IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JEFFREY ARNOLD JAMES, :

Plaintiff, :

v. : CA 14-00467-CG-C

WERNER ENTERPRISES, INC., et al., :

Defendants. :

REPORT AND RECOMMENDATION

This matter is before the undersigned, pursuant to 28 U.S.C. § 636(b)(1)(B), on the 

Plaintiff’s Motion to Remand this matter to the Circuit Court of Washington County, 

Alabama, (doc. 14) and brief in support (doc. 14-1); the response filed by Defendants 

Dolgencorp, LLC, d/b/a Dollar General, (“Dollar General”) and Sabrina Williams (doc. 

18); and the Plaintiff’s reply (doc. 19). After careful consideration of the pleadings and 

the briefs of the parties, it is RECOMMENDED that the Plaintiff’s motion be 

GRANTED, and that this matter be REMANDED to the Circuit Court of Washington 

County, Alabama.

Background

The Plaintiff filed his Complaint (doc. 1-2) in the Circuit Court of Washington 

County, Alabama, on September 10, 2014, asserting a personal injury action against the 

Defendants. (Id.) Specifically, the Plaintiff alleges that he was involved in an 

automobile accident when his vehicle collided with a truck driven by Defendant Ralph 

Vazquez, an employee of Defendant Werner Enterprises, Inc., (“Werner Enterprises”) or 

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Dollar General. (Id., ¶¶ 3, 8.)1 Plaintiff alleges that Vazquez was delivering Dollar 

General merchandise to a Dollar General store in McIntosh, Alabama, (“the McIntosh 

store”) and that the incident occurred while Vazquez was pulling his delivery truck 

onto the store lot. (Id., ¶¶ 38-39.) The Plaintiff asserts negligence and wantonness 

claims against Vazquez, as an employee of Werner Enterprises or Dollar General, (id., 

¶¶ 7-13); negligent and wantonness claims against Werner Enterprises and Dollar 

General for the hiring, supervising and retaining of Vazquez, as well as their entrusting 

Vazquez to operate and control the delivery truck involved in the accident, (id., ¶¶ 14-

36); and negligence and wantonness claims against Dollar General and Sabrina 

Williams, a Dollar General employee and manager of the McIntosh store, for failing to 

secure a safe method of delivery of Dollar General merchandise, (id., ¶¶ 37-41). As a 

result of the automobile accident, the Plaintiff alleges that he sustained the following 

injuries:

he was bruised and contused, he has been made sick, sore, lame and 

disabled; he suffered injuries to his cervical spine and neck. . . . [H]e has 

been caused to incur hospital, doctor, medical and drug bills in and about 

the treatment of his injuries; he has suffered great physical pain and 

mental anguish and will be caused to suffer great physical pain and 

mental anguish in the future. He has been permanently injured.

(Id., ¶ 9.) The Plaintiff seeks “compensatory and punitive damages in excess of the

jurisdictional limits of [the Circuit Court of Washington County, Alabama].” (Id. at 6-7, 

9-10, 13.)

Defendants, Dollar General and Sabrina Williams, filed their Notice of Removal 

in this Court on October 14, 2014, asserting that this Court has diversity jurisdiction 

 1 The Plaintiff alleges that Werner Enterprises “was the owner of the tractor truck 

being operated by [Vazquez],” (doc. 1-2, ¶ 2), and that Dollar General “was the owner of the 

box trailer that was being pulled by [Vazquez],” (id., ¶ 4).

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over this case pursuant to 28 U.S.C. § 1332. (Doc. 1.) The Defendants argue that 

diversity jurisdiction exists because the properly joined parties are diverse and the 

amount in controversy is in excess of $75,000. (Id. at 2.) Although the Plaintiff and 

Defendant Williams are both citizens of Alabama, (doc. 1-2, ¶ 1, 5), the Defendants

contend that Ms. Williams was fraudulently joined in an effort to destroy diversity 

jurisdiction, (doc. 1 at 3-6). With regard to the amount in controversy, the Defendants

argue that recently reported jury verdicts for similar cases demonstrate that “the 

estimated amount at issue in this case will far exceed the jurisdictional amount.” (Id. at 

11.) 

In his brief in support of his motion to remand (doc. 14-1), the Plaintiff argues 

that he has stated a valid claim against Ms. Williams and, thus, the Defendants’ 

fraudulent joinder claim is without merit. (Id. at 5-8.) With regard to the amount in 

controversy, the Plaintiff argues that the Defendants cannot rely on jury verdict and 

settlement reports to establish the value of this case. (Id. at 8-11.) 

Discussion

The Removal Inquiry.

“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). 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 

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resolved in favor of remand to state court.” University of S. Ala. v. Am. 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)).

Therefore, the defendant must establish the propriety of removal under section

1441 and, for that reason, “bears 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 the defendant, one, establish complete diversity—

that the plaintiff is diverse from the defendants, Triggs v. John Crump Toyota, Inc., 154 

F.3d 1284, 1287 (11th Cir. 1998) (citation omitted)—and, two, show that the amount in 

controversy more likely than not exceeds the $75,000 jurisdictional requirement, see 

Fitzgerald v. Besam Automated Entrance Sys., 282 F. Supp. 2d 1309, 1314 (S.D. Ala. 2003). 

Amount in Controversy

“If a plaintiff makes ‘an unspecified demand for damages in state court, a 

removing defendant must prove by a preponderance of the evidence that the amount in 

controversy more likely than not exceeds the . . . jurisdictional requirement.’” Roe v. 

