Smith et al v. Ford Motor Company et al

Filing 18

MEMORANDUM OPINION AND ORDER directing that Ford's #9 motion to realign the parties is DENIED; further ORDERED that Plaintiff's #6 Motion to Remand is GRANTED, and that the action is REMANDED to the Circuit Court of Chambers County, Alabama, as further set out. Signed by Chief Judge William Keith Watkins on 9/16/13. (scn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
LISA SMITH, et al.,
Plaintiffs,
v.
FORD MOTOR COMPANY, et al.,
Defendants.

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CASE NO. 3:12-CV-1084-WKW
[WO]

MEMORANDUM OPINION AND ORDER
Defendant Ford Motor Company (“Ford”) removed this action from the Circuit
Court of Chambers County, Alabama, pursuant to 28 U.S.C. §§ 1332(a), 1441(a), and
1446(b)(1), on fraudulent joinder grounds. Plaintiffs responded by filing a motion to
remand. (Doc. # 6.) In response to the motion to remand, Ford submitted an opposition
brief and a motion to realign the allegedly fraudulently joined defendant as an additional
plaintiff. (Docs. # 9, 10.) Based upon the arguments of counsel and the relevant law,
Plaintiffs’ motion to remand is due to be granted and Ford’s motion to realign is due to
be denied.
I. BACKGROUND
This lawsuit arises out of a single-vehicle rollover accident. On February 4, 2012,
Annie Lois Perdue was driving a 1998 Ford Explorer on interstate 85 with passengers
Betty Jean Willingham, Lisa Smith, and Alice Person. Ms. Perdue lost control of the

Explorer, causing it to rollover on the roadway and into the median. Tragically, Ms.
Perdue and Ms. Willingham died, and Ms. Smith and Ms. Person sustained serious and
permanent injuries.
The administrator of Ms. Willingham’s estate, Ms. Smith, and Ms. Person brought
suit in state court against Ford and the administratrix of Ms. Perdue’s estate. The
complaint asserts state-law claims against Ford for product liability, negligence,
wantonness, and breach of implied warranty. It also contains a single claim against the
administratrix of Ms. Perdue’s estate, alleging that Ms. Perdue “negligently operated her
vehicle so as to lose control.” (Compl. ¶ 41.) In state court, the administratrix of Ms.
Perdue’s estate filed an answer to the complaint. The answer asserts Alabama’s Guest
Statute as an affirmative defense. See Ala. Code § 32-1-2 (1975). The administratrix
of Ms. Perdue’s estate also filed a crossclaim against Ford that mirrors the original
Plaintiffs’ claims against Ford.
Ford removed this action, asserting diversity of citizenship on the theory that Ford
is completely diverse from each Plaintiff, that Plaintiffs fraudulently joined the
administratrix of Ms. Perdue’s estate, and that the amount in controversy exceeds
$75,000. In its notice of removal, Ford asserts that Plaintiffs cannot state a negligence
claim against the administratrix of Ms. Perdue’s estate because Alabama’s Guest Statute
bars the claim as a matter of law. Plaintiffs move to remand, arguing that there is no

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fraudulent joinder and hence no basis for asserting diversity jurisdiction.1 Ford opposes
remand and also moves the court to realign the administratrix of Ms. Perdue’s estate as
a plaintiff, asserting that realignment would confer diversity jurisdiction over this
removed action and moot the motion to remand.
II. DISCUSSION
The discussion contains two parts. Part A addresses Plaintiffs’ motion to remand
and the allegedly fraudulent joinder of the administratrix of Ms. Perdue’s estate. Part
B addresses Ford’s motion for realignment of the parties.
A.

Plaintiffs’ motion to remand is due to be granted because Plaintiffs did not

fraudulently join the administratrix of Ms. Perdue’s estate.
Federal courts owe a “strict duty” to exercise the limited jurisdiction Congress
confers on them. Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996); see also
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (Federal courts
“possess only that power authorized by Constitution and statute.”). The law favors
remand where federal jurisdiction is not absolutely clear, and courts must construe
removal statutes narrowly. Miedema v. Maytag Corp., 450 F.3d 1322, 1329 (11th Cir.
2006).

