Feheley v. Forest Pharmaceuticals, Inc. et al
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 10/20/2017. (JLC)
2017 Oct-20 AM 11:17
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
KEVIN J. FEHELEY, as
Administrator and Personal
Representative of the Estate of Sheila
Clay Joubran, deceased, and as
Guardian and Conservator of Kevin J.
Feheley, Jr., an incapacitated person,
) Case No.: 1:17-CV-1404-VEH
INC., FOREST LABORATORIES, )
INC., and MARY JOUBRAN, as
Personal Representative of the Estate )
of Elias Joubran, deceased,
This civil action was originally filed in the Circuit Court of Calhoun County,
Alabama, by the Plaintiff, Kevin J. Feheley, in his capacity as both the administrator
and personal representative of the Estate of Sheila Clay Joubran, who is deceased,
and also as the guardian and conservator of Kevin J. Feheley, Jr., an incapacitated
person. (Doc. 1-2 at 5). The suit names as defendants Forest Pharmaceuticals, Inc.
(“Forest Pharm”) and Forest Laboratories, Inc. (“Forest Labs”) (hereinafter
collectively referred to as “Forest”). It also names as a defendant Mary Joubran, the
personal representative of the Estate of Elias Joubran, who is deceased. On August
18, 2017, Forest Labs alone, removed this case to this district and division, alleging
that jurisdiction is proper pursuant to 28 U.S.C. § 1332. (Doc. 1). The remaining
Defendants’ consent to removal was not obtained.1
Against Forest, the Complaint sets out the following claims: “Products Liability
Under [the] AEMLD and Strict Liability Pursuant to §402A of the Restatement
(Second) of Torts” (Count One); “Product Liability (Failure to Warn)” (Count Two);
“Product Liability” (Count Three); “Negligence and Wantonness” (Count Four);
“Breach of Express Warranty” (Count Five); “Breach of Implied Warranty” (Count
Six); “Misrepresentation, Fraud, Suppression, and Deceit” (Count Seven); and “Civil
Conspiracy” (Count Eight). Against all defendants the Plaintiff sets out a claim for
“Wrongful Death” (Count Nine). All counts arise out of a tragic incident; on
December 30, 2015, Elias Joubran shot Sheila Clay Joubran, his wife, and then shot
and killed himself. As a result of her injuries, Sheila Joubran died shortly after Elias.
At the time of those events, Elias Joubran had been prescribed, and was taking, a drug
Only Forest Laboratories, Inc., and not Forest Pharmaceuticals, Inc., removed this
action. Although consent of all defendants must be obtained for removal, according to the Notice
of Removal, Forest Pharm has not been served. The consent to removal by non-served defendants
is not required. See 28 U.S.C. 1446(b). Furthermore, “fraudulently joined” defendants need not
consent to removal. GMFS, L.L.C. v. Bounds, 275 F. Supp.2d 1350, 1353 (S.D. Ala. 2003). The
Notice of Removal claims that Mary Joubran, in her representative capacity, has been
fraudulently joined. This opinion will address that issue.
called “Lexapro.” Forest is the
marketer, promoter, seller, manufacturer, distributor, and entity which
did manufacture, create, design, test, label, package, distribute, market,
sell, advertise, fail to warn, and otherwise handle and distribute in
commerce, the products, Lexapro 10mg tablets.
(Doc. 1-2 at 7).
This case comes before the Court on the Motion To Remand for lack of
jurisdiction filed by the Plaintiff (the “Motion”). (Doc. 11). Forest Labs requested oral
argument on the motion. Accordingly, a hearing was held on October 13, 2017. For
the reasons stated at the hearing, and in this memorandum opinion, the motion will
be GRANTED and this case will be REMANDED to the Circuit Court of Calhoun
“It is by now axiomatic that the inferior courts are courts of limited jurisdiction.
They are empowered to hear only those cases within the judicial power of the United
States as defined by Article III of the Constitution, and which have been entrusted to
them by a jurisdictional grant authorized by Congress.” Univ. of South Alabama v.
