Barnes v. GM Motors, LLC et al

Filing 41

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 7/1/2014. (PSM)

FILED
2014 Jul-01 PM 02:37
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
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WINSTON BARNES,
Administrator of the Estate of
Gwendolyn Barnes Jenkins,
deceased,
Plaintiff,
vs.
GENERAL MOTORS, LLC, et
al.,
Defendants.

Civil Action Number
2:14-cv-00719-AKK

MEMORANDUM OPINION
Plaintiff Winston Barnes (“Barnes”) seeks to remand this matter to the
Circuit Court of Jefferson County, Alabama, doc. 29, while Defendants Crawford
Group, Inc. (“Crawford Group”), Enterprise Holdings, Enterprise Leasing
Company-South Central, LLC (“Enterprise Leasing”), and Edwards Chevrolet Co,
Inc. (“Edwards Chevrolet”), seek to dismiss the complaint, docs. 11, 12, 13, and
14. For the reasons stated below, the court grants Barnes’ Motion to Remand.1
I. STANDARD OF REVIEW

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As a result, the court lacks jurisdiction to address the defendants’ motions to dismiss,
docs. 11, 12, 13, and 14, and will moot the motions.
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Federal courts are courts of limited jurisdiction, with the power to hear only
cases authorized by the Constitution or by statute. Kokkonen v. Guardian Life Ins.
Co. of Am., 511 U.S. 375, 377 (1994). Moreover, courts are “obligated to inquire
into subject-matter jurisdiction sua sponte whenever it may be lacking.” CharonBolero v. U.S. Att’y Gen., 427 F.3d 954, 956 (11th Cir. 2005); Allapattah Servs.,
Inc. v. Exxon Corp., 362 F.3d 739, 753 (11th Cir. 2004). “[F]ederal courts are
directed to construe removal statutes strictly. . . . [A]ll doubts about jurisdiction
should be resolved in favor of remand to state court.” Univ. of S. Ala. v. Am.
Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999). In removal actions, the
removing party bears the burden of establishing jurisdiction. Diaz v. Shepard, 85
F.3d 1502, 1505 (11th Cir. 1996).
II. FACTUAL BACKGROUND
On April 12, 2012, Gwendolyn Barnes Jenkins was driving a 2008
Chevrolet Impala on Jug Factory Road in Tuscaloosa County, Alabama, when
another vehicle struck the Impala on the rear driver’s side as Jenkins attempted to
cross U.S. Highway 82. Doc. 1-1 at 12–13. Barnes, who is the administrator of
Jenkins’ estate, contends that because defendant General Motors, LLC removed or
“deleted” side-impact air bags, which were standard safety equipment on 2008
model Impalas, from Jenkins’ Impala, pursuant to a cost-saving agreement with
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one or more of the defendants, “Jenkins suffered enhanced injuries in the collision
that she would not otherwise have suffered.” Id. at 13. Those injuries resulted in
Jenkins’ paralysis and, ultimately, her death. Id.
On March 7, 2014, Barnes filed suit against the defendants in the Circuit
Court of Jefferson County, Alabama, alleging claims based on various products
liability theories as well as negligence and wantonness. Doc. 1-1 at 9, 14–20. On
April 18, 2014, defendants Crawford Group, Enterprise Leasing, and Enterprise
Holdings filed their Notice of Removal on diversity grounds under 28 U.S.C. §§
1332, 1441, and 1446. Doc. 1 at 1. Defendant General Motors subsequently
joined them in removal. Doc. 2 at 1. To get around the fact that defendants Serra
Chevrolet, Inc. and Edwards Chevrolet are citizens of Alabama, the removing
defendants2 contend that Barnes fraudulently joined these defendants to defeat
federal jurisdiction. Id. at 5–12.
III. ANALYSIS
Since Barnes does not contest the $75,000 jurisdictional amount under 28
U.S.C. § 1332, the only issue to resolve is whether complete diversity exists. See