1

The amount-in-controversy requirement for diversity jurisdiction is not at issue. See
§ 1332(a).
3

Ford’s § 1441(a) removal rests on § 1332(a)’s diversity jurisdiction. Diversity
jurisdiction requires complete diversity. “Complete diversity requires that no defendant
. . . be a citizen of the same state as any plaintiff.” MacGinnitie v. Hobbs Group, LLC,
420 F.3d 1234, 1239 (11th Cir. 2005). Although Ms. Perdue and Plaintiffs are Georgia
citizens,2 Ford contends that Plaintiffs joined the administratrix of Ms. Perdue’s estate
solely to defeat diversity jurisdiction.
The presence of a fraudulently joined, non-diverse defendant does not defeat
diversity jurisdiction. Where the joinder is fraudulent, the court “must dismiss the nondiverse defendant and deny any motion to remand the matter back to state court.”
Florence v. Crescent Res., LLC, 484 F.3d 1293, 1297 (11th Cir. 2007). A defendant’s

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Whether Ford properly has identified the citizenship of the parties is in question. First,
Ford relies upon the Complaint’s allegations that Plaintiffs are “residents” of Georgia (Not. of
Removal ¶ 6), but “residency is not the equivalent of citizenship for diversity purposes.”
Corporate Mgmt. Advisors, Inc. v. Artjen Complexus, Inc., 561 F.3d 1294, 1295–96 (11th Cir.
2009). Second, Ford cites the Complaint’s allegations with respect to the citizenship of the legal
representatives of Ms. Willingham’s estate and Ms. Perdue’s estate. (Compl. ¶¶ 3, 6.) But the
Complaint identifies only the legal representatives’ residences. When the party is the legal
representative of the decedent’s estate, the relevant citizenship is that of the decedent, not the
legal representative. § 1332(c)(2) (“[T]he legal representative of the estate of a decedent shall be
deemed to be a citizen only of the same State as the decedent . . . .”). Neither the Complaint nor
the Notice of Removal sheds light on the citizenship of the deceased. (See also Crossclaim ¶ 2
(alleging that Ms. Perdue is a “resident of Georgia”).)
Notwithstanding these deficiencies, a removing defendant’s failure to allege specifically
the citizenship is a procedural, not a jurisdictional, defect that a defendant may cure by
amendment. Corporate Mgmt., 561 F.3d at 1297; 28 U.S.C. § 1653. Because Plaintiffs have not
disputed that they and Ms. Perdue share the same state of citizenship, the court will dispense with
the formality of amendment and proceed to the fraudulent joinder analysis, which is dispositive
and requires remand.
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joinder is fraudulent when no “reasonable possibility” exists that the plaintiff can
establish a cause of action against the non-diverse defendant. Legg v. Wyeth, 428 F.3d
1317, 1324 (11th Cir. 2005); see also Stillwell v. Allstate Ins. Co., 663 F.3d 1329, 1332
(11th Cir. 2011).
The removing party bears the burden of proving fraudulent joinder by “clear and
convincing evidence,” and this burden is “a heavy one.” Crowe v. Coleman, 113 F.3d
1536, 1538 (11th Cir. 1997). A court examines fraudulent joinder based on the
plaintiff’s pleadings at the time of removal, but it also “may consider affidavits or
deposition transcripts submitted by the parties.” Id.; see also Legg, 428 F.3d at 1324.
Additionally, the court construes “the factual allegations in the light most favorable to
the plaintiff.” Crowe, 113 F.3d at 1538. In this way, the inquiry resembles that required
on a motion for summary judgment; however, the inquiry differs in that the court may
not “weigh the merits of a plaintiff’s claim beyond determining whether it is an arguable
one under state law.” Id.
The broad question is whether there is a reasonable possibility that Plaintiffs can
prove a negligence cause of action against the administratrix of Ms. Perdue’s estate.
Ford contends that there is not because Alabama’s Guest Statute bars Plaintiffs’ claim
for negligence against the administratix of Ms. Perdue’s estate. Thus, the discussion
turns to the Guest Statute.

