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The First National Bank of Talladega v. Lovell

United States District Court, N.D. Alabama, Eastern Division

October 1, 2014

JOHN E. LOVELL, et al, Defendants.



This is a civil action filed by the plaintiffs, The First National Bank of Talladega and First National Talladega Corporation, against the defendants, John E. Lovell, Southeastern Apparatus Sales, LLC ("SAS"), and Federal Insurance Co. ("Federal") (Doc. 1-1). The action was originally filed on April 25, 2014, in the Circuit Court of Talladega County, Alabama. (Doc. 1-1). Against Lovell and SAS, the complaint alleges the Alabama state law claims of fraud (Count One), breach of contract (Count Two), and conspiracy to defraud (Count Four).[1] Against Federal, the complaint alleges the Alabama state law claim of breach of a contract to provide insurance coverage. (Count Three).

On June 25, 2014, Federal removed the case to this court alleging "diversity" subject matter jurisdiction pursuant to 28 U.S.C. § 1332, which provides, in pertinent part, that "[t]he district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs, and is between... citizens of different States." 28 U.S.C.A. § 1332(a)(1). "Diversity jurisdiction requires complete diversity; every plaintiff must be diverse from every defendant.'" Leyva v. Daniels, 530 F.Appx. 933 (11th Cir. 2013) ( quoting Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir.1998)). The case comes before the court on the plaintiffs' motion to remand (doc. 7), which correctly points out that there is not completely diversity in this case. Defendant Federal argues in response that the citizenship of the non-diverse defendants should be ignored because they were "fraudulently misjoined."[2]

As discussed below, because the court determines that the non-diverse defendants have not been fraudulently misjoined, there is not complete diversity and the motion to remand will be GRANTED.


"Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute." Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). For removal to be proper, the court must have subject-matter jurisdiction in the case. "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). In addition, the removal statute must be strictly construed against removal, and any doubts should be resolved in favor of remand. See, City of Vestavia Hills v. Gen. Fid. Ins. Co., 676 F.3d 1310, 1313 (11th Cir. 2012) ("[b]ecause removal jurisdiction raises significant federalism concerns, federal courts are directed to construe removal statutes strictly. Indeed, all doubts about jurisdiction should be resolved in favor of remand to state court.") (citation omitted).

"In removal cases, the burden is on the party who sought removal to demonstrate that federal jurisdiction exists." Friedman v. New York Life Ins. Co., 410 F.3d 1350, 1353 (11th Cir. 2005) (citation omitted); Williams v. Best Buy Co., 269 F.3d 1316, 1319 (11th Cir.2001).

That burden goes not only to the issue of federal jurisdiction, but also to questions of compliance with statutes governing the exercise of the right of removal. Albonetti v. GAF Corporation-Chemical Group, 520 F.Supp. 825, 827 (S.D. Texas 1981); Jennings Clothiers of Ft. Dodge, Inc. v. U.S. Fidelity & Guaranty Co., 496 F.Supp. 1254, 1255 (D.Iowa 1980); Fort v. Ralston Purina Company, 452 F.Supp. 241, 242 (E.D.Tenn.1978).

Parker v. Brown, 570 F.Supp. 640, 642 (D.C. Ohio, 1983)

While 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. We align ourselves with our sister circuits in adopting a more flexible approach, allowing the district court when necessary to consider post-removal evidence in assessing removal jurisdiction. We emphasize, as did the court in Allen, that "under any manner of proof, the jurisdictional facts that support removal must be judged at the time of the removal, and any post-petition affidavits are allowable only if relevant to that period of time." Allen, 63 F.3d at 1335.

Sierminski v. Transouth Financial Corp., 216 F.3d 945, 949 (11th Cir. 2000).


The case concerns a 2010 Crimson Legend Pumper fire truck built upon a cab and chassis manufactured by an entity which the complaint identifies as "International, a Navistar company." (Doc. 1-1 at 5). In or around December, 2009, Navistar, Inc., which the court assumes is the same entity identified in the complaint as "Navistar, " issued a "Certificate of Origin" to identify the chassis and document its purchase. (Doc. 1-1 at 6). Navistar then sold the cab and chassis to an entity named "Crimson Fire, " which in turn, in May of 2010, sold it to SAS. (Doc. 1-1 at 6). According to the complaint, SAS "planned to build a fire truck on the chassis per specifications of its own customer." (Doc. 1-1 at 6).

On April 30, 2010, SAS obtained a loan from, and signed a promissory note to, the plaintiffs, [4] to finance the purchase of the cab and chassis. (Doc. 1-1 at 6). Lovell signed the security agreement and promissory note and personally guaranteed the debt. (Doc. 1-1 at 6). SAS purchased the cab and chassis, and the plaintiffs received the original ...

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