The American Tobacco Co., et al., 168 F.3d 405, 409 (11th Cir. 1999) (internal
citations omitted). “Accordingly, when a federal court acts outside its statutory
subject-matter jurisdiction, it violates the fundamental constitutional precept of
limited federal power.” Id. (internal citations omitted). “Simply put, once a federal
court determines that it is without subject matter jurisdiction, the court is powerless
to continue.” Id. at 410 (citing Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1868)).
“A necessary corollary to the concept that a federal court is powerless to act
without jurisdiction is the equally unremarkable principle that a court should inquire
into whether it has subject matter jurisdiction at the earliest possible stage in the
proceedings.” Univ. of S. Ala., 168 F.3d at 410. “Indeed, it is well settled that a
federal court is obligated to inquire into subject matter jurisdiction sua sponte
whenever it may be lacking.” Id. (citing Fitzgerald v. Seaboard Sys. R.R., 760 F.2d
1249, 1251 (11th Cir. 1985) (per curiam)).
Furthermore, “[t]he jurisdiction of a court over the subject matter of a claim
involves the court’s competency to consider a given type of case, and cannot be
waived or otherwise conferred upon the court by the parties. Otherwise, a party could
‘work a wrongful extension of federal jurisdiction and give district courts power the
Congress denied them.’” Jackson v. Seaboard Coast Line R.R., 678 F.2d 992, 100001 (11th Cir. 1982) (quoting American Fire & Cas. Co. v. Finn, 341 U.S. 6, 18
(1951)) (internal footnotes and citations omitted). Moreover, “[b]ecause removal
jurisdiction raises significant federalism concerns, federal courts are directed to
construe removal statutes strictly.” Univ. of S. Ala., 168 F.3d at 411 (citing Shamrock
Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941)).
Lastly, Congress has decreed, and the Supreme Court has confirmed, that - with
the express exception of civil rights cases that have been removed - orders of remand
by district courts based upon certain grounds, including in particular those premised
upon lack of subject matter jurisdiction, are entirely insulated from review. More
specifically, § 1447(d) provides:
An order remanding a case to the State court from which it was removed
is not reviewable on appeal or otherwise, except that an order remanding
a case to the State court from which it was removed pursuant to section
1442 or 1443 of this title shall be reviewable by appeal or otherwise.
28 U.S.C. § 1447(d) (emphasis added); see also Kirchner v. Putnam Funds Trust, 547
U.S. 633, 642 (2006) (recognizing that “‘[w]here the [remand] order is based on one
of the grounds enumerated in 28 U.S.C. § 1447(c), review is unavailable no matter
how plain the legal error in ordering the remand’”) (citing Briscoe v. Bell, 432 U.S.
404, 413 n.13 (1977)); Milton I. Shadur, Traps for the Unwary in Removal and
Remand, 33 no. 3 Litigation 43 (2007); Powerex Corp. v. Reliant Energy Servs., Inc.,
127 S. Ct. 2411, 2418 (2007) (holding that when “the District Court relied upon a
ground that is colorably characterized as subject-matter jurisdiction, appellate review
is barred by § 1447(d)”).
Forest Labs premises its removal upon this court’s diversity jurisdiction.
“Diversity jurisdiction exists where the suit is between citizens of different states and
the amount in controversy exceeds the statutorily prescribed amount, in this case
$75,000.” Williams v. Best Buy Co., 269 F.3d 1316, 1319 (11th Cir. 2001) (citing 28
U.S.C. § 1332(a)). Therefore, removal jurisdiction based upon diversity requires: (1)
complete diversity of citizenship between the plaintiff(s) and the defendant(s); and
(2) satisfaction of the amount in controversy requirement. The only issue raised in
the pending motion is whether there is “complete diversity.”
The Citizenship of the Personal Representatives Is Unclear
Diversity jurisdiction “requires complete diversity—every plaintiff must be
diverse from every defendant.” Palmer v. Hosp. Auth., 22 F.3d 1559,1564 (11th Cir.
1994). “Citizenship, not residence, is the key fact that must be alleged in the
complaint to establish diversity for a natural person.” Taylor v. Appleton, 30 F.3d
1365, 1367 (11th Cir. 1994).