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Alabama’s Guest Statute is an affirmative defense. Neal v. Sem Ray, Inc., 68 So.
3d 194, 195 (Ala. Civ. App. 2011). The Eleventh Circuit has “acknowledged that, under
some circumstances, application of an affirmative defense can support a finding of
fraudulent joinder” in a removed case. Florence v. Crescent Res., LLC, 484 F.3d 1293,
1298 n.3 (11th Cir. 2007) (quoting Henderson v. Wash. Nat’l Ins. Co., 454 F.3d 1278,
1283–84 (11th Cir. 2006)). The Guest Statute was not at issue in either Florence or
Henderson, but the court will assume without deciding that in an appropriate
circumstance, the Guest Statute can preclude liability and, thus, prove fraudulent joinder
so as to establish diversity jurisdiction.
The Alabama Legislature adopted the Guest Statute to counteract the injustice that
occurred “where generous drivers, having offered rides to guests, later found themselves
defendants in cases that often turned upon close questions of negligence.” Boggs v.
Turner, 168 So. 2d 1, 3 (Ala. 1964). It provides:
The owner, operator, or person responsible for the operation of a motor
vehicle shall not be liable for loss or damage arising from injuries to or
death of a guest while being transported without payment therefor in or
upon said motor vehicle, resulting from the operation thereof, unless such
injuries or death are caused by the willful or wanton misconduct of such
operator, owner, or person responsible for the operation of the motor
vehicle.
Ala. Code § 32-1-2 (1975). The Guest Statute precludes a rider who is injured or killed
during transport in a motor vehicle from recovering against the vehicle’s driver for

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personal injuries or death unless (1) the driver was guilty of willful or wanton
misconduct or (2) the rider was not a “guest . . . being transported without payment.”
Id. Plaintiffs concede that they do not allege a claim of willful misconduct or
wantonness against the administratrix of Ms. Perdue’s estate; thus, Plaintiffs may avoid
the Guest Statute’s bar on their negligence claim only if Ms. Willingham, Ms. Smith,
and Ms. Person were not guests traveling with Ms. Perdue on the day in question.
The Guest Statute does not define “guest,” other than to disqualify one who
provides payment for the ride, but the Alabama courts have provided some guidance.
Whether a rider qualifies as a guest or a “passenger for hire” depends upon the
circumstances of the case. Boggs, 168 So. 2d at 3. “If the transportation of a rider
confers a benefit only to the person to whom the ride is given, and no benefits other than
hospitality, goodwill, or the like are conferred on the person furnishing the
transportation, then the rider is a guest.” Glass v. Clark, 100 So. 3d 1074, 1078 (Ala.
Civ. App. 2012) (citations and internal quotation marks omitted). Similarly, where the
only benefit the rider provides the driver is companionship, the rider is a guest. Neal v.
Sem Ray, Inc., 68 So. 3d 194, 201 (Ala. Civ. App. 2011). The benefit must be “material
and tangible” for the rider to lose “guest” status. Id. at 199. Where, for example, the
rider’s presence promotes “the mutual interest of both the rider and the driver for their
common benefit, thus creating a joint business relationship,” or is “primarily for the

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attainment of some objective of the driver,” then the rider is a passenger for hire and not
a guest. Glass, 100 So. 3d at 1078 (internal quotation marks and citations omitted); see
also Baker v. Tri-Nations Express, Inc., 531 F. Supp. 2d 1307, 1314 (M.D. Ala. 2008)
(summarizing the Alabama courts’ definition of “guest” under the Guest Statute).
The narrow question is whether Ford, as the removing defendant, has
demonstrated that Ms. Willingham, Ms. Person, and Ms. Smith were guests within the
scope of the Guest Statute at the time of the accident. The short answer is that it has not.
Ford submits no affidavits or other evidence. Instead, Ford relies on the
Complaint and the Answer that asserts the Guest Statute as an affirmative defense. The
Complaint is devoid of any facts bearing on the Guest Statute’s applicability. And the
Answer does not fill the factual void, as it is conclusory. (See Answer, at 1 (Doc. # 1-4)
(The administratrix of Ms. Perdue’s estate “avers that the Alabama Guest Statute . . . is
a bar to recovery against this defendant and this defendant pleads the Guest Statute and
its legal effect on plaintiffs’ claims.”).) The court is left, therefore, with a removal
record that gives rise to a plethora of factual questions concerning the circumstances of
the transportation on the day in question. Among those questions are the following:
What benefits, if any, did the passengers (i.e., Ms. Willingham, Ms. Person, and Ms.
Smith) receive or confer? Was Ms. Perdue providing a ride for the passengers solely
as an act of benevolence or courtesy? Or were Ms. Willingham, Ms. Person, and Ms.

