1

 The parties dispute the standard of review this court should use to evaluate the

magistrate judge’s order. The plaintiffs claim that a magistrate judge’s remand order is a

nondispositive decision and should be reviewed under a standard of “clearly erroneous or

contrary to the law” while the defendants argue that a magistrate’s remand order is a dispositive

issue and should be reviewed de novo. Since this court agrees with the magistrate judge’s

findings under both standards of review, this court will not address this issue at this time. 

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

)

MELVIN ATWOOD, et al., )

)

Plaintiffs, )

)

vs. ) CIVIL ACTION NO. 09-0379-CG-N

)

WEYERHAEUSER USA, INC., et al., )

)

Defendants. )

ORDER

This matter is before the court on the report and recommendation of the magistrate judge

(Doc. 53), the objection of defendant International Paper Company (“IP”) to the report and

recommendation (Doc. 55), the plaintiffs’ response to the objection (Doc. 58), and defendant

IP’s reply brief to the plaintiffs’ response (Doc. 62), a reply which defendant Weyerhaeuser

Company joined (Doc. 61). The magistrate judge recommended that this action be remanded to

state court because the plaintiffs and three of the defendants are citizens of the State of Alabama

and the defendants failed to establish by clear and convincing evidence that the individual

defendants were fraudulently joined. Upon a review1 of those portions of the report and

recommendation to which the objection is made, the court agrees with the findings of the

magistrate judge and finds that this civil action should be remanded to the Circuit Court of

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2

 Corporate defendant IP is a citizen of the states of New York and Tennessee. (Doc. 1,

Ex. 1, Carter Aff. ¶ 2). Corporate defendant Weyerhaeuser Company is a citizen of the state of

Washington. (Id., Ex. 2, Merrick Aff., ¶ 3). IP asserts that the remaining corporate defendants

either never existed, have been dissolved, or merged into defendant Weyerhaeuser Company,

thus don’t have separate legal existence. (Doc. 1, ¶ 4; Ex. 2, Merrick Aff., ¶ 2). 

2

Wilcox County, Alabama.

FACTS

On May 22, 2009, the plaintiffs, who all are current property owners located in and

around Yellow Bluff, Alabama, filed an action against seven corporate defendants and three

individuals in the Circuit Court of Wilcox County, Alabama. (Doc. 1, Ex. 5, ¶¶ 1-11). The

plaintiffs allege (1) that the defendants operate or have operated an industrial plant (the “Pine

Hill Mill”), which is currently owned by IP and formerly owned by Weyerhaeuser Company and

is located adjacent to or near their homes, (2) that the defendants are responsible for the regular

release of harmful pollutants, (3) that they have had notice of such release and associated

damages for some time, and (4) that defendants are responsible for damage to and devaluation of

plaintiffs’ property. (Doc. 1, Ex. 5, ¶¶ 15-6, 18, 28-9; Ex. 3, Neighbors Aff., ¶ 3 & 7). 

The three individual defendants either were previously or are currently managerial

employees at the plant: Brad Larrimore (“Larrimore”), who was plant manager before the plant

was sold to IP; Janet Neighbors (“Neighbors”), who is the current plant manager; and Kyle

Moore (“Moore”), who is the present environment, health, and safety manager. (Doc. 1, Ex. 3,

Neighbors Aff., ¶ 3; Ex. 4, Moore Aff. ¶ 3; Doc. 12, Larrimore Supp. Aff., ¶ 4). While the

corporate defendants are all citizens of states other than Alabama,2

 the three individual

defendants are citizens of Alabama. (See Doc. 1, Ex. 5, ¶ 8, 10-11; Ex. 3, Neighbors Aff., ¶ 1;

Ex. 4, Moore Aff. ¶ 1).

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On June 26, 2009, IP filed a notice of removal in this court asserting that the three

individual defendants had been fraudulently joined in this action. (Doc. 1, ¶ 12). Once these

defendants are deemed improperly joined by this court and therefore disregarded, IP asserts that

this court would have diversity jurisdiction under 28 U.S.C. § 1332(a) because each plaintiff

would then be completely diverse from the remaining defendants. (Id., ¶ 13). The notice was

timely filed and recites that the defendants jointly give notice of removal and that the defendants

jointly consent to the removal. (Id., ¶¶ 6 & 11). 