The parties seem to agree2 that the Plaintiff, and Mary Joubran, in her
representative capacity, are both citizens of the state of Alabama–a circumstance
The court uses the phrase “seem to agree” because even the briefs do not clearly allege
which would destroy complete diversity. Accordingly, the dispute requires this Court
to determine whether the Plaintiff “fraudulently joined” Mary Joubran. However,
because the Complaint is not clear as to citizenship, a word or two on that issue is
For purposes of determining diversity of citizenship, a decedent's personal
representative is deemed a citizen of the same state as the decedent. 28 U.S.C. §
1332(c)(2). However, the Complaint fails to allege the citizenship of Mary Joubran.
Instead, it states:
Defendant Mary Joubran as Personal Representative of the Estate of
Elias Joubran, deceased, resides in Tuscaloosa County in the State of
Alabama, and her decedent, Elias Joubran, at the time of his death
resided in Calhoun County, Alabama, where he shot Sheila Clay
Joubran, and then shot himself. The estate administered by Defendant
Mary Joubran as Personal Representative of the Estate of Elias Joubran,
deceased, is in Calhoun County.
(Doc. 1-2 at 6, ¶2). Thus, the Complaint focuses on the “residence” of both Mary
Joubran and Elias Joubran. However, as the Eleventh Circuit has noted: “Residence
alone is not enough. Citizenship is equivalent to ‘domicile’ for purposes of diversity
jurisdiction. And domicile requires both residence in a state and an intention to
remain there indefinitely.” Travaglio v. Am. Exp. Co., 735 F.3d 1266, 1269 (11th Cir.
2013) (internal quotations and citations omitted). Furthermore, the Court sees no
relevance, for jurisdictional purposes, as to the location where the estate is being
The Complaint does successfully allege the citizenship of the Plaintiff, Kevin
J. Feheley, who, “is the father, guardian and conservator of the sole surviving heir of
Shelia Clay Joubran, namely Kevin J. Feheley, Jr.” (doc. 1-2 at 6, ¶1), whom he
represents in this case. “[T]he legal representative of an infant or incompetent shall
be deemed to be a citizen only of the same State as the infant or incompetent.” 28
U.S.C.A. § 1332(c)(2). Recall that citizenship is synonymous with domicile. “Since
most minors are legally incapable of forming the requisite intent to establish a
domicile, their domicile is determined by that of their parents.” Mississippi Band of
Choctaw Indians v. Holyfield, 490 U.S. 30, 48, 109 S. Ct. 1597, 1608, 104 L. Ed. 2d
29 (1989). The Complaint notes that the Plaintiff, Kevin J. Feheley, “is a resident
citizen of the State of Alabama.” (Doc. 1-2 at 6, ¶1). Because the Plaintiff is a citizen
of Alabama, his domicile is the State of Alabama. His son’s domicile would therefore
also be Alabama, which means his son is a citizen of the State of Alabama. Pursuant
to 28 U.S.C. §1332(c), the Plaintiff, as his son’s representative, is deemed to be a
citizen of the State of Alabama.
The Eleventh Circuit has clearly stated that “an unsworn statement in a brief,
alone, can[not] demonstrate a party's citizenship for purposes of establishing diversity
jurisdiction.” See, Travaglio v. Am. Exp. Co., 735 F.3d 1266, 1269 (11th Cir. 2013).
Of course, the parties “agreement” that the parties are non-diverse does not establish
diversity, it destroys it. Furthermore, since “the party seeking to remove the case to
federal court bears the burden of establishing federal jurisdiction” Pretka v. Kolter
City Plaza II, Inc., 608 F.3d 744, 752 (11th Cir. 2010), and completely diversity has
not been shown by the Defendant, the removing party, the Court will remand this case
unless Mary Joubran, in her representative capacity, has been fraudulently joined.
Fraudulent Joinder Principles
“[W]hen there is no possibility that the plaintiff can prove a cause of action
against the resident (non-diverse) defendant[,]” fraudulent joinder is established.
Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998). As noted
above, if fraudulent joinder is established, then the resident defendant is subject to
dismissal as a party and its citizenship is disregarded. See id.
