IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

S & S TRUCKING, LLC, )

 )

Plaintiff, )

 )

vs. ) CIVIL ACTION 09-00715-CG-B

 )

CANAL INSURANCE COMPANY, et al., )

 )

Defendants. )

REPORT AND RECOMMENDATION

This matter, which was referred to the undersigned Magistrate

Judge pursuant to 28 U.S.C. § 636(b)(1)(B), is before the Court on

Plaintiff’s Motion to Remand (Doc. 15), and Defendants’ brief in

opposition (Doc. 17). Upon careful review of Plaintiff’s motion,

and Defendants’ brief in opposition, the undersigned RECOMMENDS

that Plaintiff’s Motion to Remand be GRANTED.

 I. Background

This case involves a dispute over insurance coverage.

Plaintiff S&S Trucking, LLC (hereinafter “S&S Trucking”) filed a

Complaint in the Circuit Court of Conecuh County on September 28,

2009 against Canal Insurance Company (hereinafter “Canal

Insurance”), Deas Insurance Agency (hereinafter “Deas Insurance”),

and Dan Wright. (Doc. 1, ps. 32-28). In the Complaint, Plaintiff

alleges that S & S Trucking contacted Dan Wright (hereinafter

“Wright”) and Deas Insurance, agents for Canal Insurance, in order

to obtain insurance for multiple power units (tractors) and

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 According to Plaintiff, on August 31, 2008, one of its

drivers disconnected his tractor from a loaded trailer and left

the trailer at Bolton’s Service Station. Upon his return, he

discovered that the trailer, and its cargo, had been stolen.(Id.)

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trailers operated by S & S Trucking. Plaintiff asserts that Wright

and Deas Insurance were advised that coverage was needed for the

tractors and trailers, as well as for the trailers and cargo when

the trailers were detached from the power units. According to

Plaintiff, Defendants agreed to provide the requested insurance;

however, when Plaintiff filed a claim following the theft1 of a

trailer and its cargo while detached from a tractor, Defendants

refused to honor the claim for the cargo. (Id.)

In Count one of the Complaint, S & S Trucking asserts that by

refusing to pay benefits under the policy, Defendants are in breach

of the insurance contract. In Count two of the Complaint, S & S

Trucking alleges that Defendants negligently failed to include in

the application and or policy the “scheduled locations” where the

cargo would be covered while on trailers that were not attached to

a tractor, negligently failed to include information that cargo

should be covered while at scheduled locations, and negligently

failed to provide coverage for cargo while on trailers not

connected to a tractor at scheduled locations. Plaintiff alleges

in Count three of the Complaint that Defendants wantonly failed to

include in the application and or policy the “scheduled locations”

where the cargo would be covered while on trailers that were not

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Defendants Wright and Deas Insurance consented to removal.

(Doc. 1, Ex. C)

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attached to a tractor, wantonly failed to include information that

cargo should be covered while at scheduled locations, and wantonly

failed to provide coverage for cargo while on trailers not

connected to a tractor at scheduled locations. In Count four of

the Complaint, Plaintiff alleges that Defendant Canal engaged in

bad faith. In Count five, Plaintiff alleges that Defendants

fraudulently misrepresented that the policy would include coverage

for cargo when on trailers that were not attached to a tractor, and

failed to disclose to Plaintiff, after inquiry, that specific

locations had to be included on the declaration page of the

insurance policy in order for coverage to exist for cargo while on

trailers that were not attached to a tractor. Plaintiff further

alleges that Defendants suppressed this material fact, and that

Plaintiff purchased the policy in reliance on Defendants’

fraudulent misrepresentations. (Id.)

On October 30, 2009, Defendant Canal Insurance filed a

Petition of Removal pursuant to 28 U.S.C. § 1332.2 (Doc. 1). In

its petition, Canal Insurance asserts that this Court has federal

jurisdiction over Plaintiff’s claim based on diversity of

citizenship. Defendant further avers that the amount in

controversy exceeds $75,000. (Doc. 1 at 4-5). Defendant Canal

Insurance acknowledges that complete diversity of citizenship does

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Plaintiff also submitted a second affidavit of Donald

Salter in support of its opposition to Defendants’ Motion for

Summary Judgment (Doc. 20-1).

