FILED 

U .S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 October 25, 2005 

 THOMAS K. KAHN 

 CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 04-13489

________________________

D. C. Docket No. 04-00435 CV-S-NE

CARL LEGG,

DOROTHY LEGG,

Plaintiffs-Appellees,

versus

WYETH, f.k.a. American Home Products Corporation,

WYETH PHARMACEUTICALS, INC.,

f.k.a. Wyeth-Ayerst Labs, Inc.,

Defendants-Appellants.

________________________

Appeal from the United States District Court

for the Northern District of Alabama

_________________________

(October 25, 2005)

Before EDMONDSON, Chief Judge, BIRCH and COX, Circuit Judges.

COX, Circuit Judge:
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Plaintiffs, Dorothy and Carl Legg (the “Leggs”), filed a seven-count complaint

in an Alabama state court against several defendants, including some Wyeth entities,

Indevus Pharmaceuticals, Inc., and three Wyeth sales representatives. Wyeth

removed this case to federal court, contending that the Plaintiffs fraudulently joined

three of Wyeth’s sales representatives as defendants in an effort to defeat federal

diversity jurisdiction. On the Plaintiffs’ motion, the court remanded the case, and

ordered that Wyeth pay the Plaintiffs’ attorneys’ fees and costs under 28 U.S.C. §

1447(c) as Wyeth’s removal had been “improper.” (R.2-24 at 2.) Wyeth appeals the

district court’s order awarding attorneys’fees and costs to the Plaintiffs. We reverse.

I. BACKGROUND & PROCEDURAL HISTORY

Carl and Dorothy Legg, citizens of Alabama, brought this action in the Circuit

Court of Madison County, Alabama against Wyeth, a citizen of Delaware and New

Jersey, Indevus Pharmaceuticals, Inc., a citizen of Delaware and Massachusetts, and

three Wyeth sales representatives: Stacy Stubblefield, Michael Sullivan, and Betsy

Weaver. Sullivan is alleged to be a citizen of Georgia; Stubblefield and Weaver are

alleged to be citizens of Alabama. Carl Legg contends he took Wyeth’s anti-obesity

drug Redux and, as a result, developed valvular heart disease. Dorothy Legg claims

loss of consortium. 
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Wyeth removed the matter to the United States District Court for the Northern

District of Alabama. Wyeth alleged that federal jurisdiction was proper under 28

U.S.C. § 1332 (diversity jurisdiction), and that the Leggs fraudulently joined three

sales representatives to destroy diversity. Wyeth attached affidavits of the sales

representatives in support of its contention that the sales representatives were

fraudulently joined. Wyeth then moved to transfer the case to the United States

District Court for the Eastern District of Pennsylvania for consolidation with similar

cases pending before the Multi-District Litigation Panel. Before reviewing that

motion, the district court granted the Leggs’s motion to remand, concluding that

diversity did not exist. The court found that the sales representatives were not

fraudulently joined because there was a “possibility” that the Leggs could prevail in

their claims against them. The court reached this conclusion on the face of the

complaint, concluding that it could not consider the affidavits provided by Wyeth.

The court also concluded that the Leggs stated a possible cause of action for innocent

or negligent misrepresentation against Betsy Weaver, even if her affidavit was taken

as true. In a separate order, the district court granted the Leggs attorneys’ fees and

costs in the amount of $1,982.49. Wyeth appeals the grant of attorneys’ fees and

costs.
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II. STANDARD OF REVIEW

We may review the merits of a remand order in considering whether the district

court abused its discretion by awarding attorneys’ fees and costs under 28 U.S.C. §

1447(c). Fowler v. Safeco Ins. Co. of Am., 915 F.2d 616, 617 (11th Cir. 1990).