The Eleventh Circuit extensively addressed the issue of removal based on
diversity jurisdiction when it is alleged that a non-diverse defendant has been
fraudulently joined in Crowe v. Coleman, 113 F.3d 1536 (11th Cir. 1997). There the
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. Cabalceta v. Standard Fruit Co., 883 F.2d
1553, 1561 (11th Cir. 1989). The burden of the removing party is a
“heavy one.” B. Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir.
Unit A 1981).
Crowe, 113 F.3d at 1538.3
The standard is onerous because, absent fraudulent joinder, a plaintiff has the
absolute right to choose his forum. That is, courts must keep in mind that the plaintiff
is the master of his complaint and has the right to choose how and where he will fight
his battle. As Crowe further recognized:
This consequence makes sense given the law that “absent fraudulent
joinder, plaintiff has the right to select the forum, to elect whether to sue
joint tortfeasors and to prosecute his own suit in his own way to a final
determination.” Parks v. The New York Times Co., 308 F.2d 474, 478
(5th Cir. 1962). The strict construction of removal statutes also prevents
“exposing the plaintiff to the possibility that he will win a final
judgment in federal court, only to have it determined that the court
lacked jurisdiction on removal,” see Cowart Iron Works, Inc. v. Phillips
Constr. Co., Inc., 507 F. Supp. 740, 744 (S.D. Ga. 1981) (quoting 14A
C. Wright, A. Miller & E. Cooper, Federal Practice and Procedures §
3721), a result that is costly not only for the plaintiff, but for all the
parties and for society when the case must be re-litigated.
Crowe, 113 F.3d at 1538.
Clear and convincing evidence and particularity in pleading is required to
establish fraudulent joinder of a resident defendant. Parks, 308 F.2d at 478. Although
Under the second prong of the fraudulent joinder test, a court must determine whether
the plaintiff has fraudulently pled facts relating to a party’s citizenship in an effort to avoid
diversity jurisdiction. No issue related to the second prong has been presented. Accordingly, the
Court limits its analysis to the first prong.
affidavits and depositions may be considered, the court must not undertake to decide
the merits of the claim but must look to whether there is a possibility that a claim
exists. More particularly, the Crowe Court explained the framework for analyzing
fraudulent joinder as:
While “the proceeding appropriate for resolving a claim of fraudulent
joinder is similar to that used for ruling on a motion for summary
judgment under Fed. R. Civ. P. 56(b),” [B. Inc., v. Miller Brewing Co.,
663 F.2d 545, 549, n.9 (5th Cir., Unit A 1981)], the jurisdictional
inquiry “must not subsume substantive determination.” Id. at 550. Over
and over again, we stress that “the trial court must be certain of its
jurisdiction before embarking upon a safari in search of a judgment on
the merits.” Id. at 548-49. When considering a motion for remand,
federal courts are not to weigh the merits of a plaintiff's claim beyond
determining whether it is an arguable one under state law. See id. “If
there is even a possibility that a state court would find that the complaint
states a cause of action against any one of the resident defendants, the
federal court must find that joinder was proper and remand the case to
state court.” Coker v. Amoco Oil Co., 709 F.2d 1433, 1440-41 (11th Cir.
1983), superseded by statute on other grounds as stated in Georgetown
Manor, Inc. v. Ethan Allen, Inc., 991 F.2d 1533 (11th Cir. 1993).
Crowe, 113 F.3d at 1538 (emphasis added).
In a later fraudulent joinder decision, the Eleventh Circuit elaborated:
The fact that the plaintiffs may not ultimately prevail against the
individual defendants because of an insufficient causal link between the
defendants’ actions and the plaintiffs' injuries does not mean that the
plaintiffs have not stated a cause of action for purposes of the fraudulent
joinder analysis. In a fraudulent joinder inquiry, “federal courts are not
to weigh the merits of a plaintiff's claim beyond determining whether it
is an arguable one under state law.” Crowe, 113 F.3d at 1538.
Pacheco de Perez v. AT & T Co.,139 F.3d 1368, 1380-81 (11th Cir. 1998); see also
Tillman v. R.J. Reynolds Tobacco, 340 F.3d 1277, 1279 (11th Cir. 2003) (“[I]f there
is a possibility that a state court would find that the complaint states a cause of action
against any of the resident defendants, the federal court must find that the joinder was
proper and remand the case to state court.”).