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Serra Chevrolet and Edwards Chevrolet have not indicated to the court that they consent
to removal. The removing defendants contend that this failure does not dictate remand pursuant
to this circuit’s well-established requirement that all co-defendants consent to removal because
Serra Chevrolet and Edwards Chevrolet are fraudulently joined and consequently their consent to
removal is not required. Doc. 32 at 16.
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Henderson v. Washington Nat’l Ins. Co., 454 F.3d 1278, 1281 (11th Cir. 2006)
(noting the complete diversity requirement). This resolution hinges on whether
the removing defendants can show that Barnes fraudulently joined Serra Chevrolet
and Edwards Chevrolet.
A. Fraudulent Joinder
“When a defendant removes a case to federal court on diversity grounds, a
court must remand the matter back to state court if any of the properly joined
parties in interest are citizens of the state in which the suit was filed.” Id.
“However, if a defendant shows that there is no possibility the plaintiff can
establish [any of the alleged] cause[s] of action against the resident defendant,
then the plaintiff is said to have fraudulently joined the non-diverse defendant.”3
Florence v. Crescent Res., LLC, 484 F.3d 1293, 1297 (11th Cir. 2007) (quotation
marks and citation omitted). “Fraudulent joinder is a judicially created doctrine
that provides an exception to the requirement of complete diversity.” Triggs, 154
F.3d at 1287. “In that situation, the federal court must dismiss the non-diverse
defendant and deny any
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Fraudulent joinder may also exist “where there is outright fraud in the plaintiff’s
pleading of jurisdictional facts and . . . where there is no joint, several, or alternative liability
between a diverse defendant and the non-diverse defendant, and the plaintiff’s claims against the
non-diverse defendant otherwise bear no real connection to the claims asserted against the
diverse defendant,” Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998),
but the removing defendants do not contend either here.
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motion to remand the matter back to state court.” Florence, 484 F.3d at 1297.
“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. 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.”
Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997) (emphasis added). “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 (emphasis in original). “The
determination of whether a resident 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.” Pacheco de
Perez v. AT&T Co., 139 F.3d 1368, 1380 (11th Cir. 1998). Finally, the burden on
the removing party to prove fraudulent joinder is a “heavy one.” See Crowe, 113
F.3d at 1538. “The defendant must make such a showing by clear and convincing
evidence,” Henderson, 454 F.3d at 1281, and “the district court must evaluate
factual allegations in the light most favorable to the plaintiff and resolve any
uncertainties about the applicable law in the plaintiff’s favor,” Pacheco, 139 F.3d
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at 1380.
B. Potential Liability of Serra Chevrolet and Edwards Chevrolet
Alabama law defines a “product liability action” as:
any action brought by a natural person for personal injury, death, or
property damage caused by the manufacture, construction, design, formula,
preparation, assembly, installation, testing, warnings, instructions,
marketing, packaging, or labeling of a manufactured product when such
action is based upon (1) negligence, (2) innocent or negligent
misrepresentation, (3) the manufacturer’s liability doctrine, (4) the Alabama
extended manufacturer’s liability doctrine as it exists or is hereafter
construed or modified, (5) breach of any implied warranty, or (6) breach of
any oral express warranty and no other.
Ala. Code § 6-5-521(a). A 2011 amendment to the Alabama Code, referred to as
the “Innocent Seller” statute, see doc. 1 at 7, significantly limits a consumer’s
ability to bring such actions against distributors:
No product liability action may be asserted or may be provided a
claim for relief against any distributor, wholesaler, dealer, retailer, or seller
of a product, or against an individual or business entity using a product in
the production or delivery of its products or services (collectively referred to
as the distributor) unless any of the following apply:
(1) The distributor is also the manufacturer or assembler of the final
product and such act is causally related to the product's defective condition.
(2) The distributor exercised substantial control over the design,
testing, manufacture, packaging, or labeling of the product and such act is
causally related to the product's condition.
(3) The distributor altered or modified the product, and the alteration
or modification was a substantial factor in causing the harm for which
recovery of damages is sought.
(4) It is the intent of this subsection to protect distributors who are
merely conduits of a product. This subsection is not intended to protect
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distributors from independent acts unrelated to the product design or
manufacture, such as independent acts of negligence, wantonness, warranty
violations, or fraud.
Ala. Code § 6-5-521(b).
At issue here is whether Serra Chevrolet and Edwards Chevrolet qualify as
innocent sellers, which determines whether Barnes can pursue claims of
negligence and wantonness against these two defendants. In a nutshell, Barnes
contends that Serra Chevrolet and Edwards Chevrolet are liable because they
knowingly sold Jenkins a 2008 Impala that contained no side-impact air bags,
which were a standard feature of 2008 Impalas, failed to warn Jenkins that the
