Fuchsberger v. Love's Travel Stop & Country Stores, Inc. et al

Filing 23

MEMORANDUM OPINION AND ORDER GRANTING 12 MOTION to Remand and this action is REMANDED to the Circuit Court of Macon County, AL; directing the clerk to take appropriate steps to effectuate the remand, as further set out in order. Signed by Honorable Judge Terry F. Moorer on 11/16/16. (djy, ) Modified on 11/16/2016 to clarify text to reflect copy was mailed to Circuit Court Clerk, Macon County, AL (qc/djy, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
JULIA ANN FUCHSBERGER, the
widow and dependent of JAMES STEVEN
FUCHSBERGER, deceased, and as the
personal representative of the Estate of
James Steven Fuchsberger, deceased

)
)
)
)
)
)
Plaintiff,
)
)
v.
)
)
LOVE’S TRAVEL STOPS & COUNTRY )
STORES, INC., et al.,
)
)
Defendants.
)

CASE NO. 3:16-cv-545-TFM
[wo]

MEMORANDUM OPINION AND ORDER
This action is assigned to the undersigned magistrate judge to conduct all proceedings
and order entry of judgment by consent of all the parties (Docs. 17-19, filed 9/1/16) and 28
U.S.C. § 636(c). Pending before the Court is the Motion to Remand (Doc. 12, filed 8/4/16). The
motion has been fully briefed and is ripe for review. Having considered the motions and relevant
law, the Court finds the motion to remand is due to be GRANTED.
I.

FACTS AND PROCEDURAL HISTORY

Plaintiff Julia Ann Fuchsberger (“Fuchsberger” or “Plaintiff”), as dependent and personal
representative of the Estate of James Steven Fuchsberger, filed this a complaint in Macon
County, Alabama Circuit Court on June 3, 2016. See Doc. 1, Atch 1, Complaint. The suit
alleges wrongful death stemming from the negligent and wanton actions of Defendants Love’s
Travel Stops & Country Stores, Inc., Hayden Brett Thomas, W&W Truck and Trailer, Inc., and
Raymond A. Keene. On July 5, 2016, Defendants filed a Notice of Removal in this court based
on an assertion of diversity jurisdiction. See Doc. 1, generally. Defendants Love’s Travel Stops
Page 1 of 9

& Country Stores, Inc. (“Loves Travel Shop”) and Hayden Brett Thomas (“Thomas”) state in
their Notice of Removal that the case is properly removable under 28 U.S.C. §1441 because the
United States District Court has original jurisdiction over this case under 28 U.S.C. §1332.
Specifically, Defendants Loves Travel Shop and Thomas assert diversity jurisdiction
exists in this case because the amount in controversy exceeds the $75,000 jurisdictional threshold
and complete diversity of citizenship exists among the “true parties” when considering
Defendant Thomas has been fraudulently joined. Plaintiff is a citizen of Arkansas. Defendants
W&W Truck and Trailer, Inc. (“W&W”) and Raymond A. Keene (“Keene”) are citizens of
South Carolina and Defendant Loves Travel Shop is a citizen of Oklahoma. Defendant Thomas
– the defendant which has allegedly been fraudulently joined – is a citizen of Alabama.
Plaintiff timely filed her motion to remand on August 4, 2016. See Doc. 12. In the
motion to remand, Plaintiff asserts Defendant Thomas was not fraudulently joined and therefore
this case was not removable pursuant to 28 U.S.C. § 1441(b)(2) which states “[a] civil action
otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title may
not be removed if any of the parties in interest properly joined and served as defendants is a
citizen of the State in which such action is brought.” Defendants responded to the motion to
remand arguing that Thomas was fraudulently joined because Plaintiff could not recover against
him under Alabama law. See Doc. 16. Therefore, if fraudulently joined, the Court must
disregard his citizenship when considering the existence of diversity of citizenship.

They

emphasize the point by arguing that Alabama law does not permit premises liability involving a
manager. They also argue the alleged hazardous condition was open and obvious and therefore
there would be no liability.