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not exist as Defendants Deas Insurance and Wright and Plaintiff are

all citizens of Alabama; however, Canal Insurance argues that

Defendants Deas Insurance and Wright have been fraudulently joined

because S&S Trucking cannot possibly recover on its state law

claims against either party. (Doc. 1 at 6-7). Defendant Canal

Insurance submitted the affidavit of Defendant Don Wright in

support of its Notice of Removal. (Doc. 1-1, Ex. E). In the

affidavit, Wright avers that he is president of Deas Insurance, the

independent insurance agency that procured the policy in question,

and that neither himself nor Deas Insurance is a party to the

policy. Wright also avers that he did not agree to procure

coverage for the loss alleged in Plaintiff’s Complaint, that

Plaintiff never raised with him the issue of procuring insurance

for the loss alleged in Complaint, and that neither he nor Deas

Insurance played any part in the decision to deny the claim. (Id.)

As noted supra, pending before the Court is Plaintiff’s Motion

to Remand. (Doc. 15). In the Motion, Plaintiff argues that this

case should be remanded because the claims against Defendant Deas

and Wright are actionable. In support of its motion, Plaintiff

submitted the affidavit of Donald Salter3

. (Doc. 15-1, Ex. 3)

Salter avers that he is president of S & S, and that he contacted

Don Wright and Deas Insurance in order to obtain insurance coverage

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for trucks and trailers operated by S & S Trucking. According to

Salter, S & S Trucking already had “bobtail insurance,” which

provides insurance coverage for cargo and trailers when they are

not attached to a tractor, through another carrier. Salter avers

that he discussed with Wright that because of the type of loads

hauled by S & S Trucking, the drivers for S & S Trucking had a

standard location (Bolton’s Service Station) to leave a trailer and

load when the drivers had to unhook and drive the tractor home.

(Doc. 20-1). Salter alleges that Wright and Deas Insurance agreed

that “bobtail” coverage was needed, and that Wright and Deas

Insurance would procure the necessary coverage for Plaintiff.

Salter further avers that he paid the premiums for the insurance,

and that the policy was issued by Canal Insurance Company on August

6, 2008; however, he did not receive the policy until a few days

before the loss on August 31, 2009. Salter asserts that the policy

included a business auto declarations page that included the

trailers owned and used by S & S Trucking as scheduled vehicles,

and that the entire policy, with all the declarations, endorsements

and provisions, consists of approximately 147 pages. According to

Salter, at the request of S & S Trucking, Wright and Deas Insurance

prepared certificates of coverage for the truck cargo brokers with

whom Plaintiff did business, and the certificates listed all

trailers owned by S & S as scheduled vehicles and also listed cargo

coverage. Salter also asserts that when he filed a claim for loss

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after a trailer and load that were not attached to a tractor were

stolen, Canal insurance paid the claim for the trailer, but denied

the claim for the load on the ground that S & S did not have such

coverage under the policy procured by Wright and Deas Insurance.

(Docs. 15-1, Ex. 3; 20-1).

II. Statement of the Law.

A removing defendant must establish the propriety of removal

under 28 U.S.C. § 1441, and therefore must establish the existence

of federal jurisdiction. See Friedman v. New York Life Ins. Co.,

410 F.3d 1350, 1353 (llth Cir. 2005)(“[i]n removal cases, the

burden is on the party who sought removal to demonstrate that

federal jurisdiction exists”)(citation omitted). Because removal

infringes upon state sovereignty and implicates central concepts of

federalism, removal statutes must be construed narrowly, with all

doubts resolved in favor of remand. See University of South

Alabama v. American Tobacco Co., 168 F.3d 405, 411 (llth Cir.

1999).

Defendants predicate removal of this action on diversity of

citizenship. Under 28 U.S.C. § 1332(a), federal courts have

original jurisdiction over all civil actions between citizens of

different states where the amount in controversy exceeds the sum or

value of $75,000, exclusive of interest and costs. See Darden v.

