United States District Court, M.D. Alabama, Northern Division
BRAXTON GREEN, as the Administrator of the Estate of Jeffrey L. Danner, Sr., deceased Plaintiff,
CATERPILLAR, INC., et al., Defendants.
REPORT AND RECOMMENDATION OF THE MAGISTRATE
F. MOORER UNITED STATES MAGISTRATE JUDGE.
to 28 U.S.C. § 636(b)(1), this case was referred to the
undersigned United States Magistrate Judge for review and
submission of a report with recommended findings of fact and
conclusions of law (Doc. 14, entered 10/25/17). Now pending
before the Court is the Motion for Remand (Doc. 8, filed
10/10/17). The motion is fully briefed and ripe for review.
For good cause shown, the Magistrate Judge recommends that
the Motion for Remand be GRANTED.
Facts and Procedural History
Braxton Green (“Green” or
“Plaintiff”), as the Administrator of the Estate
of Jeffrey L. Danner, Sr., filed this a complaint in Barbour
County, Alabama Circuit Court on July 25, 2017. See
Doc. 1, Atch 1, Complaint. The suit alleges wrongful death
stemming from the negligent and wanton actions of Defendants
Caterpillar, Inc. and Thompson Tractor Company, Inc. On April
21, 2017, Jeffrey Danner, Sr. was killed when his Caterpillar
D4C Series III, bulldozer moved rearward without the intended
operator input and without the operator within the operator
compartment. As a result, the dozer ran over Mr. Danner.
Id. Plaintiff asserts three specific causes of
action. The first two counts are directed against Defendant
Caterpillar, Inc. (“Caterpillar”) and make state
law claims under the Alabama Extended Manufacturer's
Liability Doctrine (AEMLD) and Negligence/Wantonness.
Id. at p. 3-5. In a nutshell, Plaintiff claims
defective design in the bulldozer subject to the accident at
issue and negligence/wantonness as it related to that design,
manufacture, marketing, sale, and recall. The third count is
against Thompson Tractor Company, Inc. (“Thompson
Tractor”) and asserts a claim for negligence/wantonness
in the servicing of the bulldozer. Id. at p. 6.
August 25, 2017, Defendant Thompson Tractor Co., Inc.
(“Thompson Tractor”) filed its answer in Barbour
County Circuit Court. See Doc. 1, Atch. 7, Answer.
On September 13, 2017, Defendant Caterpillar, Inc. filed a
Notice of Removal in this court based on an assertion of
diversity jurisdiction. See Doc. 1, generally.
Defendant Caterpillar states in its Notice of Removal that
the case is properly removable under 28 U.S.C. §1441
because the United States District Court has original
jurisdiction over this case under 28 U.S.C. §1332.
Defendant Caterpillar asserts diversity jurisdiction exists
in this case because the amount in controversy exceeds the
$75, 000 jurisdictional threshold and complete diversity of
citizenship exists among the “true parties” when
considering Defendant Thompson Tractor has been fraudulently
joined. Plaintiff is a citizen of Alabama. Defendant
Caterpillar is a Delaware corporation with its principal
place of business in Peoria, Illinois. Defendant Thompson
Tractor - the defendant which has allegedly been fraudulently
joined - is an Alabama corporation with its principal place
in Birmingham, Alabama.
timely filed his motion to remand and brief in support on
October 10, 2017. See Docs. 8-9. In the motion to
remand, Plaintiff asserts Defendant Thompson Tractor was not
fraudulently joined and therefore this case was not removable
pursuant to 28 U.S.C. § 1441(b)(2) which states
“[a] civil action otherwise removable solely on the
basis of the jurisdiction under section 1332(a) of this title
may not be removed if any of the parties in interest properly
joined and served as defendants is a citizen of the State in
which such action is brought.” Caterpillar responded to
the motion to remand arguing that Thompson Tractor was
fraudulently joined because Plaintiff could not recover
against him under Alabama law. See Doc. 13.
Therefore, if fraudulently joined, the Court must disregard
his citizenship when considering the existence of diversity
of citizenship. It emphasizes its point by arguing that the
last work done by Thompson Tractor was in September 2015
(almost 20 months before the accident), there was no
“contract” between Jeffrey Danner, Sr. and
Thompson Tractor, and Thompson Tractor did not manufacture or
assemble the machine, otherwise exercise control over the
machine, or alter/modify the machine prior to selling it.
See Doc. 13 at p. 4. Plaintiff timely filed a reply
asserting Defendant have not established that Alabama law
precludes a claim against Thompson Tractor and that Defendant
improperly seeks to shift the burden to Plaintiff by arguing
the merits of the claim instead of whether there is an
arguable claim as required for jurisdictional purposes.