Plaintiff timely filed a reply asserting Defendants have not

established that Alabama law precludes a claim against Thomas and thus, his citizenship

Page 2 of 9

precludes removal. See Doc. 20.
II. STANDARD OF REVIEW
Federal courts have a strict duty to exercise jurisdiction conferred on them by Congress.
Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716, 116 S. Ct. 1712, 1720, 135 L.Ed.2d 1
(1996). However, federal courts are courts of limited jurisdiction and possess only that power
authorized by Constitution and statute. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377, 114 S. Ct. 1673, 1675, 128 L.Ed.2d 391 (1994); Burns v. Windsor Insurance Co., 31
F.3d 1092, 1095 (1994). Defendant, as the party removing this action, have the burden of
establishing federal jurisdiction. See Leonard v. Enterprise Rent a Car, 279 F.3d 967, 972 (11th
Cir. 2002) (citing Williams v. Best Buy Co., 269 F.3d 1316, 1318 (11th Cir. 2001)). Further, the
federal removal statutes must be construed narrowly and doubts about removal must be resolved
in favor of remand. Allen v. Christenberry, 327 F.3d 1290, 1293 (11th Cir. 2003) (citing Diaz v.
Sheppard, 85 F.3d 1502, 1505 (11th Cir. 1996)); Burns, 31 F.3d at 1095 (citations omitted).
Even if complete diversity is lacking “on the face of the pleadings,” a defendant may
remove “an action…if the joinder of the non-diverse party…[was] fraudulent.” Triggs v. John
Crump Toyota, Inc., 154 F.3d 1284, 1287 (citing Tapscott v. MS Dealer Service Corp., 77 F.3d
1353, 1355 (11th Cir. 1996)). The action is removable because “[w]hen a plaintiff names a nondiverse defendant solely in order to defeat federal diversity jurisdiction, the district court must
ignore the presence of the non-diverse defendant.” Henderson v. Wash. Nat’l Ins. Co., 454 F.3d
1278, 1281 (11th Cir. 2006). “Fraudulent joinder is a judicially created doctrine that provides an
exception to the requirement of complete diversity.” Triggs, 154 F.3d at 1287. The Eleventh
Circuit has recognized three situations in which joinder may be deemed fraudulent: (1) when
there is no possibility that the plaintiff can prove a cause of action against the resident (or non-

Page 3 of 9

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 (or non-diverse)
defendant. Id.
“[T]he determination of whether a [non-diverse] 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 v. Wyeth, 428 F.3d 1317,
1322 (11th Cir. 2005) (quoting Pacheco de Perez v. AT&T Co., 139 F.3d 1368, 1380 (11th Cir.
1998)). “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. 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).
III. DISCUSSION AND ANALYSIS
Since this lawsuit began in state court, the court’s jurisdiction depends on the propriety of
removal. Diversity jurisdiction exists where there is diversity of citizenship and the amount in
controversy exceeds $ 75,000, exclusive of interest and costs. 28 U.S.C. § 1332. Section
1446(b) then answers the question of when an action is removable, setting forth the
preconditions for removal in two types of cases: (1) those removable on the basis of an initial
pleading; and (2) those that later become removable on the basis of “a copy of an amended
pleading, motion, order or other paper.” Normally, the notice of removal must “be filed within
thirty days after the receipt by the defendant … of a copy of the initial pleading setting forth the
claim for relief upon which such action or proceeding is based.” 28 U.S.C. § 1446(b). However,
in this case, Plaintiff asserts 28 U.S.C. § 1441(b)(2) – also known as the forum defendant rule –