Michelin N. Am., Inc., 613 F.3d 1058, 1061 (11th Cir. 2010) (quoting Tapscott, 77 F.3d at 

1357). In an effort to meet its burden the removing defendant may present additional 

evidence to establish that the amount in controversy exceeds $75,000. Roe, 613 F.3d at

1061 (“In some cases, [the removing defendant’s] burden requires [it] to provide 

additional evidence demonstrating that removal is proper.” (footnote and citation 

omitted)); Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 756 (11th Cir. 2010) (concluding 

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that defendants can “submit [their] own evidence in order to satisfy the jurisdictional 

requirements of removal”). 

Additionally, because the Notice of Removal was filed within thirty days of 

receiving the Plaintiff’s initial pleading in this matter, the Notice of Removal is brought 

pursuant to Section 1446(b)(1), (doc. 1 at 2), and the Eleventh Circuit’s decision in Roe 

further guides the undersigned’s analysis. See Roe, 613 F.3d at 1061 (distinguishing 

between Section 1446(b) first-paragraph cases and second-paragraph cases).

2 In Roe, the 

Eleventh Circuit instructed:

Eleventh Circuit precedent permits district courts to make 

“reasonable deductions, reasonable inferences, or other reasonable 

extrapolations” from the pleadings to determine whether it is facially 

apparent that a case is removable. See [Pretka, 608 F.3d] at 754. Put 

simply, a district court need not “suspend reality or shelve common sense 

in determining whether the face of a complaint . . . establishes the 

jurisdictional amount.” See id. at 770 (quoting Roe v. Michelin N. Am., Inc., 

637 F. Supp. 2d 995, 999 (M.D. Ala. 2009)); see also Williams, 269 F.3d at 

1319 (11th Cir. 2001) (allowing district courts to consider whether it is 

 2 Congress, through § 1446(b), has established a “bifurcated removal approach,” 

Lee v. Lilly Trucking of Va., Inc., No. 2:12–cv–74–MEF, 2012 WL 960989, at *1 (M.D. Ala. Mar. 21, 

2012), under which

a state court defendant may remove a case to federal court at two procedurally 

distinct moments in time. First, if it is facially apparent from the initial pleading 

that subject matter jurisdiction exists, § 1446(b)(1) provides the procedure for 

removal. See, e.g., Pretka[, 608 F.3d at 754]; Williams v. Best Buy Co., Inc., 269 F.3d 

1316, 1319 (11th Cir. 2001). Such a removal must be accomplished “within 30 

days after the receipt by the defendant . . . of a copy of the initial pleading setting 

forth the claim for relief upon which such action is based . . . .” § 1446(b)(1). 

However, “[i]f the case stated by the initial pleading is not removable, a notice of 

removal may be filed within 30 days after receipt by the defendant, through 

service or otherwise, of a copy of an amended pleading, motion, order or other 

paper from which it may first be ascertained that the case is one which is or has 

become removable . . . .” § 1446(b)(3); see also Lowery v. Ala. Power Co., 483 F.3d

1184 (11th Cir. 2007).

Id.

In 2011, Congress restructured section 1446(b). Federal Courts Jurisdiction and Venue 

Clarification Act of 2011, Pub. L. 112–63, December 7, 2011, 125 Stat. 758. Consequently, “the 

‘first paragraph removals’ discussed in prior case law are now embodied in subsection (1), [28 

U.S.C.] § 1446(b)(1), and the ‘second paragraph removals’ are now encompassed in subsection 

(3), id. § 1446(b)(3).” Holley v. Madison Indus., Inc. of Ga., No. 4:12-CV-2243-VEH, 2012 WL 

3771909, at *3 n.2 (N.D. Ala. Aug. 27, 2012).

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“facially apparent” from a complaint that the amount in controversy is 

met). Instead, courts may use their judicial experience and common sense 

in determining whether the case stated in a complaint meets federal 

jurisdictional requirements.

Id. at 1061-62 (footnote omitted).

Here, damages are not specified in the Plaintiff’s Complaint. (See doc. 1-2.) The 

Plaintiff merely demands “compensatory and punitive damages in excess of the 

jurisdictional limits of [the Circuit Court of Washington County, Alabama].” (Id. at 6-7, 

9-10, 13.) The Circuit Court of Washington County has jurisdiction over civil matters 

where the amount in controversy exceeds $3,000.00. Ala. Code § 12-11-30(1). Thus, the 

Plaintiff’s explicit request for damages in his Complaint clearly fails to establish that the 

amount in controversy exceeds $75,000, and the Defendants must prove by a 

preponderance of the evidence that the amount in controversy meets the jurisdictional 

threshold.3

In an effort to establish the amount in controversy, the Defendants rely on eight 

reported jury verdicts in Alabama state courts in the last five years. (Doc. 1 at 6-11; doc. 

18 at 6-9.) The eight referenced cases involved vehicular accidents with trucks causing, 

among other things, neck injuries to the plaintiffs. (Doc. 1 at 8-10.) Juries returned 

verdicts in those cases in the following amounts: $700,000; $741,618;4 $95,000; $76,586; 

$75,000; $870,000; $300,000; and $375,000. (Id.) However, the Defendants have not 

provided the Court with any facts about the severity of injuries in this case. (See docs. 1 

and 18.) Without such facts, the undersigned cannot conclude that this case is so similar 

 3 The Plaintiff and the Defendants agree that a specified amount of damages is not 

included in the Complaint and, thus, that preponderance of the evidence is the applicable 

burden of proof. (See doc. 14-1 at 8-9; doc. 18 at 6-7.) 

4 The $741,618 figure is the sum of four damage awards for the four plaintiffs 

involved in that case. (Doc. 1 at 9.) The individual awards were as follows: $225,870; $56,808; 

$95,370; and $363,570. (Id.)