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Smith along for the ride only to provide Ms. Perdue companionship? Did Ms. Perdue
obtain any monetary benefit from the shared travel arrangements? For example, did Ms.
Willingham, Ms. Person, or Ms. Smith help pay for gas or other expenses associated
with the trip? Did the passengers accompany Ms. Perdue to provide a service for
fulfilling some aim of Ms. Perdue’s? Or did Ms. Perdue, Ms. Willingham, Ms. Person,
and Ms. Smith share a common benefit in their travels? Was the purpose of the trip
business or pleasure or a combination of both? All of these questions, although
pertinent to the applicability of the Guest Statute, are left unanswered.
Whether the Guest Statute precludes the possibility that Plaintiffs can establish
a negligence claim against the administratrix of Ms. Perdue’s estate cannot be decided
in a factual void. And Ford, as the removing defendant, must shoulder the blame for the
lack of a factual record. In short, the removal record fails to sustain Ford’s heavy
burden of proving fraudulent joinder.
Ford raises two arguments, however, in favor of a finding of fraudulent joinder.
First, Ford places the blame for the lack of a factual record on Plaintiffs. Ford argues
that its removal is proper because in state court, the administratrix of Ms. Perdue’s estate
filed an Answer that raised the Guest Statute as an affirmative defense, and Plaintiffs
failed to rebut that defense either by amending the complaint or by submitting evidence.
Ford contends that, after the assertion of the affirmative defense, it was “incumbent on
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Plaintiffs to present some evidence or at least some pleading that they were not
‘guest[s]’” in order to negate the Guest Statute’s bar. (Ford’s Resp. to Mot. to Remand,
at 4 (Doc. # 10).) But notably absent is any authority to support that contention. Cf.
Maconeghy v. Cooper Tire & Rubber Co., No. 07-0539, 2007 WL 2904152, at *3 (S.D.
Ala. Oct. 1, 2007) (granting the plaintiff’s motion to remand and observing that the
defendant “ma[d]e no attempt to demonstrate that Alabama law requires a plaintiff to
‘plead around’ the affirmative defense of no causal relation”). Ford does cite Cabalceta
v. Standard Fruit Co., 883 F.2d 1553 (11th Cir. 1989), which reiterates this Circuit’s
well-established removal rule that the fraudulent joinder “determination[ ] should be
made based upon the plaintiff’s pleadings at the time of removal.” Id. at 1561.
Cabalceta did not hold, as Ford suggests, that on removal the Complaint must contain
allegations that rebut an affirmative defense, but rather Cabalceta concluded that the
complaint was “devoid of any legal or factual allegations” to support a theory upon
which the plaintiff bore the burden of proof. Id. at 1562. And Cabalceta recognized
that the fraudulent joinder analysis properly includes consideration of submitted
affidavits and deposition testimony, see id. at 1561.
Ford did not submit any evidence to demonstrate the Guest Statute’s applicability.
Cf. Legg, 428 F.3d at 1322 (uncontradicted affidavits submitted by the diverse defendant
in support of removal established the fraudulent joinder of the non-diverse defendants).
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It may be that in state court this action had not yet progressed to the stage where Ford
could obtain evidence to substantiate the requirements for federal removal jurisdiction.
But having removed this case under § 1446(b)(1) on the basis of the initial complaint,
rather than awaiting “an amended pleading, motion, or other paper,” § 1446(b)(3), Ford
cannot sustain its removal burden by offering no facts whatsoever in support of the
application of the Guest Statute. On this record, Ford’s position is tantamount to
requiring Plaintiffs to disprove the existence of federal removal jurisdiction, and that
position is contrary to well-established removal jurisprudence that the removing
defendant bears the heavy burden of proving fraudulent joinder.
Second, Ford contends that Plaintiffs do not have a “good faith intention” to
prosecute their claims against the administratrix of Ms. Perdue’s estate. (Ford’s Resp.
to Mot. to Remand, at 9.) Ford relies upon Faulk v. Husqvarna Consumer Outdoor
Products N.A., Inc., 849 F. Supp. 2d 1327 (M.D. Ala. 2012). There, the plaintiff had not
served the non-diverse defendant, despite ample time and opportunity to do so, and had
represented that he would not pursue his claims against the non-diverse defendant in the
event of remand. See id. at 1330–31. Finding that the plaintiff had failed “to pursue in
good faith his claims against” the non-diverse defendant, id. at 1331, the court denied
the motion to remand and dismissed the non-diverse defendant on grounds of fraudulent
joinder, see id. at 1332.
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Faulk is distinguishable. Unlike in Faulk, Plaintiffs served the administratrix of
Ms. Perdue’s estate with the summons and complaint three months prior to Ford’s
removal, and Plaintiffs have not abandoned their claim of negligence against the
administratrix of Ms. Perdue’s estate. Ford suggests, however, that if Plaintiffs truly
were pursuing a judgment against the administratrix, they would have added a
wantonness claim as they did against Ford. But Plaintiffs’ motivation for seeking
recovery against the administratrix of Ms. Perdue’s estate on one claim and not on
another is not a proper inquiry in the fraudulent joinder analysis. Cf. Triggs v. John
Crump Toyota, Inc., 154 F.3d 1284, 1291 (11th Cir. 1998) (“[A] plaintiff’s motivation
for joining a defendant is not important as long as the plaintiff has the intent to pursue
a judgment against the defendant.”). Ford has not shown that Plaintiffs lack any
intention of prosecuting the negligence claim against the administratix of Ms. Perdue’s
estate. Moreover, given that there are many potential good-faith reasons why Plaintiffs
may have decided not to bring a wantonness claim against the administratrix, such as
the need for discovery or the belief that the facts did not support a wantonness claim,
Ford has not shown that Plaintiffs’ failure to bring a wantonness claim against the
administratrix suggests Plaintiffs’ intent to avoid diversity jurisdiction. Cf. id. at 1290
n.8 (noting that there were “potential reasons” not steeped in bad faith “that plaintiff
might not have joined the other [non-diverse] dealerships”).
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In sum, Ford has not satisfied its heavy burden of demonstrating that Plaintiffs
fraudulently joined the administratrix of Ms. Perdue’s estate to defeat diversity
jurisdiction. The presence of the administratrix of Ms. Perdue’s estate in this suit means
there is a non-diverse defendant against whom there is a potential cause of action. Her
presence destroys the complete diversity necessary to make removal jurisdiction proper
under § 1441(a) and § 1332(a). Remand is required.
B.