While 28 U.S.C. § 1447(d) bars our review of a remand such as this one based on lack

of subject matter jurisdiction, the statute does not “exclude the district court’s

assessment of costs from appellate review.” Id. at 617. As the Fifth Circuit has

explained, “[w]hile we may not review the decision to remand itself, we must, as part

of our examination of the award of fees, consider the objective validity of the

removing party’s efforts, at the time that party attempted to remove the case.”

Hornbuckle v. State Farm Lloyds, 385 F.3d 538, 541 (5th Cir. 2004). We review the

district court’s award of attorneys’ fees and costs for an abuse of discretion. Fowler,

915 F.2d at 617. An error of law is an abuse of discretion. Wexler v. Lepore, 385

F.3d 1336, 1338 (11th Cir. 2004). Therefore, an award of attorneys’ fees based on

a legally erroneous remand order constitutes an abuse of discretion. 

III. CONTENTIONS OF THE PARTIES

Wyeth contends on appeal that the district court erred in concluding that

Wyeth’s removal was improper, and therefore that no fees or costs should have been

awarded the Leggs. Wyeth argues that the district court erred in refusing to consider
These lawsuits were consolidated by the Judicial Panel on Multidistrict Litigation in the 1

United States District Court of the Eastern District of Pennsylvania. A Nationwide Class Action

Settlement Agreement was then executed by Wyeth and the diet drug plaintiffs. See In re Diet

Drugs, Nos. 1203, 99-20593, 2000 WL 1222042, at *5 (E.D. Pa. Aug. 28, 2000). The Settlement

Agreement permits Class Members who meet certain eligibility criteria to opt out and assert a claim

against Wyeth in the tort system. The Leggs opted out of the Settlement Agreement. Wyeth

estimates that approximately 50,000 plaintiffs have opted out and filed suit. Appellant Br. at 5. 

Federal diversity jurisdiction under 28 U.S.C. § 1332 requires “complete diversity” - the 2

citizenship of every plaintiff must be diverse from the citizenship of every defendant. See, e.g.,

Palmer v. Hosp. Auth. of Randolph County, 22 F.3d 1559, 1564 (11th Cir. 1994). 

5

unrebutted evidence submitted by it in support of removal. Wyeth also argues that

the district court erred in concluding that the Leggs stated possible claims against

Betsy Weaver based on innocent or negligent misrepresentation, even if her affidavit

was taken as true. The Leggs defend the decision of the district court, and assert that

the decision to award fees and costs was not an abuse of discretion, even if we would

have decided the matter differently. 

IV. DISCUSSION

This lawsuit by the Leggs is but one of thousands of cases brought by plaintiffs

across the country who claim they suffer from valvular heart disease because they

took one of Wyeth’s diet drugs. A common strategy employed by the plaintiffs in 1

these cases is to name local parties, often Wyeth’s local sales representatives, as

defendants, thus defeating Wyeth’s right to remove a case to federal court. The 2

Multidistrict Litigation Court, which has overseen a large part of this litigation,

concluded that thisjoinder can “only be characterized as a sham, at the unfair expense
For examples from this circuit, see Clay v. Wyeth, No. 5:04-cv-192-OC-10GRJ at 14 (M.D. 3

Fla. Aug. 17, 2004) (magistrate judge’s report and recommendation noting that the plaintiff “has

offered nothing - whether sworn or unsworn” to rebut the sworn statements made by the sales

representative and concluding that Wyeth’s removal of the case was proper); Sobowski v. Wyeth, No.

5:04-cv-96-Oc-10GRJ at 3-4 (M.D. Fla. June 24, 2004) (considering defendants’ affidavits and

finding that the evidence “does not give rise to a reasonable inference that the sales representatives

knew or should have known of the drug’s harmful effects” and that the representatives were “joined

only to prevent removal”); Davis v. Wyeth, No. 4:03-cv-128 (CDL) at 13 (M.D. Ga. June 10, 2004)

(concluding that plaintiff’s evidence did not refute the defendants’ “sworn affidavit statements that

they had no knowledge that the diet drugs were linked to valvular heart disease,” and finding that

the joinder of the non-diverse defendants was fraudulent); Fowler v. Wyeth, No. 3:04-cv-83/MCR

at 8-9 (N.D. Fla. May 14, 2004) (concluding that based on defendants’ declarations that they did not

sell the diet drug, plaintiffs could not maintain any of their asserted causes of action; also noting that

once “Wyeth presented the declarations to the Court, Plaintiffs could not continue to rely upon their

unsupported allegations in the complaint”); Lewis v. Wyeth, No. 3:04-cv-81/MCR at 8 (N.D. Fla.

