United States District Court, M.D. Alabama, Eastern Division
THE ESTATE OF WILLIE REYNOLDS, by and through its administrator TAMIKA REYNOLDS, Plaintiff,
THE PROCTOR & GAMBLE DISTRIBUTING, LLC, et al., Defendants.
MEMORANDUM OPINION AND ORDER
RUSS WALKER UNITED STATES MAGISTRATE JUDGE
matter is before the court on plaintiff's motion to
remand (Doc. 9) and motion for leave to file amended
complaint (Doc. 15), which are opposed by defendants The
Proctor & Gamble Distributing LLC, The Proctor &
Gamble Manufacturing Company, and The Proctor and Gamble
Company (“the Proctor & Gamble defendants”).
This case was initially assigned to the undersigned as
presiding judge, and the parties thereafter consented in
writing to the exercise of final dispositive jurisdiction by
the Magistrate Judge pursuant to 28 U.S.C. § 636(c) and
Federal Rule of Civil Procedure 73(a). (Docs. 23, 24, 25).
The motion to remand and motion for leave to file amended
complaint have been briefed and taken under submission
without oral argument. For the reasons stated herein, the
plaintiff's motion to remand is due to be denied;
however, the plaintiff's motion for leave to file amended
complaint is due to be granted, which will result in remand
of this case.
Background and facts
initiated this suit on November 20, 2017 by filing a
complaint in the Circuit Court of Macon County, Georgia.
(Doc. 2-1). Plaintiff is the personal representative of the
Estate of Willie Reynolds. (Id.). Plaintiff's
complaint alleges, inter alia, that the Proctor
& Gamble defendants design, develop, test, manufacture,
package, label, distribute, and sell Tide Pods and Gain
Flings, which are “single-use laundry packets designed
to be used in domestic washing machines” that contain
“highly concentrated ingredients which can be lethal if
ingested.” (Id. at ¶ ¶ 14-15).
Plaintiff alleges that “[s]ince 2012, it is estimated
that more than 20, 000 humans have been injured by mistakenly
ingesting single-dose laundry packets”; that
“[t]he products resemble candy and are aesthetically
appealing to humans with less than full mental
capacity”; and that “Willie Reynolds, who lacked
full mental capacity, died as the result of ingesting one or
more Gain Flings purchased by Tamika Reynolds from Roses
[Express] in Tuskegee, Alabama.” (Id. at
¶ ¶ 15-16, 20).
to the complaint, “P&G continues to manufacture,
market, and distribute, ” and “Variety
Wholesalers continue to sell[, ] these potentially deadly
candylike products” despite having knowledge of
injuries and deaths caused by single-dose laundry packets.
(Id. at ¶ ¶ 16-18). Plaintiff alleges that
Gain Flings are “defective in their design,
formulation, and packaging” and “ha[ve]
inadequate warnings.” (Id. at ¶ ¶
23-24). Plaintiff further alleges that defendants had a duty
to remove Gain Flings from the marketplace, that defendants
breached that duty by making a conscious decision to continue
selling Gain Flings, and that “[t]he combined
negligence and/or wantonness of all [d]efendants combined to
cause the death of Willie Reynolds.” (Id. at
¶ ¶ 28-30, 40).
Proctor & Gamble defendants answered plaintiff's
complaint on December 20, 2017. (Doc. 2-2). Defendant Variety
Wholesalers, Inc. answered plaintiff's complaint on
December 20, 2017. (Doc. 2-3). Defendant Variety Stores, Inc.
d/b/a Roses Express answered plaintiff's complaint on
December 21, 2017. (Doc. 2-4). Defendant Vera Gardner
answered plaintiff's complaint on December 21, 2017.
(Doc. 2-5). On December 26, 2017, 30 days after the complaint
and summons was served on the last defendant, the Proctor
& Gamble defendants filed their notice of removal (Doc.
2), and Variety Wholesalers, Inc., Variety Stores, Inc. d/b/a
Roses Express and Vera Gardner consented to removal. (Doc.
2-7). Defendants' notice of removal is premised on
diversity jurisdiction. (Doc. 2 at 3-4).
The parties' positions
their notice of removal, the Proctor & Gamble defendants
argue that despite defendant Vera Gardner's citizenship
in Alabama, which would destroy this court's diversity
jurisdiction, the case is nevertheless removable because
plaintiff fraudulently and improperly joined Gardner in an
attempt to defeat diversity and prevent removal of the case
to federal court. (Doc. 2 at 3). The Proctor & Gamble
defendants argue that Gardner is fraudulently joined because
“[p]laintiff cannot possibly recover on the claims
asserted against Gardner.” (Doc. 2 at 5). In support of
their argument, the Proctor & Gamble defendants submit
declarations from defendant Vera Gardner (Doc. 2-8), and G.