Defendant IP attached affidavits from each of the three individual defendants to the

notice of removal. (See Doc. 1, Ex. 3, Neighbors Aff.; Ex. 4, Moore Aff.; Ex, 8, Larrimore Aff.,

¶ 4). Neighbors affidavit states in relevant part:

4. I am not personally responsible for the Pine Hill Mill’s alleged

emissions of the “pollutants” identified in the Complaint... nor have I personally

released any such “pollutants” or other substances from the mill.” 

5. ...[I]n my capacity as manager of the Pine Hill Mill, I do not personally

direct or approve the emission of the “pollutants” that Plaintiffs allege have

caused injury. As mill manager, I liaise with the Pine Hill Mill’s various

department heads to facilitate the mill’s achievement of the production goals set

by IP at the corporate level in Memphis. My duties also include implementing

the budget for the Pine Hill Mill’s operations that is set by IP corporate. 

6. The emission of substances from the Pine Hill Mill is a function of the

Pine Hill Mill’s production volume, manufacturing processes, and pollution

control systems, which are designed to ensure operation in compliance with

applicable environmental laws, regulations and permits. I do not have authority

to unilaterally alter these components of the Pine Hill Mill. The products

produced at the Pine Hill Mill and the level of production for those products is

established by my superiors in Memphis on a frequent basis; currently my

production goals are set weekly. The manufacturing processes and pollution

control systems are similarly not within my sole control; instead, they are

established and maintained in concert with IP’s corporate-level environmental

health and safety personnel and manufacturing personnel. 

7. ... I do not have, and have not had, the authority to change the Pine Hill

Mill’s wastewater treatment system, including the “polishing pond,” or the

pollution control systems. Decisions to change these systems are made with input

from, and the approval of, the IP corporate level; they are not unilaterally made at

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4

the mill level. 

8. The numerous state and federal environmental laws to which the Pine

Hill Mill is subject have a significant impact on the pollution control systems in

operation and any changes thereto... My responsibilities include assuring

compliance with these permits and with regulations. I do not personally have the

authority to make any change that may require the Pine Hill Mill to obtain a new

permit or to seek modification of an existing permit. Any such operation changes

must be reviewed, and approved by, the mill’s environmental health and safety

manager... and his EHS superiors at the IP corporate level. My ‘responsib[ilities]’

relating to the mill’s ‘maintain[ence] and/or operat[ion],’ Compl., ¶ 10, thus, have

always been limited by the scope of my authority, the decisions of my superiors at

IP, corporate policies, and environmental regulations.

9. ... I have not personally ‘avoid[ed] the expense associated’ with

‘obviat[ing] the polishing pond treatment system’ My authority to make capital

expenditures is limited... 

(Doc. 1, Ex. 3, Neighbors Aff.)

On July 6, 2009, Neighbors and Moore filed a motion to dismiss the plaintiffs’ case

against them for the reasons stated in the notice of removal, and this motion was referred to the

magistrate judge. (Doc. 16). On July 23, 2009, the plaintiffs filed a motion to remand the action

to the Circuit Court in Wilcox County, Alabama, because the matter was improperly removed

due to the lack of complete diversity between the plaintiffs and all of the defendants. (Doc. 22). 

This motion was also referred to the magistrate judge. 

On September 25, 2009, the magistrate judge recommended to this court that the

plaintiffs’ motion be granted to remand the case to the Circuit Court of Wilcox County,

Alabama. The magistrate judge also recommended that “no action be taken by this court on the

pending Motions to Dismiss [], in view of the finding that this court lacks jurisdiction.” Lastly,

the magistrate judge recommended “that plaintiffs’ request for an award of costs and fees be

[denied].” (Doc. 53, p. 13). On October 9, 2009, defendant IP objected to the report and

recommendation “in two core respects”. First, defendant IP asserts that “the recommendation is

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5

based on an incorrect legal standard for determining personal liability of corporate employees

under Alabama case law.” Second, defendant IP maintains that the report “draws unwarranted

conclusions from the evidence that was submitted in support of removal.” (Doc. 55, p. 2). 

