IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

DAVID LEWIS, :

 :

Plaintiff, :

 :

vs. : CIVIL ACTION NO. 16-00111-B

 : 

AMERIPRISE INSURANCE COMPANY, :

et al., :

 :

Defendants. :

ORDER

This case is before the Court on Plaintiff David Lewis’ 

Motion to Remand (Doc. 9), and Defendants IDS Property Casualty 

Insurance Company and Ameriprise Insurance Company’s Motion to 

Strike (Doc. 14). The motions have all been fully briefed, and 

the parties agree that they are ripe for resolution.

On May 20, 2016, the parties consented to have the 

undersigned conduct any and all proceedings in this case. (Doc. 

17). Thus, the action was referred to the undersigned to conduct 

all proceedings and order the entry of judgment in accordance 

with 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. 

Upon careful consideration of all matters presented, and for the 

reasons stated herein, Plaintiff’s Motion to Remand (Doc. 9) is

DENIED. In addition, for the reasons stated herein, Defendants’

Motion to Strike (Doc. 14) is DENIED.

I. Motion to Strike

On May 4, 2016, Defendants IDS Property Casualty Insurance 

Company and Ameriprise Insurance Company (collectively “the 

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Ameriprise Defendants” or “Defendants”) filed a Motion to Strike 

two separate affidavits attached to Plaintiff’s Motion to Remand 

(Docs. 9, 14). The first affidavit is that of Plaintiff, and the 

second affidavit is that of an individual named Taylor T. Perry, 

Jr. (Doc. 9-1, 9-2). According to Defendants, the affidavits 

are offered by Plaintiff in support of his position that he did 

not fraudulently join a non-diverse party. Defendants contend 

that Plaintiff’s affidavit attempts to add new factual 

allegations to his complaint and, thus, runs counter to well 

established case law on what can be considered on a motion to 

remand, and that the Perry affidavit contains hearsay and, thus,

is inadmissible under the Federal Rules of Evidence. Defendants 

thus assert that both affidavits are due to be stricken from the 

record. (Doc. 14 at 2).

Motions to strike are ordinarily governed by Federal Rule of 

Civil Procedure 12(f), which provides that “[t]he court may 

strike from a pleading an insufficient defense or any redundant, 

immaterial, impertinent, or scandalous matter.” (Emphasis 

added). As used in the Federal Rules of Civil Procedure, the 

word “pleading” is a term of art that is limited to “(1) a 

complaint; (2) an answer to a complaint; (3) an answer to a 

counterclaim designated as a counterclaim; (4) an answer to a 

crossclaim; (5) a third-party complaint; (6) an answer to a 

third-party complaint; and (7) if the court orders one, a reply 

to an answer.” Fed. R. Civ. P. 7(a); see also Southard v. State 

Farm Fire & Cas. Co., 2013 U.S. Dist. LEXIS 7283, *19, 2013 WL 

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209224, *7 (S.D. Ga. Jan. 17, 2013) (“[A] motion to strike is not 

the proper procedural vehicle to challenge affidavits. . . .

Affidavits are not pleadings.”); Mann v. Darden, 2009 U.S. Dist. 

LEXIS 63044, *1–2, 2009 WL 2019588, *1 (M.D. Ala. July 6, 

2009)(“Only material included in a ‘pleading’ may be [the] 

subject of a motion to strike. . . . Motions, briefs or 

memoranda, objections, or affidavits may not be attacked by the 

motion to strike.”) (citations omitted).

 Because the affidavits in question are not pleadings, the

motion to strike is DENIED.1

II. Motion to Remand

A. Background Facts

Plaintiff, David Lewis (hereinafter “Plaintiff”), commenced 

this action in the Circuit Court of Perry County, Alabama, on 

February 12, 2016. (Doc. 1-1 at 7). Plaintiff asserts claims 

for breach of contract and bad faith against the Ameriprise 

 1 Although the Court has denied Defendants’ motion to strike, the 

Court will consider Defendants’ arguments in ruling on the 

merits of Plaintiff’s motion to remand. See generally Haynes v. 

Twin Cedars Youth & Family Servs., Inc., 2012 U.S. Dist. LEXIS 

35145, *13-14, 2012 WL 895699, *5 (M.D. Ga. Mar. 15, 2012)(“Both 

parties have expended a great deal of time and energy filing 

motions to strike, which many courts have described as ‘time 

wasters.’ . . . In fact, ‘[u]nless it is clear that the matters 

stricken have no possible relationship to the controversy and 

may prejudice the other party, motions to strike are generally 

disfavored.’ . . . Rather than striking a document or a portion 

thereof, it is usually more appropriate to ‘consider a party’s 

objections to affidavits which are filed in support of a motion 

. . . when ruling on the merits of [the] motion.”) (citations 

omitted).