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to other cases involving jury verdicts in excess of $75,000 that the value of this case will 

exceed the jurisdictional amount also.

5

As this Court has previously stated:

Other verdicts are certainly inadequate to carry a removing 

defendant’s burden when the defendant fails to provide details about the 

facts of the other cases, or when there is no “specific detail about the 

present action,” or both. [Lowery, 483 F.3d at 1221.] In such a situation, 

there is insufficient information to allow a comparison between the other 

cases and the removed case, and thus a court cannot “possibly ascertain 

how similar the current action is to those the defendants cite.” Id.; see also 

Pretka[, 608 F.3d at 753] (the Lowery defendants failed because they “failed 

to explain the facts of those other tort cases or link them to the facts of the 

Lowery case”); cf. Federated Mutual Insurance Co. v. McKinnon Motors, LLC, 

329 F.3d 805, 809 (11th Cir. 2003) (“Mere citation to what has happened in 

the past does nothing to overcome the indeterminate and speculative 

nature of [the plaintiff’s] assertion” that the amount in controversy 

exceeds $75,000).

Assuming without deciding that Lowery leaves the door open for a 

removing defendant to rely on (or solely on) awards in other cases, the 

Court has been provided insufficient information to allow it to ascertain 

how similar this action is to those. Without that showing of similarity, the 

other cases cannot support the inference that the amount in controversy 

here exceeds $75,000.

Hill v. Toys “R” Us, Inc., Civil Action No. 10-0404-WS-B, 2010 WL 3834532, at *2 (S.D. 

Ala. Sept. 24, 2010); accord Vail v. Smarterfuel South, LLC, Civil Action No. 13-00277-KDN, 2013 WL 5373525, at *10 (S.D. Ala. Sept. 25, 2013) (“Given the lack of a factual record 

 5 The Defendants state that the eight similar cases they reference “involved 

damages well in excess of the $75,000 jurisdictional minimum” and, therefore, “[i]t is reasonable 

to extrapolate therefrom that the estimated amount at issue in this case will far exceed the 

jurisdictional amount, too.” (Doc. 1 at 11.) The undersigned disagrees. In the cases cited by the 

Defendants, six plaintiffs received jury awards of more than $225,000, (id. at 8-10), which the 

undersigned would consider “well in excess of the $75,000 jurisdictional minimum,” (id. at 11), 

but five of the plaintiffs received jury awards ranging from $56,000 to $96,000, (id. at 8-10). The 

$56,808 verdict was awarded to a woman who “sustained neck and back shoulder injuries 

requiring surgery.” (Id. at 8.) The Defendants have presented no facts about the instant case to 

demonstrate that the Plaintiff’s injuries are more severe than the woman who received the 

$56,808 jury award. Thus, the undersigned cannot extrapolate that the value of this case will 

exceed the jurisdictional minimum. 

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before the Court, the undersigned cannot find that the above cases are sufficiently 

similar to show by a preponderance of the evidence that the claims of one of the 

plaintiffs . . . are more likely than not above the jurisdictional requirement. To make 

such a finding, the Court would have to rely on sheer speculation.”); Lambeth v. Peterbilt 

Motors Co., Civil Action No. 12-0169-WS-N, 2012 WL 1712692, at *5 (S.D. Ala. May 15, 

2012) (“[D]efendants point to jury verdicts in other cases and insist that a review of 

Alabama trial court verdicts showcases that the amount in controversy in this case is 

greater than $75,000. . . . It does nothing of the sort. Without knowing what [plaintiff’s] 

injuries are, it is nothing short of folly to liken his claims to those of another plaintiff in 

another case. There is no reasonable, principled basis for drawing an apples-to-apples 

comparison between [the plaintiff in this case] and any plaintiff in any of the other cases 

described by defendants. Without knowing the nature and severity of his injuries, any 

attempt to formulate an analogy between [this plaintiff] and an injured plaintiff in 

another case who received damages greater than $75,000 is nothing more than gross 

speculation, guesswork and wishful thinking, none of which the Court can indulge.” 

(footnote, citation and internal quotation marks omitted)).

The Defendants have provided the Court with no information regarding the 

Plaintiff’s injuries beyond the nonspecific allegations in the Complaint, (see doc. 1-2, ¶ 9 

(“[H]e was bruised and contused, he has been made sick, sore, lame and disabled; he 

suffered injuries to his cervical spine and neck. . . . [H]e has been caused to incur 

hospital, doctor, medical and drug bills in and about the treatment of his injuries; he has 

suffered great physical pain and mental anguish and will be caused to suffer great 

physical pain and mental anguish in the future. He has been permanently injured.”)). 

Because the allegations of injury do not provide sufficient detail regarding the nature 

and extent of the Plaintiff’s injuries, the undersigned finds that the Defendants have not 

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established by a preponderance of the evidence that the amount in controversy exceeds 

$75,000.00. See Williams, 269 F.3d at 1318, 1320 (finding that it was not facially apparent 

from the complaint that the amount in controversy exceeded $75,000 even though the 

plaintiff alleged that she suffered “permanent physical and mental injuries, . . . incurred 

substantial medical expenses, suffered lost wages, [] experienced a diminished earning 

capacity . . . [and] will continue to experience each of [her] losses for an indefinite time 

into the future”); Lambeth, 2012 WL 1712692, at *3 (“While the back injury is 

characterized as ‘serious,’ nothing in the Complaint elaborates on the nature or severity 

of that injury, or otherwise lends substance or meaning to it. We simply do not know—

or have any basis for inferring from the pleadings—anything about how severe, 

permanent, debilitating or painful the injury might be; how extensive, costly, or 

traumatic the course of treatment was, is or might be; or whether and to what extent the 

injury did, does or will constrain [the plaintiff’s] work or life activities.”); Hill, 2010 WL 

3834532, at *1 (remanding case to state court for failure to prove the amount in 

controversy where the plaintiff alleged that she suffered back, neck, arm and head 

injuries; that she has experienced and continues to experience pain and suffering, 

emotional distress, and mental anguish; and that she has incurred ongoing medical 

expenses). 