Ford Consumer Finance Co., 200 F.3d 753, 755 (llth Cir. 2000)(to

qualify for diversity jurisdiction, complaint must establish

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“complete diversity of the parties’ citizenship and an amount in

controversy exceeding $75,000"); Triggs v. John Crump Toyota, Inc.,

154 F.3d 1284, 1287 (llth Cir. 1998). Because “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 South Alabama v. American Tobacco

Co., 168 F.3d 405, 411 (11th Cir. 1999); Newman v. Spectrum Stores,

Inc., 109 F.Supp.2d 1342, 1345 (M.D. Ala. 2000)(“Because federal

court jurisdiction is limited, the Eleventh Circuit favors remand

of removed cases where federal jurisdiction is not absolutely

clear). 

“The party invoking the court’s jurisdiction bears the burden

of proving, by a preponderance of the evidence, facts supporting

the existence of federal jurisdiction.” McCormick v. Aderholt, 293

F.3d 1254, 1257 (11th Cir. 2002); see also Triggs, 154 F.3d at 1287

n.4 (11th Cir. 1998); Lowery v. Alabama Power Co., 483 F.3d 1184,

1208 (11th Cir. 2007). “Therefore, the burden is on the Defendant

to establish complete diversity – that the plaintiff is diverse

from the defendant, and that by a preponderance of the evidence,

the amount in controversy more likely than not exceeds the $75,000

jurisdictional requirement.” Id. See also Triggs, 154 F.3d at

1287; Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1357 (11th

Cir. 1996; Wallace v. Kentucky Fried Chicken, 2008 U.S. Dist. LEXIS

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80151, 2008 WL 4531773, (S.D. Ala., Oct. 9, 2008). 

“Fraudulent joinder is a judicially created doctrine that

provides an exception to the requirement of complete diversity.”

Triggs, 154 F.3d at 1287. A fraudulently joined non-diverse

defendant does not defeat diversity because his citizenship is not

considered, and if fraudulent joinder is found, the court “must

dismiss the non-diverse defendant and deny any motion to remand the

matter back to state court.” Florence v. Crescent Resources, LLD,

484 F.3d 1293, 1297 (11th Cir. 2007). The Eleventh Circuit employs

a tripartite test for determining whether a defendant has been

fraudulently joined. The removing party must show either of the

following: (1) there is no possibility the plaintiff can establish

a cause of action against the resident defendant in state court;

(2) the plaintiff fraudulently pleaded jurisdictional facts, or (3)

that a diverse defendant is joined with a non-diverse defendant as

to whom there is no joint, several of alternative liability and the

claim has no real connection to the claim against the non-diverse

defendant. See Triggs, 154 F.3d at 1287. The burden on the

removing party to show fraudulent joinder is a “heavy one.” Crowe

v. Coleman, 113 F.3d 1536, 1538 (llth Cir. 1997); see also Gonzalez

v. J.C. Penney Corp., 209 Fed. Appx. 867, 2006 U.S. App. LEXIS

26178, 2006 WL 2990086, *3(llth Cir. Oct. 20, 2006)(“The burden of

establishing fraudulent joinder is a heavy one.”) 

The Eleventh Circuit has cautioned that “[i]f there is even a

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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 state court.” Triggs, 154 F.3d at 1287. Of course, “[t]he

potential for legal liability must be reasonable, not merely

theoretical”. Legg v. Wyeth, 428 F.3d 1317, 1355 n.5 (11th Cir.

2005). Finally, in weighing the parties’ respective positions, the

Court must determine its jurisdiction over the case "based upon the

plaintiff's pleadings at the time of removal," Coker v. Amoco Oil

Co., 709 F.2d 1433, 1440 (11th Cir. 1983), supplemented by any

affidavits or deposition transcripts filed by the parties. "While

'the proceeding appropriate for resolving a claim of fraudulent

joinder is similar to that used for ruling on a motion for summary

judgment under Fed. R. Civ. P. 56(b),' the jurisdictional inquiry

'must not subsume substantive determination'. . . When 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 v. Coleman, 113 F.3d 1536, 1538 (11th

Cir. 1997) (citations omitted). 

III. Analysis

Plaintiff alleges in the complaint, and argues in the Motion

to Remand, that an insurance agent or broker who undertakes to

procure insurance for a client, and unjustifiably or negligently

fails to do so, is liable for any resulting damages. He then

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argues that such insurance broker can be sued for breach of

contract or in tort. Defendant counters that, according to Alabama

law, claims for breach of contract and bad faith based on an

insurance contract may only be brought against a party to that

contract. Pate v. Rollison Logging Equip., Inc., 628 So. 2d 337,

343 (Ala. 1993); Ligon Furniture Co. v. O.M. Hughes Ins., Inc., 551

So. 2d 283, 285 (Ala. 1989); see also Owens v. Life Ins. Co. of

Georgia, 289 F. Supp. 2d 1319, 1324 (M.D. Ala. 2003). 

