Ferrell et al v. BGF Global LLC et al

Filing 27

ORDER denying 20 Motion to Remand to State Court. Traffic and Lighting Systems, LLC is dismissed. Signed by Honorable Timothy D. DeGiusti on 10/21/2015. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
TRUDY FERRELL, individually
and as personal representative of
the Estate of GREGORY
FERRELL, deceased,
Plaintiff,
v.
BGF GLOBAL, LLC, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

Case No. CIV-15-404-D

ORDER
Before the Court is Plaintiff’s Motion to Remand [Doc. No. 20]. Defendants
BGF Global, LLC (“BGF”), Traffic & Lighting Systems, LLC (“TLS”), Lawrance
Dildine (“Dildine”), Hallmark County Mutual Insurance Company, and Hallmark
Specialty Insurance Company (collectively, the “Hallmark Defendants”) have filed
their responses in opposition [Doc. Nos. 21-22]. The matter is fully briefed and at
issue.
FACTUAL AND PROCEDURAL BACKGROUND
This action is the result of a collision at the intersection of S.E. 15th and S.
Eastern Ave. in Oklahoma City between Plaintiff’s husband, Gregory Ferrell, and
Defendant Dildine in which Mr. Ferrell suffered fatal injuries. At the time of the
collision, Dildine was employed as a truck driver for Defendants BGF and Blitz

Express, LLC (“Blitz”) and was driving a semi-tractor trailer 18-wheeler owned by
Blitz.1 Plaintiff alleges Dildine was traveling at an unsafe speed when he came upon
a yellow light at the intersection. Rather than adhere to federal regulations regarding
safety in the operation and handling of a tractor trailer, Plaintiff contends Dildine
instead chose to honk his horn and enter the intersection on a red light. Mr. Ferrell
entered the intersection on a green light and collided with Dildine.
On March 16, 2015, Plaintiff filed this suit, individually and as personal
representative of the deceased, against Dildine, BGF, and Blitz under tort theories of
negligence and vicarious liability.2 Plaintiff also sued TLS, the purported
manufacturer of the traffic light system located at the intersection, for negligence and
products liability. Plaintiff alleged the traffic lights required maintenance at least
twelve times in 2014–the year of the accident. Plaintiff also stated the traffic control
system was defective at the time it was manufactured by TLS and unreasonably
dangerous to any person who might have been reasonably affected by it, including the
decedent.
1

The facts recited herein are taken from Plaintiff’s Petition and are assumed
true for purposes of the motion to remand. In re Briscoe, 448 F.3d 201, 218 (3d Cir.
2006); McPhail v. Wal-Mart Stores, Inc., No. 03–1010–WEB, 2003 WL 1750886, at
*2 (D. Kan. Mar. 27, 2003) (accepting Petition’s allegations as true for purposes of
fraudulent joinder analysis).
2

The Hallmark Defendants were sued based on their status as BGF’s insurers.
2

BGF, Dildine and the Hallmark Defendants timely filed a Notice of Removal
on April 16, 2015, to which TLS filed its consent. Although TLS is an Oklahoma
corporation and Plaintiff is an Oklahoma resident, Defendants allege diversity
jurisdiction exists because TLS “has been fraudulently joined in a feigned attempt to
defeat diversity jurisdiction” and “Plaintiff has not and cannot state any claim against
TLS.” See Notice of Removal at 2 [Doc. No. 1]. Plaintiff timely filed a motion to
remand in which she argues diversity jurisdiction is lacking.3 She contends TLS may
be held liable under the tort theories alleged in the Petition and denies it has been
fraudulently joined.
STANDARD OF DECISION
The removal statute, 28 U.S.C. § 1441, permits a defendant to remove to
federal court “any civil action brought in a State court of which the district courts of
the United States have original jurisdiction.” Id.; Dutcher v. Matheson, 733 F.3d 980,
984-85 (10th Cir. 2013). In addition to the requirement of original jurisdiction, 28
U.S.C. § 1441(b)(2) sets forth the “forum-defendant rule,” which provides a case may
not be removed on the basis of diversity if any defendant is a citizen of the state in
which the state-court action was brought. Id.; Brazell v. Waite, 525 F. App’x 878, 884

3

Plaintiff does not dispute that the amount in controversy requirement is
satisfied. Motion to Remand at 7, n. 3.
3