Case 2:16-cv-00111-B Document 21 Filed 10/20/16 Page 3 of 22
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Defendants, seeking damages for Defendants’ alleged misconduct 

in connection with the denial of coverage under a homeowners 

insurance policy issued by the Ameriprise Defendants to 

Plaintiff on his residence. (Doc. 1-1 at 10-11). Plaintiff 

also asserts claims against Defendant Cherise Williams for 

negligence, wantonness, and breach of fiduciary duty for her

alleged mishandling of the insurance policy application process 

on Plaintiff’s behalf. (Id. at 12-13).

Specifically, Plaintiff alleges in Count One that the 

Ameriprise Defendants entered into an agreement to insure his

home from various hazards, including fire, and then breached 

that agreement by denying payment under the policy when fire 

totally destroyed his home and its contents. (Id. at 10). In 

Count Two, Plaintiff alleges that the Ameriprise Defendants 

intentionally and without any reasonably legitimate, arguable, 

or debatable reason denied his claim under the policy. (Id. at 

11). In Count Three, Plaintiff alleges that Defendant Williams

negligently and wantonly provided wrong or improper information 

to the Ameriprise Defendants in obtaining the subject insurance 

policy on his home, causing the Ameriprise Defendants to 

“contend that Plaintiff does not have insurance covering his 

home for the above described fire loss.” (Id. at 12). In Count 

Four, Plaintiff alleges that Defendant Williams breached a

fiduciary duty of trust between herself and Plaintiff, causing 

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Plaintiff “to not be paid for his fire loss.” (Id. at 13).

On March 14, 2016, the Ameriprise Defendants filed a Notice 

of Removal under 28 U.S.C. §§ 1441 and 1446 on the basis of 

diversity jurisdiction. (Doc. 1). On April 13, 2016, Plaintiff 

filed the instant Motion to Remand this action to the Circuit 

Court of Perry County, Alabama, alleging that the basis for 

federal jurisdiction alleged by Defendants, i.e., diversity of 

citizenship under 28 U.S.C. § 1332, is lacking because both 

Plaintiff and Defendant Williams are “residents”2 of the state of 

Alabama. (Doc. 9; Doc. 1-1 at 7). 

In the Notice of Removal and in Defendants’ response to 

Plaintiff’s Motion to Remand, the Ameriprise Defendants argue 

that Defendant Cherise Williams is fraudulently joined in this 

action and, thus, that her citizenship should not be considered 

for purposes of determining diversity of citizenship. (Doc. 1

at 5; Doc. 13). In light of these motions and responses, the 

 2 The Eleventh Circuit has recognized that “[c]itizenship, not 

residence, is the key fact that must be alleged in the 

complaint to establish diversity for a natural person.” Taylor 

v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994). “For 

diversity purposes, a person is a citizen of the state in which 

he is domiciled.” Slate v. Shell Oil Co., 444 F. Supp. 2d 1210, 

1214 (S.D. Ala. 2006). “That said, while the two concepts are 

analytically distinct, a party’s place of residence is prima

facie evidence of his domicile.” Slate, 444 F. Supp. 2d at 1215 

n.9. In this case, the parties do not dispute that Plaintiff 

and Defendant Williams are both domiciled in, and citizens of, 

the state of Alabama. 

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Court turns to the question of jurisdiction.

B. Analysis

A removing defendant must establish the propriety of 

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

the existence of federal jurisdiction. See Friedman v. New York 

Life Ins. Co., 410 F.3d 1350, 1353 (llth Cir. 2005) (“[I]n 

removal cases, the burden is on the party who sought removal to 

demonstrate that federal jurisdiction exists.”) (citation 

omitted). Because removal infringes upon state sovereignty and 

implicates central concepts of federalism, removal statutes must 

be construed narrowly, with all doubts resolved in favor of 

remand. See University of S. Ala. v. American Tobacco Co., 168 

F.3d 405, 411 (llth Cir. 1999). “[T]here is a presumption 

against the exercise of federal jurisdiction, such that all 

uncertainties as to removal jurisdiction are to be resolved in 

favor of remand.” Russell Corp. v. American Home Assur. Co., 

264 F.3d 1040, 1050 (11th Cir. 2001). 

As noted, supra, this action was removed by the Ameriprise 

Defendants pursuant to 28 U.S.C. §§ 1441 and 1446 on the basis 

of diversity of citizenship under 28 U.S.C. § 1332. Title 28 

U.S.C. § 1441(a) provides, in relevant part:

Except as otherwise expressly provided by 

Act of Congress, any civil action brought in 

a State court of which the district courts 

of the United States have original 

jurisdiction, may be removed by the 

Case 2:16-cv-00111-B Document 21 Filed 10/20/16 Page 6 of 22
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defendant or the defendants, 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). Where the alleged basis for federal 

jurisdiction is diversity under 28 U.S.C. § 1332, the removing 

defendant has the burden of demonstrating that there is (1) 

complete diversity of citizenship and (2) an amount-incontroversy greater than $75,000. See 28 U.S.C. § 1332(a); see

also University of South Alabama, 168 F.3d at 412 (“Where 

jurisdiction is predicated on diversity of citizenship, all 

plaintiffs must be diverse from all defendants.”).3

As discussed, Plaintiff alleges that removal is improper 

inasmuch as Plaintiff and Defendant Cherise Williams are both 

citizens of the state of Alabama, a fact which, on its face,

destroys diversity. The Ameriprise Defendants counter that 

Plaintiff has fraudulently joined Cherise Williams as a 

Defendant in this case in an effort to defeat complete 

diversity; thus, her citizenship cannot be considered for 

purposes of determining diversity jurisdiction. 

“The determination of whether a resident defendant has 

 3 The parties do not dispute that the amount in controversy 

requirement has been met, nor do they dispute the timeliness of 

Defendants’ removal. The dispute in this case centers solely on 

the diversity requirement and whether Defendant Williams has 

been fraudulently joined.

Case 2:16-cv-00111-B Document 21 Filed 10/20/16 Page 7 of 22
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been fraudulently joined must be based upon the plaintiff’s 

pleadings at the time of removal, supplemented by any affidavits 

and deposition transcripts submitted by the parties.” Pacheco 

de Perez v. AT&T Co., 139 F.3d 1368, 1380 (11th Cir. 1998). 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).” Crowe v. 

Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997) (quoting B, Inc. 

v. Miller Brewing Co., 663 F.2d 545, 549 n.9 (5th Cir. 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). 

Additionally, any uncertainties about substantive state law must 

be resolved in favor of the Plaintiff. Crowe, 113 F.3d at 1538. 

Under Eleventh Circuit precedent, joinder is fraudulent in 

three situations: (1) when there is no possibility that the 

plaintiff can prove a cause of action against the resident 

defendant; (2) when there is outright fraud in the plaintiff’s 

pleading of jurisdictional facts; and (3) when 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. See Triggs v. John 

Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998); accord

Case 2:16-cv-00111-B Document 21 Filed 10/20/16 Page 8 of 22
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Loop v. Allianz Life Ins. Co. of N. Am., 2009 U.S. Dist. LEXIS 

313222009, *10, 2009 WL 981988, *4 (S.D. Ala. 2009).

In the instant case, the Ameriprise Defendants rely on the 

first prong of the Triggs analysis and argue that that there is 

no possibility that Plaintiff can prove a cause of action for 

negligence, wantonness, or breach of fiduciary duty against 

Defendant Williams. (Doc. 1 at 11). Having reviewed the 

parties’ submissions and the applicable law, the Court agrees

with Defendants.

In his Complaint, Plaintiff alleges that on June 20, 2015, 

he and the Ameriprise Defendants entered into an agreement 

whereby Defendants agreed to insure his home from various 

hazards, including fire. (Doc. 1-1 at 10). However, on August 

15, 2015, Plaintiff’s home was totally destroyed by fire, and 

the Ameriprise Defendants refused to pay his claim under the 

policy because of the negligence and wantonness of Defendant 

Cherise Williams in providing “wrong or improper” information to 

the Ameriprise Defendants in obtaining the policy. (Id. at 10-

12). 

With respect to Cherise Williams, the complaint further 

alleges that Williams “represented to Plaintiff that she was 

knowledgeable and capable of assisting Plaintiff in obtaining 

affordable homeowner’s insurance;” (2) that she “was familiar 

with the home for which insurance was being purchased and was 

Case 2:16-cv-00111-B Document 21 Filed 10/20/16 Page 9 of 22
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given information regarding the home;” (3) that she “did 

negligently and/or wantonly provide wrong or improper 

information, without legal authority to do so, to the insurer in

obtaining the policy covering Plaintiff’s home such that the

Defendants . . . now contend that Plaintiff does not have 

insurance covering his home for the above described fire loss”; 

and (4) that “[a] fiduciary duty of trust existed between 

Plaintiff and Defendant, Cherise Williams,” which she breached, 

causing the Ameriprise Defendants to deny Plaintiff’s claim. 

(Doc. 1 at 11; Doc. 1-1 at 8, 12-13) (emphasis added).