Fraudulent Joinder

As previously indicated, the diversity statute, 28 U.S.C. § 1332, demands 

complete diversity, such that plaintiffs may not be citizens of the same state as any 

defendant. See, e.g., Florence v. Crescent Resources, LLC, 484 F.3d 1293, 1297 (11th Cir. 

2007) (recognizing “necessary corollary” of diversity jurisdiction that “complete 

diversity of citizenship” is required); Legg v. Wyeth, 428 F.3d 1317, 1320 n.2 (11th Cir. 

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2005) (“28 U.S.C. § 1332 requires ‘complete diversity’—the citizenship of every plaintiff 

must be diverse from the citizenship of every defendant.”).

“Fraudulent joinder is a judicially created doctrine that provides an exception to 

the requirement of complete diversity.” Triggs, 154 F.3d at 1287. Notwithstanding the 

complete diversity requirement, a non-diverse defendant who is fraudulently joined 

does not destroy jurisdiction because her citizenship is excluded from the diversity 

equation. A finding of fraudulent joinder is appropriate in circumstances presented 

here only if the Defendants meet their burden of “showing by clear and convincing 

evidence” that “there is no possibility the [P]laintiff can establish a cause of action against 

the resident [D]efendant.” Henderson v. Washington Nat’l Ins. Co., 454 F.3d 1278, 1281 

(11th Cir. 2006) (citation and internal quotation marks omitted) (emphasis added); see 

also Florence, 484 F.3d at 1299 (“[I]f there is any possibility that the state law might 

impose liability on a resident defendant under the circumstances alleged in the 

complaint, the federal court cannot find that joinder of the resident defendant was 

fraudulent, and remand is necessary.”); Triggs, 154 F.3d at 1287 (“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.” (citation and internal quotation marks 

omitted)); Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997) (“The burden of the 

removing party is a heavy one.” (citation and internal quotation marks omitted)). Thus, 

“[t]he 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.” Triggs, 154 F.3d at 1287; see also Pacheco de Perez v. AT&T Co., 139 F.3d 

1368, 1380 (11th Cir. 1998) (“Where a plaintiff states even a colorable claim against the 

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resident defendant, joinder is proper and the case should be remanded to state court.”

(citation omitted)). 

Furthermore, “[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. . . . 

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, 139 F.3d at 1380 (citations omitted); see also 

Crowe, 113 F.3d at 1538 (“To determine whether the case should be remanded, the 

district court must evaluate the factual allegations in the light most favorable to the 

plaintiff and must resolve any uncertainties about state substantive law in favor of the 

plaintiff. . . . The federal court makes these determinations based on the plaintiff’s 

pleadings at the time of removal; but the court may consider affidavits and deposition 

transcripts submitted by the parties.”); Cabalceta v. Standard Fruit Co., 883 F.2d 1553, 

1561 (11th Cir. 1989) (“In addressing the issue of fraudulent joinder, the district court 

should resolve all questions of fact and controlling law in favor of the plaintiff and can 

consider any submitted affidavits and/or deposition transcripts.”). 

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. Over and over again, we 

stress that the trial court must be certain of its jurisdiction before 

embarking upon a safari in search of a judgment on the merits.

Crowe, 113 F.3d at 1538 (internal citations and quotation marks omitted). “In a 

fraudulent joinder inquiry, ‘federal courts are not to weigh the merits of a plaintiff’s 

claim beyond determining whether it is an arguable one under state law.’” Pacheco de 

Perez, 139 F.3d at 1380-1381 (quoting Crowe, 113 F.3d at 1538).

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In terms of this circuit’s law, the main point for us is this one: For a 

Plaintiff to present an arguable claim against an in-state defendant and, 

therefore, to require a case removed to federal court to be remanded to 

state court, the plaintiff need not show that he could survive in the district 

court a motion for summary judgment filed by that in-state defendant. 

For a remand, the plaintiff’s burden is much lighter than that: after 

drawing all reasonable inferences from the record in the plaintiff’s favor 

and then resolving all contested issues of fact in favor of the plaintiff, 

there need only be a reasonable basis for predicting that the state law 

might impose liability on the facts involved. Because the procedures are 

similar while the substantive standards are very different, district courts 

must exercise extraordinary care to avoid jumbling up motions for 

remand and motions for summary judgment that come before them. 

In the remand context, the district court’s authority to look into the 

ultimate merit of the plaintiff’s claims must be limited to checking for 

obviously fraudulent or frivolous claims. Although we have said that 

district courts may look beyond the face of the complaint, we emphasize 

that the district court is to stop short of adjudicating the merits of cases 

that do not appear readily to be frivolous or fraudulent.

Crowe, 113 F.3d at 1541-1542 (internal citations and quotation marks omitted). 

Here, the Defendants argue that Sabrina Williams, the manager of the McIntosh

store, was fraudulently joined “because there is no possibility that Plaintiff can prove a 

cause of action against her.” (Doc. 18 at 3.) The Plaintiff asserts negligence and 

wantonness claims against Ms. Williams for failing to secure a safe method of delivery 

of Dollar General merchandise to the McIntosh store. (Doc. 1-2 at 10-13.) The Plaintiff 

alleges that, due to the manner in which the McIntosh store is located along U.S. 