Application of the Fraudulent Joinder Standard
Against the foregoing backdrop, the Court now turns to the application of the
fraudulent joinder standard to this case. As noted by the Plaintiff, a clear, arguable,
and even plausible wrongful death claim has been alleged against Mary Joubran as
administrator of Elias Joubran’s estate. See, doc. 1-2 at 6 (generally); at 6 ¶2; at 22,
¶¶35-36; at 24, ¶41; at 39-40, ¶¶94-95).
The Plaintiff May Maintain a Claim Against the Estate
Even if the Majority of the Facts Are Pled Against
The Defendant argues that, when read as a whole, “it is clear that the Plaintiff
intends only to pursue claims against Forest , not the Estate of Elias Johnson.” (Doc.
14 at 2). It makes this argument based on the fact that other than “a few select
paragraphs,” virtually the entire Complaint is directed at Forest (doc. 14 at 3), and
eight of the nine Counts in the Complaint are directed at Forest (doc. 14 at 4-5). The
Defendant cites no authority that merely because the “majority” of the allegations and
Counts in the Complaint are directed towards it, there is no possibility that a state
court would find that the Complaint states a cause of action against it and the Estate
of Elias Joubran,
The Plaintiff May Plead in the Alternative
The Defendant also argues that “the Estate of Elias Joubran would not be liable
to [P]laintiff if Lexapro cause[d] Mr. Joubran to shoot his wife.” (Doc. 14 at 3).
Whether or not that is true, the Plaintiff is entitled to plead alternative, hypothetical,
and even inconsistent theories of liability. FED. R. CIV. P. 8(d); ALA. R. CIV. P. 8(e).
Accordingly, this argument also fails to establish that a state court would find that the
Complaint fails to state a cause of action against the Estate of Elias Joubran.
The Complaint States a Valid Claim for Relief
The Defendant further argues that
the Complaint contains no allegations that Elias Joubran would have
shot his wife even if he had not taken Lexapro, or that he is liable if
Lexapro did not cause his actions. Forest submits [P]laintiff did not
provide fair notice of any claim against the Estate in his Complaint.
(Doc. 14 at 4-5). “To determine whether it is possible that a state court would find
that the complaint states a cause of action, we must necessarily look to the pleading
standards applicable in state court, not the plausibility pleading standards prevailing
in federal court.” Stillwell v. Allstate Ins. Co., 663 F.3d 1329, 1334 (11th Cir. 2011).
In this case, the Court applies Alabama’s traditional notice pleading standards. See
Crum v. Johns Manville, Inc., 19 So. 3d 208, 212, n. 2 (Ala. Civ. App. 2009).
The Complaint alleges that Mary Joubran’s decedent, Elias Joubran “shot
Sheila Clay Joubran, and then shot himself.” (Doc. 1-2 at 6, ¶2). The Complaint also
35. On or about December 30, 2015, Defendant Mary Joubran's
decedent, Elias Joubran, entered the Wildwood Lane home belonging to
him and his wife, Plaintiff’s decedent Sheila Clay Joubran, and shot her
with a handgun and then turned the gun on himself and committed
suicide. The coroner reports that Elias Joubran died instantly and that
Sheila Clay Joubran died shortly thereafter.
(Doc. 1-2 at 22, ¶35). In addition, the Complaint states that “all Defendants” engaged
in acts which “combined and concurred and proximately caused the . . . death of
Sheila Clay Joubran.” (Doc. 1-2 at 40). The Court holds that these factual allegations
pass muster under both the notice pleading and plausibility standards.
The Plaintiff’s “Intention” To Pursue a Judgment
Against the Estate
The Defendant next argues that the Plaintiff has no “real” intention to pursue
a judgment against the Estate of Elias Joubran. It argues:
The [E]state of Elias Joubran was opened on January 22, 2016. On
December 19, 2016, the Estate of Sheila Clay Joubran filed a claim
against the Estate of Elias Joubran. On December 20, 2016, Calhoun
County Probate Court Judge Alice Martin held a status conference to, at
least in part, address that claim.