Page 4 of 9

prohibits removal because Defendant Thomas is an Alabama citizen.
“A party removing a case to federal court based on diversity of citizenship bears the
burden of establishing the citizenship of the parties.” Rolling Greens MHP, L.P. v. Comcast
SCH Holdings L.L.C., 374 F.3d 1020, 1022 (11th Cir. 2004). Therefore, removal jurisdiction
based upon diversity requires: (1) a complete diversity of citizenship between the plaintiff(s) and
the defendant(s) and (2) satisfaction of the amount in controversy requirement. The amount in
controversy is not at issue, thus the Court looks to the diversity of citizenship and the prohibition
of the forum defendant rule.
Plaintiff is “the master of the complaint and is free to avoid federal jurisdiction, by
structuring [her] case to fall short of a requirement of federal jurisdiction. [Courts] permit this so
long as the method of avoidance is not fraudulent.” Scimone v. Carnival Corp., 720 F.3d 876,
882 (11th Cir. 2013) (internal citations and quotations omitted). Defendants have alleged that
Thomas has been fraudulently joined under the “no cause of action” theory of fraudulent joinder.
This theory requires the defendants to prove that there is “[no] possibility that a state court would
find that the complaint states a cause of action against . . . the [non-diverse] defendant[].” Crowe
v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997) (quotation marks omitted); see also Restivo v.
Bank of Am. Corp., 618 Fed. Appx. 537, 539 (11th Cir. July 8, 2015) (quoting Crowe). “The
plaintiff need not have a winning case 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.”
Triggs, 154 F.3d at 1287. The “potential for legal liability must be reasonable,” however, “not
merely theoretical.” Legg, 428 F.3d at 1325 n.5 (citation and internal quotation marks omitted).
Stated differently, a court may deny the motion to remand only if there was no possibility that
the plaintiff could have maintained a cause of action. Henderson, 454 F.3d at 1281-82. The

Page 5 of 9

court’s “task is not to gauge the sufficiency of the pleadings in this case. [The] inquiry is more
basic: [The court] must decide whether the defendants have proven by clear and convincing
evidence that no Alabama court could find this complaint sufficient…” Id. at 1284; see also
Gonzalez v. J.C. Penney Corp., 209 Fed. Appx. 867, 869 (11th Cir. Oct. 20, 2006) (“The burden
of establishing fraudulent joinder is a heavy one.”).
In the case at hand, Plaintiff alleges that “Defendant Hayden Brett Thomas was the
manager of Love’s Travel Stop and Country Store #577 and was charged with the responsibility
of maintaining and controlling the safety of the premises and its invitees.” See Complaint, Doc.
1-1 at p. 8-9, ¶ 37. In short, Plaintiff asserts claims for negligence and/or wantonness for
creation and maintenance of a dangerous premises, failure to inspect the premises, and failure to
warn – all of which ultimately played a role in the accident which resulted in James
Fuchsberger’s death. Defendants assert Defendant Thomas could not be held responsible under
Alabama law and attach as supporting evidence an affidavit from Thomas stating he “has no
control or responsibility over the construction, planning, installation, design, maintenance, or
inspection of the egress and ingress, spacing, parking, traffic control mechanisms or other such
measures that Plaintiff contends in this subject lawsuit.”

See Doc. 1, Exhibit D, Thomas

Affidavit. In their response to the motion to remand, Defendants for the first time assert an
affirmative defense that the premises dangers were open and obvious.
When considering the motion to remand and applying the summary judgment standard by
resolving all factual disputes in favor of the plaintiff, the Court is unable to conclude that no
Alabama court would find this complaint sufficient against Defendant Thomas.

While

defendants argue Thomas had no duty to maintain a safe premises, Alabama law does not
establish such a clear rule of law.