(10th Cir. 2013) (unpublished); Red Cloud Assets, LLC v. Harris Aviation, LLC, No.
CIV–11–282–D, 2011 WL 1871166, at *3 (W.D. Okla. May 16, 2011).
However, a defendant may remove a case based upon diversity
jurisdiction–even in the absence of complete diversity–if a plaintiff joins a nondiverse
party fraudulently to defeat federal jurisdiction. Red Cloud Assets, 2011 WL
1871166, at *3 (“Of course, the presence of a resident defendant prevents removal
only if this defendant is ‘properly joined,’ and it is well established that the fraudulent
joinder of a resident defendant does not prevent removal.”) (citing Updike v. West,
172 F.2d 663, 665 (10th Cir. 1949)).4 Fraudulent joinder is a jurisdictional inquiry.
Albert v. Smith’s Food & Drug Ctrs., Inc., 356 F.3d 1242, 1247 (10th Cir. 2004).
“[U]pon specific allegations of fraudulent joinder the court may pierce the pleadings,
consider the entire record, and determine the basis of joinder by any means
available.” Hernandez v. Liberty Ins. Corp., 73 F. Supp. 3d 1332, 1336 (W.D. Okla.
2014) (quoting Smoot v. Chicago, Rock Island & Pac. R.R. Co., 378 F.2d 879, 882

4

Despite its harsh moniker, “[f]raudulent joinder is a term of art, it does not
reflect on the integrity of plaintiff or counsel, but rather exists regardless of the
plaintiff’s motives when the circumstances do not offer any other justifiable reason
for joining the defendant.” Cooper v. Zimmer Holdings, Inc., 320 F. Supp. 2d
1154,1157 (D. Kan. 2004) (citation omitted); see also Aguayo v. AMCO Ins. Co., 59
F. Supp. 3d 1225, 1257 (D.N.M. 2014) (opting to use the term “procedural
misjoinder,” rather than “fraudulent misjoinder,” because of the confusion that the
word “fraudulent” has caused in the fraudulent joinder context).
4

(10th Cir. 1967)).
“The defendant seeking removal bears a heavy burden of proving fraudulent
joinder, and all factual and legal issues must be resolved in favor of the plaintiff.”
Hernandez, 73 F. Supp. 3d at 1336 (quoting Dutcher v. Matheson, 733 F.3d 980, 988
(10th Cir. 2013)). The defendant must show there is no possibility that the plaintiff
would be able to establish a cause of action against the nondiverse party. See id.
(citing Montano v. Allstate Indem., No. 99–2225, 2000 WL 525592, *1–2 (10th Cir.
April 14, 2000) (unpublished)); Brazell, 525 F. App’x at 881 (“the removing party
must show that the plaintiff has ‘no cause of action’ against the fraudulently joined
defendant.”) (citations omitted); Frontier Airlines v. United Air Lines, Inc., 758
F.Supp. 1399, 1407 (D. Colo. 1989) (“Defendants must show that there exists no
possibility for recovery under rules of state law.”).
To this end, the non-liability of the nondiverse party must be established with
“complete certainty.” Hernandez, 73 F. Supp. 3d at 1336 (quoting Smoot, 378 F.2d
at 882); Mitchell v. Ford Motor Co., No. CIV-05–379-F, 2005 WL 1657069, at * 3
(W.D. Okla. July 5, 2005) (a removing defendant who pleads fraudulent joinder must
support this claim with clear and convincing evidence) (citing Hart v. Wendling, 505
F. Supp. 52, 53 (W.D. Okla. 1980)). Although the court may consider evidence
outside the pleadings, “it is not proper for the court to pre-try issues of liability on a
5

motion to remand.” Id.
Consequently, the fraudulent joinder standard is more favorable to the plaintiff
than the standard for ruling on a motion to dismiss for failure to state a claim under
Fed. R. Civ. P. 12(b)(6). Montano, 2000 WL 525592, at *2; Johnson v. American
Towers, LLC, 781 F.3d 693, 704 (4th Cir. 2015). “Under this standard, it is entirely
possible a case should be remanded even though the claims brought against the
non-diverse defendant will ultimately be subject to dismissal.” Sanders v. DJO, LLC,
728 F. Supp. 2d 1200, 1203 (D.N.M. 2010) (citation omitted). Remand is required if
any one of the claims against the non-diverse defendant is possibly viable. Montano,
2000 WL 525592, at *2. “ ‘[T]here need be only a slight possibility of a right to
relief’ or a ‘glimmer of hope’ ” to defeat removal. Hartley v. CSX Transp., Inc., 187
F.3d 422, 426 (4th Cir. 1999).
DISCUSSION
Plaintiff’s negligence / products liability cause of action against TLS alleges
the following:
74.

Defendant Traffic & Lighting Systems manufactured,
installed and/or operated the traffic control lights at the
intersection of S.E. 15th Street and S. Eastern Ave.

75.

The traffic control lights at issue required maintenance at
least twelve (12) times in the calendar year of 2014 alone.

6

76.

On November 27, 2014, two days after the collision at
issue, the southbound left lane green bulb required
replacement.

77.

Defendant Traffic & Lighting Systems was and is in the
business of manufacturing traffic control lights such as the
one at issue.

78.

[T]he traffic control device at issue was defective, and
because of the defect, such traffic control device was
unreasonably dangerous to any person who might be
reasonably affected by such traffic control device.

79.