Plaintiff’s counsel George Robinson was present, as was Wesley
Frye, the guardian ad litem for plaintiff Kevin Feheley, Jr. On December
29, 2016, Judge Martin issued an order requiring the Estate of Elias
• Submit to the Court a verified statement of the
Inventory of the assets of the decedent, Elias F.
Joubran, and a formal Accounting of what has been
received by the Personal Representative and what has
been expended in this matter;
• FILE WITH THE COURT, WITHIN 30 DAYS
FROM THE DATE OF THIS ORDER, a detailed list of
all financial accounts, both joint and separate, which
were in the name of Elias F. Joubran at the time of his
No inventory was filed. Yet there has been no follow up from the
Estate of Sheila Joubran. No one on behalf of the Estate of Sheila
Joubran has communicated with counsel for the Estate of Elias Joubran
since the status conference.
(Doc. 14 at 5-6) (citations omitted) (emphasis in original). The Defendant argues that
the “[P]laintiff’s failure to follow up in any manner for nearly eight months with
respect to the claim it presented in the Probate Court . . . demonstrates that [the]
[P]laintiff has not [sic] real, good faith intentional [sic] to pursue a claim to judgment
against the Estate.” (Doc. 14 at 8). The Defendant also argues that it is undisputed
that the Plaintiff is entitled to whatever the Estate of Elias Joubran has (doc. 14 at 6),
which is less than $50,000 (doc. 14 at 8), so it “does not make any practical sense for
[the] [P]laintiff to pursue a claim against the Estate [in this case]” (doc. 14 at 8).
In support of this argument, the Defendant quotes this Court’s opinion in
Collins v. Marten Transp., Ltd., No. 4:14-CV-0257-VEH, 2014 WL 972245, at *6
(N.D. Ala. Mar. 12, 2014) (Hopkins, J.): “‘On the question of removal we have not
to consider more than whether there was a real intention to get a joint judgment and
whether there was a colorable ground for it shown as the record stood when the
removal was denied.’” (emphasis in original) (quoting Chicago, Rock Island &
Pacific Ry. Co. v. Schwyhart, 1913, 227 U.S. 184, 33 S.Ct. 250, 57 L.Ed. 473 (1913)).
In Collins, The language cited by this Court in Collins was part of this Court’s effort
to demonstrate that “fraudulent joinder is not appropriate where the jurisdictional
underpinnings relied upon by the removing party involve questions of credibility
and/or the relative weight of evidence.” Collins, 2014 WL 972245 at *6. The
removing Defendant had asked the Court to consider a then-pending Motion for
Summary Judgment, which had been filed pre–removal by a resident co-defendant,
and the evidence associated therewith. This Court’s opinion had nothing to do with
whether the plaintiff had a “real” intention to pursue a claim against the resident
defendant. Noting that the plaintiff’s claim against the defendant was not “overtly
frivolous or fraudulent,” this Court held that the defendant was not fraudulently
The Defendant also cites to several cases which address the issue of
“abandonment” and “good faith intention to pursue” a claim against a defendant. For
example, it quotes the following language from Davis v. Am. Med. Sec., Inc., 334 F.
Supp. 2d 1292, 1293 (N.D. Ala. 2004) (Acker, J.):
There is a countervailing principle that arguably prevents a plaintiff
from avoiding a diversity removal if his failure to pursue a non-diverse
defendant is deliberate and calculated. Such a course of non-action
might be described as a subterfuge or the belated equivalent of a
Davis, 334 F. Supp. 2d at 1293. In Davis, the diverse defendants removed the action,
based on diversity, shortly before the one year limitation for doing so expired. They
argued fraudulent joinder based on the fact that, despite having “ample time” to locate
and serve the resident defendant, the plaintiff had failed to do so, “arguably
abandoning [the] action against [that defendant].” Id. at 1292-1293. After the plaintiff
filed an alias summons in federal court, Judge Acker determined that the plaintiff
intended to proceed against the resident defendant, “and has always been serious, just
slow.” Id. at 1293. Unlike in Davis, there is no allegation that the instant Plaintiff has
been anything less than diligent in pursuing his claims against the resident Defendant
in this Court.