Impala she purchased contained no side-impact air bags, and either failed to or
inadequately inspected the Impala. See doc. 1-1 at 17–20. The removing
defendants repeatedly argue that Serra Chevrolet and Edwards Chevrolet were the
“mere[] conduits” of a product, and that “[Barnes] alleges Edwards [Chevrolet]
and Serra [Chevrolet] are liable simply because they decided to sell the subject
Impala.” Doc. 32 at 4. Consequently, the removing defendants argue, Serra
Chevrolet and Edwards Chevrolet are shielded from liability by Ala. Code § 6-5521(b) as purportedly innocent sellers. The removing defendants, however,
mischaracterize Barnes’ argument. Barnes contends that his “claim against
Defendants Serra [Chevrolet] and Edwards [Chevrolet] is based on their decision
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to sell a product they know is unreasonably dangerous and on their failure to warn
consumers as to the dangers of driving a vehicle without side air[]bags.” Doc. 30
at 8–9. Put differently, Barnes is not arguing merely that, as the removing
defendants claim, “Edwards [Chevrolet] and Serra [Chevrolet] are liable simply
because they decided to sell the subject Impala,” doc. 32, he is arguing that
Edwards Chevrolet and Serra Chevrolet are liable because they decided to sell the
Impala, which they knew to be a dangerous product and failed to warn Jenkins of
that danger. Consequently, Barnes argues, Edwards Chevrolet and Serra
Chevrolet’s liability hinges on one of the “independent acts unrelated to the
product design or manufacture, such as independent acts of negligence,
wantonness, warranty violations, or fraud” that are not immunized by § 6-5521(b).
In reviewing the parties’ respective contentions regarding the Innocent
Seller statute, the court notes initially that the removing defendants attached two
affidavits to their notice of removal attesting that Edwards Chevrolet and Serra
Chevrolet had no role in the selection of the equipment features of the vehicles
shipped to their dealerships. Docs. 1-2 at 3; 1-3 at 2. While a court determining
whether a plaintiff has fraudulently joined a defendant may consider affidavits
submitted by the parties to the extent that they bear on determining whether the
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plaintiff’s claim is arguable under state law, Crowe, 113 F.3d at 1538, these
affidavits do nothing to undermine the gravamen of Barnes’ allegation. Ultimately,
even if the removing defendants are correct that Edwards Chevrolet and Serra
Chevrolet did not choose for General Motors to ship a vehicle lacking side-impact
air bags to their dealerships, Edwards Chevrolet and Serra Chevrolet still well
may have known the Impala lacked side-impact air bags. In other words, this
contention is not dispositive on the issue of whether Edwards Chevrolet and Serra
Chevrolet qualify as innocent sellers.
As previously stated, the Alabama legislature implemented the Innocent
Seller Statute in 2011. See Ala. Act 2011–627. In the intervening three years,
Alabama courts have failed to expound upon what “independent acts of negligence
[or] wantonness” fall outside the protection afforded by § 6-5-521(b). The Middle
District, however, passed judgment on a set of facts that are virtually identical to
those presently before the court. In Lazenby v. ExMark Manufacturing Co., Inc.,
the plaintiff was the representative of the estate of a Dr. William Lazenby, who
died after a riding lawnmover rolled over on him while he was mowing his lawn.
No. 3:12-CE-82-WKW [WO], 2012 WL 3231331, at *2 (M.D. Ala. Aug. 6, 2012).
The plaintiff brought product liability claims, as well as claims for negligence and
wantonness against the manufacturer and seller, contending that the riding
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lawnmower was designed and sold without a rollover protection system, and that
“such a system likely would have prevented the accident that killed Dr. Lazenby.”
Id. After removal, which was based on the defendants’ contention that the
distributor who sold the riding lawnmower to Dr. Lazenby was fraudulently joined
because § 6-5-521(b) immunized it from products liability suits, and consequently
that the distributor’s Alabama citizenship did not defeat diversity jurisdiction, the
plaintiff sought remand, arguing that § 6-5-521(b) “preserves causes of action
based on wantonness against distributors for knowingly selling a product that is
likely or probable to cause injury.” Id. In granting the plaintiff’s motion because
her “interpretation of Ala. Code § 6-5-501 . . . [was] at least plausible,” id., the
court observed:
Plaintiff asserts a wantonness claim against PPE in her Complaint.
The question is whether this claim plausibly rises to the level of an
independent act unrelated to the product design or manufacture.
Wantonness is the conscious doing of some act or the omission of some
duty while knowing of the existing conditions and being conscious that,
from doing or omitting to do an act, injury will likely or probably result.
Plaintiff alleges that PPE made a deliberate decision to market and sell the
Quest ZTR with the knowledge that it had no rollover protection system,
and thus lacked an essential safety feature to protect ordinary homeowners
and consumers.
The basis of the wantonness claim is arguably related to the
deficiencies in the product design in the way the statute contemplates.
However, it is also arguable that it is independent conduct and not just
derivative product liability. The decision to stock and sell a product that was
known to be likely or probable to cause injury could constitute an
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independent act of wantonness that is separate from any act related to the
design or manufacture of the product itself. That theory is that it is not the
