Sewell v. Smith & Wesson Holding Corp et al
MEMORANDUM OPINION AND ORDER: 7 , MOTION to Remand, filed by Ronald Sewell is DENIED, as further set out in order. Signed by Judge Karon O Bowdre on 06/01/12. (CVA)
2012 Jun-01 PM 01:46
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
CASE NO: 4:12-CV-00364-KOB
SMITH & WESSON HOLDING CORP.,
THOMPSON/CENTER ARMS COMPANY,
INC., SHOTGUN SPORTS SUPPLY
COMPANY, INC. AND FICTITIOUS
MEMORANDUM OPINION AND ORDER
This matter comes before the court on plaintiff's Motion to Remand (doc. 7). The defendants
Smith & Wesson Holding Corp, and Thompson/Center Arms Company, Inc., filed their Notice of
Removal (doc. 1), alleging that the plaintiff had fraudulently joined defendant Shotgun Sports Supply
Company ("SSSC"), the seller, to defeat diversity jurisdiction. This court issued an Order to Show
Cause on February 6, 2012 (doc. 3), ordering the plaintiff to show cause why defendant SSSC
should not be dismissed as fraudulently joined. The plaintiff filed a Motion to Remand and
Response to Show Cause Order on February 20, 2012 (doc. 7). The removing defendants filed an
Opposition to Plaintiff’s Motion to Remand and Response to Show Cause Order on February 28,
2012 (doc. 9). On April 5, 2012, the defendant, SSSC, filed a Motion to Dismiss (doc. 10). This
court issued an order the same day deferring ruling on SSSC’s Motion to Dismiss until the ruling
on the plaintiff’s Motion to Remand (doc. 11). The court held a hearing on the plaintiff's Motion
to Remand on May 31, 2012, and for the reasons stated on the record and summarized below, finds
that the Motion to Remand is due to be DENIED.
At the hearing, the court acknowledged that the plaintiff had raised the issue of whether the
removing defendants have standing to argue that SSSC was fraudulently joined. The court explained
that well-settled law exists in the Eleventh Circuit that the “removing party” must establish
fraudulent joinder. See Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997). Therefore, the
court finds that the removing defendants have standing to assert fraudulent joinder.
In this case, the removing defendants allege that the plaintiff fraudulently joined SSSC
because the plaintiff cannot establish a cause of action against SSSC under Alabama law. As to this
basis for fraudulent joinder, “[t]he 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 v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir.
1998). However, the Eleventh Circuit has clarified that "[t]he potential for legal liability must be
reasonable, not merely theoretical." Legg v. Wyeth, 428 F.3d 1317, 1325 n. 5 (11th Cir. 2005).
Additionally, “the federal court makes these determinations based on the plaintiff’s pleadings at the
time of removal; but the court may consider affidavits and deposition transcripts submitted by the
parties.” Crowe, 113 F.3d at 1538.
The plaintiff, Ronald Sewell, asserts that he bought a Thompson/Center Venture Rifle on
November 8, 2011, from SSSC in Anniston, Alabama. The plaintiff alleges that defendant
Thompson/Center recalled this rifle the same day because of a defective “sear” mechanism that can
cause the rifle to fire inadvertently; however, the plaintiff contends that no defendant provided a
recall notice to the plaintiff for “some 20 days.” The plaintiff alleges that on November 28, 2011,
the rifle fired inadvertently causing permanent injury to him, including the loss of several toes (doc.
The removing defendants included in their Notice of Removal the affidavit of Ann Makkiya
(doc. 1-3), establishing that the rifle purchased by the plaintiff on November 8, 2011 was not under
a recall on this date. The affidavit of Ms. Makkiya shows that the manufacturer recalled the
plaintiff's rifle on November 11, 2011, three days after the Plaintiff purchased the rifle. These facts
are undisputed by the plaintiff. Indeed, the plaintiff filed no affidavit or other evidence to support
his motion to remand or to refute the affidavit presented by the removing defendants.
Alabama state law provides that a plaintiff may not assert any product liability action against
a seller unless one of the enumerated exceptions apply. Ala. Code § 6-5-521(b)(1)-(4). The only
exception applicable in the present case involves whether the plaintiff's claims against SSSC involve
"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)(4) (emphasis
added). Alabama law defines a product liability action as
[a]ny 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 (a) negligence, (b) innocent or negligent misrepresentation,
(c) the manufacturer's liability doctrine, (d) the Alabama extended manufacturer's liability
doctrine, as it exists or is hereafter construed or modified, (e) breach of any implied warranty,
or (f) breach of any oral express warranty and no other.
Ala. Code § 6-5-501(2).
The plaintiff asserts the following claims against SSSC in his Complaint: a failure to warn
claim in Count II; a breach of warranty claim in Count III; and a negligence/wantonness claim in
Count IV. As stated at the hearing, the court finds that the claims against SSSC in Counts II, III and
IV fail to show any cognizable claim under Alabama law. The parties do not dispute that the rifle
purchased by the plaintiff was not subject to a recall at the time of purchase on November 8, 2011.
The plaintiff has presented no evidence to support any cognizable claim against SSSC regarding the
sale of the of the rifle on November 8, 2011 that would not be precluded by Ala. Code § 6-5-521(b);
i.e., he has not presented a cognizable claim that is unrelated to the product design or manufacture.
Moreover, the plaintiff proffered no Alabama law showing that SSSC, the seller, had a post-sale duty
to notify the plaintiff when the manufacturer recalled the rifle three days after the purchase.
Although the plaintiff argued that the breach of warranty claim was the plaintiff's strongest argument,
he has presented no evidence that SSSC either expressly or impliedly warranted anything unrelated
to the product's design or manufacture, as required by Ala. Code § 6-5-521(b)(4) to state a reasonable
Because the plaintiff has failed to show any reasonable potential for legal liability against
SSSC, the court finds that the plaintiff fraudulently joined SSSC to defeat diversity jurisdiction and,
therefore, ignores the presence of SSSC for determining if diversity jurisdiction exists. The court,
in ignoring SSSC as a named defendant and all fictitious defendants, finds that complete diversity
exists between the plaintiff and the removing defendants. The plaintiff stipulated and the court finds
that the amount in controversy requirement is satisfied. The court, therefore, DENIES the plaintiff's
Motion to Remand.
DONE and ORDERED this 1st day of June, 2012.
KARON OWEN BOWDRE
UNITED STATES DISTRICT JUDGE
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