See Doc. 15. Thompson Tractor has not filed any
pleadings beyond its original Answer filed in state court and
the required Corporate/Conflict Disclosure statement.
See Docs. 1, 5.
Standard of Review
courts have a strict duty to exercise jurisdiction conferred
on them by Congress. Quackenbush v. Allstate Ins.
Co., 517 U.S. 706, 716, 116 S.Ct. 1712, 1720, 135
L.Ed.2d 1 (1996). However, federal courts are courts of
limited jurisdiction and possess only that power authorized
by Constitution and statute. Kokkonen v. Guardian Life
Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673,
1675, 128 L.Ed.2d 391 (1994); Burns v. Windsor Insurance
Co., 31 F.3d 1092, 1095 (1994). Defendant, as the party
removing this action, have the burden of establishing federal
jurisdiction. See Leonard v. Enterprise Rent a Car,
279 F.3d 967, 972 (11th Cir. 2002) (citing Williams v.
Best Buy Co., 269 F.3d 1316, 1318 (11th Cir. 2001)).
Further, the federal removal statutes must be construed
narrowly and doubts about removal must be resolved in favor
of remand. Allen v. Christenberry, 327 F.3d 1290,
1293 (11th Cir. 2003) (citing Diaz v. Sheppard, 85
F.3d 1502, 1505 (11th Cir. 1996)); Burns, 31 F.3d at
1095 (citations omitted).
complete diversity is lacking “on the face of the
pleadings, ” a defendant may remove “an
action…if the joinder of the non-diverse
party…[was] fraudulent.” Triggs v. John
Crump Toyota, Inc., 154 F.3d 1284, 1287 (citing
Tapscott v. MS Dealer Service Corp., 77 F.3d 1353,
1355 (11th Cir. 1996)). The action is removable because
“[w]hen a plaintiff names a non-diverse defendant
solely in order to defeat federal diversity jurisdiction, the
district court must ignore the presence of the non-diverse
defendant.” Henderson v. Wash. Nat'l Ins.
Co., 454 F.3d 1278, 1281 (11th Cir. 2006).
“Fraudulent joinder is a judicially created doctrine
that provides an exception to the requirement of complete
diversity.” Triggs, 154 F.3d at 1287. The
Eleventh Circuit has recognized three situations in which
joinder may be deemed fraudulent: (1) when there is no
possibility that the plaintiff can prove a cause of action
against the resident (or non-diverse) defendant; (2) when
there is outright fraud in the plaintiff's pleading of
jurisdictional facts; and (3) when there is no real
connection to the claim and the resident (or non-diverse)
determination of whether a [non-diverse] defendant has been
fraudulently joined must be based upon the plaintiff's
pleadings at the time of removal, supplemented by any
affidavits and deposition transcripts submitted by the
parties.” Legg v. Wyeth, 428 F.3d 1317, 1322
(11th Cir. 2005) (quoting Pacheco de Perez v. AT&T
Co., 139 F.3d 1368, 1380 (11th Cir. 1998)). “The
proceeding appropriate for resolving a claim of fraudulent
joinder is similar to that used for ruling on a
motion for summary judgment under [Federal Rule of Civil
Procedure 56].” Id. at 1322-23 (emphasis
added). Accordingly, all contested issues of substantive fact
and any uncertainties as to the current state of the law must
be resolved in the plaintiff's favor. See id. at
1323; see also Cabalceta v. Standard Fruit Co., 883
F.2d 1553, 1561 (11th Cir. 1989).
“[w]hile the proceeding appropriate for resolving a
claim of fraudulent joinder is similar to that used for
ruling on a motion for summary judgment . . ., the
jurisdictional inquiry must not subsume substantive
determination.” Crowe v. Coleman, 113 F.3d
1536, 1538 (11th Cir. 1997) (internal quotations omitted).
“In a fraudulent joinder inquiry, ‘federal courts
are not to weigh the merits of a plaintiff's claim beyond
determining whether it is an arguable one under state
law.'” Pacheco de Perez, 139 F.3d at
1380-1381 (quoting Crowe, 113 F.3d at 1538).
Discussion and Analysis
this lawsuit began in state court, the court's
jurisdiction depends on the propriety of removal. Diversity
jurisdiction exists where there is diversity of citizenship
and the amount in controversy exceeds $ 75, 000, exclusive of
interest and costs. 28 U.S.C. § 1332. Section 1446(b)
then answers the question of when an action is removable,
setting forth the preconditions for removal in two types of
cases: (1) those removable on the basis of an initial
pleading; and (2) those that later become removable on the
basis of “a copy of an amended pleading, motion, order
or other paper.” Normally, the notice of removal must
“be filed within thirty days after ...