Ferguson v. Easton Technical Products Inc et al

Filing 23

MEMORANDUM OPINION AND ORDER. Signed by Magistrate Judge Staci G Cornelius on 12/21/15. (MRR, )

FILED
2015 Dec-21 AM 09:24
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
JASON FERGUSON,
Plaintiff,
v.
EASTON TECHNICAL PRODUCTS,
INC., et al.,
Defendants.

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Case No.: 5:13-cv-01931-SGC

MEMORANDUM OPINION AND ORDER1
This is a products liability action removed from the Circuit Court of Jackson
County, Alabama by defendants Big Daddy’s Outdoors, Inc., and Big Daddy’s
Fireworks, LLC, on the basis of diversity jurisdiction. (Doc. 1). Defendant Easton
Technical Products consented to removal as required by 28 U.S.C. § 1446(b)(2)(A).
(Doc. 1 at ¶ 4; Doc. 2). Big Daddy’s Outdoors and Big Daddy’s Fireworks allege the
plaintiff, Jason Ferguson, Easton Technical Products, and Big Daddy’s Outdoors are of
diverse citizenship and the citizenship of Big Daddy’s Fireworks should be ignored
because it is fraudulently joined. (Id.). Big Daddy’s Fireworks has filed a motion
seeking its dismissal from this action on the same grounds alleged as the basis of its
fraudulent joinder. (Doc. 6). Ferguson opposes dismissal of Big Daddy’s Fireworks and
seeks remand on the grounds Big Daddy’s Outdoors is not diverse from him and Big
Daddy’s Fireworks is not fraudulently joined. (Doc. 10). Ferguson filed a renewed
1

The parties have consented to the exercise of full dispositive jurisdiction by a magistrate judge pursuant
to 28 U.S.C. § 636(c). (Doc. 21).

1

motion to remand on September 9, 2015, reiterating the arguments made in his original
motion. (Doc. 22). For the reasons discussed below, Ferguson’s motions to remand are
due to be denied. Furthermore, Big Daddy’s Fireworks is due to be dismissed from this
action as fraudulently joined, and its motion to dismiss is due to be denied as moot.
I. Background
A. Complaint
Ferguson alleges he was injured when an Easton brand arrow he purchased from
Big Daddy’s, which he defines as encompassing both Big Daddy’s Outdoors and Big
Daddy’s Fireworks, broke and splintered on release from his compound bow, puncturing
the area of his left wrist and arm. (Doc. 1-2 at ¶¶ 5, 14-17). He asserts claims against all
defendants under the Alabama Extended Manufacturer’s Liability Doctrine and for
negligence, recklessness, and/or wantonness, breach of express warranty, and breach of
implied warranty. (Id. at Counts I – IV).
B. Notice of Removal
In their notice of removal, Big Daddy’s Outdoors and Big Daddy’s Fireworks
allege Ferguson is a resident citizen of Jackson County, Alabama (Doc. 1 at ¶ 11), Big
Daddy’s Outdoors is a foreign corporation organized under the laws of the State of
Tennessee with its business address at 1500 Elm Avenue in South Pittsburg, Tennessee
(id. at ¶ 12), and Easton Technical Products is a foreign corporation organized under the
laws of the State of Utah with its principal place of business in that state (id. at ¶ 13).
They further allege Big Daddy’s Fireworks is fraudulently joined because there is no
possibility Ferguson can establish any of his asserted causes of action against it. (Id. at
2

¶¶ 2, 15-40).2 Finally, they allege the amount in controversy exceeds $75,000, exclusive
of interests and costs. (Id. at ¶¶ 41-50).
Attached to the notice of removal is the affidavit of Lew Wilson Loyd, Jr., the
president of Big Daddy’s Outdoors and Big Daddy’s Fireworks. (Doc. 1-3). Loyd
testifies Big Daddy’s Outdoors was formed in Tennessee, is authorized to do business in
Alabama, has its business address at 1500 Elm Avenue in South Pittsburg, Tennessee,
and also does business at 52680 U.S. Highway 72 in Bridgeport, Alabama. (Id. at 1). He
further testifies Big Daddy’s Fireworks was formed in Alabama and has its business
address at 52680 U.S. Highway 72 in Bridgeport, Alabama. (Id.). According to Loyd,
Big Daddy’s Outdoors and Big Daddy’s Fireworks are completely separate entities, and
the latter does not sell hunting or sporting goods but rather, only sells fireworks. (Id. at
1-2).

