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Estate of Reynolds v. Proctor & Gamble Distributing, LLC

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

November 20, 2018

THE ESTATE OF WILLIE REYNOLDS, by and through its administrator TAMIKA REYNOLDS, Plaintiff,
v.
THE PROCTOR & GAMBLE DISTRIBUTING, LLC, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          SUSAN RUSS WALKER UNITED STATES MAGISTRATE JUDGE

         This 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.

         I. Background and facts[1]

         Plaintiff 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).

         According 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).

         The 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).

         II. The parties' positions

         In 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.

         Plaintiff 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).

         The 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).

         Plaintiff's 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).

         Additionally, 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 ¶¶ 5-6).

         In 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).

         III. Legal standards

          A. Fraudulent Joinder

         Removal 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. 1993))).

         “The 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 ...


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