Highway 43 and the manner in which vehicles parked in the McIntosh store parking lot,

delivery trucks delivering Dollar General merchandise to the McIntosh store were 

“required to back the truck and trailer rigs . . . across U.S. Highway 43 to deliver [the] 

merchandise.” (Id. at 10.) The Plaintiff alleges that Ms. Williams, as manager of the 

McIntosh store, 

knew or should have known that this activity was dangerous to the 

motoring public traveling upon U.S. Highway 43 . . . and had been 

warned by the McIntosh Police Department . . . that such activity was 

dangerous and that [she] should call the . . . Police Department when a 

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load of merchandise was scheduled to arrive so that the [police] could 

provide traffic control for the delivery of merchandise being delivered in 

this manner. It was foreseeable to [Ms. Williams] that the failure to notify 

the McIntosh Police Department of the scheduled delivery . . . and/or 

fail[ure] to secure an alternative method for the delivery of Dollar General 

merchandise that would not require backing across U.S. Highway 43 in 

such a manner, including clearing the [store] parking lot to accommodate 

the arrival of the [delivery truck], would create an unreasonable incident 

of danger to the motoring public including the Plaintiff . . . . 

(Id. at 10-11.) The Plaintiff alleges that Ms. Williams owed a duty to the motoring public 

to either (1) notify the police in advance of the delivery so that the police could ensure 

that the delivery was made in a safe manner; or (2) “secure an alternative method of 

delivery,” such as “clearing the [McIntosh store] parking lot to accommodate the arrival 

of the [delivery truck].” (Id. at 11-12.) The Plaintiff further alleges that Ms. Williams 

breached her duty by negligently and/or wantonly failing to notify the police or secure 

an alternative method of delivery, and that, as a result of her negligence and/or 

wantonness, the Plaintiff was injured. (Id. at 12-13.)

To support his claim against Ms. Williams, the Plaintiff has attached to his

motion to remand the affidavit of Walter Conner, the sergeant with the McIntosh Police 

Department who advised Ms. Williams prior to the automobile accident at issue in this 

case that the delivery method at the McIntosh store was unsafe. (Doc. 14-2.) Sergeant

Conner stated that 

[o]n several occasions, [he has] witnessed Dollar General’s delivery trucks 

pulling across Highway 43 in McIntosh, Alabama[,] and then backing 

across the southbound lane of Highway 43 to enter the Dollar General 

McIntosh, Alabama[,] store. This activity was dangerous because it blocks 

the highway and was being done without any traffic control.

(Id. at 2.) Sergeant Conner further stated that, 

several months prior to [the incident at issue in this case], . . . [he] went to 

the [McIntosh store] and talked with [Ms.] Williams . . . about how 

dangerous this activity was. [He] informed [her] that the Dollar General 

delivery trucks were creating a dangerous situation for the traffic on 

Highway 43 by engaging in this type of conduct and that someone was 

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going to be injured if the activity was not stopped or modified. Ms. 

Williams advised [Sergeant Conner] that she agreed that the activity was 

dangerous but that there was no other way for the trucks to get into the 

store except to back in which would require them to pull across Highway 

43 and then back in like they were doing. [Sergeant Conner] advised Ms. 

Williams that if that were the case, Dollar General should call [the 

McIntosh Police Department] when delivery trucks were scheduled to 

arrive and that [the police] would provide traffic control so that no one 

would get hurt when the Dollar General trucks were going to be 

delivering the merchandise in this manner. Ms. Williams acknowledged 

that she received notice of when the delivery trucks were to arrive and 

that it would be safer to call [the police] and get [the police] to provide 

traffic control and that calling and getting traffic control needed to be 

done. She advised [Sergeant Conner] that she would pass the information 

on to her supervisor and advise him that Dollar General should call [the 

police] for traffic control when the deliveries were to be made.

To [Sergeant Conner’s] knowledge, no one from Dollar General, including 

[Ms.] Williams, ever called [the McIntosh Police Department] for traffic 

control for a delivery truck. Additionally, [the McIntosh Police 

Department] never received a call from any delivery truck operator or 

anyone from any company owning the delivery trucks or trailers for 

traffic control for deliveries being made to the [McIntosh store]. [Ms.] 

Williams, nor anyone else with Dollar General, or any of the delivery 

trucks that served the [McIntosh store], ever [sic] called the McIntosh 

Police Department for traffic control for delivery of merchandise to the 

[McIntosh store] before the incident [at issue in this case].

(Id. at 2-3.) 

The Defendants argue that there is no possibility that the Plaintiff can prove a 

cause of action against Ms. Williams because, they assert, she did not owe the Plaintiff a 

duty of care. (Doc. 18 at 3-5.) However, they provide no legal authority in support of 

this argument. (Id.)

6

 The Defendants primarily rely on Ms. Williams’ affidavit, in 

which she states that she “do[es] not supervise and do[es] not have control over Werner 

[Enterprises] drivers, including Ralph Vazquez”; that she “do[es] not have the ability to 

 6 The Defendants cite to Berkel & Co. Contractors, Inc. v. Providence Hosp., 454 So. 2d 

496, 506 (Ala. 1984), for the general proposition that “[t]he existence of a duty is a question of 

law to be decided by the court.” (Doc. 18 at 4 (citing Berkel, 454 So. 2d at 506).) However, they 

cite to no legal authority supporting their argument that a duty cannot be found in this case. 

(See id.)