Apr. 29, 2004) (similarly concluding that the sales representative’s “uncontroverted declaration is

sufficient to demonstrate that he was fraudulently joined in this lawsuit”); Petty v. Wyeth, No. 3:04-

cv-82/MCR at 8-9 (N.D. Fla. Apr. 28, 2004) (finding that the “uncontroverted declarations of [the

sales representatives] are sufficient to demonstrate that they were fraudulently joined in this

lawsuit”).

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not only of [Wyeth] but of many individuals and small enterprises that are being

unfairly dragged into court simply to prevent the adjudication of lawsuits against

[Wyeth], the real target, in a federal forum.” Anderson v. Am. Home Prods. Corp.,

220 F. Supp. 2d 414, 425 (E.D. Pa. 2002). Indeed, there are dozens of district court

decisions finding that Wyeth sales representatives were fraudulently joined as

defendants to defeat federal diversity jurisdiction. Wyeth contends that this is such 3

a case.

The Leggs named three local sales representatives as defendants in this case.

Michael Sullivan, the first sales representative named as a defendant in this suit,

submitted an affidavit to the district court stating that he is “a citizen and resident of
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the State of Georgia.” (R.1-1 at Ex. B.) If that is true, Sullivan’s presence would not

defeat diversity jurisdiction. The second sales representative, Stacy Stubblefield,

claims he never sold Redux. In his affidavit, Stubblefield swore that he “never

advertised, assembled, created, designed, detailed, distributed, labeled, made,

manufactured, marketed, packaged, promoted, sold, sterilized, supplied, tested, or

warranted Pondimin or Redux, or trained [] anyone to do so.” (R.1-1 at Ex. B.)

Finally, the third sales representative, Betsy Weaver, admitted that she “promoted

Redux to licensed healthcare providers and answered their questions about the drug

based on information provided to me by Wyeth.” (Id.) However, Weaver asserts that

she had no knowledge of Redux’s alleged association with valvular heart disease until

the allegation was first publicized:

My knowledge of the drugs I detailed was derived exclusively

from education provided to me by Wyeth. Wyeth provided me with the

FDA-approved package inserts and other information regarding the

drugs I detailed. I had no involvement in the development or

preparation of package inserts for any drugs, and had no control over

content or other written warnings.

I was not expected, as a field sales representative, to conduct

independent research regarding the drugs I detailed, and did not do so.

I was not expected to, and did not, review independent scientific studies

published in journals unless they were supplied to me by Wyeth.

I was not aware of any alleged association between Pondimin

and/or Redux and valvular heart disease until the time such an allegation

was first publicized. I was not aware before that time of any published

study, report or other literature which claimed that an association exists

between Pondimin and/or Redux and valvular heart disease. 
8

(Id.) Wyeth attached these three affidavits as exhibitsto its notice to remove this case

to federal court. In the notice of removal, Wyeth alleged that the action could have

originally been filed in federal court because complete diversity of citizenship exists

between the properly joined parties, and that the three sales representatives were

fraudulently joined. 