[S]uch traffic control device was defective at the time it was
manufactured by Defendant Traffic & Lighting Systems,
LLC, or at which time it left such Defendants control.

80.

Plaintiff’s decedent, Gregory Ferrell, as a person operating
a motor vehicle in the area where the traffic control device
was operating, might reasonably be affected by the
operation of such traffic control device.

81.

Plaintiff’s decedent, Gregory Ferrell[,] sustained injury,
including sever pain and suffering and death, directly and
proximately caused by the defect in such traffic control
device.

Petition, ¶¶ 74-81.
Defendants state these allegations are without any factual or legal support.
They cite to evidence in the record indicating that (1) eyewitnesses to the accident
stated the traffic lights were working properly, (2) the Oklahoma City police officers
who investigated the accident inspected the lights and determined they were in

7

working order, (3) TLS never performed any work on the lights, and (4) since their
installation in 1991, the lights underwent numerous alterations and modifications by
entities other than TLS, thereby barring Plaintiff’s products liability claim. TLS also
argues that any claim stemming from the lights’ installation is barred by Oklahoma’s
ten-year statute of repose, 12 OKLA. STAT. § 109.
Plaintiff responds that (1) “myriad inconsistency” in eyewitness testimony
reflects there may have been a malfunction at the time of the collision, (2) prior work
orders at the accident’s location indicate the “traffic signal may have sporadic
malfunctions that resolve without technical intervention” [Notice of Removal at 13],
and (3) she has properly pled the elements for a products liability claim. According
to Plaintiff, the consideration of this evidence as a whole creates a legitimate fact
question over TLS’s liability, making its inclusion proper and not fraudulent.
Upon review of the parties’ submissions, particularly the affidavits and exhibits
attached in support, the Court finds Plaintiff’s motion should be denied. The heavy
burden placed upon Defendants to prove fraudulent joinder does not mean this Court
must “blindly accept” whatever Plaintiff asserts, “no matter how incredible or how
contrary to the overwhelming weight of the evidence.” In re Diet Drugs Products
Liab. Litig., 325 F. Supp. 2d 533, 537 (E.D. Pa. 2004); In re Train Derailment Near
Amite, La., No. Civ.A. MDL 1531, 2003 WL 2171500, at *2 (E.D. La. July 18, 2003)
8

(“Although [defendant] bears a heavy burden of proof on the fraudulent joinder issue,
[plaintiffs] cannot rely on conclusory allegations and speculation in light of the
evidence offered by [defendant]”). If a plaintiff contests a defendant’s assertion of
fraudulent joinder, “the Court must determine the facts from the evidence.” In re Diet
Drugs, 325 F. Supp. 2d at 537 (citing Wilson v. Republic Iron & Steel Co., 257 U.S.
92, 98, 42 S.Ct. 35, 66 L.Ed. 144 (1921) (emphasis added)).
Plaintiff has presented no credible evidence which would indicate a reasonable
probability the traffic light system played a role in the decedent’s accident. The
“myriad inconsistencies” in eyewitness testimony cited by Plaintiff do not call into
question whether a light malfunction occurred at the time of the collision. The Court
finds Plaintiff’s theory that an error may have occurred and then self-corrected is
speculative, unpersuasive, and unavailing for purposes of deciding the present
motion. Moreover, Plaintiff’s “mixed signal” theory is belied by a letter from an
Oklahoma City engineer who states all signals in Oklahoma City are equipped with
a “conflict monitor” to prevent the display of conflicting signal indications, a fact
Plaintiff does not refute.
In addition, the work orders cited by Plaintiff indicate a company other than
TLS performed the requested maintenance and repair; TLS has provided this Court
with its own documentation evidencing it has performed no work on the lights located
9

at the intersection where the accident occurred, and Plaintiff does not rebut this
contention. Defendants have established that TLS was fraudulently joined and,
therefore, should not be considered for purposes of determining whether diversity
jurisdiction exists.
CONCLUSION
Based on the foregoing, Plaintiff’s Motion to Remand this action to the District
Court of Oklahoma County, Oklahoma [Doc. No. 20] is DENIED. In light of this
ruling, Traffic and Lighting Systems, LLC is hereby dismissed from this action,
without prejudice.5
IT IS SO ORDERED this 21st day of October, 2015.

5

Based on the foregoing analysis, the Court declines to address TLS’s Motion
to Dismiss and/or Motion for Summary Judgment [Doc. No. 11]. If a defendant is
fraudulently joined and is disregarded as a party, the Court has no jurisdiction to
resolve the merits of claims against him, and he must be dismissed without prejudice.
See Albert v. Smith’s Food & Drug Centers, Inc., 356 F.3d 1242, 1249 (10th Cir.
2004); see also Brereton v. Bountiful City Corp., 434 F.3d 1213, 1217–18 (10th Cir.
2006) (if district court lacks jurisdiction, it is incapable of reaching a disposition on
the merits, and dismissal must be without prejudice).
10