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tell Ralph Vazquez or other Werner [Enterprises] drivers how or where to drive [their] 

trucks”; that she “do[es] not watch as the trucks approach the McIntosh store[] to make 

deliveries”; that “[t]he police have not told [her] that the way Ralph Vazquez or Werner 

[Enterprises] drivers operate their delivery trucks when making deliveries to the 

McIntosh store is dangerous or inappropriate”; that “[t]he police have not told [her] to 

call them before a delivery truck makes a delivery”; and that “even if the police wanted 

to be notified, [she] could not give them notice of when a delivery truck would arrive” 

because “deliveries that are scheduled for a specific day are not scheduled for a specific 

time.” (Doc. 1-4, ¶¶ 5-10.) Based on the assertions in Ms. Williams’ affidavit, the 

Defendants contend that the Plaintiff cannot establish that Ms. Williams owed the 

Plaintiff a duty of care in this case. (Doc. 18 at 4-5.)

However, the court “must evaluate the factual allegations in the light most 

favorable to the [P]laintiff.” Pacheco de Perez, 139 F.3d at 1380 (citations omitted). Thus, 

for purposes of determining the fraudulent joinder issue presented in this case, the 

undersigned resolves the questions of fact, disputed in the affidavits presented by the 

parties, in favor of the Plaintiff. See Legg, 428 F.3d at 1322-23. As such, the undersigned 

must determine whether the Defendants have shown, by clear and convincing evidence, 

that there is no possibility that Ms. Williams owed the Plaintiff, as a motorist on U.S. 

Highway 43, a duty of care where she knew that the method by which delivery trucks 

were delivering Dollar General merchandise to her store was unsafe for the motorists 

on U.S. Highway 43; she received notice of when delivery trucks would be making their 

deliveries; and she agreed that Dollar General should call the police to provide traffic 

control during deliveries to ensure the safety of motorists on U.S. Highway 43.

As stated above, the Defendants provide no legal authority supporting their 

position that a duty could not arise under these circumstances. (See doc. 18 at 3-5.) The 

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16

Plaintiff argues that he could establish a duty based on the analysis of the Alabama 

Supreme Court in Taylor v. Smith, 892 So. 2d 887, 891 (Ala. 2004), (doc. 14-1 at 7-8), a 

case in which the court discussed the duty analysis generally and, more specifically, 

considered whether a duty of care was owed to foreseeable third party motorists. See 

Taylor, 892 So. 2d at 891-97. In Taylor, the court explained that “the existence of a duty is 

determined by a number of factors, including ‘(1) the nature of the defendant’s activity; 

(2) the relationship between the parties; and (3) the type of injury or harm threatened.’” 

Id. at 892 (quoting Morgan v. South Cent. Bell Tel. Co., 466 So. 2d 107, 114 (Ala. 1985)). 

The court emphasized that “’[t]he key factor is whether the injury was foreseeable by the 

defendant.’” Id. (quoting Key v. Compass Bank, Inc., 826 So. 2d 159, 170 (Ala. Civ. App. 

2001)) (emphasis in Taylor). The court also stated “the well-established rule that every 

person owes every other person a duty imposed by law to be careful not to hurt him,” 

id. at 893 (citation and internal quotation marks omitted), and confirmed that, “[i]n a 

variety of circumstances, [the Alabama Supreme Court] has recognized a duty to 

foreseeable third parties, based on a general obligation imposed in tort to act 

reasonably,” id. (citations and internal quotation marks omitted). 

In Taylor, an injured motorist plaintiff brought a negligence action against a 

physician, who administered methadone and served as the director of a methadone 

treatment center, after one of the physician’s patients, who was under the influence of 

methadone following one of her treatments, “lost control of her automobile and collided 

with the automobile occupied by [the plaintiff].” Id. at 889-90. The plaintiff alleged that 

the physician “owed a duty to [the plaintiff], who was driving on a public roadway, not 

to discharge [his patient], who was impaired and could not operate a motor vehicle in a 

responsible and safe manner.” Id. at 891. The trial court granted summary judgment in 

favor of the physician after concluding that he did not owe the plaintiff a legal duty. Id.

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The Alabama Supreme Court reversed. Id. at 897. The specific question considered by 

the supreme court was “whether the director of a methadone-treatment center owes a 

duty of due care to a nonpatient motorist who is injured in an automobile accident with 

the director’s patient, when it is reasonably foreseeable that such an accident may result 

from the director’s failure to exercise due care in administering methadone to the 

patient.” Id. at 892. After considering the factors identified above,

7 the court 

determined that the physician/director owed a duty of care to the plaintiff. Id. at 897.

In Kelly v. M. Trigg Enterprises, Inc., 605 So. 2d 1185 (Ala. 1992), another 

instructive case, the Alabama Supreme Court concluded that a retail store owed a duty 

of care to motorists who were injured in a collision with a car driven by a minor who 

had intentionally inhaled the chemical contents of a product purchased at the store. 

Kelly, 605 So. 2d at 1190. The product at issue in that case was an air freshener 

composed of ethyl chloride, a chemical that causes dizziness and anesthetic effects, 

among other things, when inhaled. Id. at 1189. The injured motorists asserted 

negligence and wantonness claims against the store for distributing the air freshener. 

Id. at 1187. They alleged that the air freshener was an unreasonably dangerous product 

and that the retailer should have known that it was likely to be used as an inhalant. Id. 

The trial court entered summary judgment in favor of the retailer after concluding that 

it was not reasonably foreseeable that the air freshener would be used as an inhalant. 

Id. at 1189. On appeal, the supreme court reversed. Id. at 1190-91. The supreme court 

stated that “’[t]he ultimate test of the existence of a duty to use due care is found in the 

foreseeability that harm may result if care is not exercised.’” Id. at 1190 (quoting 

Buchanan v. Merger Enter., Inc., 463 So. 2d 121, 125-26 (Ala. 1984)). The court added that 

 7 The court also discussed statutes pertaining to the medical practice, as well as the 

policy implications of its decision. Taylor, 892 So. 2d at 892-97. 

