Phillips et al v. R.R. Dawson Bridge Company, LLC et al

Filing 16

MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 8/12/2014. (KAM, )

FILED
2014 Aug-12 PM 01:43
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LISA PHILLIPS, et al.,
Plaintiffs;
vs.
R.R. DAWSON BRIDGE
COMPANY, LLC, et al.,
Defendants.

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2:14-cv-00480-LSC

MEMORANDUM OF OPINION
Plaintiffs Lisa Phillips, Deborah Phillips, Lomax Phillips, Jr., Deangila Phillips,
and Keira Phillips (collectively, the “Plaintiffs”) filed this action in state court,
seeking damages stemming from the death of Lomax Phillips. Defendant Miller
Formless Co. (“Miller Formless”) removed the case to this Court, and the Plaintiffs
have moved to remand the case back to state court. (Doc. 8.) Miller Formless has also
filed a motion to remand one of the claims but asks the Court to retain jurisdiction
over all other claims. (Doc. 12.) For the reasons stated below, the Plaintiffs’ motion
to remand is due to be granted, and the motion to sever is due to be rendered moot.

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I.

BACKGROUND1
Lomax Phillips (“Phillips”) worked for Defendant R.R. Dawson Bridge

Company, LLC (“R.R. Dawson”), in Bessemer, Alabama. As part of his job, Phillips
worked on a bridge construction project along Interstate 85 in Montgomery County,
Alabama. On January 8, 2014, he was working in an overhead bridge wagon lift (the
“Lift”) approximately 90 feet above the ground when the Lift lost support and
crashed to the ground. Phillips was killed in the incident, and the Plaintiffs have
brought this suit as the heirs to his estate.
The Plaintiffs filed suit on January 10, 2014, in the Circuit Court of Jefferson
County, Alabama. The complaint alleges a variety of state law claims against Miller
Formless, R.R. Dawson, and Defendant Samuel Poynter (“Poynter”). According to
the complaint, Miller Formless improperly designed, manufactured, and distributed
the Lift. Additionally, the Plaintiffs contend that R.R. Dawson and Poynter failed to
properly inspect and maintain the Lift. Finally, the Plaintiffs have pursued a workers’
compensation claim against R.R. Dawson.

1

Where, as here, the Court must determine whether a party or claim has been fraudulently
joined, it must consider the pleadings as supplemented by affidavits and depositions 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)). Miller Formless has not submitted any affidavits,
deposition transcripts, or other documents to support its claims of fraudulent joinder, and thus the
Court’s review is limited to the allegations as pleaded.
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Miller Formless removed the action to this Court on March 18, 2014, invoking
the Court’s diversity jurisdiction under 28 U.S.C. § 1332. According to the notice of
removal, the Plaintiffs are all citizens of Alabama. Defendant R.R. Dawson is a citizen
of Kentucky, and Miller Formless is a citizen of Illinois. However, like the Plaintiffs,
Poynter is a citizen of Alabama. The notice of removal suggests that the claims against
Poynter and the workers’ compensation claim are fraudulently joined with the other
claims in this action. On June 9, 2014, the Plaintiffs filed a motion to remand the entire
case, contesting these two issues.
II.

STANDARD OF REVIEW
“‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power

authorized by Constitution and statute.’” Gunn v. Minton, - - - U.S. - - - -, 133 S.Ct.
1059, 1064 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,
377, 114 S.Ct. 1673, 1675 (1994)). In the removal context, a defendant or defendants
may generally remove to federal court any civil action filed in a state court if the
federal court has original jurisdiction over the action. 28 U.S.C. § 1441(a). However,
“‘[a] removing defendant bears the burden of proving proper federal jurisdiction.’”
Adventure Outdoors, Inc. v. Bloomberg, 552 F.3d 1290, 1294 (11th Cir. 2008) (quoting
Leonard v. Enter. Rent a Car, 279 F.3d 967, 972 (11th Cir. 2002)). This Court must

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construe the removal statute narrowly and resolve all doubts as to jurisdiction in favor
of remand. Diaz v. Sheppard, 85 F.3d 1502, 1505 (11th Cir. 1996).
III.

