IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

LEROY BRUNER and )

SOPHIA BRUNER, )

)

Plaintiffs, )

)

v. ) Civil Action No. 15-00319-N

)

AMERICAN HONDA MOTOR CO., INC.,)

et al, )

)

Defendants. )

ORDER

This matter came before the undersigned for a hearing on July 28, 2015. 

Present at the hearing were E. Gregory Allen, Esq., Stephanie Monplaisir, Esq., and 

Charles Potts, Esq., counsel for Plaintiffs LeRoy Bruner and Sophia Bruner; and De 

Martenson, counsel for Defendants American Honda Motor Co., Inc. and Honda of 

America Mfg., Inc. The Court heard oral argument on the Motion to Sever and 

Remand (Doc. 2) and the Motion to Conduct Limited Discovery (Doc. 3) filed by 

Defendants American Honda Motor Co., Inc. and Honda of America Mfg., Inc. (Doc. 

2).1

By the consent of the parties (see Doc. 16), the Court has designated the 

undersigned Magistrate Judge to conduct all proceedings and order the entry of 

 1 The hearing was set on the Court’s sua sponte review of jurisdiction. The Court has an 

independent duty to examine its own jurisdiction. Ala. Power Co. v. U.S. Dept. of Energy, 

307 F.3d 1300, 1308 (11th Cir. 2002). See also Cadet v. Bulger, 377 F.3d 1173, 1179 (11th 

Cir.2004) (“federal courts ‘are obligated to inquire into subject-matter jurisdiction sua 

sponte whenever it may be lacking.’ ”) (quoting Galindo-Del Valle v. Attorney General, 213 

F. 3d 594, 599 (11th Cir. 2000)); accord Univ. of S. Ala. v. American Tobacco Co., 168 F.3d 

409, 411 (11th Cir. 1999) (Federal courts are courts of limited jurisdiction and must 

examine their subject matter jurisdiction even where there is no challenge to jurisdiction).

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judgment in this civil action, in accordance with 28 U.S.C. § 636(c) and Federal Rule 

of Civil Procedure 73. (See Doc. 28). In reaching its decision, the Court considers 

the Motion to Sever and Remand (Doc. 2); the Plaintiffs’ Response to the Motion to 

Sever and Remand (Doc. 17); the Motion to Conduct Limited Discovery (Doc. 3); the 

Plaintiffs’ Response to the Motion to Conduct Limited Discovery; the Notice of 

Removal (Doc. 1); and the Supplement to the Notice of Removal (Doc. 24). Upon 

consideration, and for the reasons stated herein, the undersigned ORDERS that 

the Motion to Sever and Remand be DENIED; that the Motion to Conduct Limited 

Discovery be DENIED; and, since this Court lacks subject-matter jurisdiction, that 

this case be remanded to the Circuit Court of Mobile County, Alabama, under 28 

U.S.C. § 1447(c).2

I. Background

On May 15, 2015, Plaintiffs Leroy Bruner and Sophia Bruner filed a 

products-liability complaint against Defendants American Honda Motor Co., Inc.; 

Honda Motor Co., Ltd.; Honda of America Mfg., Inc., Honda R&D Co., Ltd.; and Alfa 

Insurance Corp. (“Alfa) in the Circuit Court of Mobile County, Alabama.3 See Doc. 1-

1 at 4. On June 27, 2015, the Honda Defendants removed the case to this Court

pursuant to 28 U.S.C. §§ 1441 and 1446, alleging diversity under 28 U.S.C. § 

 2 Any appeal taken from this order and simultaneously entered separate judgment may be 

made directly to the Eleventh Circuit Court of Appeals. See 28 U.S.C. § 636(c)(3); FED. R.

CIV. P. 73(c).

3 Honda Motor Co., Ltd., and Honda R&D Co., Ltd. are Japanese companies, the former 

having been served after these motions were made and the latter having not yet been 

served. The other two Honda companies (American Honda Motor Co., Inc., and Honda of 

America Mfg., Inc.), who are responsible for making the motions under consideration, are 

referred to below as the “Honda Defendants,” exclusive of these Japanese companies

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1332(a)(1) as the sole basis for the Court’s subject matter jurisdiction.4 See Doc. 1 

at 5. 