In this case, it is alleged that Defendants Deas and Wright,

along with Defendant Canal, breached the insurance contract;

however, Plaintiff has not alleged, and there is nothing in the

record to suggest that either Defendant Deas nor Wright were

parties to the contract. Therefore, Plaintiff cannot maintain a

cause of action for breach of contract against them. See McDonald

v. Integon General Ins. Co., 1996 U.S. Dist. LEXIS 16890 *2,

*9(S.D. Ala. Sept. 19, 1996)(holding that even though the agent

told Plaintiffs in an initial meeting that they had full coverage

if they made premium payments as required in the contract,

Plaintiffs did not allege that the agent or the agency were parties

to the contract so they could not maintain a cause of action for

breach of contract or bad faith against them). 

As noted supra, Plaintiff has also asserted wanton and

negligence claims against Defendants. Like any negligence claim,

a claim in tort alleging a negligent failure of an insurance agent

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to fulfill a voluntary undertaking to procure insurance...requires

demonstration of the classic elements of a negligence theory, i.e.

“(1) duty, (2) breach of duty, (3) proximate cause, and (4) injury.

Kanellis v. Pac. Indem. Co., 917 So. 2d 149, 155 (Ala. Civ. App.

2005)(citations omitted.) In the instant case, S & S Trucking has

alleged that Defendants Wright and Deas Insurance were advised of

Plaintiff’s desire to acquire insurance coverage for the trucks and

trailers operated by Plaintiff, and also for “bobtail coverage”,

which would provide coverage for trailers and cargo when the

trailer was not attached to the tractor, that Defendants agreed

that the “bobtail coverage” was needed, that Defendants agreed to

provide the coverage, that Defendants failed to provide the

coverage, and that, as a result, Plaintiff suffered a loss after

cargo that was on a trailer that was not attached to a tractor was

stolen, and Plaintiff’s claim for the cargo was denied. Although

Defendants asserts that Plaintiff never requested such coverage,

construing the facts in the light most favorable to Plaintiff, the

undersigned finds that Plaintiff has alleged facts sufficient to

establish a negligence claim against Defendants Wright and Deas

Insurance. Bryan v. Lexington Ins. Co. And Orange Beach Ins.

Agency, 2006 U.S. Dist. LEXIS 53833, 2006 WL 2052524 at *23 (S.D.

Ala., July 20, 2006)(“Alabama law is clear that ‘[w]hen an

insurance agent or broker, with a view to compensation, undertakes

to procure insurance for a client and unjustifiable or negligently

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fails to do so, he becomes liable for any damage resulting

therefrom.”)(citations omitted).

Defendant also asserts however that Plaintiff’s negligence

claim is barred due to the contributory negligence of S & S

Trucking. Under Alabama law, contributory negligence is a complete

defense to a claim based on negligence. Kenellis, 917 So.2d at

155. In Kanellis, the plaintiffs purchased an insurance policy

which they believed covered the cost to repair or replace their

Porsche vehicle, as well as depreciation of the vehicle. The

Porsche was involved in an accident, and the plaintiffs filed suit

after the insurer denied their claim for diminution in value. In

rejecting the plaintiffs’ claims, the Alabama appeals court held

that in light of the clear language of the policy issued to the

plaintiffs, “the record is susceptible only to the conclusion that,

as a matter of law, the [plaintiffs] “put [themselves] in danger’s

way and had a “conscious appreciation of the danger” of suffering

a monetary loss in the event of a collision involving the Porsche

automobile resulting in a diminution of the value of the

Porsche.”); See also Jones v. State Farm, 2007 U.S. Dist. LEXIS

80894 (M.D. Ala. Oct. 30, 2007)(court held that even if insurer

breached its duty to procure insurance, the plaintiff’s

contributory negligence precluded recovery as a matter of law. The

plaintiffs put themselves in “dangers way” of suffering a loss

because they are charged with knowledge of their policy and its

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limits.)