DISCUSSION
First, the Court turns to the workers’ compensation claim. Phillips died while

on the job, and thus the Plaintiffs brought a claim against R.R. Dawson under the
Alabama Workers’ Compensation Act, Ala. Code §§ 25-5-1 et seq. Congress
proscribes the removal of such actions, providing that “[a] civil action in any State
court arising under the workmen’s compensation laws of such State may not be
removed to any district court of the United States.” 28 U.S.C. § 1445(c). This
provision is “a jurisdictional-based limitation on the district court’s removal power.”
New v. Sports & Recreation, Inc., 114 F.3d 1092, 1097 (11th Cir. 1997); see also Alansari
v. Tropic Star Seafood Inc., 388 F. App’x 902, 905–06 (11th Cir. 2010) (concluding that
a district court should have remanded a workers’ compensation claim to state court
even though it was raised over 30 days after removal because § 1445(c) is a
jurisdictional statute). Both parties agree that this claim is due to be remanded, but
Miller Formless contends that this Court should retain jurisdiction over the other
claims.
According to Miller Formless, the Plaintiffs have attempted to fraudulently join

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the non-removable workers’ compensation claim in an action that would otherwise be
removable on the basis of diversity. “Fraudulent joinder is a judicially created doctrine
that provides an exception to the requirement of complete diversity.” Triggs v. John
Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 2011). Thus, joinder is fraudulent
when a plaintiff names an in-state defendant against whom there is no possible cause
of action or when a plaintiff fraudulently pleads jurisdictional facts regarding an instate defendant. Stillwell v. Allstate Ins. Co., 663 F.3d 1329, 1332 (11th Cir. 2011).
Additionally, fraudulent joinder exists “where a diverse defendant is joined with a
nondiverse defendant as to whom there is no joint, several or alternative liability and
where the claim against the diverse defendant has no real connection to the claim
against the nondiverse defendant.” Triggs, 154 F.3d at 1287. This basis for fraudulent
joinder exists in “egregious” cases of misjoinder. See Tapscott v. MS Dealer Serv.
Corp., 77 F.3d 1353, 1360 (11th Cir. 1996) (overruled on other grounds in Cohen v.
Office Depot, Inc., 204 F.3d 1069, 1072–73 (11th Cir. 2000)). As to the workers’
compensation claim, Miller Formless raises only this third basis for fraudulent joinder.
In order to establish that joinder is fraudulent, Miller Formless has the burden of
proving the “fraud” by clear and convincing evidence. See Stillwell, 663 F.3d at 1332.
If joinder is appropriate under Rule 20 of the Federal Rules of Civil Procedure