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“’a finding of legal duty in [Alabama] continues to be a function of the foreseeability of 

the danger, tempered by a consideration of the feasibility of an alternative design.’” Id.

(quoting Bean v. BIC Corp., 597 So. 2d 1350, 1352 (Ala. 1992). Because the plaintiffs had 

presented evidence that it was foreseeable to the retail store that the air freshener 

product would be used as an inhalant, the supreme court concluded that the retail store 

owed a duty to the plaintiffs who were injured in an automobile accident as a result of 

the inhalation of the product. Id. at 1190.

Based on the legal authority discussed above, and “resolv[ing] any uncertainties 

about the applicable law in the [P]laintiff’s favor,” Pacheco de Perez, 139 F.3d at 1380, the 

undersigned concludes that there is a possibility that an Alabama court could find that 

Ms. Williams owed the Plaintiff a duty of care in this case. Considering the facts of the 

instant case in the light most favorable to the Plaintiff, the most important factor—

foreseeability—weighs heavily in favor of finding a duty because Sergeant Conner 

stated that Ms. Williams knew that the method by which Dollar General merchandise 

was delivered to the McIntosh store was unsafe for motorists on U.S. Highway 43, (doc.

14-2 at 2). A finding of a duty is further supported by the type of harm threatened in 

this case because the method of delivery of goods to the McIntosh store “involve[d] a 

high potential for severe personal injury, death, and property damage.” Taylor, 892 So. 

2d at 897. The other factors—the nature of the defendant’s activity and the relationship 

between the parties—do not as clearly weigh in favor of finding a duty. Ms. Williams’ 

activity in this case involved her managing of the store and, as Plaintiff alleges, her 

failure to allow for a safe method of delivery of store merchandise. However, discovery 

has not commenced, and the parties have not established the nature of Ms. Williams’ 

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managerial activities.8 Without a clearer picture of Ms. Williams’ managerial activities 

it is difficult to assess whether her activity weighs in favor of finding a duty. 

Nevertheless, it is possible that an Alabama court could find that her conduct weighs in 

favor of a duty, particularly if it finds that she was involved with ordering and/or 

receiving merchandise as well as maintaining a safe entryway to the store lot. Lastly, 

the relationship between Ms. Williams, the manager of the McIntosh store, and the 

Plaintiff, a motorist passing by the store, does not appear particularly strong. However, 

such a relationship, on its own, will not foreclose the finding of a duty. See Kelly, 605 So. 

2d at 1190 (finding that a retailer owed a duty of care to motorists passing by the store 

when the motorists were injured in an automobile accident caused by a dangerous 

product sold by the retailer).9 Although an Alabama court could conclude, ultimately, 

 8 Notably, Ms. Williams’ affidavit does not contain an explanation of her 

managerial activities and responsibilities. (See doc. 1-4.) Rather, she simply states that her 

responsibilities do not include the supervising or controlling of the delivery truck drivers, who 

are employed by Werner Enterprises. (Doc. 1-4, ¶¶ 4-6.) The Defendants argue that those facts 

demonstrate that Ms. Williams did not owe a duty of care to the Plaintiff in this case. (Doc. 18 

at 4.) The Defendants are mistaken. The fact that Ms. Williams did not supervise or control the 

truck drivers does not refute the Plaintiff’s allegations that Ms. Williams had a duty to secure a 

safe method of delivery to her store by notifying the police of the scheduled delivery or 

otherwise allowing for a safe delivery by maintaining the parking lot in such a fashion as to 

accommodate the arrival of the trucks to the store lot in a safe manner, (doc. 1-2 at 11-12). Of 

course, Ms. Williams also states in her affidavit that the police never informed her that the 

method of delivering merchandise to her store was unsafe, that the police never told her to call 

them in advance of scheduled deliveries, and that she would not be able to notify the police of 

scheduled deliveries because she does not know when the delivery trucks will arrive at her 

store. (Doc. 1-4, ¶¶ 8-10.) However, those statements are disputed by the affidavit of Sergeant 

Conner, (doc. 14-2), and the undersigned construes the facts in favor of the Plaintiff. 

9 The undersigned acknowledges that Kelly involved a retail store defendant, not a 

store manager. See Kelly, 605 So. 2d at 1190. To the extent that the Defendants argue that an 

Alabama court could not find that a store manager might share in the duty of care owed by her 

store, the undersigned disagrees. See Waters v. Anthony, 40 So. 2d 316, 319 (Ala. 1949) (finding 

that a manager of a movie theater owed a duty of care to patrons of the theater); Boyd v. WalMart Stores, Inc., 710 So. 2d 1258, 1260 (Ala. Civ. App. 1997) (reversing the entry of summary 

judgment in favor of store managers on premises liability claim because the court could not 

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that Ms. Williams did not owe the Plaintiff a duty of care in this case, at this stage in the 

proceedings, the Defendants have not demonstrated by clear and convincing evidence 

that there is no possibility that an Alabama court could find such a duty.

Finally, the Defendants argue that the Plaintiff cannot establish a cause of action 

against Ms. Williams for Dollar General’s alleged wrongful conduct because, the 

Defendants contend, she “did not personally participate or contribute to Plaintiff’s 

accident and resulting injuries.” (Doc. 18 at 5-6.) In support of this argument, the 

Defendants cite only to Sieber v. Campbell, 810 So. 2d 641, 645 (Ala. 2001), and Ex parte 

Charles Bell Pontiac-Buick-Cadillac-GMC, Inc., 496 So. 2d 774, 775 (Ala. 1986), two cases in 

which the Alabama Supreme Court stated the general rule that “employees of a 

corporation are liable for torts in which they have personally participated, irrespective 

of whether they were acting in a corporate capacity.” (Doc. 18 at 5 (citing Sieber, 810 So. 

