Dickinson v. Terminix Int'l Co.

• Decision Date: 24 April 2014
• Docket Number: Civil Action No. 13–0631–CG–N.
• Citation: 16 F.Supp.3d 1360
• Parties: Scott and Melissa DICKINSON, Plaintiffs, v. The TERMINIX INTERNATIONAL COMPANY, LP, et al., Defendants.
• Court: U.S. District Court — Southern District of Alabama

16 F.Supp.3d 1360

Scott and Melissa DICKINSON, Plaintiffs

v.The TERMINIX INTERNATIONAL COMPANY, LP, et al., Defendants.

Civil Action No. 13–0631–CG–N.

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

Signed April 24, 2014.

Taylor Clark Powell, Thomas F. Campbell, Birmingham, AL, for Plaintiffs.

J. Burruss Riis, Hand Arendall, L.L.C., Mobile, AL, for Defendants.

ORDER

CALLIE V.S. GRANADE, District Judge.

After due and proper consideration of all portions of the issues raised and a de novo determination of those portions of the recommendation to which objection is made, the recommendation of the Magistrate Judge made under 28 U.S.C. § 636(b)(1)(B) and dated March 14, 2014 is ADOPTED as the opinion of this Court.

It is ORDERED that the plaintiff's motion to remand is GRANTED, and as such, this case is REMANDED to the Circuit Court of Mobile County, Alabama, from whence it came.

REPORT AND RECOMMENDATION

KATHERINE P. NELSON, United States Magistrate Judge.

In this case, removed from the Circuit Court of Mobile County, Alabama on December 20, 2013 (see Doc. 1), the plaintiffs have filed a motion to remand (Doc. 10), which has been referred to the undersigned United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2, for entry of a report and recommendation. Consistent with the submission order (Doc. 11), the defendants have filed an opposition (Doc. 13), and the plaintiffs have filed a reply in support of remand (Doc. 16). After consideration of the pleadings, and for the reasons explained herein, it is RECOMMENDED that the motion to remand (Doc. 10) be GRANTED and that this case be REMANDED to the Circuit Court of Mobile County, Alabama.

I. Discussion¹

A. The defendants must prove that this Court has subject-matter jurisdiction, which in the context of this case means they must prove that the plaintiffs have joined a resident defendant solely to defeat the Court's jurisdiction.

“Any civil case filed in state court may be removed by the defendant to federal court if the case could have been brought originally in federal court.” Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1356 (11th Cir.1996) (citing 28 U.S.C. § 1441(a) ), abrogated on other grounds by Cohen v. Office Depot, Inc., 204 F.3d 1069 (11th Cir.2000) ; accord City of Vestavia Hills v. General Fid. Ins. Co., 676 F.3d 1310, 1313 n. 1 (11th Cir.2012). And a federal court may exercise diversity jurisdiction over all civil actions where the amount in controversy exceeds $75,000, exclusive of interest and costs, and the action is between citizens of different states. 28 U.S.C. § 1332(a)(1). Nevertheless, “[b]ecause removal jurisdiction raises significant federalism concerns, federal courts are directed to construe removal statutes strictly.... Indeed, all doubts about jurisdiction should be resolved in favor of remand to state court.” University of S. Ala. v. American Tobacco Co., 168 F.3d 405, 411 (11th Cir.1999) ; cf. D.M.C. Enters. Inc. v. Best McAllister, LLC, Civil Action No. 10–00153–CB–N, 2010 WL 3039477, at *2 (S.D.Ala. Aug. 4, 2010) (“Because it is conferred by statute, the right of removal is strictly construed to limit federal jurisdiction.” (citing Diaz v. Sheppard, 85 F.3d 1502, 1505 (11th Cir.1996) )); White v. Wells Fargo Home Mortgage, Civil Action No. 1:11–cv–408–MHT, 2011 WL 3666613, at *3 (M.D.Ala. Aug. 22, 2011) (a federal court is “obligat[ed] to narrowly construe removal statutes”; this obligation necessarily “requires that uncertainties be ‘resolved in favor of remand’ ” (quoting Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir.1994) )).

Therefore, the defendants must establish the propriety of removal under section 1441 and, as such, “bear[ ] the burden of establishing the existence of federal jurisdiction[,]” Brown v. Kabco Builders, Inc., Civil Action 07–0099–WS–C, 2007 WL 841690, at *1 (S.D.Ala. Mar. 15, 2007) (citing Leonard v. Enterprise Rent a Car, 279 F.3d 967, 972 (11th Cir.2002) ), which requires that they both establish complete diversity—that all plaintiffs are diverse from all defendants, Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir.1998) (citation omitted); accord Auto–Owners Ins. Co. v. Great Am. Ins. Co., 479 Fed.Appx. 228, 232 n. 3 (11th Cir.2012) (per curiam)—and show that the amount in controversy more likely than not exceeds the $75,000 jurisdictional minimum, see Fitzgerald v. Besam Automated Entrance Sys., 282 F.Supp.2d 1309, 1314 (S.D.Ala.2003).