He specifically testifies Big Daddy’s Fireworks did not design, manufacture,

distribute, sell, own, maintain, service, transport, market, or otherwise have any
responsibility for the arrow in question. (Id. at 2). Attached to Loyd’s affidavits are
photographs of what Loyd testifies are the exterior and interior of the building where Big

In a supplement to their response to Ferguson’s motion to remand filed nearly one year after that
response, the removing defendants state Big Daddy’s Fireworks is no longer in existence, “[t]he correct
name of the fireworks stand as identified by [Ferguson] in [his] [c]omplaint is BDFB, LLC,” and the
members of BDFB are Lew Wilson Loyd, Jr., Lew Wilson Loyd, III, and Jana Loyd Bennett, all of whom
are citizens of Tennessee. (Doc. 18 at ¶¶ 3-5). To the extent this supplement is intended to present an
alternative ground for this court’s exercise of jurisdiction—namely, the actual diversity of all parties—it
fails. “The existence of federal jurisdiction is tested at the time of removal.” Adventure Outdoors, Inc. v.
Bloomberg, 552 F.3d 1290, 1294-95 (11th Cir. 2008). See also Grupo Dataflux v. Atlas Global Group,
L.P., 541 U.S. 567, 568-81 (2004) (holding party’s post-filing change in citizenship cannot cure lack of
diversity jurisdiction at time of filing). Therefore, it would be the citizenship of Big Daddy’s Fireworks
at the time of removal that would be relevant to whether it was diverse from Ferguson. Although the
parties have not alleged the citizenship of Big Daddy’s Fireworks as it existed on removal, they have
assumed it was an Alabama citizen. (See Doc. 1 at ¶ 2; Doc. 10 at 8; Doc. 22 at 8). For purposes of
Ferguson’s motion to remand, the undersigned assumes so, as well.
2

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Daddy’s Outdoors operates throughout the year, as well as the exterior and interior of the
building where Big Daddy’s Fireworks operates for the few weeks around the Fourth of
July. (Id. at 1, 4-7).
C. Motion to Remand
Ferguson does not contest certain jurisdictional elements alleged in the notice of
removal. First, he does not dispute he is a citizen of Alabama and, furthermore, alleges
the same in his motions to remand. (Doc. 10 at 8; Doc. 22 and 8).3 Nor does he contest
Easton Technical Products is organized under the laws of the State of Utah with its
principal place of business in that state or that Big Daddy’s Outdoors is organized under
the laws of the State of Tennessee.

Finally, he does not contest the amount in

controversy exceeds $75,000, exclusive of interest and costs. Rather, Ferguson notes Big
Daddy’s Outdoors and Big Daddy’s Fireworks did not identify Tennessee as Big Daddy’s
Outdoors’s principal place of business and argues that, in fact, that place is located in

In their notice of removal, Big Daddy’s Outdoors and Big Daddy’s Fireworks allege Ferguson is a
resident citizen of Jackson County, Alabama, citing paragraph 1 of Ferguson’s complaint, which alleges
Ferguson is a resident of Jackson County, Alabama. (Doc. 1 at ¶ 11 (citing Doc. 1-2 at ¶ 1). With respect
to the allegation of Ferguson’s complaint on which Big Daddy’s Outdoors and Big Daddy’s Fireworks
rely, the undersigned notes residence alone is insufficient to establish citizenship. See Travaglio v. Am.
Exp. Co., 735 F.3d 1266, 1269-70 (11th Cir. 2013) (holding unsworn statement of residence contained in
brief was insufficient, alone, to establish citizenship). “‘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. . . .’” Id. at 1269 (quoting McCormick v. Aderholt, 293 F.3d 1254, 1257 (11th
Cir. 2002)). However, given the removing defendants’ allegation Ferguson is an Alabama citizen, the
absence of any challenge to that allegation by Ferguson, and Ferguson’s statements he is an Alabama
citizen contained in his motion to remand and renewed motion to remand, the undersigned concludes
Ferguson is, indeed, an Alabama citizen. See Huff v. Countrywide Home Loans, Inc., 2013 WL 2248036,
at *1-2 (N.D. Ala. May 22, 2013) (denying motion to remand where plaintiffs did not dispute defendant’s
allegation they were Alabama citizens or that amount in controversy exceeded $75,000 and court
determined defendant was citizen of New York and California); Murphy v. Aventis Pasteur, Inc., 270 F.
Supp. 2d 1368, 1372 n.3 (N.D. Ga. 2003) (in denying motion to remand, court noted complaint alleged
plaintiff was South Carolina resident, notice of removal alleged plaintiff was South Carolina citizen, and
plaintiff had not refuted or otherwise controverted that allegation).
3