Similarly, the Defendant cites Faulk v. Husqvarna Consumer Outdoor Prod.
N.A., Inc., 849 F. Supp. 2d 1327, 1330–31 (M.D. Ala. 2012) (Fuller, J.), where that
Plaintiff's course of conduct unequivocally has demonstrated
voluntary abandonment of his claims against Bobby Daffin. As of the
date of the pretrial conference, less than a month before trial in state
court, Plaintiff had not served Bobby Daffin. Plaintiff had not even
attempted to serve Bobby Daffin since early May of 2011. This is
despite an impending trial date and clear opportunities to effect service,
such as Bobby Daffin's deposition in late November of 2011, which took
place at Plaintiff's counsel's law office. The omission of service on that
date is a clear expression of intent to abandon pursuit of claims against
Bobby Daffin. Furthermore, Plaintiff's pretrial contentions, which were
prepared for the pretrial order (reproduced in the notice of removal),
assert no claims against [Daffin]. This is another expression of intent to
discontinue the case against Daffin. Finally, as if Plaintiff's actions
pre-removal were not enough, Plaintiff essentially argues in support of
remand that Husqvarna should have realized that Bobby Daffin was
fraudulently joined earlier in the case. (Mot. to Remand 2–3
(“Husqvarna has known since the filing of this case that the Plaintiff's
claims against Defendant Daffin were defective.... The removing
Defendant knew at the time the lawsuit was filed that the accident was
not caused by the actions of the non-diverse Defendant.”).)
In addition to constituting clear acts of voluntary abandonment,
the Court also finds that remand is unwarranted because Plaintiff lacks
a good faith intention to pursue his claims against Daffin. . . . Where the
plaintiff's collective litigation actions, viewed objectively, clearly
demonstrate a lack of good faith intention to pursue a claim to judgment
against a non-diverse defendant, the court should dismiss the
non-diverse defendant and retain jurisdiction over the case. As the
preceding paragraph makes clear, the non-service—indeed, the
non-attempt of service since practically the inception of the case—was
intentional. Service on Bobby Daffin could have been achieved at his
deposition at Plaintiff's counsel's law office with a minimum of effort.
The failure to attempt to serve Bobby Daffin is compounded by
Plaintiff's pretrial submissions and correspondence, which also indicate
that Plaintiff does not intend to pursue claims against Bobby Daffin at
trial. In addition, Plaintiff's argument in support of remand (conceding
that no viable cause of action exists) indicates that Plaintiff will not
pursue claims against Bobby Daffin in state court in the event of
Faulk, 849 F. Supp. 2d at 1330–31 (citations omitted). Again, nothing has occurred
in this case which suggested either an abandonment or a lack of a good faith intent
to pursue claims against the Estate of Elias Joubran here. See also, Gabriel v. Life
Options Int'l, Inc., No. CIV.A. 14-358-CG-B, 2015 WL 1967498, at *4 (S.D. Ala.
Apr. 30, 2015) (Granade, J.) (“At first glance, there is not diversity of the parties.
However, when Chartis Specialty removed this litigation to federal court, the
Plaintiffs were no longer pursuing the claims against the Howard Defendants due to
their settlement agreement.”).
The Defendant argues that joining Mary Joubran, in her representative
capacity, was done in order to destroy diversity. However, “Supreme Court precedent
is clear that 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.” Triggs, 154
F.3d at 1291 (citing Schwyhart, 227 U.S. 184 (1913)). In this case, as noted above,
there has been no indication that the Plaintiff does not intend to pursue the wrongful
death claim against Mary Joubran in her representative capacity.
Based on the foregoing, the Court concludes that there is at least a possibility
that a state court would find that the Complaint states a cause of action for wrongful
death against Mary Joubran, as the personal representative of the Estate of Elias
Joubran. That estate therefore is not fraudulently joined. Since the Defendant, as the
removing party, has failed to show that there is completely diversity between
Defendant Mary Joubran, in her representative capacity, and the Plaintiff, in his
representative capacity, this case must be REMANDED. A separate Order of
Remand will be entered.
DONE and ORDERED this 20th day of October, 2017.
VIRGINIA EMERSON HOPKINS
United States District Judge
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