LEGAL DISCUSSION

A. Whether the magistrate judge used the incorrect legal standard

Defendant IP does not dispute the legal standard governing fraudulent joinder. The

Eleventh Circuit has stated that “a court must remand the matter back to the state court if any of

the properly joined parties in interest are citizens of the state in which the suit was filed.” To

avoid this remand, a defendant may prove that a co-defendant was fraudulently joined, and if

proven, the Eleventh Circuit stated that a “district court must [then] ignore the presence of the

non-diverse defendant and deny the motion to remand...” To prove this, the defendant “must

demonstrate either that: ‘(1) there is no possibility the plaintiff can establish a cause of action

against the resident defendant; or (2) the plaintiff has fraudulently pled jurisdictional facts to

bring the resident defendant into state court.’” Furthermore, “[t]he defendant must make such a

showing by clear and convincing evidence.” Henderson v. Washington Nat’l Ins. Co., 454 F.3d

1278 (11th Cir. 2006)(quoting Crowe v. Coleman, 113 F.3d 1536, 38 (11th Cir. 1997) . 

Defendant IP also does not contest that an employee can be personally liable for a tort in

which he or she personally participates. The magistrate judge is correct that under Alabama law,

“a corporate agent who personally participates, albeit in his or her capacity as such agent, in a

tort is personally liable for the tort.” (Doc. 53, p. 6)(quoting Ex parte McInnis, 820 So.2d 795

(Ala. 2001)(quoting Sieber v. Campbell, 810 So.2d 641, 645 (Ala. 2001))(internal quotation

marks omitted), and that “[t]he Supreme Court had earlier held that ‘[i]n Alabama, the general

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6

rule is that officers or employees of a corporation are liable for torts in which they have

personally participated, irrespective of whether they were acting in a corporate capacity.” 

(Id.)(quoting Ex parte Charles Bell Pontiac-Buick-Cadillac-GMC, Inc., 496 So.2d 774, 775 (Ala.

1986)(citations ommitted)); see also Consol. Constr. Co. of Ala. v. Metal Bldg. Components,

L.P., 961 So.2d 820, 824 (Ala. 2007). In sum, this court agrees with the magistrate judge that

“in order to find 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.’” 

(Doc. 53, p. 7)(quoting Crigler v. Salac, 438 So.2d 1375, 1380 (Ala. 1983)(quoting Fletcher’s

Cyclopedia of Corporations § 1137 at 208 (1975))). 

However, defendant IP does challenge the magistrate judge’s assessment of how much

participation is necessary for an employee to be found liable. After analyzing the three

individual defendants’ affidavits, the magistrate judge concluded:

None of these affidavits, taken as true, is sufficient to establish that an Alabama

court, applying Alabama law, could not find the individual defendants liable. 

Indeed, they offer an independent evidentiary basis for finding that these

individual defendants had a degree of authority and discretion over functions

relevant to the claims for nuisance, negligence, wantonness and trespass... 

Accordingly, the court can not say that there is no possibility of liability. 

(Doc. 53, p. 12). 

Defendant IP asserts that the magistrate judge’s conclusion, “that an employee may be

‘personally liable’ for a corporation’s allegedly tortious acts - here, the ‘Plant’s emissions’ -

whenever ‘a degree of authority and discretion over functions relevant to” the alleged claims,

is too broad of an interpretation of Alabama law.” (Doc. 55, p. 3)(quoting Doc. 53, p. 12). 

Relying on Galactic Employer Servs. v. McDorman, 880 So.2d 434, 438 n.2 (Ala.CivApp.

Case 2:09-cv-00379-CG-N Document 70 Filed 02/26/10 Page 6 of 12
3

 Galactic is clearly distinguishable to the present case because it concerns the liability of

officers to creditors of a corporation, not for the company’s torts that cause physical injury like

in this case.