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Alabama, as a result of which Big Daddy’s Outdoors is not a diverse defendant. (Doc. 10
at ¶ 5). More specifically, Ferguson argues evidence shows Big Daddy Outdoors’s
principal place of business is located at the Bridgeport, Alabama address where its
president testified it does business, which Ferguson claims is where the building its
president testified is where it operates throughout the year is located. (Id. at ¶¶ 5-6).
Attached to Ferguson’s motion is the affidavit of Billy Ware, a private investigator
who traveled to the Tennessee and Alabama business addresses identified in Loyd’s
affidavit, as well as a log Ware created and photographs he took in connection with that
investigation. (Doc. 10-1). In his affidavit, Ware testifies there is not a 1500 block of
Elm Avenue but that his GPS directed him to the corner of 15th Street and South Cedar
Avenue. (Id. at 1-2). He further testifies there is not a business identified as Big Daddy’s
Outdoors at or around that location. (Id. at 2). According to Ware’s investigation log, at
the corner of 15th Street and South Cedar Avenue is a large fireworks compound with a
sign identifying it as Atomic Fireworks Wholesale and a sign on the door stating “No
retail sales! Big Daddy’s Fireworks best bang for your buck. Visit us at I-24 exit 152 or
exit 161, Hwy 72 Bridgeport, AL.” (Id. at 5). Photographs of this signage are attached to
Ware’s investigation log. (Id. at 7-8). Also attached to Ware’s investigation log is a
photograph of a billboard advertising for Big Daddy’s outdoors, fireworks, sporting
goods, gas, and convenience. (Id. at 9-10). According to Ware’s investigation log, this
billboard is located just inside the Alabama state line. (Id. at 5).
Ferguson also does not dispute Loyd’s sworn testimony that Big Daddy’s
Fireworks did not design, manufacture, distribute, sell, own, maintain, service, transport,
5

market, or otherwise have any responsibility for the arrow.

Rather, he argues Big

Daddy’s Outdoors and Big Daddy’s Fireworks are so intertwined that the latter is
properly named as a joint tortfeasor and that the assertion of joint and several liability is
sufficient to support the inclusion of Big Daddy’s Fireworks as a proper defendant in this
action. (Doc. 10 at ¶¶ 8, 10). In support of his argument, Ferguson notes that while Loyd
testifies Big Daddy’s Outdoors and Big Daddy’s Fireworks operate out of separate
buildings, records retrieved from the Alabama Secretary of State’s website and attached
to the motion to remand confirm Big Daddy’s Fireworks’s registered street address in
Alabama is the same address where Loyd testified Big Daddy’s Outdoors does business.
(Id. at ¶ 11; Doc. 10-2 at 4-5). He also cites the billboard advertising for Big Daddy’s
outdoors, fireworks, sporting goods, gas, and convenience in support of his argument.
(Doc. 10 at ¶ 12; Doc. 10-1 at ¶¶ 5, 9-10).
D. Response to Motion to Remand
In their response to Ferguson’s motion to remand, Big Daddy’s Outdoors and Big
Daddy’s Fireworks elaborate on their allegation Big Daddy’s Outdoors’s is a citizen of
Tennessee, exclusively. Specifically, they argue Big Daddy’s Outdoors’s “nerve center”
and, thus, its principal place of business, is located in Tennessee. (Doc. 11 at 2-6).
Attached to their response is another affidavit of Lew Wilson Loyd. (Doc. 11-1). In that
affidavit, Loyd testifies 1500 Elm Avenue in South Pittsburg, Tennessee is the place
where Big Daddy’s Outdoors maintains its headquarters, holds corporate meetings,
makes corporate decisions, and keeps and maintains its corporate books, records, and
files. (Id. at 1-2). He further testifies Big Daddy’s Outdoors’s bank account is located at
6

a Tennessee bank, its corporate counsel is located in Tennessee, and its president (i.e.,
Loyd) and secretary are Tennessee residents. (Id. at 2). Attached to the affidavit are the
following: Big Daddy’s Outdoors’s application to transact business in Alabama listing
1500 Elm Avenue in South Pittsburg, Tennessee as the street address of its principal
office (Doc. 11-1 at 3), business entity details for Big Daddy’s Outdoors retrieved from
the Tennessee Secretary of State’s website listing the Elm Avenue address as the address
of its principal office (id. at 4), and business entity details for Big Daddy’s Outdoors
retrieved form the Alabama Secretary of State’s website listing the Elm Avenue address
as its principal address (id. at 5). Loyd testifies the Elm Avenue address has been the
location of Big Daddy’s Outdoors’s corporate headquarters and principal place of
business since its formation in 2000. (Id. at 1).
Also in their response to Ferguson’s motion to remand, Big Daddy’s Outdoors and
Big Daddy’s Fireworks argue the evidence Ferguson offers in support of his claim they
function as the same entity is insufficient to support that claim. (Doc. 11 at 7). They
further argue Loyd’s affidavit testimony is sufficient to demonstrate they are separate
entities. (Id. at 7-8).
II. Discussion
An action filed in state court may be removed to federal court if the federal courts
have original subject matter jurisdiction. 28 U.S.C. § 1441(a). Generally, this means a
federal court must be able to exercise diversity jurisdiction pursuant to 28 U.S.C. § 1332,
or federal question jurisdiction pursuant to 28 U.S.C. § 1331. Stillwell v. Allstate Ins.
Co., 663 F.3d 1329, 1332 (11th Cir. 2011). Diversity jurisdiction requires every plaintiff
7

be of diverse citizenship from every defendant. Triggs v. John Crump Toyota, Inc., 154
F.3d 1284, 1287 (11th Cir. 1998). Furthermore, the amount in controversy must exceed
$75,000, exclusive of interest and costs. § 1332(a). “[T]he party invoking the court’s
jurisdiction bears the burden of proving, by a preponderance of the evidence, facts
supporting the existence of federal jurisdiction.” McCormick v. Aderholt, 293 F.3d 1254,
1257 (11th Cir. 2002).
When a case is removed on the basis of diversity jurisdiction, a court must remand
the case to state court if there is not complete diversity or one of the defendants is a
citizen of the state in which the case was filed. Stillwell, 663 F.3d at 1332 (citing
Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 267 (1806); § 1441(b)). However, if a
plaintiff has fraudulently joined a non-diverse defendant by naming that defendant solely
to defeat diversity jurisdiction, a district court must ignore the presence of the nondiverse defendant for purposes of determining diversity jurisdiction.

Henderson v.

Washington Nat. Ins. Co., 454 F.3d 1278, 1281 (11th Cir. 2006).
On a motion to remand, the removing party bears the burden of demonstrating
federal jurisdiction, Pacheco de Perez v. AT&T Co., 139 F.3d 1368, 1373 (11th Cir.
1998), which in a case removed on the basis of diversity jurisdiction means establishing
the parties’ citizenship, Rolling Greens MHP, 374 F.3d at 1022. “Federal courts are
courts of limited jurisdiction, and there is a presumption against the exercise of federal
jurisdiction, such that all uncertainties as to removal jurisdiction are to be resolved in
favor of remand.” Russell Corp. v. American Home Assur. Co., 264 F.3d 1040, 1050
(11th Cir. 2001).
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A. Citizenship of Big Daddy’s Outdoors
For purposes of diversity jurisdiction, a corporation is a citizen of the state of its
incorporation and the state in which it has its principal place of business. § 1332(c)(1).
Again, Ferguson does not dispute the sworn allegation Big Daddy’s Outdoors was
incorporated in Tennessee, which is supported by business entity details for Big Daddy’s
Outdoors retrieved from the Tennessee Secretary of State’s website and attached to the
response to Ferguson’s motion to remand. (See Doc. 1-3 at 1; Doc. 11-1 at 4). Rather,
the parties disagree whether Big Daddy’s Outdoors’s principal place of business is
located at 1500 Elm Avenue in South Pittsburg, Tennessee or 52680 U.S. Highway 72 in
Bridgeport, Alabama.
In Hertz Corp. v. Friend, 559 U.S. 77 (2010), the Supreme Court held a
corporation’s principal place of business is “where [its] officers direct, control, and
coordinate [its] activities,” noting lower federal courts have referred to this place as a
corporation’s “nerve center.” 559 U.S. at 80-81, 92-93.
[I]n practice it should normally be the place where the corporation
maintains its headquarters—provided that the headquarters is the actual
center of direction, control, and coordination, i.e., the “nerve center,” and
not simply an office where the corporation holds its board meetings (for
example, attended by directors and officers who have traveled there for the
occasion).
Id. at 93. The Court further noted “[a] corporation’s ‘nerve center,’ usually its main
headquarters, is a single place.” Id.
Ferguson’s insistence Big Daddy’s Outdoors’s principal place of business is the
Alabama location where Big Daddy’s Outdoors conducts retail sales seemingly turns a
9

blind eye to Hertz, which adopted the “nerve center” test in lieu of a test applied by some
federal courts that “focused more heavily on where a corporation’s actual business
activities are located.” See Hertz, 559 U.S. at 89. His contention the Tennessee address
cannot be the location of Big Daddy’s Outdoors’s principal place of business because
there is no signage for Big Daddy’s Outdoors’s at that address likewise misses the mark.
Whether the allegations as to Big Daddy’s Outdoors’s principal place of business
contained in the notice of removal are lacking, the additional allegations made in the
response to the motion to remand and supported by Loyd’s additional affidavit testimony
establishes Big Daddy’s Outdoors’s principal place of business is located at 1500 Elm
Avenue in South Pittsburg, Tennessee by a preponderance of the evidence. 4

Loyd

testified the Tennessee address is where Big Daddy’s Outdoors maintains its
headquarters, holds corporate meetings, makes corporate decisions, and keeps and
maintains its corporate books, records, and files. (Doc. 11-1 at 1-2). Ferguson does not
contest this testimony. The activities Loyd testifies take place at Big Daddy’s Outdoors’s
headquarters demonstrate the corporation’s officers do indeed direct, control, and
coordinate its activities from that place. This conclusion is strengthened by Loyd’s
testimony Big Daddy’s Outdoors’s bank account is located at a Tennessee bank, its
corporate counsel is located in Tennessee, and he and its secretary are Tennessee

The Eleventh Circuit has held that “[w]hile it is undoubtedly best to include all relevant evidence in the
petition for removal and motion to remand, there is no good reason to keep a district court from eliciting
or reviewing evidence outside the removal petition.” Sierminski v. Transouth Fin. Corp., 216 F.3d 945,
949 (11th Cir. 2000). See also Fuzzell v. DRC Emergency Servs., LLC, 2015WL 412889, at *3 (N.D. Ala
Jan. 30, 2015) (Acker, J.) (“[The Eleventh Circuit] has held that the district court should consider all
jurisdictional evidence, whether the evidence is presented with the notice of removal or in response to a
motion to remand.” (citing Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 773 (11th Cir. 2010))).
4

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residents. (Doc. 11-1 at 1-2). Ferguson does not contest this testimony, either. Finally,
attached to Loyd’s affidavit are Big Daddy’s Outdoors’s application to transact business
in Alabama listing 1500 Elm Avenue in South Pittsburg, Tennessee as the street address
of its principal office (Doc. 11-1 at 3), business entity details for Big Daddy’s Outdoors
retrieved from the Tennessee Secretary of State’s website listing the Elm Avenue address
as the address of its principal office (id. at 4), and business entity details for Big Daddy’s
Outdoors retrieved from the Alabama Secretary of State’s website listing the Elm Avenue
address as its principal address (id. at 5). In Hertz the Supreme Court rejected the
suggestion “the mere filing of a form . . . listing a corporation’s ‘principal executive
offices’ would, without more, be sufficient proof to establish a corporation’s ‘nerve
center.’” 559 U.S. at 97. See also Wylie v. Red Bull North America, Inc., 2015 WL
5515380, at *3 (11th Cir. Sept. 21, 2015) (holding copy of printout from website from
Georgia Secretary of State identifying defendant as foreign corporation with its
“jurisdiction” and “principal office address” in California insufficient to establish
defendant’s principal place of business under Hertz “nerve center” test). However, here,
the application and records attached to Loyd’s affidavit simply reinforce what is
otherwise established.
Notably, the facts here closely parallel an example given by the Court in Hertz.
Acknowledging the “nerve center” test “may in some cases produce results that seem to
cut against the basic rationale for 28 U.S.C. § 1332,” the Court continued:
For example, if the bulk of a company’s business activities visible to the
public take place in New Jersey, while its top officers direct those activities
just across the river in New York, the ‘principal place of business’ is New
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York. One could argue that members of the public in New Jersey would be
less likely to be prejudiced against the corporation than persons in New
York—yet the corporation will still be entitled to remove a New Jersey
state case to federal court.
559 U.S. at 96. Here, as in the foregoing example, although the bulk of Big Daddy’s
Outdoors’s business activities visible to the public may, as Ferguson presses, take place
in Alabama, the corporation’s officials direct, control, and coordinate those activities just
across the state line in Tennessee.
For the foregoing reasons, Big Daddy’s Outdoors’s principal place of business is
located in Tennessee.

