United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OF OPINION
Scott Coogler, United States District Judge.
William Upton; Winwood Land, Holdings, LLC; Paul Yeager;
Clara Yeager; Paul Yeager, Jr.; Marco Bonilla; and Clara Jill
Yeager Bonilla; (collectively referred to as
“Plaintiffs”) originally filed this action in the
Circuit Court of Shelby County, Alabama. Plaintiffs seek
compensatory and punitive damages for: the release of
petroleum onto and near their properties, and the failure to
accurately evaluate and remediate the release, as well as
damages to real property, property rights, and the loss of
quiet and peaceful enjoyment. Defendants, Plantation Pipe
Line Company (“Plantation”); Kinder Morgan Energy
Partners, L.P.; Kinder Morgan Management, LLC; Kinder Morgan,
Inc.; Kinder Morgan G.P., Inc.; Kinder Morgan Operating, L.P.
“A”; and Kinder Morgan Operating L.P.
“B”; (collectively “the Kinder Morgan
Entities”) removed the action to this Court on May 10,
2017 asserting diversity jurisdiction pursuant to 28 U.S.C.
§§1332, 1441 and 1446. (Doc. 1.) In response,
Plaintiffs filed a Motion to Remand on May 19, 2017, claiming
resident Defendant Bhate stripped this Court of jurisdiction
and warranted remand. (Doc. 7.) For the reasons stated below,
the Motion to Remand (doc. 7) is due to be GRANTED.
August 21, 2014, Defendants' pipeline released thousands
of gallons of petroleum onto Plaintiffs' properties.
Clean-up efforts began shortly thereafter. However, petroleum
continues to contaminate the surface and surface waters. As a
result, Plaintiffs have lost business opportunities, as well
as the use of their wells; and incurred property damage,
diminution of land value, emotional distress, mental anguish,
and have suffered a continuous nuisance. Plaintiffs filed
this action in state court on March 30, 2017, listing
Plantation, the Kinder Morgan Entities, CH2M Hill, CH2M
Engineers, Inc., and Bhate Environmental Associates Inc,
(“Bhate”), and fictitious defendants A, B, and C,
as defendants (collectively “Defendants”).
Plantation and Kinder own the pipeline, and CH2M Hill, CH2M
Engineers, Inc., and Bhate, were responsible for determining
the scope of the contamination, creating remediation
protocols, and collecting samples for testing. Plaintiffs
claim Defendants are liable for negligence, wanton and
willful conduct, gross negligence, trespass, nuisance, and
STANDARD OF REVIEW
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). 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. v. Owens, 135
S.Ct. 547, 553 (2014) (quoting 28 U.S.C. § 1446(a)). For
removal to be proper, the court must have subject-matter
jurisdiction in the case. See Caterpillar Inc. v.
Williams, 482 U.S. 386, 392 (1987). Because they removed
this action, Defendants bear the burden of establishing that
removal was proper. 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 citations omitted)).
order for the Court to exercise diversity jurisdiction, two
requirements must be met: (1) the matter in controversy must
exceed $75, 000, and (2) there must be complete diversity
among the parties. 28 U.S.C. § 1332(a); see,
e.g., Triggs v. John Crump Toyota, Inc., 154
F.3d 1284, 1287 (11th Cir. 1998). The Defendants removed this
case on the basis of diversity jurisdiction, despite
Bhate's citizenship, claiming fraudulent joinder.
Plaintiffs argue that viable state law tort claims were
asserted against Bhate as a private corporation having its
principal place of business in Birmingham, Alabama, and thus
diversity jurisdiction under 28 U.S.C. § 1332(a) does
not exist. Here, the amount in controversy is alleged to be
over $75, 000 and is not in dispute. (Doc. 7-1 at 2.)
Therefore, the only issue in Plaintiffs' Motion to Remand
is whether Bhate was fraudulently joined.
joinder provides an exception to the complete diversity
requirement. Triggs, 154 F.3d at 1287. When a
non-diverse defendant is joined solely to defeat diversity
jurisdiction, the presence of the non-diverse defendant must
be ignored when determining jurisdiction. Henderson v.
Washington Nat'l Ins. Co., 454 F.3d 1278, 1281 (11th
Cir. 2006). A defendant may show fraudulent joinder by
demonstrating by clear and convincing evidence among other
things that: “‘there is no possibility the
plaintiff can establish a cause of action against the
resident defendant . . . .'” Id. (quoting
Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir.
1997)). A defendant who seeks to prove a non-diverse
defendant was fraudulently joined has a heavy burden.
Crowe, 113 F.3d at 1538.
joinder determination “must be based upon the
plaintiff's pleadings at the time of removal,
supplemented by any affidavits and deposition transcripts
submitted by the parties.” Pacheco de Perez v.
AT&T Co., 139 F.3d 1368, 1380 (11th Cir. 1998).
Here, Defendants do not claim Plaintiffs alleged fraudulent
facts, instead only that it is not possible for the
Plaintiffs to state a cause of action. The “no cause of
action” theory of fraudulent joinder requires
Defendants to prove that there is “[no] possibility
that a state court would find that the complaint states a
cause of action against . . . the [non-diverse] defendant[ ]
[Bhate].” Crowe, 113 F.3d at 1538 (quotation
a possible cause of action has been asserted is determined by
the state pleading standards, rather than the federal ones.
Stillwell v. Allstate Ins. Co., 633 F.3d 1329, 1334
(11th Cir. 2011). Under Rule 8, Ala. R. Civ. P., a complaint
that “puts the defendant on notice of the claims
against him” is sufficiently pled. Bethel v.
Thorn, 757 So.2d 1154, 1158 (Ala. 1999). Plaintiffs
simply must demonstrate that “[t]he potential for
liability [is] reasonable and not merely theoretical.”
Legg v. Wyeth, 428 F.3d 1317, 1325 n.5 (11th Cir.
2005) (internal citations and quotations omitted)). A claim
is not proper where “it appears beyond doubt that the
plaintiff can prove no set of facts in support of the claim
that would entitle the plaintiff to relief.”
Norfolk S. Rail Co. v. Goldthwaite, 176 So.3d 1209,
1212 (Ala. 2015) (internal quotations and citations omitted).
If there is a possibility the complaint states an arguable or
colorable cause of action against the resident defendant, the
Court must find joinder was proper. Id.; see
also Pacheco de Perez, 139 F.3d at 1380.
assessing an assertion of fraudulent joinder, factual
allegations and uncertainties about the applicable law must
be evaluated in the light most favorable to the plaintiff.
Legg, 428 F.3d at 1322. Here, Plaintiffs brought six
claims in their Complaint: negligence, willful and wanton
conduct, gross negligence, trespass, nuisance, and strict
liability. (Doc. 1-1.) If Plaintiffs have possibly
stated a claim under any one of these theories of liability
as against Bhate, remand is warranted.
Negligence and Gross Negligence
allege that Defendants, including Bhate, breached a duty owed
to them to properly sample, test, cleanup, monitor, and
otherwise remediate the gasoline contamination to prevent it
from spreading onto and under Plaintiffs' properties.
Under Alabama law, a negligence claim is sufficiently pled
when it demonstrates that the defendant breached a
to a foreseeable ...