In response to the sales representatives’ affidavits, the Plaintiffs did not dispute

Sullivan’s sworn statement that he was a citizen of Georgia, nor did they respond to

Stacey Stubblefield’s sworn statement that he never promoted or sold Redux. In an

effort to rebut Weaver’s sworn statement that she did not know of Redux’s alleged

connection with valvular heart disease, the Plaintiffs pointed out to the district court

that all of Wyeth’s sales representatives had to participate in a Sales Training

Program. The Plaintiffs submitted to the court a copy of Wyeth’s Sales Training

Program. (R.2-14 Ex. B.) But the document does not contain any warning to the

sales representatives that Redux may cause valvular heart disease. Nor does the

corresponding package insert, provided as a part of the Sales Training Program,

provide any warning to the sales representatives that Redux may cause valvular heart

disease. Thus, the material the Plaintiffs submitted to the court in fact reinforces

Weaver’s sworn statement that she was never told by the company that Redux may
Not only did the Plaintiffs fail to dispute Weaver’s sworn statement that she did not know 4

that Redux may cause valvular heart disease, the Plaintiffs also failed to show that Weaver had ever

promoted or sold the drug to Carl Legg’s prescribing physician. Legg’s prescribing physician was

not identified in the complaint. (R.1-1 Ex. A.) The Plaintiffs did submit affidavits from four other

physicians, but none of these doctors were Legg’s prescribing physician, nor did they have any

connection to this case. (R.2-14 Ex. A.) 

9

cause valvular heart disease and did not learn of the risk until it first became publicly

known.4

The district court refused to consider the affidavits by the sales representatives.

Instead, the court concluded that the Plaintiffs stated a possible cause of action for

fraud against both Stubblefield (who said he never sold the drug) and Weaver (who

sold it, she said, not knowing it could be dangerous). The court reasoned that the

questions of whether the individual defendants “actually sold or promoted Redux, and

whether the individual defendants actually conveyed incorrect or misleading

information to [P]laintiff Carl Legg’s healthcare providers, both go to the merits of

plaintiffs’ claims.” (R.2-19 at 10.) In reaching its conclusion that the Plaintiffs stated

a possible cause of action against the sales representatives, the district court relied

solely on various allegations in the Plaintiffs’ complaint. (R.2-19 at 9-11.) 

We conclude that Wyeth’s efforts to remove this case to federal court were

objectively valid and reasonable. “Costs are assessed in a case of ‘improvident

removal.’” Fowler, 915 F.2d. at 618. This is not a case of improvident removal.

Wyeth presented the court with affidavits from its sales representatives to establish
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that they were fraudulently joined. The district court erred in refusing to consider

these affidavits. 

We have explained before that “[t]he 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.” Pacheco de Perez v. AT&T Co., 139 F.3d 1368, 1380 (11th

Cir. 1998) (emphasis added). The proceeding appropriate “for resolving a claim of

fraudulent joinder is similar to that used forruling on a motion for summary judgment

under Fed. R. Civ. P. 56(b).” Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir.

1997) (quoting B, Inc. v. Miller Brewing Co., 663 F.2d 545, 549 n.9 (5th Cir. Unit A

1981)). In such a proceeding, the district court must “resolve all questions of fact .

. . in favor of the plaintiff.” Cabalceta v. Standard Fruit Co., 883 F.2d 1553, 1561

(11th Cir. 1989). But there must be some question of fact before the district court can

resolve that fact in the plaintiff’s favor. In this case, for example, the Plaintiffs did

not dispute Stubblefield’s sworn statement that he never promoted or sold the drug

Redux. With no response from the Plaintiffs, there was no question of fact for the

court to resolve. The same goes for Weaver, who asserted that she did not know

Redux may cause valvular heart disease. The Plaintiffs offered no evidence to

dispute this sworn statement. When the Defendants’ affidavits are undisputed by the
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Plaintiffs, the court cannot then resolve the facts in the Plaintiffs’ favor based solely

on the unsupported allegations in the Plaintiffs’ complaint. As the Fifth Circuit has

explained:

 While such a procedure requires that all disputed questions of fact be

resolved in favor ofthe nonremoving party, as with a summary judgment

motion, in determining diversity the mere assertion of metaphysical

doubt as to the material facts [is] insufficient to create an issue if there

is no basis for those facts. So also as with a summary judgment motion:

 [W]e resolve factual controversies in favor of the nonmoving party,

but only when there is an actual controversy, that is, when both parties

have submitted evidence of contradictory facts. We do not, however, in

the absence of any proof, assume that the nonmoving party could or

would prove the necessary facts.