Because Tennessee is also Big Daddy’s Outdoors’s state of

incorporation, Big Daddy Outdoors is a citizen of Tennessee only and, therefore, diverse
from Ferguson.
B. Alleged Fraudulent Joinder of Big Daddy’s Fireworks
“A defendant seeking to prove that a co-defendant was fraudulently joined must
demonstrate either that: ‘(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.’” Henderson, 454
F.3d at 1281 (quoting Crowe v.Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997)). The
Eleventh Circuit identified a third situation where fraudulent joinder exists in Tapscott v.
MS Dealer Serv. Corp., 77 F.3d 1353 (11th Cir. 1996), overruled on other grounds in
Cohen v. Office Depot, Inc., 204 F.3d 1069, 1072-73 (11th Cir. 2000), “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
12

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. Tapscott, 77
F.3d at 1360.
A defendant must demonstrate fraudulent joinder by clear and convincing
evidence. Henderson, 454 F.3d at 1281. A district court makes the determination of
whether a non-diverse defendant is fraudulently joined on the basis of the plaintiff’s
pleadings at the time of removal, supplemented by any affidavits and deposition
transcripts submitted by the parties. Pacheco, 139 F.3d at 1380. Its task is not to gauge
the sufficiency of the pleadings. Henderson, 454 F.3d at 1284. While the procedure for
resolving a fraudulent joinder claim is similar to that for ruling on a motion for summary
judgment, the former does not require a showing the plaintiff could survive summary
judgment. Crowe, 113 F.3d at 1541. Nor does it require a showing the plaintiff has
stated a plausible claim as required by Rule 12(b)(6) of the Federal Rules of Civil
Procedure. While the plausibility standard applicable to a motion to dismiss brought
pursuant to Rule 12(b)(6) “ ‘asks for more than a sheer possibility that a defendant has
acted unlawfully,’” Stilwell, 663 F.3d at 1333 (quoting Ashcroft v. Iqbal, 556 U.S. 662
(2009), “all that is required to defeat a fraudulent joinder claim is ‘a possibility of stating
a valid cause of action,’” Stilwell, 663 F.3d at 1333 (quoting Triggs, 154 F.3d at 1287).
But see Legg v. Wyeth, 428 F.3d 1317, 1325 n.5 (11th Cir. 2005) (noting the potential for
legal liability must be reasonable and not merely theoretical).
In reviewing the pleadings and other evidence for a possible cause of action
against an allegedly fraudulently joined defendant, a district court must view factual
13

allegations in the light most favorable to the plaintiff and resolve uncertainties about
applicable law in the plaintiff’s favor. Id. However, “there must be some question of
fact before the district court can resolve that fact in the plaintiff’s favor.” Legg, 428 F.3d
at 1323. When a plaintiff does not dispute a defendant’s sworn statement that would
preclude the imposition of liability, there is no question of fact for the court to resolve in
the plaintiff’s favor on a motion to remand. See id. The plaintiff must come forward
with some evidence to dispute the defendant’s sworn statement and not merely rely on
the unsworn allegations contained in his complaint. See id.; Shannon v. Albertelli Firm,
P.C., 610 Fed. App’x 866, 871 (11th Cir. 2015).
In his complaint, Ferguson asserts claims against the defendants under the
AEMLD, for breach of express and implied warranties, and for negligence, recklessness,
or wantonness. The AEMLD imposes liability for a defective product on the “seller,”
which has been interpreted to include the manufacturer, supplier, distributor, and actual
seller of the product. McPhail v. Mitsubishi Motor Mfg. of America, Inc., 80 F. Supp. 2d
1309, 1313 (S.D. Ala. 1997) (citing Casrell v. Altec Indus., Inc., 335 So. 2d 128, 132-33
(Ala. 1976)). Likewise, claims for breach of an express warranty, implied warranty of
merchantability, and implied warranty of fitness for a particular purpose are viable only
against the “seller” of goods. See Southern v. Pfizer, Inc., 471 F. Supp. 2d 1207, 1219
(N.D. Ala. 2006) (citing Ala. Code §§ 7-2-313(1), 7-2-314(1), 7-2-315(1)).

The

president of Big Daddy’s Fireworks has submitted sworn testimony that Big Daddy’s
Fireworks does not sell hunting or sporting goods and did not design, manufacture,
distribute, sell, own, maintain, service, transport, market, or otherwise have any
14

responsibility for the arrow that injured Ferguson. (Doc. 1-3 at 2). Ferguson does not
dispute this testimony. Accordingly, there is no possibility Ferguson can establish a
cause of action against Big Daddy’s Fireworks under the AEMLD or for breach of any
warranty.