The parties lack complete diversity, since both the Plaintiffs and Alfa 

Insurance Corp. are citizens of Alabama. Doc. 1 at 3-4; Doc. 1-1 at 4-5. 

Contemporaneously with the notice of removal, the Honda Defendants filed the 

instant Motion to Sever the claim against Alfa Insurance Corp. and moved to 

remand that claim to state court, alleging that Alfa was fraudulently joined and 

should not be considered for the purposes of diversity. Doc. 2 generally; Doc. 1 at 8. 

The Honda Defendants also filed the Motion to Conduct Limited Discovery, to allow 

discovery on the jurisdictional issue of whether a justiciable controversy existed 

between Plaintiffs and Alfa; if no claim could be made against Alfa, then they were 

fraudulently joined. Doc. 3 generally.

On July 16, 2015, the Plaintiffs filed their Response in Opposition to the 

Motion to Conduct Limited Discovery, arguing that Eleventh Circuit Court of 

Appeals precedent disallows post-removal discovery for the purposes of establishing 

jurisdiction. Doc. 14 at 1. On July 20, 2015, the Plaintiffs filed a document entitled 

“Notice of Plaintiffs’ Consent to This Court’s Subject Matter Jurisdiction” (Doc. 

17)5

 4 The Honda Defendants were served on May 27, 2015 (Doc. 1-1 at 100, 103) and the notice 

of removal was filed within 30 days thereof. Therefore, the notice of removal was filed 

under 28 U.S.C. § 1446(b)(1). See Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 757 

(11th Cir. 2010). 

5 The notice states, in full, as follows: “In exchange for the Honda Defendants' agreement to 

having this case heard by and tried before the Honorable Magistrate Judge Katherine P. 

Nelson, the Plaintiffs have agreed to this Court's subject matter jurisdiction. Accordingly, 

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Finally, on July 28, 2015, the Honda Defendants filed a Supplementary 

Removal Notice in which they reiterated their arguments regarding fraudulent 

joinder and indicated to the court that all claims between Plaintiffs and Alfa had 

settled on July 25, 2015. Doc. 24 at 2-3. 

II. Analysis

“It is . . . axiomatic that the inferior federal courts are courts of limited 

jurisdiction. They are ‘empowered to hear only those cases within the judicial power 

of the United States as defined by Article III of the Constitution,’ and which have 

been entrusted to them by a jurisdictional grant authorized by Congress.” Univ. of 

S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 409 (11th Cir. 1999) (quoting Taylor v. 

Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994)). One such Congressional grant of 

jurisdiction is found in 28 U.S.C. § 1332(a)(1), which provides that federal “district 

courts shall have original jurisdiction of all civil actions where the matter in 

controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and 

is between citizens of different States . . . ”

Generally, a defendant may remove “any civil action brought in a State court 

of which the district courts of the United States have original jurisdiction . . . to the 

district court of the United States for the district and division embracing the place 

where such action is pending.” 28 U.S.C. § 1441(a). See also Roe v. Michelin N. Am., 

 

the Plaintiffs have no opposition to the Honda Defendants' "Motion to Sever and Remand" 

Plaintiffs' claims against Alfa Insurance Company to the Circuit Court of Mobile County, 

Alabama. (Doc. 2) Further, as a result of the Parties' agreement, the Honda Defendants' 

"Motion to Conduct Limited Discovery" is moot (Doc. 3) and Plaintiffs hereby withdraw 

their opposition (Doc. 14).”

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Inc., 613 F.3d 1058, 1060 (11th Cir. 2010) (“If a state-court complaint states a case 

that satisfies federal jurisdictional requirements, a defendant may remove the 

action to federal court pursuant to 28 U.S.C. § 1446(b).”).6 “Just as a plaintiff 

bringing an original action is bound to assert jurisdictional bases under Rule 8(a), a 

removing defendant must also allege the factual bases for federal jurisdiction in its 

notice of removal under [28 U.S.C. ]§ 1446(a)[,]” Lowery v. Alabama Power Co., 483 

F.3d 1184, 1216-17 (11th Cir. 2007), and “bears the burden of proving that federal 

jurisdiction exists.” Williams v. Best Buy Co., 269 F.3d 1316, 1319 (11th Cir. 2001). 