Badon v. RJR Nabisco, Inc., 224 F.3d 382, 393-94 (5th Cir. 2000) (emphasis in

original) (internal citations omitted). 

In ignoring the Defendants’ affidavits in this case, the district court relied on

our holding in Crowe v. Coleman, 113 F.3d 1536 (11th Cir. 1997). Crowe, however,

did not preclude relying on affidavits in resolving a question of fraudulent joinder.

In fact, in Crowe, as in our other cases addressing fraudulent joinder, we found it

entirely proper for the district court to consider affidavits submitted by the

defendants. See id. at 1538 (In considering a removal alleging fraudulent joinder,

“the court may consider affidavits and deposition transcripts submitted by the

parties.”). The defendants’ affidavits in Crowe were properly before the district
12

court, and “we [took] them into account in deciding the limited question of whether

a possibility exists that Plaintiffs have stated a . . . cause of action against Coleman.”

Id. at 1541. The district court erred in Crowe because it resolved the case in the

defendants’ favor when there were sworn statements submitted by both the

defendants and the plaintiffs. In the case at bar, the Defendants submitted sworn

affidavits that were undisputed and, in such a case, a court cannot resolve the

question of fraudulent joinder by refusing to consider the defendants’ submissions.

But that is clearly what the district court did. In doing so, the district court committed

a legal error, and a legal error is an abuse of discretion. See Wexler, 385 F.3d at 1338.

The district court articulated another reason for ignoring Weaver’s affidavit and

remanding the case to state court. The district court reasoned that even if Weaver had

no pre-publicity knowledge that Redux may cause valvular heart disease, she might

still be liable in Alabama courts for innocent or negligent misrepresentation. But on

this record, this conclusion has no support in Alabama law. In Fisher v. Comer

Plantation, Inc., 772 So. 2d 455 (Ala. 2000), the Alabama Supreme Court held that

“those who are only conduits through which faulty information is supplied by one

person to a third person cannot be held liable for fraud unlessthey acted in bad faith.”

Id. at 463. Assuming that Weaver innocently passed on incorrect information about

Redux to Carl Legg’s physician, under Fisher she could not be liable for innocent
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misrepresentation. See also Montgomery Rubber & Gasket Co. v. Belmont Mach.

Co., 308 F. Supp. 2d 1293, 1298 (M.D. Ala. 2004) (“At most, [plaintiff] alleges that

[defendant agent] was an innocent conduit through which [defendant seller]

defrauded [plaintiff]. As [the defendant agent] correctly notes, forwarded information

that is incorrect cannot form the basis of liability unless the information was relayed

in bad faith.”) (citing Fisher, 772 So. 2d at 463). 

The Plaintiffs, in their complaint, allege that “[e]ach of the [d]efendants

negligently and recklessly represented . . . that Redux was safe to ingest and that the

utility of Redux outweighed any risk in use for the intended purpose of weight loss

or control.” (R.1-1 Ex. A. at ¶ 83.) Astonishingly, the Plaintiffs make this allegation

against all the individual Defendants, including Stacy Stubblefield, who swore under

oath that he never promoted or sold Redux. This sworn statement was never disputed

by the Plaintiffs. With no evidence that Stubblefield had anything to do with Redux,

there is no reasonable possibility that Plaintiffs can establish a cause of action against

him for negligent misrepresentation under Alabama law. 

