulent joinder is similar to that
used for ruling on a motion for summary judgment under [Federal Rule of Civil
Procedure 56].” Id. at 1322-23 (quoting Crowe v. Coleman, 113 F.3d 1536, 1538
(11th Cir. 1997)). Accordingly, all contested issues of substantive fact and any
uncertainties as to the current state of the law must be resolved in the plaintiff’s favor.
See id. at 1323; see also Cabalceta v. Standard Fruit Co., 883 F.2d 1553, 1561 (11th
Cir. 1989).
II. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff alleges that he was riding his Harley-Davidson Screaming Eagle
motorcycle on Interstate 85 when the motorcycle’s rear tire suddenly and
catastrophically failed, causing Plaintiff to lose control, crash, and suffer serious
injuries. (First Am. Compl. ¶ 6.)
The First Amended Complaint, filed in state court, alleges that the rear tire (“the
subject tire”) was defective for a number of reasons, but specifically that it had

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a “propensity . . . to experience a sudden and catastrophic failure resulting in the loss
of motorcycle control and serious bodily injury and/or death.” (First Am. Compl. ¶¶
10, 12.) Plaintiff pointedly identifies “the subject tire . . . [as] the subject matter of
this lawsuit[.]” (First Am. Compl. ¶ 12.)
As to Defendant HD Montgomery, Plaintiff alleges in Count I – the AEMLD
claim – that “[HD Montgomery] sold the . . . motorcycle identified above, and the
subject tire . . . .” (First Am. Compl. ¶ 17.) Although Plaintiff alleges that both “the
subject . . . tire and the subject motorcycle were defectively designed, manufactured,
and assembled[,]” Plaintiff identifies only the subject tire as a “failing component of
the subject vehicle at the time of the accident.” (First Am. Compl. ¶ 20.) Throughout
the entire First Amended Complaint, the only part of the motorcycle identified as
defective is the subject tire. Count V – a negligence count against HD Montgomery
– states that “[HD Montgomery] placed the subject motorcycle into the stream of
commerce and negligently failed to inspect the subject motorcycle . . . and the subject
tire for safety.”

(First Am. Compl. ¶¶ 38, 39.)

Plaintiff alleges that “[HD

Montgomery] breached their [sic] duty to use reasonable care in inspecting, preparing
and servicing the subject motorcycle and subject tire.” (First Am. Compl. ¶ 42.)
In response to HDMCG’s First Set of Interrogatories (Doc. # 2, Ex. B), Plaintiff
states that he purchased the motorcycle from a Mr. James Wiggins on or about
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January 8, 2009. (Doc. # 2, Ex. B, at 3.) Plaintiff further states that “[i]t [was] [his]
belief that the subject tire was on the subject motorcycle when [he] purchased it.”
(Doc. # 2, Ex. B, at 3.) Finally, Plaintiff states that he serviced the subject motorcycle
at Big Swamp Harley-Davidson and discussed the service needs with those employed
at Big Swamp Harley Davidson. (Doc. # 2, Ex. B, at 4.)
Defendants identify these responses, and specifically Plaintiff’s response that
the subject tire was on the motorcycle at the time he purchased it, as the “other paper”
on which this § 1446(b) paragraph two removal is based.1 Defendants also submit the
affidavit of Mr. Wiggins (Doc. # 2, Ex. C), in which he states that since he purchased
the motorcycle in 2001 from HD Montgomery, he has had the rear tire replaced twice.
(Wiggins Aff. ¶¶ 3,4.) “The first occasion was shortly after [he] bought the
motorcycle and [he] purchased that tire at [HD Montgomery]. [He] replaced that rear
tire with a tire that [he] bought at Dyna Cycle in Millbrook, Alabama. The rear tire
that was on the motorcycle when [he] sold it to Mr. Henderson was not purchased at
[HD Montgomery].” (Wiggins Aff. ¶ 4.) This evidence plainly contradicts the
allegations of paragraphs 9 and 39 of the First Amended Complaint, and is unrefuted
in the record.

