Tarver et al v. Garibay et al

Filing 22

OPINION AND ORDER: It is the ORDER, JUDGMENT, and DECREE of the court that plaintiffs motion to remand (doc. no. 6 ) is granted and that, pursuant to 28 U.S.C. § 1447(c), this cause is remanded to the Circuit Court of Macon County, Alabama. It is further ORDERED that any and all other pending motions are left for disposition by the state court after remand. The clerk of the court is DIRECTED to take appropriate steps to effect the remand. This case is closed in this court. Signed by Honorable Judge Myron H. Thompson on 1/27/2016. (Attachments: # 1 Civil Appeals Checklist)(dmn, ) Modified on 1/27/2016 to reflect that a copy mailed to Clerk, Circuit Court of Macon County. (dmn, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, EASTERN DIVISION

VERNESTER TARVER and JERRY )
TARVER, SR.,
)
)
Plaintiffs,
)
)
v.
)
)
TRACY R. GARIBAY; et al., )
)
Defendants.
)

CIVIL ACTION NO.
3:15cv376-MHT
(WO)

OPINION AND ORDER
This
federal

lawsuit,
court

which
based

was
on

removed

from

state

to

diversity-of-citizenship

jurisdiction, 28 U.S.C. §§ 1332, 1441, is now before
the

court

on

plaintiffs’

motion

to

remand.

“In

a

removal case alleging fraudulent joinder, the removing
party has the burden of proving 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. ... The
burden of the removing party is a ‘heavy one.’”

Crowe

v.

Coleman,

113

F.3d

1536,

1538

(11th

Cir.

1997)

(citations omitted).
The court agrees with plaintiffs that this case
should be remanded to state court because there has
been

neither

fraudulent

joinder,

Coker

v.

Amoco

Oil

Co., 709 F.2d 1433, 1440 (11th Cir. 1983); Cabalceta v.
Standard

Fruit

Co.,

883

F.2d

1553,

1561

(11th

Cir.

1989), nor fraudulent misjoinder, Tapscott v. MS Dealer
Service Corp., 77 F.3d 1353, 1360 (11th Cir. 1996).
* * *
Accordingly, it is the ORDER, JUDGMENT, and DECREE
of

the

court

that

plaintiffs’

motion

to

remand

(doc. no. 6) is granted and that, pursuant to 28 U.S.C.
§ 1447(c), this cause is remanded to the Circuit Court
of Macon County, Alabama.
It

is

further

ORDERED

that

any

and

all

other

pending motions are left for disposition by the state
court after remand.
The

clerk

appropriate

of
steps

the

court
to

is
effect

2

DIRECTED
the

to

take

remand.

This case is closed in this court.
DONE, this the 27th day of January, 2016.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE