Waits v. Kubota Tractor Corporation et al
MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 10/4/2019. (PSM)
2019 Oct-04 PM 02:12
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JOHN O. WAITS, as
Administrator of the Estate of
Jared A. Waits, deceased,
CORPORATION, et al.,
MEMORANDUM OF OPINION
Plaintiff John O. Waits (“Waits”) originally filed this action in the Circuit
Court of Tuscaloosa County, Alabama. Waits seeks punitive damages for the
wrongful death of his decedent, Jared A. Waits, an Alabama citizen, resulting from
the operation of a Kubota tractor with no Falling Object Protection System
(“FOPS”). Waits sued several defendants for common law negligence, wantonness,
and pursuant to the Alabama Extended Manufacturer’s Liability Doctrine
(“AEMLD”), including several Japanese corporations who designed and
manufactured the allegedly defective tractor (collectively the “Kubota
Defendants”); Marty Sanders (“Sanders”), an individual and citizen of Alabama;
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and Martin Truck & Tractor Company, Inc. (“Martin Tractor”), a corporation and
citizen of Alabama.
On July 10, 2019, the Kubota Defendants removed the case to this Court,
asserting diversity jurisdiction pursuant to 28 U.S.C. §§ 1332, 1441, and 1446. (Doc.
1.) The Kubota Defendants subsequently filed a motion (doc. 5) requesting that this
Court not remand the case back to state court, alleging that Waits had fraudulently
joined nondiverse Defendants Sanders and Martin Tractor in an effort to defeat this
Court’s subject matter jurisdiction. This Court set a briefing scheduling on the issue
of fraudulent joinder. In response, the Kubota Defendants timely filed a brief arguing
that Defendants Sanders and Martin Tractor were fraudulently joined. (Doc. 9.)
Waits timely filed his response. (Doc. 15.) Subsequently, the Kubota Defendants
filed a reply. (Doc. 19.)
For the reasons stated below, this Court lacks subject matter jurisdiction over
this action, and therefore the Kubota Defendants’ motion (doc. 5) is due to be
DENIED, and this matter is due to be REMANDED to the Circuit Court of
Tuscaloosa County, Alabama. Further, the Motions to Dismiss filed by Defendant
Martin Tractor (doc. 14) and Defendant Sanders (doc. 20); the Motion for HIPAA
Order filed by the Kubota Defendants (doc. 24); and the Motion for Extension of
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Time (doc. 25) are due to be resolved by the state court, as this Court has no subject
matter jurisdiction over this case.
Waits purchased a Kubota tractor and accompanying front-end loader from
Martin Tractor for use on his personal farm. Sanders, a Martin Tractor employee,
sold the tractor to Plaintiff. The tractor did not have a FOPS. “[Waits’s] decedent,
Jared Waits, was using the tractor to move branches on [Waits’s] farm when a branch
traveled over the top of the front-end loader and struck [Waits’s] decedent in the
forehead, killing him.” (Doc. 1-1 ¶ 15.) Waits alleges that a FOPS would have
prevented the branch from striking the decedent in this manner and, therefore,
would have prevented the decedent’s death.
When he sold Waits the tractor, Sanders allegedly “represented to [Waits]
that the subject tractor was suitable and safe to use for moving and clearing trees,
branches, and dirt, and for other forestry and land-moving types of activities.” (Doc.
1-1 ¶ 40.) Waits alleges that Sanders’s representation “was negligently made
because had Sanders exercised due care, he would have known the subject tractor
was not suitable and safe for such activities without a FOPS.” (Id. at ¶ 72). Further,
The following facts are taken from Plaintiff’s amended complaint (doc. 1-1), and the Court
makes no ruling on their veracity.
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Waits alleges that Martin Tractor “failed to warn, or adequately warn, ultimate users
and consumers . . . of the [tractor’s] dangers . . . when Martin Tractor was aware of
the dangers.” (Doc. 1-1 ¶ 30.) Martin Tractor allegedly “had knowledge of existing
conditions and knew that personal injury or death from objects entering the
operator’s compartment would likely or probably result from its acts and
omissions.” (Id. ¶ 35.) Martin Tractor had this knowledge “from its experience
with tractors substantially similar to the subject tractor, from its awareness of likely
work scenarios for the subject tractor, and from reports about the actual use of such
tractors in the field, and from claims and lawsuits, where in fact operators were
injured or killed.” (Id.)
Waits sued several defendants in state court for wrongful death, including
Sanders and Martin Tractor. Waits alleges that Martin Tractor is liable (1) under
the AEMLD and (2) for negligence or wantonness. 2 Further, Waits alleges that
Sanders is liable for negligent misrepresentation, and that Martin Tractor is
vicariously liable for Sanders’s misrepresentation under the doctrine of respondeat
The judicially-created AEMLD “did not subsume a common-law negligence or
wantonness claim.” Wyeth, Inc. v. Weeks, 159 So. 3d 649, 656 (Ala. 2014).
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STANDARD OF REVIEW
This Court, like all federal courts, is a court of “limited jurisdiction.”
Jackson-Platts v. Gen. Elec. Capital Corp., 727 F.3d 1127, 1134 (11th Cir. 2013). It is
authorized to hear only those cases falling within “one of three types of subject
matter jurisdiction: (1) jurisdiction under a specific statutory grant; (2) federal
question jurisdiction pursuant to 28 U.S.C. § 1331; or (3) diversity jurisdiction
pursuant to 28 U.S.C. § 1332(a).” PTA-FLA, Inc. v. ZTE USA, Inc., 844 F.3d 1299,
1305 (11th Cir. 2016) (quoting Baltin v. Alaron Trading Corp., 128 F.3d 1466, 1469
(11th Cir. 1997)). A defendant may remove an action initially filed in state court to
federal court if the action is one over which the federal court has original jurisdiction.
28 U.S.C. § 1441(a). “[A] defendant seeking to remove a case to a federal court must
file in the federal forum a notice of removal ‘containing a short and plain statement
of the grounds for removal.’” Dart Cherokee Basin Operating Co., LLC v. Owens, 135
S. Ct. 547, 553 (2014) (quoting 28 U.S.C. § 1446(a)).
To remove an action filed in state court, the defendant must file notice of
removal with the district court within 30 days of receiving a copy of the initial
pleading. 28 U.S.C. § 1446(a)–(b). Where multiple defendants are involved, “the
limitations period for removal expires upon thirty days from service on the . . . lastserved defendant.” Bailey v. Janssen Pharmaceutica, Inc., 536 F.3d 1202, 1203 (11th
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Cir. 2008). “Only state-court actions that originally could have been filed in federal
court may be removed to federal court by the defendant.” Caterpillar Inc. v.
Williams, 482 U.S. 386, 392 (1987).
For removal to be proper, the court must have subject-matter jurisdiction over
the action. See Caterpillar Inc., 482 U.S. at 392. Because Kubota Defendants
removed this action, they have the burden of establishing that the case was properly
removed. See Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97 (1921). Any doubt
about the existence of federal jurisdiction “should be resolved in favor of remand to
state court.” City of Vestavia Hills v. Gen. Fid. Ins. Co., 676 F.3d 1310, 1313 (11th Cir.
2012) (internal citation and quotation marks omitted).
The burden on the removing party to prove fraudulent joinder is a “heavy
one.” Stillwell v. Allstate Ins. Co., 663 F.3d 1329, 1332 (11th Cir. 2011) (per curiam)
(quoting Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997)). “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 the
joinder was proper and remand the case to the state court.” Id. at 1333 (quoting
Coker v. Amoco Oil Co., 709 F.2d 1433, 1440–41 (11th Cir. 1983), superseded by statute,
28 U.S.C. § 1441(a), on other grounds as recognized in Stillwell, 663 F.3d at 1333). The
pleading standard for surviving fraudulent joinder is “is a lax one.” Id. at 1332–33.
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Rather than the plausibility standard, which requires the complaint to “state a claim
to relief that is plausible on its face,” Ashcroft v. Iqbal, 556 U.S. 662, 129 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)), a claim of fraudulent
joinder can be defeated by a showing that the claim has “a possibility of stating a
valid cause of action,” Stillwell, 663 F.3d at 1333 (quoting Triggs v. John Crump
Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998)). When assessing possibility, the
Eleventh Circuit has stated that “[i]n considering possible state law claims, possible
must mean more than such a possibility that a designated residence can be hit by a
meteor tonight. That is possible. Surely, as in other instances, reason and common
sense have some role.” Legg v. Wyeth, 428 F.3d 1317, 1325 n.5 (11th Cir. 2005)
(internal citations omitted). In other words, “[t]he potential for legal liability ‘must
be reasonable, not merely theoretical.’” Id. (quoting Great Plains Tr. Co. v. Morgan
Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir. 2002)). Further, any
ambiguities in the state substantive law must be resolved in the plaintiff’s favor.
Stillwell, 663 F.3d at 1333.
To determine whether the claim possibly states a valid cause of action, the
court must look to the pleading standards of the state court rather than federal court.
Id. at 1334. The Supreme Court of Alabama has stated that “a Rule 12(b)(6)
dismissal is proper only when it appears beyond doubt that the plaintiff can prove no
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set of facts in support of the claim that would entitle the plaintiff to relief.” Haywood
v. Alexander, 121 So. 3d 972, 974–75 (Ala. 2013) (quoting Nance v. Matthews, 662 So.
2d 297, 299 (Ala. 1993)).
At issue is whether Defendants Martin Tractor and Sanders were fraudulently
joined in this action due to their status as innocent sellers under Ala. Code § 6-5-521,
which would immunize them from Waits’s negligence and AEMLD claims. Waits
contends that Martin Tractor and Sanders were not fraudulently joined because the
claims arise out of their “independent acts,” which the statute explicitly excludes
from innocent seller immunity. See Ala. Code § 6-5-521(b)(4). The Kubota
Defendants counter that the claims against Martin Tractor and Sanders are covered
by the innocent seller statute; therefore, those claims and Defendants should be
dismissed from the case, preserving federal diversity jurisdiction. (Doc. 9 at 7–9.)
They submit an affidavit from Sanders, who states that he was not “aware of any
specific safety issues related to” the subject tractor. (Doc. 9-1 ¶ 14.) The Kubota
Defendants further argue that because Martin Tractor and Sanders did not have
“any involvement in the manufacturing or design of the tractor at issue,” they are
immune from liability. (Doc. 9 at 7.) This analysis is incomplete, however, because
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it ignores the “independent acts” for which sellers and their representatives may
still be liable.
Alabama’s “innocent seller” statute protects “distributors who are merely
conduits of a product” by affording them immunity from suit. Ala. Code § 6-5521(b). However, the statute does not protect distributors from “independent acts
unrelated to the product design or manufacture, such as independent acts of
negligence, wantonness, warranty violations, or fraud.” Id. In short, the statute
immunizes innocent sellers from strict liability, but not from their independent torts
or breaches of warranty. Under Alabama law, then, to prove fraudulent joinder, it
must “appear beyond doubt that the plaintiff can prove no set of facts in support
of the claim,” Haywood, 121 So. 3d at 974–75, that the diversity-destroying
defendants engaged in “independent acts” that might subject them to liability, Ala.
Code § 6-5-521.
Since the innocent seller statute was implemented in 2011, Alabama courts
have not weighed in on what “independent acts” fall outside the protection afforded
by § 6-5-521(b). In Barnes v. General Motors, LLC, however, the Northern District
of Alabama considered a similar situation in which an Alabama plaintiff brought a
products liability suit against a group of defendants, including Alabama dealerships
that sold a car from which the airbags had been removed, resulting in the driver’s
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death. No. 2:14-CV-00719-AKK, 2014 WL 2999188, at *1 (N.D. Ala. July 1, 2014).
While this Court is certainly not bound by Barnes, its analysis is helpful. In Barnes,
the removing defendants argued that the dealerships were fraudulently joined
because they were immune from liability under the innocent seller statute. Id. at *3.