Moreover, the law is clear that, “ ‘[b]ecause removal jurisdiction raises significant 

federalism concerns, federal courts are directed to construe removal statutes 

strictly. Indeed, all doubts about jurisdiction should be resolved in favor of remand 

to state court.’ “ City of Vestavia Hills v. Gen. Fid. Ins. Co., 676 F.3d 1310, 1313 

(11th Cir. 2012) (quoting Univ. of S. Ala., 168 F.3d at 411 (citation omitted)).

That the Plaintiffs have withdrawn their opposition to the motion to sever 

and remand and “have agreed to this Court’s subject matter jurisdiction” (Doc. 17) 

is of no moment. Even when a “district court's jurisdiction ... is not contested, ... 

jurisdiction cannot be created by consent[,]” and federal courts “are obligated to 

raise concerns about the district court’s subject matter jurisdiction sua sponte.” 

Mallory & Evans Contractors & Eng’rs, LLC v. Tuskegee Univ., 663 F.3d 1304, 1304 

(11th Cir. 2011) (per curiam).

 6 Like the present action, Roe expressly considered the propriety of removal “under the first 

paragraph of § 1446(b)...” 613 F.3d at 1061 n.4.

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A. Motion to Conduct Limited Discovery

The Honda Defendants’ Motion to Conduct Limited Discovery seeks leave to 

conduct limited discovery on the jurisdictional issue of whether Alfa has tendered 

contractual insurance policy limits to the Plaintiffs and whether Plaintiffs have 

refused to accept them. Doc. 3 at 2. However, “[p]ost-removal discovery for the 

purpose of establishing jurisdiction in diversity cases cannot be squared with the 

delicate balance struck by Federal Rules of Civil Procedure 8(a) and 11.” Lowery v. 

Alabama Power Co., 483 F.3d 1184, 1215 (11th Cir. 2007). “[T]he party who invokes 

the jurisdiction of the court has the burden of establishing jurisdiction . . . [and] a 

removing defendant must [] allege the factual bases for federal jurisdiction in its 

notice of removal under § 1446(a). Id. at 1216-17. “A district court should not insert 

itself into the fray by granting leave for the defendant to conduct discovery . . . 

[since] doing so impermissibly lightens the defendant’s burden of establishing 

jurisdiction.” Id. at 1218. Thus, the Motion to Conduct Limited Discovery is due to 

be denied.

B. Motion to Sever and Remand

The Motion to Sever and Remand seeks to sever the Plaintiffs’ single claim 

against Alfa and remand only that claim to state court. Doc. 2 at 3. The Honda 

Defendants argue that Alfa is a fraudulently joined party, included only for the 

purpose of defeating diversity. Id. at 2. They claim that Alfa is fraudulently joined 

because the Plaintiffs can state no claim against Alfa and even if they could, such 

claims would bear no real connection to the claims against the Honda Defendants. 

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Id. at 2-3.

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

to the requirement of complete diversity.” Triggs v. John Crump Toyota, Inc., 154 

F.3d 1284, 1287 (11th Cir. 1998). Fraudulently-joined parties should not be 

considered for the purpose of determining diversity. Tapscott v. MS Dealer Service 

Corp., 77 F.2d 1353, 1359 (11th Cir. 1996) citing Coker v. Amoco Oil Co., 709 F.2d 

1433, 1440 (11th Cir. 1983). Joinder is fraudulent in three situations:

1. “when there is no possibility that the plaintiff can prove a cause of action 

against the resident (non-diverse) defendant;”

2. “when there is outright fraud on the plaintiff’s pleading of jurisdictional 

facts;” and

3. “where a diverse defendant is joined with a nondiverse defendant as to 

whom there is no joint, several or alternative liability and where the claim 

against the diverse defendant has no real connection to the claim against 

the nondiverse defendant.”

Triggs, 154 F.3d at 1287. The Honda Defendants do not claim that the second form 

of fraudulent joinder is present in this case, rather arguing that either the first or 

third form applies.