4

 Furthermore, if there is any ambiguity or doubt about substantive state law, this fact

“favors remand to state court.” Crowe v. Coleman, 113 F.3d 1536, 1539 (11th Cir. 1997). 

7

2003),3

 defendant IP argues that “ the Alabama case law [instead] reflects a prudent line drawn

by Alabama courts - only those agents who ‘personally participated,’ i.e., agents who ‘directed

controlled, approved, or ratified the decision which led to the plaintiff’s injury” may be

personally liable. (Doc. 55, p. 3). In determining how much control is needed, defendant IP

asserts that the requisite control should be limited to “corporate owners, officers, and directors

because these ‘corporate officers’ are “charged in law with affirmative official responsibility in

the management and control of corporate business.” (Id., p. 4)(quoting Crigler v. Salac, 438

So.2d at 1378 & 1380). 

Contrary to defendant IP’s assertions, the magistrate judge’s assessment of the law is

correct. This court does not need to reach a definite pronouncement of how much participation

is necessary for an employee 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 of the three individual defendants is not relevant.4 The Eleventh Circuit has made it

clear that this court may only deny a motion to remand if the defendants have proven by clear

and convincing evidence that there is “no possibility” that the plaintiffs “can establish a cause of

action against the [three] resident defendant[s]...” Henderson, 454 F.3d at 1283 (emphasis in

original)(citations omitted). In other words, remand must be granted if “after drawing all

reasonable inferences from the record in the plaintiff’s favor and then resolving all contested

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8

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.’” Crowe, 113 F.3d at 1541-42

(emphasis in original)(citations omitted)(“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.”)

As a result, if after examining the plaintiffs’ complaint and accompanying affidavits in

this case, this court is able to say that there is any possibility, no matter how small, that an

Alabama state court might find that the three resident defendants had personally participated in

the tort, then the Eleventh Circuit has mandated that this court shall grant the plaintiffs’ motion

for remand. Because of the foregoing, this court finds that the magistrate judge used the correct

legal standard in assessing whether the three individual defendants were fraudulently joined to

this matter. 

B. Whether the magistrate judge drew unwarranted conclusions from the evidence

As stated above, as the removing party, the defendant bears the burden of proving

fraudulent joinder by clear and convincing evidence. Crowe, 113 F.3d at 1538. The burden “is a

heavy one”; if the plaintiff states “even a colorable claim against the resident defendant, joinder

is proper and the case should be remanded to state court.” Pacheco de Perez v. AT&T Co., 139

F.3d 1368, 1380 (11th Cir. 1998). “The 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.” Id. The

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5

 Defendant IP also asserts that the magistrate judge improperly relied on Gladney v.

Weyerhaeuser USA Inc., 06-212-KD-C (S.D.Ala. Sept. 5, 2006). (Doc. 55, pp. 11-2). This

court disagrees. First, the Gladney order is persuasive since it involved the same plant, similar

non-diverse employees and similar claims from the release of the same pollutants, and dealt

specifically with the issue of whether different Weyerhaeuser managers of the Pine Hill Mill

were fraudulently joined in a personal-injury action from the same pollutants. Second, in

addition to comparing the present case to Gladney, the magistrate judge here made an

independent determination of whether each individual defendant might be personally liable

under Alabama law by looking at each of their affidavits. See Yarbrough v. Ledford, 771 So.2d

1051 (Ala.Civ.App. 2000); Rice v. Merritt, 549 So.2d 508 (Ala.Civ.App. 1989)(cases establish

that under Alabama law, the determination of whether an individual has personally participated

in a tort is made on a case-by-case basis upon an evaluation of the evidence of the actual activity

of the employee defendant). 

9

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).” Crowe, 113 F.3d at

1538(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). However,

while the analysis is similar, “the jurisdictional inquiry ‘must not subsume substantive

determination’ ... [and w]hen considering a motion for remand, federal courts are not to weigh

the merits of a plaintiff’s claim beyond determining whether it is an arguable one under state

law.” Crowe, 113 F.3d at 1538. This court’s authority to assess the “ultimate merit of the

plaintiff’s claims must be limited to checking for obviously fraudulent or frivolous claims” and it

should not attempt to determine “the merits of cases that do not appear readily to be frivolous or

fraudulent.” Id. at 1541-42. 