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(“Rule 20”), joinder is not fraudulent. Brooks v. Paulk & Cope, Inc., 176 F. Supp. 2d
1270, 1274 (M.D. Ala. 2001). The Plaintiffs may join multiple parties as defendants
if:
(A) any right to relief is asserted against them jointly,
severally, or in the alternative with respect to or arising out
of the same transaction, occurrence, or series of
transactions or occurrences; and
(B) any questions of law or fact common to all defendants
will arise in the action.
Fed. R. Civ. P. 20(a)(2). All of the claims in this case stem from Phillips’s death while
on the job. Indeed, Phillips’s heirs did not have any cause of action based on either the
allegedly defective Lift or Phillips’s employer’s conduct until Phillips died while
working for R.R. Dawson. See Brooks, 176 F. Supp. 2d at 1276. Thus, the first element
of Rule 20 joinder is met. Second, there will be common questions of fact because the
circumstances of the injury may be relevant to both the claims against Miller Formless
and the claims against R.R. Dawson. Id.
Indeed, the Alabama workers’ compensation statute expressly allows a plaintiff
to bring workers’ compensation claims at the same time it brings other claims:
If the injury or death for which compensation is payable
. . . was caused under circumstances also creating a legal
liability for damages on the part of any party other than the
employer, whether or not the party is subject to this
chapter, the employee, or his or her dependents in case of
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death, may proceed against the employer to recover
compensation under this chapter . . . , and at the same time,
may bring an action against the other party to recover
damages for the injury or death, and the amount of the
damages shall be ascertained and determined without
regard to this chapter.
Ala. Code § 25-5-11(a). The use of the phrase “at the same time” suggests that the
Plaintiffs can join a workers’ compensation claim with their tort claims against Miller
Formless. Williams, 542 F. Supp. 2d at 1265. Thus, the Plaintiffs have not fraudulently
joined the workers’ compensation claims with the other claims in this case.
Alternatively, Miller Formless contends that even absent fraudulent joinder, the
workers’ compensation claims should still be severed from this action. Congress
requires the federal courts to sever non-removable claims that are joined to federal
question claims:
(1) If a civil action includes—
(A) a claim arising under the Constitution, laws, or treaties
of the United States (within the meaning of section 1331 of
this title), and
(B) a claim not within the original or supplemental
jurisdiction of the district court or a claim that has been
made nonremovable by statute, the entire action may be
removed if the action would be removable without the
inclusion of the claim described in subparagraph (B).
(2) Upon removal of an action described in paragraph (1),
the district court shall sever from the action all claims
described in paragraph (1)(B) and shall remand the severed
claims to the State court from which the action was
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removed. Only defendants against whom a claim described
in paragraph (1)(A) has been asserted are required to join in
or consent to the removal under paragraph (1).
28 U.S.C. § 1441(c). However, Congress has not provided any such procedure for
diversity claims. By its plain language, Congress requires severance in cases involving
federal question claims joined with non-removable claims to the exclusion of diversity
claims. See Anderson v. Cagle’s, Inc., 488 F.3d 945, 955 (11th Cir. 2007) (emphasizing
that statutory interpretation begins with an analysis of the plain meaning).
Miller Formless cites the Court to Reed v. Heil Co., 206 F.3d 1055 (11th Cir.
2000), where the Eleventh Circuit remanded a workers’ compensation claim to state
court but proceeded to consider a federal question claim brought under the Americans
with Disabilities Act. According to Miller Formless, this Court should make no
distinction between diversity and federal question claims. However, Congress has
subsequently distinguished between federal question and diversity claims. Such a
differentiation corresponds with the heightened federalism concerns underlying
removal jurisdiction based on diversity of citizenship. Morrison v. Allstate Indem. Co.,
228 F.3d 1255, 1268 (11th Cir. 2000) (“In light of the federalism and separation of
powers concerns implicated by diversity jurisdiction, federal courts are obligated to
strictly construe the statutory grant of diversity jurisdiction.”); see also Univ. of S. Ala.

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v. Am. Tobacco Co., 168 F.3d 405, 412 (11th Cir. 1999) (emphasizing that removal
jurisdiction also raises “significant federalism concerns”). It is reasonable that
Congress would prevent plaintiffs from defeating removal of federal question claims
by joining non-removable claims to them without extending the same rule to state law
claims where jurisdiction is based solely on diversity grounds. See Idaho v. Coeur
d’Alene Tribe of Idaho, 521 U.S. 261, 293, 117 S.Ct. 2028, 2046 (1997) (O’Connor, J,
concurring in part and concurring in the judgment) (“There is no need to call into
question the importance of having federal courts interpret federal rights—particularly
as a means of serving a federal interest in uniformity—to decide this case.”).
In certain instances, the Court may sever parties from an action pursuant to
Federal Rule of Civil Procedure 21 (“Rule 21”) in order to establish diversity
jurisdiction. See Fritz v. Am. Home Shield Corp., 751 F.2d 1152, 1154 (11th Cir. 1985)
(“Courts have employed Rule 21 to preserve diversity jurisdiction by dropping a
nondiverse party not indispensable to the action.”). However, the Court must
consider this power in the context of removal jurisdiction, which tests jurisdiction “as
of the time of removal.” Ehlen Floor Covering, Inc. v. Lamb, 660 F.3d 1283, 1287 (11th
Cir. 2011).
Even in cases involving original jurisdiction, Rule 21 severance is used sparingly

