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Zirlott v. Discountramps.Com, LLC

United States District Court, S.D. Alabama, Southern Division

July 3, 2019

REGINA ZIRLOTT, etc., et al., Plaintiffs,
DISCOUNTRAMPS.COM, LLC, et al., Defendants.



         This matter is before the Court on the plaintiffs' motion to remand. (Doc. 16). The parties have filed briefs and evidentiary materials in support of their respective positions, (Docs. 16, 18, 19, 21, 23, 24, 28), and the motion is ripe for resolution. After careful consideration, the Court concludes the motion to remand is due to be granted.


         According to the complaint, (Doc. 1-2 at 1-22), the plaintiffs' decedent (“Matthew”) was employed by one defendant (“Cypress”) and assigned to work on the premises of another (“Metals”). Matthew died from injuries sustained when he fell while descending a ladder (“the Ladder”) from a trailer flat bed, where he was unloading steel. The Ladder was a 60-inch trailer rub rail portable ladder designed, manufactured and distributed by a third defendant (“HD Ramps”), which is a wholly owned subsidiary of a fourth defendant (“DiscountRamps”). HD Ramps and/or DiscountRamps sold the Ladder to the final defendant (“Southern”), which in turn sold the Ladder to Metals.

         According to the complaint, HD Ramps manufactures trailer rub rail portable ladders in lengths of 48 inches, 60 inches and 72 inches. The 48-inch and 72-inch ladders include a lock through opening and fastener that secure the ladder to the rub rail of a truck trailer. The 60-inch version, however, contains no such mechanism, and its absence contributed to the Ladder's instability and disengagement from the subject rub rail, leading to Matthew's fall and death.

         The complaint asserts the following causes of action: (1) AEMLD - design and manufacturing defect; (2) AEMLD - failure to warn; (3) negligence; (4) wantonness; (5) outrage; and (6) worker's compensation.

         The defendants removed the action on the basis of diversity. The parties agree that the plaintiffs are citizens of Alabama and that DiscountRamps, HD Ramps and Metals are not. The parties also agree that Southern and Cypress share the plaintiffs' Alabama citizenship. Whether their non-diverse citizenship defeats removal depends on whether they were fraudulently joined.


         “Fraudulent joinder is a judicially created doctrine that provides an exception to the requirement of complete diversity.” Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998). As applicable here, the removing defendant must show “by clear and convincing evidence” that “there is no possibility the plaintiff can establish a cause of action against the resident defendant.” Henderson v. Washington National Insurance Co., 454 F.3d 1278, 1281 (11th Cir. 2006). “If there is even a possibility that a state court would find that the complaint states a cause of action against any one of the resident defendants, the federal court must find that the joinder was proper and remand the case to the state court.” Stillwell v. Allstate Insurance Co., 663 F.3d 1329, 1333 (11th Cir. 2011) (internal quotes omitted). The possibility “must be reasonable, not merely theoretical.” Legg v. Wyeth, 428 F.3d 1317, 1325 n.5 (11th Cir. 2005) (internal quotes omitted). “In making its determination, the district court must evaluate factual allegations in the light most favorable to the plaintiff and resolve any uncertainties about the applicable law in the plaintiff's favor.” Pacheco de Perez v. AT&T Co., 139 F.3d 1368, 1380 (11th Cir. 1998).

         Because remand is required if either Southern or Cypress was not fraudulently joined, the Court focuses on Southern. Southern is named as a defendant to the complaint's first four causes of action. The plaintiffs effectively concede they lack any viable claim against Southern under their AEMLD counts, an appropriate concession in light of Alabama Code § 6-5-521(b) and the declaration of Southern's vice president. (Doc. 1-1). They insist, however, that their negligence and wantonness claims against Southern fall within the provision's savings clause.

It is the intent of this subsection to protect distributors who are merely conduits of a product. This subsection is not intended to protect distributors from independent acts unrelated to the product design or manufacture, such as independent acts of negligence, wantonness, warranty violations, or fraud.

Ala. Code § 6-5-521(b)(4).

         Count Three alleges that, to the extent DiscountRamps, HD Ramps or Southern is determined to be a distributor of the Ladder, such defendant was not a mere conduit but rather committed independent acts or omissions that substantially contributed to Matthew's death. Among the alleged acts of negligence is that of negligently selling the Ladder. (Doc. 1-2 at 15-16). Count Four contains comparable allegations regarding wantonness. (Id. at 17-18).

         The defendants first complain that the allegations of Counts Three and Four are made “collectively” rather than against Southern specifically. (Doc. 21 at 5, 12). Such generality provides no basis for a finding of fraudulent joinder. Ullah v. BAC Home Loans Servicing LP, 538 Fed.Appx. 844, 847 (11th Cir. 2013) (the complaint's allegations defeated fraudulent joinder “although not referring to the non-diverse defendant specifically”) (describing Henderson); see also Crowe v. Coleman, 113 F.3d 1536, 1539 (11th Cir. 1997) (in assessing a removed complaint for fraudulent joinder, “[w]hen multiple defendants ...

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