In the first form of fraudulent joinder, “[i]f there is even a possibility that a 

state court would find that the complaint states a cause of action against any . . . 

resident defendant[,] the federal court must find that the joinder was proper and 

remand the case to the state court.” Coker, 709 F.2d 1440-41 citing Bobby Jones 

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Garden Apartments, 391 F.2d at 177 and Parks v. New York Times Co., 308 F.2d 

474, 477-78 (5th Cir. 1962). The plaintiff need not have a winning case against the 

allegedly fraudulent defendant; he need only have a possibility of stating a valid 

cause of action in order for the joinder to be legitimate. Triggs, 154 F.3d at 1287.

Plaintiffs allege that Alfa is liable to them for damages caused by Elizabeth 

Darby Rehm, an uninsured driver, under the uninsured/underinsured motorist 

provisions of their insurance contract. Doc. 1-1 at 9.7 The Honda Defendants allege 

that there is no “justiciable controversy” between Plaintiffs and Alfa because Alfa 

has “tendered policy limits of the uninsured/underinsured motorist benefits to 

Plaintiffs.” Doc. 3 at 2. However, for support of this contention, Honda Defendants 

rely on any evidence they might gather through the “limited discovery” they have 

motioned for. Id. Since the Court cannot grant this motion (see above), it has no 

evidence before it to support the contention that the policy limits were offered prior 

to removal.

The Honda Defendants further contend that, to support the claim against 

 7 The Honda Defendants have submitted a document purported to be from Alfa’s 

counsel (who have not appeared in this action) that the issues between the Plaintiffs and 

Alfa have been settled out of court. Doc. 24-1. Counsel for the Honda Defendants again 

advised the Court of this development at the July 28, 2015 hearing. 

Removal occurred on June 22, 2015 (Doc. 1), while the purported settlement did not 

take place until the week of July 24, 2015. Doc. 24-1. Thus, the purported settlement is 

immaterial, since “removal jurisdiction is determined at the time of removal...” Conn. State 

Dental Ass'n v. Anthem Health Plans, Inc., 591 F.3d 1337, 1350 n.9 (11th Cir. 2009). 

Accord Pintando v. Miami-Dade Hous. Agency, 501 F.3d 1241, 1243 n.2 (11th Cir. 2007)

(per curiam) (For “[c]ases removed from state to federal court under 28 U.S.C. § 1447(c) ... , 

the district court must look at the case at the time of removal to determine whether it has

subject-matter jurisdiction.”); Leonard v. Enter. Rent a Car, 279 F.3d 967, 972 (11th Cir. 

2002) (“[F]or purposes of this challenge to the subject matter jurisdiction of the district 

court, the critical time is the date of removal—October 10, 1997.” (citing Poore, 218 F.3d at

1289–91)).

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Alfa, Plaintiffs will have to “prove the tortious conduct of non-party tortfeasors as 

well as elements of the contractual insurance policy in question in order to sustain 

their Breach of Contract claim.” Doc. 2 at 2. While this represents a high bar, it does 

not preclude the possibility that Plaintiffs state a valid cause of action against Alfa. 

Thus, the Honda Defendants have failed to show that the first form of fraudulent 

joinder applies in this case.

The Eleventh Circuit case establishing the third form of fraudulent joinder, 

Tapscott v. MS Dealer Service Corp., instructs that “ ‘right of removal cannot be 

defeated by a fraudulent joinder of a resident defendant having no real connection 

with the controversy.’ ” 77 F.3d 1353, 1359 (1996) quoting Wilson v. Republic Iron & 

Steel Co., 257 U.S. 92, 97, 42 S. Ct. 35, 37, 66 L. Ed. 144 (1921). This form of 

fraudulent joinder appears to require both a lack of “joint several or alternative 

liability” and no “real connection” between the claim against the non-diverse 

defendant and that against the diverse defendant. Triggs, 154 F.3d at 1287 (“ . . . a 

third situation of fraudulent joinder was identified—i.e., where a diverse defendant 

is joined with a nondiverse defendant as to whom there is no joint, several or 

alternative liability and where the claim against the diverse defendant has no real 

connection to the claim against the nondiverse defendant.” (emphasis added)). 

