United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
MADELINE HUGHES HAIKALA, UNITED STATES DISTRICT JUDGE
Introduction and Procedural History
15, 2018, plaintiff Ralph Calvert filed this premises
liability action against defendants XTRA Lease, LLC and
Kristie Lahue in the Circuit Court of Jefferson County,
Alabama. (Doc. 1-1, p. 3). Mr. Calvert sued Ms. Lahue in her
capacity as the branch manager of XTRA's operations in
Birmingham. (Doc. 1-1, p. 4, ¶ 5). The case concerns an
accident that occurred on XTRA's property in May 2017.
Calvert contends that on May 4, 2017, he visited XTRA's
premises on behalf of his employer, Birmingham Mobile Fleet
Service, to repair one of XTRA's tractor/trailer units.
(Doc. 1-1, p. 4, ¶ 5). Mr. Calvert used a rolling
staircase to access higher parts of the tractor. (Doc. 1-1,
p. 4, ¶ 5). In his complaint, Mr. Calvert alleges that
“XTRA provided” the rolling staircase. (Doc. 1-1,
p. 4, ¶ 5). According to Mr. Calvert, while he was on
the staircase, the staircase's wheels unexpectedly
started to roll, and he fell and suffered “significant
permanent injuries.” (Doc. 1-1, p. 4, ¶¶
5-6). Mr. Calvert contends that the staircase was unsafe
because it “was not equipped with proper safety devices
to prevent it from rolling during use, ” and the
“[d]efendants failed to inform” him “that
the staircase was not safe for use.” (Doc. 1-1, p. 4,
19, 2018, the defendants removed the case on the basis of
diversity jurisdiction under 28 U.S.C. § 1332(a). (Doc.
1). On August 17, 2018, Mr. Calvert moved to remand. (Doc.
10). For the reasons explained below, the Court denies Mr.
federal jurisdiction to exist under 28 U.S.C. § 1332(a),
there must be complete diversity of citizenship, and the
amount in controversy must exceed $75, 000.00, exclusive of
interest and costs. 28 U.S.C. § 1332(a);
Underwriters at Lloyd's, London v.
Osting-Schwinn, 613 F.3d 1079, 1085 (11th Cir. 2012).
“[D]iversity jurisdiction is determined at the time of
filing the complaint or, if the case has been removed, at the
time of removal.” PTA-FLA v. ZTE USA, Inc.,
844 F.3d 1299, 1306 (11th Cir. 2016). Generally, when
jurisdiction is lacking because, for example, a defendant is
a citizen of the state in which the plaintiff filed suit,
then a district court must remand the action to state court.
“However, if a defendant shows that ‘there is no
possibility the plaintiff can establish a cause of action
against the resident defendant,' then the plaintiff is
said to have fraudulently joined the non-diverse defendant.
In that situation, the federal court must dismiss the
non-diverse defendant and deny any motion to remand the
matter back to state court.” Florence v. Crescent
Resources, Inc., 484 F.3d 1293, 1297 (11th Cir. 2007)
(quoting Henderson v. Washington Nat. Ins. Co., 454
F.3d 1278, 1281 (11th Cir. 2006)) (footnote omitted);
Henderson, 454 F.3d at 1281 (“When 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 and deny any
motion to remand the matter back to state court.”).
motion to remand, Mr. Calvert argues that the parties are not
completely diverse because both he and Ms. Lahue, the
individual defendant, are citizens of Alabama. (Doc. 10, p.
XRTRA urges the Court to disregard Ms. Lahue's
citizenship. XTRA argues that Mr. Calvert joined Ms. Lahue as
a defendant for the sole purpose of defeating federal
jurisdiction. (Doc. 1, p. 4).
federal court may disregard the citizenship of a defendant
for purposes of diversity jurisdiction when “(1) there
is no possibility the plaintiff can establish a cause of
action against the resident defendant; or (2) the plaintiff
has fraudulently pled jurisdictional facts to bring the
resident defendant into state court.” Crowe v.
Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997) (citation
omitted). The removing party has the burden of proving
fraudulent joinder. 113 F.3d at 1538. “The defendant
must make such a showing by clear and convincing
evidence.” Henderson, 454 F.3d at 1281. XTRA
has established by clear and convincing evidence that Mr.
Calvert pleaded incomplete and misleading facts and that Mr.
Calvert cannot establish a cause of action against the
resident defendant under Alabama law.
Calvert asserts three counts in his complaint: negligence,
wantonness, and negligent hiring, training, and supervision.
(Doc. 1-1, pp. 4-6). “To prevail on his negligence and
wantonness claims, [Mr. Calvert] must show, among other
things, that [XTRA] owed him a duty. See Kendrick v.
Alabama Power Co., 601 So.2d 912, 914 (Ala.
1992).” Calloway v. PPG Industries, Inc.,
155 Fed.Appx. 450, 452 (11th Cir. 2005). The scope of the
duty that XTRA owed to Mr. Calvert hinges on the nature of
the relationship between Mr. Calvert's employer, BMFS,
and XTRA, the owner of the premises where Mr. Calvert was
Alabama Supreme Court recently reiterated the contours of a
premises owner's duty to an employee of an independent
contractor under Alabama law, stating:
A premises owner's legal duty to a party injured by a
condition of the premises depends upon the legal status of
the injured party. Galaxy Cable, Inc. v. Davis, 58
So.3d 93, 98 (Ala. 2010). In this case, Benito Perez was on
SAB's premises to confer a material or commercial benefit
to SAB. Accordingly, the relationship between SAB, the
premises owner, and Benito Perez, a roofer, is that of
invitor/invitee. See Ex parte Mountain Top Indoor Flea
Mkt., Inc., 699 So.2d 158, 161 (Ala. 1997) (“
‘In order to be considered an invitee, the plaintiff
must have been on the premises for some purpose that
materially or commercially benefited the owner or occupier of
the premises.' ” (quoting Sisk v. Heil
Co., 639 So.2d 1363, 1365 (Ala. 1994))).
Alabama law is well-settled regarding the scope of the duty
an invitor owes a business invitee. “The owner of
premises owes a duty to business invitees to use reasonable
care and diligence to keep the premises in a safe condition,
or, if the premises are in a dangerous condition, to give
sufficient warning so that, by the use of ordinary care,
the danger can be avoided.” Armstrong v.
Georgia Marble Co., 575 So.2d 1051, 1053 (Ala. 1991)
(emphasis added). We have said that a premises owner's
duty to warn extends only to “hidden defects and
dangers that are known to [the premises owner], but that are
unknown or hidden to the invitee.” Raspilair v.
Bruno's Food Stores, Inc., 514 So.2d 1022, 1024
(Ala. 1987). More specifically, we have explained that a
plaintiff must establish “ ‘(1) that the defect
or danger was “hidden”; (2) that it was
“known to the owner”; and (3) that it was
“neither known to the contractor, nor such as he
ought to know.”' ” Roberts v. NASCO
Equip. Co., 986 So.2d 379, 384 (Ala. 2007) (quoting
Ex parte Meadowcraft Indus., Inc., 817 So.2d 702,
706 (Ala. 2001), quoting in turn Glenn v. United States
Steel Corp., 423 So.2d 152, 154 (Ala. 1982)).
“In discussing a premises owner's liability towards
an independent contractor, this Court has recognized that an
‘ “ ‘owner of premises is not responsible
to an independent contractor for injury from defects or
dangers which the ...