Defendants cite no law or rule which provides that legal

Page 6 of 9

clarity.
Alabama courts have previously found that a storekeeper must exercise reasonable care in
providing and maintaining a reasonably safe premise for the use of their customers. See, e.g.,
McCombs v. Bruno’s, Inc., 667 So. 2d 710, 712 (Ala. 1995) (“The rule of law for cases such as
this is that there is a duty upon all storekeepers to exercise reasonable care in providing and
maintaining a reasonably safe premises for the use of their customers”). As noted in other
similar federal removal cases, that language does not fully establish that a store manager would
not qualify as a shopkeeper under Alabama law. In fact, some Alabama cases would actually
indicate otherwise. See Kimbrough v. Dial, Civ. Act. No. 06-0585-WS-C, 2006 U.S. Dist.
LEXIS 89950, *9-10, 2006 WL 3627102 (N.D. Ala. Dec. 8, 2006) (citing Boyd v. Wal-Mart
Stores, Inc., 710 So.2d 1258 (Ala. Civ. App. 1997) and Waters v. Anthony, 40 So. 2d 316, 252
Ala. 244 (Ala. 1949)). Further, other similarly situated federal courts have remanded in the exact
situation presented in this case. See Kimbrough, 2006 U.S. Dist. LEXIS 89950, 2006 WL
3627102; McDonnell v. Cracker Barrel Old Country Store, Inc., Civ. Act. No. 06-0798-WS-M,
2007 U.S. Dist. LEXIS 8204, 2007 WL 314492 (S.D. Ala. Jan 31, 2007); Parker v. Lowe’s
Home Ctrs., Civ. Act. No. 1:13-cv-553-WKW, 2013 U.S. Dist. LEXIS 154785 (M.D. Ala. Oct.
29, 2013).1 In both Kimbrough and Parker, the court remanded cases involving defendants
alleging fraudulent joinder of a store manager in premises liability cases under Alabama law.
In Kimbrough, the plaintiff slipped and fell on a slippery substance on the floor of a
business establishment. She brought Alabama common-law claims for negligence and
wantonness against the business and the store manager, seeking to recover for the injuries she
suffered in the fall. The defendants removed the action on the basis of diversity jurisdiction and
the fraudulent joinder of the store manager. The defendants argued that the store manager had
1

No Westlaw citation is available.

Page 7 of 9

not personally contributed to the plaintiff’s injuries and, thus, that no reasonable possibility
existed of a claim against the store manager. The court disagreed and found that the defendants
had not met their burden of showing that the allegations were “insufficient as a matter of law to
satisfy Alabama's ‘personal participation’ prerequisite for personal liability for a corporate
agent.” Kimbrough, 2006 U.S. Dist. LEXIS 89950, *15, 2006 WL 3627102, at *5. Accordingly,
the court remanded the case, finding that the defendants had not met their burden of
demonstrating the fraudulent joinder. Similarly, in McDonnell and Parker, the courts (relying
heavily on the Kimbrough analysis) found that remand was appropriate in a removed action
involving allegations of fraudulent joinder of a store manager in a premises liability case.
McDonnell, 2007 U.S. Dist. LEXIS 8204, 2007 WL 314492; Parker, 2013 U.S. Dist. LEXIS
154785. All three cases are cited by Plaintiff in her motion to remand.
Defendants – despite their best attempts to distinguish those cases – acknowledge their
recognition that Alabama law on this issue seems to be unsettled. See Doc. 16 at p. 8. They
argue that the duty Plaintiff attempts to impose is higher in this case than the other Alabama
cases involving remand. However, any ambiguity under Alabama law as to whether under the
facts alleged in this case that the store manager may be held liable for Fuchsberger’s accident
and subsequent death, on a fraudulent joinder analysis, that ambiguity must be resolved in
Plaintiff’s favor. See Crowe, 113 F.3d at 1539.
Much like the analysis previously discussed in the cited cases from all three Alabama
federal districts, the Court finds that Defendants have not met their heavy burden on removal to
prove Plaintiff fraudulently joined the store manager. Thus, the case must be remanded and any
remaining motions are left for the state court’s determination.

Page 8 of 9

IV. CONCLUSION
Pursuant to the foregoing Memorandum Opinion, the Court grants the Motion to Remand
(Doc. 12) and this action is REMANDED to the Circuit Court of Macon County, Alabama. The
Clerk of the Court is DIRECTED to take appropriate steps to effectuate the remand.
DONE this 16th day of November, 2016.
/s/Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE

Page 9 of 9