This type of joinder is fraudulent because it represents misjoinder under FED.

R. CIV. P. 20 and because it is “so egregious” as to “border on a sham.” Tapscott, 77 

F.3d at 1360 (“We do not hold that mere misjoinder is fraudulent joinder, but we do 

agree with the district court that Appellants’ attempt to join these parties is so 

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egregious as to constitute fraudulent joinder.). The case establishing this form of 

joinder involved a state-law class action suit, which included a non-diverse 

defendant and which involved the sale of “ ‘service contracts’ sold and financed in 

Alabama.” Id. at 1355. An amended complaint named additional plaintiffs who 

alleged violations of the same Alabama statutes, but whose claims arose out of the 

sale of “ ‘extended service contract’ in connection with the sale of retail products.” 

Id. (emphasis original). The claims involved completely different parties and 

different types of contracts, with no factual issues in common. Id. at 1360. The only 

commonality was “allegations of violations of Alabama Code §§ 5-19-1, 5-19-19, and 

5-19-20.” Id. The Eleventh Circuit found that “[s]uch commonality on its face is 

insufficient for joinder.”

The joinder of Alfa here does not rise to the egregiousness of the joinder of 

unconnected parties in Tapscott. While the Plaintiffs do not allege any joint, several, 

or alternative liability among Alfa and the Honda Defendants, all claims in this 

case arise out of a May 9, 2014, automobile collision involving Plaintiffs, who are 

covered by Alfa, and a vehicle manufactured by the Honda Defendants. Doc. 1-1 at 

5-10. This represents the “real connection” called for by Tapscott, Triggs, and 

Wilson. The lack of joint, several, or alternative liability may indicate misjoinder 

under FED. R. CIV. P. 20, but this misjoinder is not “so egregious” that it rises to the 

level of fraudulent joinder. See Tapscott, 77 F.3d at 1360.

Since the Honda Defendants have not shown that Alfa was fraudulently 

joined under any of the forms outlined by the Eleventh Circuit, the Motion to Sever 

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and Remand is due to be denied.

C. Subject-Matter Jurisdiction

Since Alfa Insurance Corp. is not fraudulently joined, it cannot be ignored for 

purposes of establishing diversity jurisdiction. Exercise of diversity jurisdiction by 

the district court requires “complete diversity; every plaintiff must be diverse from 

every defendant.” Triggs, 154 F.3d at 1287 citing Tapscott, 77 F.3d at 1355; see also

28 U.S.C. § 1332. The Plaintiffs are both citizens of Alabama. Doc. 1 at 3 accord

Doc. 1-1 at 4. Defendant Alfa is also a citizen of Alabama. Doc. 1 at 4 accord Doc. 1-

1 at 4. Thus, parties are not completely diverse.

The district court must have subject-matter jurisdiction in order to adjudicate 

a case. 28 U.S.C. § 1447(c) (“If at any time before final judgment it appears that the 

district court lacks subject matter jurisdiction, the case shall be remanded.”).

Diversity jurisdiction is the only form of subject-matter jurisdiction alleged by the 

removing parties in this case. Doc. 1 at 4-8. Thus, the undersigned finds that the 

Honda Defendants have failed to meet their burden on removal to demonstrate that 

this Court has subject-matter jurisdiction over the claims at issue. Consequently, 

this case is due to be remanded to state court. See 28 U.S.C. § 1447(c).

III. Conclusion

Based on the foregoing analysis, it is ORDERED that:

1. The Motion to Sever and Remand (Doc. 2) is DENIED;

2. The Motion to Conduct Limited Discovery (Doc. 3) is DENIED; and

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3. The Court sua sponte REMANDS this case, in its entirety, to the Circuit 

Court of Mobile County, Alabama, under 28 U.S.C. § 1447(c)

Final judgment in accordance with this Order and Federal Rule of Civil 

Procedure 58 shall issue by separate document.

DONE and ORDERED this the 25th day of August 2015.

/s/ Katherine P. Nelson

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE

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