particular design flaw of the product that is the basis for the claim, but the
decision of the defendant to sell a product (any product) it knows to be
unreasonably dangerous.
Whether Plaintiff’s theory of wantonness is precluded because of its
attenuated connection to the manufacture and design of the product is an
unsettled question of Alabama law. Section § 6–5–501 was amended in
2011 to add the additional language barring products liability claims against
distributors. Claims against distributors for independent wanton conduct
were not precluded by this act. Considering the recent change in the law and
the debatable nature of Plaintiff’s wantonness claim, it would be
inappropriate for the court to determine that there is no basis for Plaintiff
maintaining an action against PPE. Plaintiff needs only to have a possibility
of stating a valid cause of action in order for the joinder to be legitimate.
Plaintiff has presented an unsettled question of law, which favors remanding
this case for the Alabama state courts to interpret the law.
Id. at *3 (citations omitted) (internal quotation marks omitted).
To no surprise, the removing defendants ask this court not to reach a similar
conclusion and attempt to discredit the court’s conclusion in Lazenby by arguing
that “[t]he ‘decision to sell’ theory advanced by [Barnes] here and apparently
applied by the Court in Lazenby would render the Innocent Seller Statute a nullity
because a seller could always be sued if it sold a product alleged to be defective.”
Doc. 32 at 12. This contention is unpersuasive because Barnes’ theory does not
apply to all sellers of products that allegedly prove to be defective, but only to
sellers who purportedly deliberately sell dangerous products. See doc. 1-1 at 9
(contending that Edwards Chevrolet and Serra Chevrolet “purchased the subject
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Impala with the knowledge that the standard side airbags had been removed or
‘deleted,’” “sold the Impala into the public stream of commerce without the side
airbags that were standard on the other 2008 Chevrolet Impalas,” and “failed to
warn or adequately warn . . . Jenkins that the side airbags had been removed or
‘deleted’ from the subject impala and/or that it did not have the standard side
airbags found on other 2008 Chevrolet Impalas”). Additionally, the court observes
that while § 6-5-521(b) is clearly meant to protect sellers who unknowingly sell
products that later prove to be defective, see Gardner v. Aloha Ins. Servs., No
2:11-CV-3450-RDP, 2013 WL 839884, at *7–8 (N.D. Ala. Mar. 4, 2013)
(granting summary judgment because the plaintiff failed to claim that the
defendant met any of the exceptions presented in § 6-5-521(b)(1)–(4)), it is
plausible that the drafters of legislation entitled the Innocent Sellers Act did not
intend for it to immunize sellers who deliberately choose to sell dangerous
products to unwary consumers, see Lazenby, 2012 WL 3231331, at *3. Therefore,
for the reasons set forth by the court in Lazenby, namely that the interpretation of §
6-5-521(b) adopted by Lazenby and Barnes is plausible, see Triggs, 154 F.3d at
1287 (explaining that a plaintiff “need only have a possibility of stating a valid
cause of action in order for the joinder to be legitimate”) (emphasis added), and
that the issue at hand hinges on resolving an unsettled question of state law, see
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Florence, 484 F.3d at 1298–99 (stating that remand is appropriate where there is
any ambiguity or doubt regarding the plaintiff's state law claim against a
non-diverse defendant), the court finds that Barnes’ motion to remand is due to be
granted.4
IV. CONCLUSION
In light of the “heavy burden” on the removing defendants to demonstrate
fraudulent joinder, Crowe,113 F.3d at 1538, the court finds that the removing
defendants failed to provide the clear and convincing evidence necessary to
establish fraudulent joinder. See Henderson, 454 F.3d at 1281. Therefore, the
court remands this action to the Circuit Court of Jefferson County, Alabama for
lack of subject matter jurisdiction. See Florence, 484 F.3d at 1298–99 (“We hold
that, if there is any possibility that the state law might impose liability on a
resident defendant under the circumstances alleged in the complaint, the federal

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Additionally, the court is not persuaded by the removing defendants’ contention that it
should reach the same conclusion as the court in Sewell v. Smith & Wesson Holding Corp. Unlike
Barnes’ allegation here that Serra Chevrolet and Edwards Chevrolet knowingly sold him a
dangerous product, in Sewell, the plaintiff purchased a rifle that the manufacturer subsequently
recalled. No. 4:12-cv-00364-KOB, 2012 WL 2046830, at *2 (N.D. Ala. June 1, 2012). As the
Sewell court found, the plaintiff failed to state a claim for negligence because the plaintiff
“proffered no Alabama law showing that . . . the seller [] had a post-sale duty to notify the
plaintiff when the manufacturer recalled the rifle three days after the purchase.” 2012 WL
2046830 at *2 (emphasis added). Sewell is simply not applicable to the present matter both
because it is factually distinguishable, and because the Sewell court found that the plaintiff failed
to allege that the defendant seller had committed a wrong “unrelated to the product’s design or
manufacture, as required by Ala. Code § 6-5-521(b)(4)”. Id.
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court cannot find that joinder of the resident defendant was fraudulent, and
remand is necessary.”) (emphasis added).
The court will enter a separate order consistent with this opinion.
Done this 1st day of July, 2014.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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