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to drop a party from an action to provide diversity jurisdiction. See Newman-Green,
Inc. v. Alfonzo-Larrain, 490 U.S. 826, 837, 109 S.Ct. 2218, 2225 (1989) (“Although
we hold that the courts of appeals have the authority to dismiss a dispensable
nondiverse party, we emphasize that such authority should be exercised sparingly.”).
This doctrine sometimes allows appellate courts to affirm judgments where
jurisdiction was only raised during the appeal. See Ingram v. CSX Transp., 146 F.3d
858, 862–63 (11th Cir. 1998) (dismissing an in-state defendant added in a diversity
action several months after the case was removed). In Ingram, the Court’s decision
was based in part on the fact that the plaintiff did not raise the jurisdictional issue
“until her oral argument presentation on appeal— long after the district court’s
adverse ruling on the merits of her case.” Id. at 863. Notably, although Ingram
involved a case of removal jurisdiction, it dismissed an in-state defendant that was
added after the case was removed to subsequently defeat removal jurisdiction. Ingram
does not provide relief in this case, where the issue exists at the time of removal.
Indeed, the doctrine of fraudulent joinder is designed to address a situation
where the Plaintiffs attempt to join an in-state defendant or non-removable claim in
order to defeat diversity jurisdiction. See Triggs, 154 F.3d at 1287 (identifying the three
types of fraudulent joinder). If a defendant could sever non-diverse defendants in

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order to establish removal jurisdiction, many defendants would likely attempt to seek
this post-removal action by the courts in order to avoid meeting the burdens
associated with fraudulent joinder. Such a broad right would be inconsistent with the
strict construction of the removal statute and the presumption in favor of remand. See
Scimone v. Carnival Corp., 720 F.3d 876, 882 (11th Cir. 2013) (explaining that the right
to remove is strictly construed in favor of remand).
In sum, the workers’ compensation claim against R.R. Dawson is not
fraudulently joined with the other claims in this action. Since it is not fraudulently
joined, there is no basis to sever it from the other claims in order to establish proper
diversity jurisdiction. Instead, the case is due to be remanded.
Second, the Court turns to Poynter’s presence in the action, which also defeats
removal unless he is fraudulently joined. Flintlock Construction Services, LLC v. WellCome Holdings, LLC, 710 F.3d 1221, 1224 (11th Cir. 2013) (noting that complete
diversity is a requirement for diversity jurisdiction). Even without the workers’
compensation claim, the case should still be remanded unless there is no reasonable
possibility that the Plaintiffs could state a cause of action against Poynter. Stillwell, 663
F.3d at 1332.
According to the complaint, the Plaintiffs attempt to claim that Poynter willfully

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injured Phillips. Under the Alabama Workers’ Compensation Act, a co-employee such
as Poynter is liable for his willful acts. Ala. Code § 25-5-11(c) (identifying four types
of willful conduct). The Plaintiffs allege, for example that Poynter “willfully,
wantonly, negligently, and/or intentionally removed from a machine a safety guard
and/or safety device provided by the manufacturer of the machine with knowledge
that injury or death would likely or probably result from the removal.”2 (Doc. 1-1 at
11 ¶ 34.)
When a defendant raises fraudulent joinder, that defendant must meet its
burden by actually proving that joinder is fraudulent. B, Inc. v. Miller Brewing Co., 663
F.2d 545, 549 (5th Cir. 1981) (“[W]here there have been allegations of ‘fraudulent
joinder,’ it is clear that the burden is upon the removing party to prove the alleged
‘fraud.’”). First, Miller Formless contends that allegations such as the one described
above “merely recite the elements of a cause of action [and] are insufficient as a
matter of law concerning improperly joined Poynter.” (Doc. 1 at 7 ¶ 14.) However,
“[n]othing in our precedents concerning fraudulent joinder requires anything more
than conclusory allegations or a certain level of factual specificity.” Stillwell, 663 F.3d