Accordingly, this Court must determine whether S & S

Trucking’s wanton and negligence claims are barred because of

Plaintiff’s alleged contributory negligence. Under the

circumstances of this case, the undersigned cannot conclude that

Plaintiff’s alleged contributory negligence bars its wanton and

negligence claims as a matter of law. While Plaintiff has not

alleged that S & S Trucking and its agents were illiterate and thus

unable to read the policy, Plaintiff has alleged that the policy

consisted of approximately 147 pages, that the policy was not

received until a couple of days before the loss, that Defendants

represented that “bobtail” coverage was included, and at

Plaintiff’s request, Defendants provided certificates of insurance

for Plaintiff’s cargo brokers which reflect that Plaintiff had

automobile coverage and cargo coverage procured through Canal

Insurance. 

A review of the policy reflects that it consists of 147 pages.

(Doc. 1-1, Ex. D) At page 79, the policy provides that “[w]e will

pay for direct physical accidental ‘loss’ from any covered causes

of ‘loss’ to ‘covered cargo.’ Covered causes of ‘loss’ means ‘loss’

for which you are legally liable while cargo is in your care,

custody or control as a carrier. . . . Losses caused by or

resulting in or from excluded causes of ‘loss’ in Section II are

not covered by this insurance policy.” The policy then lists nine

Case 1:09-cv-00715-CG-B Document 24 Filed 05/13/10 Page 13 of 19
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(9) categories of cargo not covered. Under category seven (7), the

policy provides that “[c]argo on a ‘scheduled vehicle’ at any

location for more than seventy-two (72) hours from the time the

‘scheduled vehicle’ arrived at that location. Under category eight

(8), the policy provides that “Cargo at a ‘scheduled location’ for

more than thirty (30) days from the time the cargo arrived at the

‘scheduled location.’” (Id.) Under a section entitled “Limit of

Liability,” the policy provides that “[t]he most we will pay in any

one occurrence for ‘loss’ to cargo: 1. on a ‘scheduled vehicle’ is

the Limit of Liability for that ‘scheduled vehicle’ shown on the

Declaration Page; 2. at a ‘scheduled location’ is the Limit of

Liability for that ‘scheduled location’ shown on the Declaration

Page;...”(Id. at p. 80). The policy also includes a section

entitled “Definitions.” Some of the definitions included are as

follows:

“‘Scheduled location’ means the physical location as described

on the Declarations Page.....

“‘Covered cargo’ means cargo of others in transit under one of

the following written documents issued by you: bill of leding,

tariff or shipping receipt. The cargo must be on a ‘scheduled

vehicle,’ or in the actual process of being loaded onto a

‘scheduled vehicle’ or unloaded off of a ‘scheduled vehicle’ by the

insured and within fifty (5) feet of the ‘scheduled vehicle,’ or at

a ‘scheduled location.’” (Id. at 80-81).

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Page 122 of the policy is entitled “Motor Truck Cargo Coverage

Declarations Changes.” This page contains a section entitled “Item

Two Description of Scheduled Vehicles,” and it lists four vehicles,

along with the limit of liability, the deductible and the premiums.

There is also a section entitled “Description of Scheduled

Locations”; however, it is blank. (Id. at p. 122).

Defendant asserts that S & S Trucking’s failure to read the

policy and timely raise any coverage concerns upon receipt of the

policy constitutes negligence and bars Plaintiff’s claim as a

matter of law. The undersigned observes, as a preliminary matter,

that the policy is lengthy, in excess of one hundred and forty

pages. Further, Plaintiff has asserted that the policy was not

received until a couple of days before the loss, that prior

thereto, Defendants represented that “bobtail” coverage was

included in the policy, and at Plaintiff’s request, Defendants

provided certificates of insurance for Plaintiff’s cargo brokers

which reflect that Plaintiff had vehicle coverage and cargo

coverage procured through Canal Insurance. Although the issue of

when Plaintiff actually received the policy is contested, in

consideration of a motion for remand, the court must resolve all

questions of fact in favor of the plaintiff. Legg, 428 F.3d at

1325. Construing the facts in favor of Plaintiff, the undersigned

finds that the record does not establish that S & S was

contributorily negligent as a matter of law where Plaintiff did not

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receive the lengthy policy until a couple of days before the loss,