The court held that the removing defendants had failed to meet the “heavy burden”
required to establish fraudulent joinder. Id. at *6. The court explained that the
plaintiff’s claims were not simply that the dealerships “unknowingly [sold] [a car]
that later prove[d] to be defective.” Id. at *5. Rather, the plaintiff claimed that the
dealerships sold a car they knew was dangerous, and they failed to warn the decedent
of those dangers. Id. at *3–5. The court further stated, “[I]t 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
customers.” Id. at *5.
In his amended complaint, Waits alleges that Martin Tractor “failed to warn,
or adequately warn, ultimate users and consumers . . . of the [tractor’s] dangers
[from not having a FOPS] . . . when Martin Tractor was aware of the dangers.”
(Doc. 1-1 ¶ 30.) Martin Tractor allegedly “knew that personal injury or death from
objects entering the operator’s compartment would likely or probably result from its
acts and omissions.” (Id. ¶ 35.) Martin Tractor had this knowledge from its
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experience with similar tractors. (See id.) Further, Waits alleges that Sanders
“represented to [him] that the subject tractor was suitable and safe for moving and
clearing trees,” (id. at ¶ 40), and that “[t]his representation was negligently made
because had Sanders exercised due care, he would have known the subject tractor
was not suitable and safe for such activities without a FOPS,” (id. at ¶ 72).
Like the plaintiff in Barnes, Waits does not merely claim that Martin Tractor
and Sanders unknowingly sold a product that later proved to be defective. Rather,
Waits alleges that Martin Tractor and Sanders knew or should have known that the
tractor was dangerous, and that they sold the tractor without warning of those
dangers or negligently misrepresented the tractor as safe. (Id. at ¶¶ 40, 72.) In his
affidavit (doc. 9-1), Sanders does not deny making the representation, nor does he
state that he exercised due care. He does state that he was not “aware of any specific
safety issues related to” the subject tractor (doc. 9-1 ¶ 14), but “that is not the same
thing as exercising due care before making a representation,” (doc. 15 at 9). Further,
Alabama courts have not spoken to the meaning of “independent acts” within the
innocent seller statute, and this Court must resolve this ambiguity in the state
substantive law in Waits’s favor. See Stillwell, 663 F.3d at 1333. 3
The Kubota Defendants argue that Waits’s negligent misrepresentation claim fails as a
matter of law because it is a fraud claim that did not survive the decedent’s death. (See Doc. 9 at
7.) But here, Waits claims that the alleged fraud caused the decedent’s death, placing it squarely
within Alabama’s wrongful death statute. See Ala. Code § 6-5-410(a) (“A personal representative
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The Kubota Defendants in this case have failed to carry the “heavy burden”
to establish fraudulent joinder. Id. at *6. Given the potential liability of Martin
Tractor and Sanders for “independent acts” from which they are not immune under
the innocent seller statute, Waits’s claims have a reasonable possibility of stating a
claim under Alabama law. See Stillwell, 663 F.3d at 1333; Legg, 428 F.3d at 1325 n.5.
This possibility is enough to clear the low bar for surviving a claim of fraudulent
For the reasons stated above, this Court lacks subject matter jurisdiction over
this case. Therefore, the Kubota Defendants’ motion (doc. 5) is DENIED, and this
case is due to be remanded to the Circuit Court of Tuscaloosa County, Alabama.
Additionally, the Motions to Dismiss filed by Defendant Martin Tractor (doc. 14)
and Defendant Sanders (doc. 20); the Motion for HIPAA Order filed by the Kubota
Defendants (doc. 24); and the parties’ Motion for Extension of Time (doc. 25) are
may commence an action . . . for the wrongful act, omission, or negligence of any person, persons,
or corporation, his or her or their servants or agents, whereby the death of the testator or intestate
was caused, provided the testator or intestate could have commenced an action for the wrongful
act, omission, or negligence if it had not caused death.”).
The Kubota Defendants also argue that Waits failed to create an issue of fact to support his
wantonness claim against Martin Tractor. Because Waits’s claims of negligence or negligent
misrepresentation possibly state a cause of action under Alabama law, this Court need not expound
upon the wantonness claim.
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due to be resolved by the state court, as this Court has no subject matter jurisdiction
over this case.
A separate Order consistent with this opinion will be entered
DONE and ORDERED on October 4, 2019.
L. Scott Coogler
United States District Judge
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