See Southern, 471 F. Supp. 2d at 1215-17, 1219 (holding there was no

possibility plaintiff could establish AEMLD or breach of warranty claim against
defendants who were not sellers of allegedly defective drug, had no meaningful control
over distribution of drug, could not have prevented dispersion of drug to consumers, and
attested they had no involvement with the manufacture, development, or testing of drug).
Nor is there any possibility he can establish a negligence, recklessness, or
wantonness claim against Big Daddy’s Fireworks. Ferguson bases these claims on the
breach of a duty to ensure the arrow’s safety and adequately warn of its risks and
dangers. The uncontroverted testimony of Big Daddy’s Fireworks’s president that Big
Daddy’s Fireworks does not sell hunting or sporting goods and had nothing to do with the
arrow that injured Ferguson precludes the possibility Ferguson may show Big Daddy’s
Fireworks owed him any duty. “Where there is no duty, there can be no negligence.” Ex
parte Wild Wild West Social Club, Inc., 806 So. 2d 1235, 1240 (Ala. 2001) (internal
quotation marks omitted). See also Norfolk S. Ry. Co. v. Johnson, 75 So. 3d 624, 645-46
(Ala. 2011), as modified on denial of reh’g (July 8, 2011) (“To establish a claim of
wantonness, the plaintiff must prove that the defendant, with reckless indifference to the
consequences, consciously and intentionally did some wrongful act or omitted some
known duty.” (internal quotation marks omitted)).
Ferguson’s argument Big Daddy’s Fireworks may be held jointly and severally
15

liable for torts committed by Big Daddy’s Outdoors because the two entities are
“intertwined” (Doc. 10 at ¶¶ 8, 10) is unavailing. First, the assertion of joint and several
liability is not a basis of liability in and of itself. It requires the commission of an
underlying tort by the alleged joint tort-feasor. See McGough v. Wilson, 137 So. 2d 43,
45 (Ala. 1962) (“It is settled that if damage has resulted from concurrent, wrongful acts
of two or more tort-feasors, they may be sued jointly or severally and the act of each may
be counted on as the proximate cause of the injury.”).