2

The use of “and/or” language is an indirect assertion of willful conduct. However, the
complaint subsequently states that the “willful and/or intentional conduct proximately resulted in
injuries and death to [Phillips].” (Doc. 1-1 at 12 ¶ 36.)
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at 1334.
Additionally, Miller Formless buttresses its assertions that the complaint is
insufficient with citations to the federal pleading standards outlined in Ashcroft v.
Iqbal, 556 U.S. 662, 129 S.Ct. 1937 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 127 S.Ct. 1955 (2007). (Doc. 1 at 7–8 ¶ 14.) This is the incorrect legal standard
in the context of fraudulent joinder because this Court must look at whether there is
a possible claim under the state law pleading standards. Stillwell, 663 F.3d at 1334 (“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 standards prevailing in federal court.”). Importantly, the
Alabama courts have not adopted the plausibility standard of pleading applied in the
federal courts. Crum v. Johns Manville, Inc., 19 So. 3d 208, 212 n.2 (Ala. Civ. App.
2009).
Alabama law recognizes a general standard of notice pleading, and “‘a
complaint is sufficient if it puts the defendant on notice of the claims against him.’”
Boyles ex rel. Boyles v. Dougherty, - - - So. 3d - - - -, 2013 WL 5394326, at *2 (Ala. 2013)
(quoting Bethel v. Thorn, 757 So. 2d 1154, 1158 (Ala. 1999)). “[T]he dismissal of a
complaint is not proper if the pleading contains even a generalized statement of facts

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which will support a claim for relief.” Simpson v. Jones, 460 So. 2d 1282, 1285 (Ala.
1984) (internal quotation marks omitted).
In a case involving fraudulent joinder, the complaint need not even meet this
standard. Instead, it need only be reasonably possible that the complaint could meet
this standard. See Burns v. Windsor Ins. Co., 31 F.3d 1092, 1096 n.9 (11th Cir. 1994).
This Court can deny a motion to remand a case based on fraudulent joinder “only if
the defendants have proven by clear and convincing evidence” that there is no
possibility of a cause of action under state law, and Miller Formless has not met this
burden. Henderson v. Washington Nat’l Ins. Co., 454 F.3d 1278, 1283 (11th Cir. 2006)
(emphasis added). Miller Formless neither cited these pleading standards to the Court
nor explained how these claims of willfulness do not state a reasonably possible claim
under Alabama law. As such, it has not met its burden of proof.
Similarly, Miller Formless has not offered any affidavits or other proof to
suggest that it is impossible that the Plaintiffs could state a claim against Poynter for
willful conduct. Cf. Legg v. Wyeth, 428 F.3d 1317, 1323 (11th Cir. 2005) (concluding
that a district court should not rely on unsupported allegations in the plaintiff’s
complaint “[w]hen the Defendants’ affidavits are undisputed by the Plaintiffs.”).
Ultimately, there must be a “reasonable possibility” that the plaintiffs can establish

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a cause of action. Id. at 1324–25. However, without more evidence to suggest that
joinder is actually fraudulent, the Court cannot retain jurisdiction over the case. See
Pacheco de Perez v. AT&T Co., 139 F.3d 1368, 1380 (11th Cir. 1998) (“The burden of
establishing fraudulent joinder is a heavy one. Where a plaintiff states even a colorable
claim against the resident defendant, joinder is proper and the case should be
remanded to state court.”).
IV.

CONCLUSION
For the reasons discussed above, the Plaintiffs’ motion to remand (Doc. 8) is

due to be granted, and the case is due to be remanded to the Jefferson County Circuit
Court, Bessemer Division, in accordance with 28 U.S.C. § 1447(c). Miller Formless’s
motion to sever and partially remand (Doc. 12) will be treated as moot.
Done this 12th day of August 2014.

L. SCOTT COOGLER
UNITED STATES DISTRICT JUDGE
174256

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