2d at 645; Ex parte Charles Bell, 496 So. 2d at 775).)10 

For Ms. Williams to have participated in the wrongful act at issue in this case, 

“‘there must have been upon [her] part such a breach of duty as contributed to, or 

helped bring about, the injury.’” Atwood v. Weyerhaeuser USA, Inc., Civil Action No. 09-

0379-CG-N, 2010 WL 749337, at *3, 9 (S.D. Ala. Feb. 26, 2010) (quoting Crigler v. Salac, 

438 So. 2d 1375, 1380 (Ala. 1983)). However,

 conclude, “as a matter of law, . . . that . . . [the store managers] were not negligent”); see also 

Kimbrough v. Dial, Civil Action No. 06-0585-WS-C, 2006 WL 3627102, at *3-4 (S.D. Ala. Dec. 11, 

2006) (discussing Waters and Boyd, and concluding, for purposes of a motion to remand, that the 

plaintiff had sufficiently alleged a duty of care to support her negligence and wantonness 

claims against a store manager).

10 Neither Sieber nor Ex parte Charles Bell advances the Defendants’ argument. 

Sieber involved questions of personal jurisdiction and facts entirely different from this case. See

810 So. 2d at 645. In Ex parte Charles Bell, the Alabama Supreme Court concluded that the agent 

of the corporation was properly named in a fraud action for venue purposes because the 

Plaintiff alleged that the agent personally participated in the fraud. See 496 So. 2d at 775.

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this [C]ourt does not need to reach a definite pronouncement of how 

much participation is necessary for [Ms. Williams] to be found liable 

under Alabama law, because in reviewing a motion to remand in light of a 

fraudulent joinder claim, the precise contours of the amount of 

participation . . . is not relevant. The Eleventh Circuit has made it clear 

that this [C]ourt may only deny a motion to remand if the defendants 

have proven by clear and convincing evidence that there is “no possibility” 

that the plaintiff[] “can establish a cause of action against the [] resident 

defendant[] . . . [.] 

Id. at *4 (citing Henderson, 454 F.3d at 1283) (footnote omitted).

Based on the allegations in the Complaint and the affidavits presented by the 

parties, the undersigned finds for purposes of the Plaintiff’s motion to remand that an 

Alabama court might find that Ms. Williams participated in the tort alleged in this case. 

See Kimbrough, 2006 WL 3627102, at *5 (rejecting the defendants’ argument that a store 

manager was fraudulently joined because she did not personally contribute to the tort 

where the plaintiff alleged that the store manager “personally failed to maintain the 

store in a reasonably safe condition, . . . personally failed to warn [the plaintiff] of the 

unreasonably dangerous condition, and . . . personally caused or allowed the 

unreasonably dangerous condition to exist”). As discussed above, the Plaintiff alleges 

that Ms. Williams negligently failed to secure a safe method of delivery of merchandise 

to the McIntosh store and that, as a result of her negligence, the Plaintiff was injured 

when his vehicle collided with the truck delivering merchandise to the McIntosh store. 

(Doc. 1-2 at 10-13.) Furthermore, the Plaintiff has made a showing that Ms. Williams 

knew that the method of delivery was unsafe, that she received notice of when delivery 

trucks were scheduled to arrive, and that she agreed that the police should be notified 

of deliveries in order to provide traffic control and ensure safety on the roadway during 

deliveries. (Doc. 14-2 at 2-3.) The Defendants argue that Ms. Williams did not 

participate in the tort in this case because she was not responsible for supervising the 

delivery truck drivers and did not have the ability to control them. (Doc. 18 at 6.) As

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discussed above, see supra note 8, such arguments are unavailing. Under the 

circumstances of this case, as alleged by the Plaintiff, Ms. Williams did not need to 

supervise or control the truck drivers to fulfill her duty of care to the motorists passing 

by her store. 

Conclusion

Keeping in mind the narrow construction afforded the removal statute, the 

undersigned has concluded that the Defendants have failed to meet their burden of 

establishing the jurisdiction of this Court. Specifically, the undersigned finds (1) that 

the Defendants failed to establish that the amount in controversy in this case exceeds 

$75,000.00, and (2) that the Defendants failed to establish that the resident Defendant, 

Sabrina Williams, was fraudulently joined. Accordingly, after careful consideration of 

the pleadings and the parties’ briefing, and for the reasons set forth above, it is hereby 

RECOMMENDED that the Plaintiff’s Motion to Remand (doc. 14) be GRANTED and 

that this matter be REMANDED to the Circuit Court of Washington County, Alabama.

NOTICE OF RIGHT TO FILE OBJECTIONS

A copy of this report and recommendation shall be served on all parties in the 

manner provided by law. 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 this Court. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 

72(b); S.D. ALA. L.R. 72.4. The parties should note that under Eleventh Circuit 

precedent, “the failure to object limits the scope of [] appellate review to plain error 

review of the magistrate judge’s factual findings.” Dupree v. Warden, 715 F.3d 1295, 1300 

(11th Cir. 2013) (emphasis in original). In order to be specific, an objection must identify 

the specific finding or recommendation to which objection is made, state the basis for 

the objection, and specify the place in the Magistrate Judge’s report and 

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recommendation where the disputed determination is found. An objection that merely

incorporates by reference or refers to the briefing before the Magistrate Judge is not 

specific.

DONE this the 2nd day of February 2015.

s/WILLIAM E. CASSADY

UNITED STATES MAGISTRATE JUDGE

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