As discussed, there is no

possibility Ferguson can show Big Daddy’s Fireworks has committed any of the torts or
breaches alleged in his complaint.
Second, to the extent Ferguson’s reference to the intertwinement of Big Daddy’s
Outdoors and Big Daddy’s Fireworks is meant to allege a theory of derivative liability as
to the latter, he does not allege that theory expressly in his state court complaint or make
any allegations that would put Big Daddy’s Fireworks on notice he intended to pursue
that theory or that would support that theory. He cannot save his claims against Big
Daddy’s Fireworks by asserting in a post-removal filing a new theory of liability that
would divest this court of jurisdiction.
A district court judges the basis for federal subject matter jurisdiction as it exists at
the time of removal. Adventure Outdoors, Inc. v. Bloomberg, 552 F.3d 1290, 1294-95
(11th Cir. 2008). Accordingly, courts have held that while the fraudulent joinder inquiry
takes into account affidavits and deposition transcripts submitted to supplement the
pleadings at the time or removal, “[p]ost-removal filings may not be considered [] when
or to the extent that they present new causes of action or theories not raised in the
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controlling petition filed in state court.” Griggs v. State Farm Lloyds, 181 F.3d 694, 700
(5th Cir. 1999). See also Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 263-65
(5th Cir. 1995) (holding plaintiffs could not rely on factual allegations made in postremoval affidavit to defeat fraudulent joinder argument on basis of claim or legal theory
not alleged in state court complaint, nor could they amend their complaint to state a claim
against alleged fraudulently joined defendant,); St. John’s Deliverance Temple v.
Frontier Adjusters, 2012 WL 629056, at 5 n.2 (S.D. Ala. Feb. 27, 2012) (noting that to
the extent plaintiff attempted to assert bad faith claim against non-diverse defendants in
motion to remand, district court need not determine whether plaintiff had possibility of
stating that claim because it did not assert a bad faith claim in its original complaint, with
citation to Griggs and Cavallini), report and recommendation adopted, 2012 WL 750903
(S.D. Ala. Mar 8, 2012); Henderson v. Goodyear Dunlop Tires North America, Ltd.,
2011 WL 3503171, at *5 (M.D. Ala. Aug. 10, 2011) (holding plaintiff could not defeat
finding of fraudulent joinder by amending complaint to assert entirely new theory of
recovery against fraudulently joined defendant). In other words, “[a] plaintiff cannot replead the complaint [after removal] in an attempt to divest [the district court] of
jurisdiction by hindsight.” Dotson v. Elite Oil Field Servs., Inc., 91 F. Supp. 3d 865, 870
(N.D.W. Va. 2015). As observed by the Fifth Circuit in Cavallini, “[t]he rationale for
determining removal jurisdiction on the basis of claims in the state court complaint as it
exists at the time of removal is obvious”:
Without such a rule, disposition of the issue would never be final, but
would instead have to be revisited every time the plaintiff sought to amend
the complaint to assert a new cause of action against the nondiverse
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defendant, all at considerable expense and delay to the parties and the state
and federal courts involved. Limiting the removal jurisdiction question to
the claims in the state court complaint avoids that unacceptable result, and
permits early resolution of which court has jurisdiction, so that the parties
and the court can proceed with, and expeditiously conclude, the litigation.
44 F.3d at 264.
The Fifth Circuit and federal district courts within that circuit have addressed this
rule where a plaintiff explicitly alleges derivative liability for the first time in a motion to
remand or other post-removal filing in an attempt to preclude a finding of fraudulent
joinder. They have held that although a plaintiff need not plead a theory of liability by
name in the state court complaint to invoke it for purposes of the fraudulent joinder
analysis, the state court complaint must contain allegations sufficient to raise the theory.
In De La Hoya v. Coldwell Banker Mexico, Inc., the Fifth Circuit held the state court
complaint’s allegation the defendants were engaged in a joint enterprise and referred to
all defendants by a single name, “Coldwell Banker,” was sufficient to put the defendants
on notice the plaintiffs intended to pursue any available theory of corporate liability,
including single enterprise liability. 125 Fed. App’x 533, 537-38 (5th Cir. 2005). By
contrast, in Wilken Partners, L.P. v. Champps Operating Corp., the Western District of
Texas held the plaintiff could not rely on theories of single enterprise or alter ego liability
where its state court complaint asserted fraud and negligent misrepresentation claims
against “Defendants,” an operating corporation and its wholly-owned subsidiary, without
distinguishing between statements made by one defendant versus the other and made no
allegations to support theories of derivative liability. 2010 WL 3504057, at *4 (W.D.
Tex. Sept. 1, 2010). Likewise, in Akerblom v. Ezra Holdings Ltd., the Southern District
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of Texas held it should not consider allegations of joint enterprise and alter ego liability
alleged in an amended complaint filed post-removal where the plaintiff did not plead
these theories expressly in his state court complaint or plead any allegations sufficient to
raise the theories under Texas’s pleading standard. 2011 WL 2960162 at *5-7 (S.D. Tex.
July 19, 2011), aff’d, 509 Fed. App’x 340 (5th Cir. 2013).
Nowhere in his state court complaint does Ferguson expressly allege Big Daddy’s
Fireworks may be held liable for Big Daddy’s Outdoors’s acts or omissions under a
theory of derivative liability. The complaint contains no allegations that would put Big
Daddy’s Fireworks on notice Ferguson sought to recover from it on the basis of anything
other than direct liability, either. Although the complaint refers to Big Daddy’s Outdoors
and Big Daddy’s Fireworks collectively as “Big Daddy’s,” (Doc. 1-2 at ¶ 5) it makes no
additional allegation they operated jointly or as one in the same. On the contrary, it
identifies them as separate entities.

(Id. at ¶¶ 3-4).

The counts asserted in the

complaint only can be read to attempt to hold the “Defendants,” defined as Big Daddy’s
Outdoors, Big Daddy’s Fireworks, and Easton Technical Products, directly liable for
Ferguson’s injuries. (See id. at Counts I – IV). Therefore, the undersigned will not
consider whether Big Daddy’s Fireworks may be liable for Big Daddy’s Outdoors’s torts
or other breaches in determining whether the former is fraudulently joined.
Because Big Daddy’s Fireworks is fraudulently joined, it is subject to dismissal
from this action. See Florence v. Crescent Resources, LLC, 484 F.3d 1293, 1297 (11th
Cir. 2007) (stating in dicta that if a non-diverse defendant is fraudulently joined, the
district court must dismiss that defendant and deny any motion to remand); Holderfield v.
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Allstate Ins. Co., 2014 WL 1600309, at *3 (N.D. Ala. Apr. 21, 2014) (dismissing
fraudulently joined non-diverse defendant).
III. Conclusion
For the foregoing reasons, Ferguson’s motions to remand (Docs. 10 & 22) are
DENIED and Big Daddy’s Fireworks is DISMISSED from this action. Big Daddy’s
Fireworks’s motion to dismiss (Doc. 6) is DENIED as MOOT.
DONE this 21st day of December, 2015.

______________________________
STACI G. CORNELIUS
U.S. MAGISTRATE JUDGE

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