Ford’s motion to realign the administratrix of Ms. Perdue’s estate as a

plaintiff is due to be denied because there is an actual and substantial controversy
between Plaintiffs and the administratrix.
The Eleventh Circuit has held that, in the removal context, “parties cannot avoid
diversity by their designation of the parties . . . .” City of Vestavia Hills v. Gen. Fid. Ins.
Co., 676 F.3d 1310, 1313 (11th Cir. 2012) (emphasis omitted). The district court must
“look beyond the pleadings and arrange the parties according to their sides in the dispute
. . . .” Id. at 1313–14 (internal citation and quotation marks omitted). Where the parties’
“interests are the same” as to the outcome of the litigation, the court must align those
parties on the same side of the lawsuit. Id. at 1314 (citing Weller v. Navigator Marine,
Inc., 737 F.2d 1547, 1548 (11th Cir. 1984)). Where, however, “there is an actual or
substantial controversy between citizens of different states,” realignment is not proper.
Weller, 737 F.2d at 1548 (citation and internal quotation marks omitted).
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Ford contends that the court should realign the administratrix of Ms. Perdue’s
estate as a plaintiff because her “actual interests are the same as Plaintiffs’” in that “the
real target of this litigation is Ford,” and that upon realignment, complete diversity will
exist. (Ford’s Resp. to Mot. to Remand, at 9.) This argument fails for at least two
reasons.
First, Ford’s argument is cursory and lacks any meaningful analysis. Second,
even assuming that the interests of Plaintiffs and the administratrix of Ms. Perdue’s
estate align with respect to the claims against Ford pertaining to the Explorer’s alleged
design flaw, there remains in this suit another controversy between Plaintiffs and the
administratrix. Namely, Plaintiffs contend that Ms. Perdue “negligently operated her
vehicle so as to lose control” and that her negligence caused their injuries. (Compl.,
at 18.) As to the negligence claim, Plaintiffs’ interests clearly are averse to the interests
of the administratrix of Ms. Perdue’s estate, and that controversy is both actual and
substantial. Accordingly, Ford’s motion to realign the parties is due to be denied.
III. CONCLUSION
Based on the foregoing, it is ORDERED that Ford’s motion to realign the parties
(Doc. # 9) is DENIED.
It is further ORDERED that Plaintiffs’ Motion to Remand (Doc. # 6) is
GRANTED, and that the action is REMANDED to the Circuit Court of Chambers
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County, Alabama. The Clerk of the Court is DIRECTED to take appropriate steps to
effect the remand.
DONE this 16th day of September, 2013.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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