Each of the individual defendants offered affidavits denying personal responsibility.5 In

regard to defendant Neighbors, the magistrate concluded that Neighbors’ denials in her affidavit 

“fall well short of absolving her of responsibility; despite the limits on her authority, and the

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6

 (Doc. 1, Ex. 3, Neighbor Aff., ¶ 5-7)

10

need in some instances to submit her proposed policies to others for discussion or approval, she

has not refuted the existence of some authority over the process that released [the hazardous

compounds] at issue” In other words, “she retains sufficient authority and discretion, even if it is

limited in scope or is reviewed by others, to have personal liability for the way in which she

exerted or failed to exert that authority.” (Doc. 53, p. 10). 

The court agrees with the magistrate judge’s conclusions as to defendant Neighbors. 

Although defendant IP wants this court to gauge whether Neighbors’ limited authority is enough

personal participation in the tort to make her liable, our inquiry is much more basic. The court

must merely decide whether the defendants have shown by clear and convincing evidence that

no Alabama court could find plaintiffs’ complaint and this affidavit sufficient to invoke claims

for nuisance, negligence, wantonness and trespass. Neighbors’ patchy denials - that she did not

“personally direct or approve the emission of the ‘pollutants,’” that manufacturing and pollution

control systems were not within her “sole” control, and that neither she nor anyone at the mill

could “unilaterally” change the pollution control system and wastewater system6

 - may

ultimately be victorious in denying liability, but this court is unable to say at this stage that there

is no possibility the plaintiffs have asserted a colorable claim of nuisance, negligence,

wantonness and trespass against Neighbors. See Crowe, 113 F.3d at 1538 (“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.”). The decision as to the sufficiency

of the pleadings and Neighbor’s denials is for the state court, “and for the federal court to

interpose its judgment would fall short of the scrupulous respect for the institutional equilibrium

Case 2:09-cv-00379-CG-N Document 70 Filed 02/26/10 Page 10 of 12
11

between the federal and state judiciaries that our federal system demands.” Henderson, 454 F.3d

at 1284. 

Since the defendants have not shown by clear and convincing evidence that Neighbors

was fraudulently joined, this potential liability “is sufficient to establish the lack [of] complete

diversity between plaintiffs and defendants, and thus this court’s lack of jurisdiction over the

action.” (Doc. 53, p. 10)(citing Florence v. Crescent Resources, LLC, 484 F.3d 1293, 1299

(11th Cir. 2007)(“[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 the joinder of the resident defendant was fraudulent, and remand is necessary.”)); Coker

v. Amoco Oil Co., 709 F.2d 1433, 1440-41 (11th Cir. 1983)(“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 joinder was proper and remand the case to state

court.”) superceded by statute on other grounds as stated in Georgetown Manor, Inc. v. Ethan

Allen, Inc., 991 F.2d 1533 (11th Cir. 1993); 

CONCLUSION

After due and proper consideration of all portions of this file deemed relevant to the

issues raised, and a determination of those portions of the report and recommendation to which

objection is made, the report and recommendation of the magistrate judge is ADOPTED as the

opinion of this court. It is ORDERED that this case be and is hereby REMANDED to the

Circuit Court of Wilcox County, Alabama. Plaintiffs’ motion for attorney’s fees, costs and

expenses is DENIED. The court having granted plaintiffs’ motion to remand, finds that the

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7

 Because this court has determined that this case should be remanded to state court, this

court then does not have the subject matter jurisdiction to determine any other motions. 

See Univ. of S. Ala. v. Am. Tobacco Corp., 168 F.3d 405, 411 (11th Cir. 1999). 

12

defendants’ motion to dismiss (Doc. 16) is MOOT.

7

DONE and ORDERED this 26th of February, 2010.

/s/ Callie V. S. Granade 

UNITED STATES DISTRICT JUDGE

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