1

Plaintiff has waived any argument that the removal is procedurally defective.
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Based on Plaintiff’s interrogatory response and Mr. Wiggins’s affidavit,
Defendants argue that “there is no reasonable possibility that [P]laintiff can prove a
cause of action against HD Montgomery on [P]laintiff’s claims.” (Not. of Removal
7.) As Defendants point out, “HD Montgomery did not sell the alleged defective tire
to [P]laintiff. [HD Montgomery] did not sell the alleged defective tire to the previous
owner of the motorcycle. [HD Montgomery] was not in the distribution chain for the
alleged defective tire at all . . . . In addition, the service performed on the motorcycle
was performed at Big Swamp Harley Davidson, not at HD Montgomery.” (Not. of
Removal 8.)
III. DISCUSSION
The court must determine whether there is any reasonable possibility that a state
court would determine that any one of Plaintiff’s alleged theories of recovery states
a viable cause of action against HD Montgomery, the only non-diverse defendant.
A.

Plaintiff’s First Amended Complaint Contains Insufficient Factual
Allegations to Support a Theory of Recovery against HD Montgomery
As stated above, “[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 [Federal Rule of Civil Procedure 56].” Legg, 428 F.3d at 1322-23 (quoting
Crowe, 113 F.3d at 1538). In light of Plaintiff’s interrogatory response and Mr.

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Wiggins’s affidavit, it is undisputed that HD Montgomery was not part of the stream
of commerce regarding the subject tire at any point.
Nevertheless, Plaintiff argues that because he has “alleged that the subject
Harley-Davidson motorcycle is defective, . . . Defendants’ fraudulent joinder
argument fails.” (Mot. to Remand 2.) It is true that Plaintiff alleged in the First
Amended Complaint that the motorcycle itself was defective. (First Am. Compl. ¶¶
19-21, 43.) However, a thorough reading of Plaintiff’s First Amended Complaint
reveals that the allegation that the motorcycle itself was defective is wholly dependent
on the allegation that the subject tire, as a component of the subject motorcycle, was
defective. In other words, there is no factual support in the First Amended Complaint
that the motorcycle itself was defective for any other reason than the subject tire.
(First Am. Compl. ¶ 12 (stating that “the subject tire . . . [is] the subject matter of this
lawsuit”).)
On this record, there is no reasonable possibility that Plaintiff can state a viable
cause of action against HD Montgomery based upon the subject tire alone. Although
the court “must resolve all questions of fact . . . in favor of the plaintiff[,] . . . there
must be some question of fact before the district court can resolve [a] fact in the
plaintiff’s favor.” Legg, 428 F.3d at 1323 (internal quotation marks and citation
omitted). Importantly, Plaintiff does not dispute Mr. Wiggins’s affidavit that he did
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not purchase the subject tire from HD Montgomery. “With no response from
[Plaintiff], there [is] no question of fact for the court to resolve.” Id.
Nor is there any reasonable possibility that Plaintiff can state a viable cause of
action against HD Montgomery on the supposedly “existing” claim that the
motorcycle was defective for a reason other than the subject tire. See Bryant v. W.
Ala. Health Servs., Inc., 669 So. 2d 941, 945 (Ala. Civ. App. 1995) (“[A] pleading
must give the defendant fair notice of the claim which he is called to defend and the
grounds upon which the claim rests.”) (collecting cases). Assuming that Plaintiff
intended to state a cause of action that the motorcycle itself was defective for a reason
other than the subject tire, Plaintiff’s failure to allege any facts revealing what else on
the motorcycle is defective renders the First Amended Complaint insufficient under
Alabama Rule of Civil Procedure 8(a), and there is no reasonable possibility that an
Alabama court would find a viable claim against HD Montgomery on some other
alleged defect of the motorcycle that is not found anywhere in the First Amended
Complaint.
Because the First Amended Complaint states no viable theory of recovery
against HD Montgomery, HD Montgomery is fraudulently joined, its citizenship is
due to be ignored and Plaintiff’s motion to remand is due to be denied.

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B.

Plaintiff May Not Amend Away Jurisdiction
In an apparent concession to the conclusions above, Plaintiff seeks leave to

amend the complaint in order to state a viable cause of action against HD
Montgomery, and then asks the court to consider Plaintiff’s motion to remand based
on the resulting complaint. (Mot. to Remand 8; Mot. for Leave to Amend.) “Plaintiff
seeks leave to set forth that the Harley-Davidson motorcycle was defectively
designed, manufactured, and placed into the stream of commerce by the Harley
Defendants because it was designed, manufactured and sold without a tire pressure
monitoring system.” (Mot. for Leave to Amend.)
While Plaintiff’s newest theory of the case appears to be inconsistent with the
theory of the case pre-removal,2 the law is clear 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 . . . .” Legg, 428 F.3d at 1322 (quoting Pacheco de
Perez, 139 F.3d at 1380); see also Poore v. American-Amicable Life Ins. Co., 218 F.3d