Nor is there any reasonable possibility, based on this record, that Plaintiffs can

establish a cause of action for negligent misrepresentation against Betsy Weaver. The

Alabama Supreme Court has adopted theRestatement (Second) of Torts § 552 (1997)

as the law of Alabama in cases involving negligent misrepresentation. Fisher, 772
14

So. 2d at 461 (citing Boykin v. Arthur Andersen & Co., 639 So. 2d 504, 509-10 (Ala.

1995)). In applying the elements of the claim from the Restatement, Alabama’s

Supreme Court instructs that liability for negligent misrepresentation is “predicated

upon the existence of a duty.” Fisher, 772 So. 2d at 463 (citing Colonial Bank of

Alabama v. Ridley & Schweigert, 551 So. 2d 390, 395 (Ala. 1989)). To hold an

employee of a corporation personally liable for the negligent acts of the corporation,

“there must have been upon his part such a breach of duty as contributed to, or helped

bring about, the injury; that is to say, he must be a participant in the wrongful act.”

Crigler v. Salac, 438 So. 2d 1375, 1380 (Ala. 1983) (quoting Fletcher’s Cyclopedia

of Corporations § 1137 at 208 (1975)); see also Turner v. Hayes, 719 So. 2d 1184,

1188 (Ala. Civ. App. 1997) (“[C]orporate employees are liable personally for the

wrongful action of the company or its other employees only if they personally

participate in the tort.”).

Plaintiffs have not presented any evidence that Weaver knew of any valvular

heart disease risk, nor have Plaintiffs presented any evidence to support the allegation

that Weaver should have known of this risk. Without this evidence, there is no

reasonable possibility that an Alabama court would conclude that Weaver personally

breached a duty to the Plaintiffs. If Wyeth knew or should have known of Redux’s

harmful effects and did not tell Weaver, that might be a basis for a claim against
The potential for legal liability “must be reasonable, not merely theoretical.” Great Plains 5

Trust Co v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir. 1992). In considering

possible state law claims, possible must mean “more than such a possibility that a designated

residence can be hit by a meteor tonight. That is possible. Surely, as in other instances, reason and

common sense have some role.” Braden v. Wyeth, CV-04-PT-235-E (N.D. Ala. June 30, 2004).

Without any evidence that Weaver knew or should have known Redux was dangerous, it is hard to

conclude, applying reason and common sense, that the Plaintiffs have a viable claim against her

under Alabama law. 

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Wyeth, but it would not support the conclusion that Weaver herself “personally

participated in the tort” or breached a duty to the Plaintiffs. See Turner, 719 So. 2d

at 1188. Quite simply, there is no reasonable basis to predict that an Alabama court

would find Weaver, as an individual employee, personally liable for any wrongful

action by Wyeth in the absence of evidence that Weaver either knew or should have

known of Redux’s allegedly dangerous effects.5

The removal process was created by Congress to protect defendants. Congress

“did not extend such protection with one hand, and with the other give plaintiffs a bag

of tricks to overcome it.” McKinney v. Bd. of Trustees of Mayland Cmty. Coll., 955

F.2d 924, 928 (4th Cir. 1992) (quoting McKinney v. Bd. of Trustees of Mayland Cmty.

Coll., 713 F.Supp. 185, 189 (W.D.N.C. 1989)). As the Supreme Court long ago

admonished, “the Federal courts should not sanction devices intended to prevent a

removal to a Federal court where one has that right, and should be equally vigilant to

protect the right to proceed in the Federal court.” Wecker v. Nat’l Enameling &

Stamping Co., 204 U.S. 176, 186, 27 S. Ct. 184, 188 (1907). Given that the record
16

supports Wyeth’s allegation that these sales representatives were fraudulently joined

by the Plaintiffs, there was nothing “improvident” or unreasonable in Wyeth’s effort

to remove this case to federal court. See Fowler, 915F.2d. at 616. Thus, the district

court abused its discretion in awarding attorneys’ fees and costs to the Plaintiffs.

V. CONCLUSION 

The judgment of the district court awarding the Leggs attorneys’fees and costs

is REVERSED.