Here, the defendants have made a showing sufficient to establish—and the plaintiffs do not contest—that the amount in controversy exceeds the jurisdictional minimum (see, e.g., Doc. 1, ¶ 13). The sole task for the Court, then, is to determine whether the non-diverse (or resident) defendant, Ken Stroh, was fraudulently joined to defeat this Court's jurisdiction. That is, the defendants can establish complete diversity of citizenship by proving that Stroh, a resident of the same state as the plaintiffs (see Doc. 1 at 10, compl., ¶ 2 (Stroh “is an adult resident citizen of Mobile County, Alabama”)), has been joined solely to defeat federal diversity jurisdiction. See Tapscott, 77 F.3d at 1359 (“An action may nevertheless be removable if the joinder of non-diverse parties is fraudulent.”); Sellers v. Foremost Ins. Co., 924 F.Supp. 1116, 1117 (M.D.Ala.1996) (“The citizenship of a resident defendant fraudulently joined should not be considered by a court for the purpose of determining diversity jurisdiction.”).

The defendants' burden in this regard is “a heavy one.” See Pacheco de Perez v.

AT & T Co.,

139 F.3d 1368, 1380 (11th Cir.1998).

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. The plaintiff is said to have effectuated a “fraudulent joinder,” see Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir.1997), and a federal court may appropriately assert its removal diversity jurisdiction over the case. A defendant seeking to prove that a co-defendant was fraudulently joined must demonstrate either that: “(1) there is no possibility the plaintiff can establish a cause of action against the [non-diverse or] resident defendant; or (2) the plaintiff has fraudulently pled jurisdictional facts to bring the resident defendant into state court.” Id. The defendant must make such a showing by clear and convincing evidence. See Parks v. N.Y. Times Co., 308 F.2d 474, 478 (5th Cir.1962).

Henderson v. Washington National Insurance Co., 454 F.3d 1278, 1281 (11th Cir.2006) (footnotes omitted); accord Taylor Newman Cabinetry, Inc. v. Classic Soft Trim, Inc., 436 Fed.Appx. 888, 890 (11th Cir.2011) (per curiam); Roberson v. BancorpSouth Bank, Inc., Civil Action No. 12716CGN, 2013 WL 2896840, at *3 (S.D.Ala. June 13, 2013) (same).

In the context of fraudulent joinder, the Court is required to both evaluate the parties' factual allegations and submissions in the light most favorable to the plaintiff and resolve all uncertainties about state substantive law in favor of the plaintiff. See Crowe, 113 F.3d at 1538. And although the determination of whether a non-diverse defendant has been fraudulently joined “should be made based upon the plaintiff's pleadings at the time of removal,” Cabalceta v. Standard Fruit Co., 883 F.2d 1553, 1561 (11th Cir.1989) (citing Pullman Co. v. Jenkins, 305 U.S. 534, 537, 59 S.Ct. 347, 83 L.Ed. 334 (1939) ), a district court “can consider any submitted affidavits and/or deposition transcripts,” id. (citing Coker v. Amoco Oil Co., 709 F.2d 1433, 1440 (11th Cir.1983) (“Both parties may submit affidavits and deposition transcripts.” (citing, in turn, B., Inc. v. Miller Brewing Co., 663 F.2d 545, 550 (5th Cir. Unit A Dec.1981) )), superseded by statute on other grounds as stated in Georgetown Manor, Inc. v. Ethan Allen, Inc., 991 F.2d 1533 (11th Cir.1993) ); see also Abrams v. Olin Corp., 248 F.R.D. 283, 291 (S.D.Ala.2007) (The “fraudulent joinder analysis is not confined to the pleadings, but may also encompass ‘any affidavits and deposition transcripts submitted by the parties.’ ” (quoting Legg v. Wyeth, 428 F.3d 1317, 1322 (11th Cir.2005) )).

Given these parameters, some courts have analogized the fraudulent joinder inquiry to that applied to a motion for summary judgment. See Crowe, 113 F.3d at 1538. Importantly,

[h]owever, while the analysis is similar, “the jurisdictional inquiry ‘must not subsume substantive determination’ ... [and w]hen considering a motion for remand, federal courts are not to weigh the merits of a plaintiff's claim beyond determining whether it is an arguable one under state law. ” Crowe, 113 F.3d at 1538. This court's authority to assess the “ultimate merit of the plaintiff's claims must be limited to checking for obviously fraudulent or frivolous claims” and it should not attempt to determine “the merits of cases that do not appear readily to be frivolous or fraudulent.” Id. at 1541–42.

Atwood v. Weyerhaeuser USA, Inc., Civil Action No. 09–0379–CG–N, 2010 WL 749337, at *5 (S.D.Ala. Feb. 26, 2010) (Granade, J.) (emphasis added); see id. at *6 (describing the inquiry into the plaintiffs' claims for purposes of fraudulent joinder as “basic”—“The court must merely decide whether the defendants have shown by clear and convincing evidence that no Alabama court could find plaintiffs' complaint[, as supplemented by their] affidavit[,] sufficient to invoke claims for nuisance, negligence, wantonness and trespass.”); Triggs, 154 F.3d at 1287 (“The plaintiff need not have a winning case against the allegedly fraudulent defendant; he need only have a possibility of stating a valid cause of action in order for the joinder to be legitimate.” (emphasis in original)); Burden v. General Dynamics Corp., 60 F.3d 213, 217 (5th Cir.1995) (“[I]n testing for fraudulent joinder the district court in its discretion may ‘pierce...