and prior thereto, Defendants had represented that the policy

included bobtail coverage, and Defendants had issued certificates

of insurance which did not contradict their assertions, but instead

reflected that S & S had cargo insurance. Accordingly, the

undersigned finds that Plaintiff has a colorable cause of action

against Defendants for wantonness and negligence. See Triggs, 154

F. 3d at 1287(requiring only a possibility of a claim, not

certainty that the claim will succeed.); Poole v. American

International Group, 2006 U.S. Dist. LEXIS 13418 (M.D. Ala. March

9, 2006)(court cannot say under the fraudulent joinder standard

that there is no possibility that the plaintiff could establish any

fraud claim against the resident defendants despite the defenses of

statute of limitations and alleged inability to establish

reasonable reliance.) 

Defendants have failed to meet their burden of establishing

fraudulent joinder by clear and convincing evidence. Therefore,

this Court cannot disregard the citizenship of Defendants Wright

and Deas Insurance for purposes of diversity of citizenship.

Because complete diversity does not exist, this case should be

remanded to the Circuit Court of Conecuh County, Alabama.

IV. Conclusion

Construing the removal statue strictly and resolving all

doubts in favor of remand, in accordance with University of South

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Alabama, 168 F.3d at 411, the court finds that Defendants have not

established the propriety of removal under 28 U.S.C. § 1441, and

have not established the existence of federal jurisdiction.

Accordingly, the undersigned RECOMMENDS that the Motion to Remand

this case to the Circuit Court of Conecuh County, Alabama be

GRANTED. 

The attached sheet contains important information regarding

objections to the report and recommendation of the Magistrate

Judge.

DONE this 13th day of May, 2010.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

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The Court’s Local Rules are being amended to reflect the

new computations of time as set out in the amendments to the

Federal Rules of Practice and Procedure, effective December 1,

2009.

18

MAGISTRATE JUDGE’S EXPLANATION OF PROCEDURAL RIGHTS

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation or

anything in it must, within fourteen (14) days of the date of

service of this document, file specific written objections with the

clerk of court. Failure to do so will bar a de novo determination

by the district judge of anything in the recommendation and will

bar an attack, on appeal, of the factual findings of the magistrate

judge. See 28 U.S.C. § 636(b)(1)( c); Lewis v. Smith, 855 F.2d

736, 738 (11th Cir. 1988). The procedure for challenging the

findings and recommendations of the magistrate judge is set out in

more detail in SD ALA LR 72.4 (June 1, 1997), which provides, in

part, that:

A party may object to a recommendation entered by a

magistrate judge in a dispositive matter, that is, a

matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing a

“Statement of Objection to Magistrate Judge’s

Recommendation” within ten days4 after being served with

a copy of the recommendation, unless a different time is

established by order. The statement of objection shall

specify those portions of the recommendation to which

objection is made and the basis for the objection. The

objecting party shall submit to the district judge, at

the time of filing the objection, a brief setting forth

the party’s arguments that the magistrate judge’s

recommendation should be reviewed de novo and a different

disposition made. It is insufficient to submit only a

copy of the original brief submitted to the magistrate

judge, although a copy of the original brief may be

submitted or referred to and incorporated into the brief

in support of the objection. Failure to submit a brief

in support of the objection may be deemed an abandonment

of the objection.

A magistrate judge’s recommendation cannot be appealed to a

Case 1:09-cv-00715-CG-B Document 24 Filed 05/13/10 Page 18 of 19
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Court of Appeals; only the district judge’s order or judgment can

be appealed.

2. Opposing party’s response to the objection. Any opposing

party may submit a brief opposing the objection within fourteen

(14)days of being served with a copy of the statement of objection.

Fed. R. Civ. P. 72; SD ALA LR 72.4(b). 

3. Transcript (applicable where proceedings tape recorded).

Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the magistrate

judge finds that the tapes and original records in this action are

adequate for purposes of review. Any party planning to object to

this recommendation, but unable to pay the fee for a transcript, is

advised that a judicial determination that transcription is

necessary is required before the United States will pay the cost of

the transcript.

 /s/ SONJA F. BIVINS 

UNITED STATES MAGISTRATE JUDGE

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