United States District Court, M.D. Alabama, Eastern Division
JANE LIPHAM d/b/a JANE LIPHAM FARM AND LITTLE MAN FARM, Plaintiff,
KOCH FARMS OF ASHLAND, LLC, Defendants.
MEMORANDUM OPINION AND ORDER
A. BAKER, UNITED STATES MAGISTRATE JUDGE.
Jane Lipham d/b/a Jane Lipham Farm and Little Man Farm, sues
Defendant, Koch Farms of Ashland, LLC, ("Koch
Farms"), and numerous fictitious Defendants for damages
resulting from the infestation of Plaintiff s farm by bed
bugs introduced to the farm by Defendants. In a six-count
complaint filed in the Circuit Court of Randolph County,
Alabama, Plaintiff alleges claims for breach of contract,
fraud, and negligence. (Doc. 1-1). Defendant Koch Farms
removed the case to this court. (Doc. 1). Pending before the
court is Koch Farms' Motion to Dismiss Plaintiffs
Complaint (Doc. 4). Also pending are Plaintiffs Motion for
Leave to Amend and Clarify Complaint (Doc. 6) and Plaintiffs
Motion to Remand (Doc. 7). The parties have had the
opportunity to fully brief the motions and the court heard
argument on September 25, 2018. For the reasons that
follow, Plaintiffs Motion for Leave to Amend and Clarify
Complaint (Doc. 6) is granted, Defendant Koch Farm's
Motion to Dismiss Plaintiffs Complaint (Doc. 4) is denied
withont prejudice, and Plaintiffs Motion to Remand (Doc. 7)
matter was removed to this court pursuant to 28 U.S.C.
§§ 1332(a), 1441, and 1446. (Doc. 1). The
jurisdiction of the court is invoked based upon diversity of
citizenship and an amount in controversy in excess of $75,
000. Id. ¶ 7. Plaintiff contests this
court's diversity jurisdiction contending diversity does
not exist among the parties because the individual
Defendants, Kenny Green ("Green"), Michelle Yates
Davidson ("Davidson"), Tommy Rushing
("Rushing"), and Pat Fagan ("Fagan"), who
were named in the complaint, but inadvertently not included
in the case caption, are Alabama citizens and, therefore,
Background and Statement of Facts
18, 2018, Plaintiff filed a civil complaint in the Circuit
Court of Randolph County, Alabama. (Doc. 1-1). The complaint,
sounding exclusively in state law, alleges claims for breach
of contract, fraud, and negligence against Defendant Koch
Farms of Ashland, LLC. Id. at 6-14. Additionally,
Plaintiff names fictitious parties A, B, C, D, E, and F,
including "the person, firm or corporation who provided
chicken catching services at Plaintiff s farm."
Id. at 1. On July 12, 2018, Koch Farms removed the
case to the United States District Court for the Middle
District of Alabama, asserting diversity jurisdiction
pursuant to 28 U.S.C. § 1332. (Doc. 1).
complaint, Plaintiff alleges she has a poultry farm located
near Randolph County, Alabama, that consists of six breeder
hen houses where she has grown breeder hens and produced eggs
for Koch Farms. (Doc. 1-1, ¶ 10). In late 2009 or early
2010, Plaintiffs chickens were being picked up and caught by
Koch Farms at which time cages brought by Koch Farms that
were infested with bed bugs were placed in one of Plaintiffs
chicken houses. Id. ¶ 11. Plaintiff observed
the cages being placed on the floor and bed bugs spreading
from the cage. Id. Prior to the introduction of the
bed bugs by Koch Farms, Plaintiff did not have any bed bugs
located on her farm. Id. ¶ 12. Plaintiff
notified her service representative Fagan, who shortly
thereafter was replaced by Davidson. Id. ¶ 13.
Davidson took a sample of the bed bugs and represented to
Plaintiff that she was taking the bed bugs to Auburn
University for analysis so they could be treated and
eradicated from Plaintiffs farm. Id. ¶ 14. In
November 2014, Plaintiff learned that Davidson never took the
bed bugs to Auburn University. Id. ¶ 15.
infestation of Plaintiff s farm by the bed bugs continued to
spread and grow. Id. ¶ 16. Plaintiff s service
representatives gave her chemicals to treat the bed bugs and
directed her how to use the chemicals. Id. Since the
infestation of bed bugs began on her farm, Plaintiff was told
by Koch Farms, Fagan, Davidson, Green, and Rushing that Koch
Farms would continue to supply her with breeder hens provided
she continued to use the chemicals as directed. Id.
chicken houses have at all times been classified as
"Class A" houses, and she invested a significant
amount of money to update them to maintain her "Class
A" status at the insistence of Koch Farms. Id.
¶¶ 18-19. After Koch Farms completed the catch of
Plaintiff s breeder hens in September 2017, Rushing and Green
came to Plaintiffs farm to discuss the bed bug problem and
advised Plaintiff and her husband that there was nothing
further that they could do regarding the infestation.
Id. ¶¶ 20-21. Although following the
meeting Green told Plaintiff to get ready for their new batch
of chickens, Plaintiff received a letter from Koch Farms in
October 2017 stating no new chickens will be sent until the
bed bug infestation is eradicated at Plaintiffs expense.
Id. ¶¶ 22-24. The flock to flock breeder
agreement between Plaintiff and Koch Farms provides that Koch
Farms will supply "all feed, medication and sanitation
products necessary to raise, develop, and maintain the
breeder flock." Id. ¶ 27. The last flock
to flock breeder contract entered into between the parties
was November 22, 2016, with the prior agreements containing
similar terms. Id. ¶¶ 26-27'.
alleges that between 2012 and 2017 her production pay from
Koch Farms has decreased significantly due to the bed bug
infestation. Id. ¶ 25. Since being dropped by
Koch Farm as egg producers in October 2017, Plaintiff has
been unable to contract with any other chicken company due to
the bed bug infestation. Id. ¶ 28.
filed suit in the Circuit Court of Randolph County, Alabama,
alleging state law claims of breach of contract (Counts I,
II), fraud (Counts III, IV, V), and negligence (Count VI)
against Defendants. (Doc. 1-1). The complaint caption names
as Defendants Koch Farms and various fictitious persons or
entities, see Id. at 1, but the prayers for relief
in Counts III and IV also seek relief against the individuals
Fagan, Green, Davidson, and Rushing, see Id. at
11-12. Plaintiffs Complaint alleges Green, Davidson and
Rushing are Alabama resident citizens. Id.
Farms moves to dismiss the Plaintiff s complaint. (Doc. 4).
It argues that her breach of contract claims are barred by
Alabama's six-year statute of limitations. As for the
tort claims, Koch Farms alleges Plaintiff does not plead her
fraud claims with specificity to satisfy the particularity
requirements of Rule 9(b), and in any event, her tort claims
are actually mislabeled contract claims. (Doc. 4).
filed a motion for leave to amend and clarify her complaint.
(Doc. 6). She alleges that the individual Defendants were
inadvertently left out of the case caption, but that she
clearly intended to sue them as they are specifically
referenced in the complaint and included in the prayers for
relief in multiple counts. (Doc. 6). When the citizenship of
the individual Defendants is considered, diversity does not
exist, and therefore Plaintiff also moves to remand. (Doc.