2

Plaintiff’s original theory of the case was that the subject tire “suddenly and
catastrophically failed,” (First Am. Compl. ¶ 6), not that the tire was under or over-pressurized.
A claim of defect for the non-existence of a tire pressure monitoring system is distinct from a
claim that the tire suddenly and catastrophically failed. In determining whether to permit a postremoval amendment which would add an additional party who would destroy diversity, pursuant
to 28 U.S.C. § 1447(e), one factor the courts consider is “the extent to which the purpose of the
amendment is to defeat federal jurisdiction[.]” Sexton v. G & K Servs., Inc., 51 F. Supp. 2d
1311, 1312 (M.D. Ala. 1999) (citing Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir.
1987)). Borrowing that test from the § 1447(e) context, the purpose of Plaintiff’s new theory of
recovery appears to be intended to defeat federal jurisdiction.
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1287, 1290 (11th Cir. 2000) (stating that § 1447(c) generally “prohibits courts from
relying on post-removal events in examining subject matter jurisdiction”), overruled
in part on other grounds by Alvarez v. Uniroyal Tire Co., 508 F.3d 639, 641 (11th Cir.
2007). The Fifth Circuit explained the rationale of this rule:
Without such a rule, disposition of the issue would never be final, but
would instead have to be revisited every time the plaintiff sought to
amend the complaint to assert a new cause of action against the
nondiverse defendant, all at considerable expense and delay to the parties
and the state and federal courts involved. Limiting the removal
jurisdiction question to the claims in the state court complaint avoids that
unacceptable result, and permits early resolution of which court has
jurisdiction, so that the parties and the court can proceed with, and
expeditiously conclude, the litigation.
Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 264 (5th Cir. 1995); see also
Nelson v. Whirlpool Corp., 727 F. Supp. 2d 1294, 1305 (S.D. Ala. 2010) (concluding
that “the post-removal assertion of a viable cause of action against a fraudulently
joined defendant does not strip the Court of subject matter jurisdiction that existed at
the time of removal”).
The pleading at the time of removal was the First Amended Complaint, and as
stated above, there is no reasonable possibility on that complaint that a state court
would find a viable cause of action against HD Montgomery. Furthermore, Plaintiff’s
post-removal assertion of a new theory of recovery against HD Montgomery, even if
allowed, would not divest the court of the subject matter jurisdiction that existed at the
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time of removal. Cavallini, 44 F.3d at 264; Nelson, 727 F. Supp. 2d at 1305; see also
Smith v. Wynfield Dev. Co., Inc., 238 F. App’x 451, 455 (11th Cir. 2007) (stating that
“events occurring after removal . . . do not oust the district court’s jurisdiction”)
(collecting cases).
Furthermore, Plaintiff’s citations to Landrum v. Delta Int’l Mach. Corp., No.
1:08cv140WKW, 2008 WL 2326324 (M.D. Ala. June 3, 2008) and Davis ex rel.
Estate of Davis v. Gen. Motors Corp., 353 F. Supp. 2d 1203, 1208 (M.D. Ala. 2005)
are unavailing. In those cases, the court allowed post-removal amendments prior to
the determination of the motion to remand, where the amendment merely “sought to
clarify [existing] claims against an existing defendant.” Landrum, 2008 WL 2326324,
at *4 (emphasis added) (allowing plaintiff to amend complaint to correct the date of
the accident and the resident defendant’s form of business entity); Davis, 353 F. Supp.
2d at 1207 (allowing plaintiff to amend complaint against named resident defendant
where plaintiff had intended to, but “simply omitted [stating the claim and factual
basis for the claim] from the Complaint in error”). In this case, Plaintiff seeks neither
to clarify an existing claim nor to correct a drafting error, but instead to insert an
entirely new theory of recovery against the fraudulently joined Defendant, HD
Montgomery.

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The court will not consider Plaintiff’s Motion to Remand on any complaint
other than the First Amended Complaint, and Plaintiff’s motion for leave to amend the
complaint is due to be denied with leave to re-file, should Plaintiff desire to re-file.
IV. CONCLUSION
Accordingly, it is ORDERED:
(1)

Plaintiff’s Motion to Remand (Doc. # 9) is DENIED;

(2)

Plaintiff’s Motion for Leave to Amend Complaint (Doc. # 11) is
DENIED with leave to re-file; and

(3)

Defendants’ Motion for Hearing (Doc. # 19) is DENIED as moot.

DONE this 10th day of August, 2011.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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