Templeton Blackburn II, the vice president and general
counsel for Variety Wholesalers, Inc., (Doc. 2-9), stating
that Gardner neither knew of any risks of injury from Gain
Flings nor did she have any control or input as to whether
they were stocked or sold by Roses Express.
does not dispute the amount in controversy or the timeliness
of defendant's removal. (Doc. 9). Plaintiff argues that
the case is due to be remanded because the court has neither
federal question nor diversity jurisdiction. (Id.).
Plaintiff maintains that Gardner is a properly joined
defendant, that the “[c]omplaint sufficiently alleges
claims of negligence and wantonness against Vera Gardner for
the product placement decisions she made as an employee at
R[oses] [Express], ” and that “[d]efendants have
not met their heavy burden of establishing fraudulent
joinder.” (Id. at 2-4).
Proctor & Gamble defendants argue in response to
plaintiff's motion to remand that they have satisfied
their burden of demonstrating that plaintiff cannot possibly
recover against Gardner through the testimonial evidence set
forth in the declarations by Gardner and Templeton, and that
“[p]laintiff has failed to produce any
evidence that refutes or contradicts the testimony of
Gardner and Blackburn” despite having the opportunity
to do so. (Doc. 13 at 3).
reply to Proctor & Gamble defendants' response
contends that “[a]lthough Defendants present
alternative facts that would not support a claim against
Gardner, the court must resolve all factual disputes in favor
of Plaintiff.” (Doc. 14 at 2). Plaintiff further
maintains that “[d]efendants are prematurely arguing
that their set of facts is accurate” and that
“viewed in the light most favorable to Plaintiff and
accepted as true, ” the factual allegations in the
complaint demonstrate that defendants have not met their
burden of proving fraudulent joinder. (Doc. 14 at 4).
plaintiff has filed a motion for leave to file an amended
complaint which would add Lifestar Response of Alabama, Inc.
d/b/a Care Ambulance (“Lifestar”), another
non-diverse defendant, to her complaint. (See Docs.
15, 15-1). Plaintiff alleges that “[s]ince filing the
Complaint and Removal, Plaintiff received a copy of the
ambulance report, ” which “indicates that
Lifestar failed to follow Alabama Paramedic Protocols while
providing care to Willie Reynolds, ” and she therefore
seeks to amend her complaint to include an Alabama Medical
Liability Act Claim against Lifestar. (Doc. 15 ¶¶
opposing plaintiff's motion for leave to file amended
complaint, the Proctor & Gamble defendants argue that
“it can be readily inferred that amendment is being
sought for one purpose: to destroy diversity jurisdiction and
thus prompt remand of this case, ” and it should
therefore be denied. (Doc. 21 at 5).
A. Fraudulent Joinder
premised on diversity jurisdiction under 28 U.S.C. §
1332(a) requires complete diversity of citizenship.
Nevertheless, removal may be permitted if there is a lack of
complete diversity on the face of the pleadings if the
non-diverse defendant is fraudulently joined. Triggs v.
John Crump Toyota, 154 F.3d 1284, 1287 (11th Cir.
1998)(citing Tapscott v. MS Dealer Service Corp., 77
F.3d 1353, 1359 (11th Cir. 1996)). The Eleventh Circuit has
recognized three circumstances in which joinder is deemed
fraudulent: (1) when there is no possibility that the
plaintiff can prove a cause of action against the non-diverse
defendant; (2) when there is outright fraud in the
plaintiff's pleading of jurisdictional facts; and (3)
where a diverse defendant is joined with a non- diverse
defendant as to whom there is no joint, several, or
alternative liability and where the claim against the diverse
defendant has no real connection to the claim against the
non-diverse defendant. See Id. (citing
Tapscott, 77 F.3d at 1353; Coker v. Amoco Oil
Co., 709 F.2d 1433, 1440 (11th Cir. 1983)(superseded by
statute on other grounds as stated in Georgetown Manor
Inc. v. Ethan Allen, Inc., 991 F.2d 1533(11th Cir.
determination of whether a resident 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.” De Perez v. AT&T Co., 139 F.3d
1368, 1380 (11th Cir. 1998)(citing Cabalceta v. Standard
Fruit Co., 883 F.2d 1553, 1562 (11th Cir. 1989)). And
“all that is required to defeat a fraudulent joinder
claim is a ‘possibility of stating a valid cause ...