Providing background to the foregoing allegations is 

Plaintiff’s deposition testimony in which he testified that 

Cherise Williams is his former long-time girlfriend and the 

mother of his child, with whom he previously lived. (Doc. 1-1 

at 119, 122). With respect to her involvement in obtaining the

subject insurance policy, Plaintiff testified: “I had my friend 

Sharese [Cherise Williams] to call and get proof of insurance 

coverage for me. And when she called Ameriprise, Ameriprise was 

the one that called her back and gave her a better deal, and she 

set up everything. The only thing I did was sign the 

application when they mailed it to me.” (Id. at 124). The 

colloquy continues: “Q. Okay so she [Cherise Williams] compared 

the two quotes? She got two quotes. A. Yes. Q. And Ameriprise 

gave you the better deal? A. Yes. Q. And so you chose them? A. 

Case 2:16-cv-00111-B Document 21 Filed 10/20/16 Page 10 of 22
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Yes.” (Id. at 124-25). “Q. Did you ask Sharese [Cherise

Williams] to check out insurance for you? A. Yes, I did.” (Id.

at 126). “Did you ever receive a letter from the company before 

the loss explaining to you that the policy was going to be 

cancelled unless they could come and take pictures and get the 

building materials and the layout of your home? A. I know they 

called on the phone and said that it would have been cancelled 

if they had – couldn’t come out and do an inspection, meet me 

for an inspection.” (Id. at 127). “. . . So there was a 

telephone call regarding the cancellation if this inspection 

wasn’t made. Okay. And Sharese [Cherise] did tell you about 

that? A. She told me about that.” (Id. at 129-30). According 

to Plaintiff, the inspection never took place because he was 

“waiting on [the Ameriprise Defendants] to call [him] back to 

set up [an inspection].” (Id. at 130). These facts are not in 

dispute.4 

 4 Plaintiff also presents the affidavit of Taylor T. Perry, Jr., 

who attests that he was present when David Adamczyk, an 

independent fire investigator hired by the Ameriprise 

Defendants, and Kristine Best, a previous attorney for the 

Ameriprise Defendants, examined Plaintiff under oath about his 

insurance claim. (Doc. 9-2 at 1). According to Perry, at the 

conclusion of the examination, Adamczyk stated that “Cherise 

Williams is primarily the person at fault for causing the 

contractual issues that [Adamczyk] and the insurer have with 

this claim.” (Id. at 2). According to Perry, Adamczyk told 

Perry that Plaintiff needed to file suit against Cherise 

Williams “for not having insurance coverage for this loss,” and 

Best agreed. (Id.). Plaintiff also presents his own affidavit 

(Continued)

Case 2:16-cv-00111-B Document 21 Filed 10/20/16 Page 11 of 22
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The question before the Court then is whether Plaintiff has 

stated even an arguable cause of action against Defendant 

Williams under Alabama law. Plaintiff argues that Williams

voluntarily assumed a duty to obtain homeowners insurance for 

him, that she negligently and wantonly performed that task by 

providing “wrong or improper information” to the Ameriprise 

Defendants, and that her actions proximately caused the 

Ameriprise Defendants to deny Plaintiff’s claim under the policy 

for his fire loss. (Doc. 1-1 at 12; Doc. 10 at 5-6; Doc. 15 at 

1, 6). The Ameriprise Defendants counter that neither the 

allegations in the complaint nor the evidence before the Court 

establishes even the possibility that Cherise Williams’ actions 

or inactions taken to “assist” Plaintiff (her boyfriend) in 

obtaining insurance on his home states a claims for negligence, 

wantonness, or breach of fiduciary duty claim under Alabama law. 

At the outset, the Court notes that:

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 

 

in which he states that he was aware that Defendant Williams had 

applied for insurance before and so he believed that she was 

capable of finding affordable homeowners insurance for him. 

(Doc. 9-1 at 1).

Case 2:16-cv-00111-B Document 21 Filed 10/20/16 Page 12 of 22
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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.

Anderson v. Allstate Life Ins. Co., 2001 U.S. Dist. LEXIS 

2603, *22-23, 2001 WL 228057, *7–8 (S.D. Ala. Feb. 1, 2001)

(emphasis in original). “In cases such as this where there has 

been no discovery as of the time of removal, . . . to block a 

fraudulent-joinder charge based on lack of legal support, a 

plaintiff need only show that [his] claim against a resident 

defendant is warranted by existing law or by a nonfrivolous 

argument for the extension, modification, or reversal of 

existing law or the establishment of new law.” Anderson, 2001 

U.S. Dist. LEXIS 2603 at *22-23, 2001 WL 228057 at *8. Although 

Case 2:16-cv-00111-B Document 21 Filed 10/20/16 Page 13 of 22
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this threshold is low, the Court finds that Plaintiff has failed 

to meet it in this case. 

The existence and scope of a voluntarily assumed duty is a 

matter for determination in light of all the facts and 

circumstances involved and is a question of law for the court to 

resolve. Bryan v. Alabama Power Co., 20 So. 3d 108, 119 (Ala. 

2009). Alabama law recognizes that “one who volunteers to act, 

though under no duty to do so, is thereafter charged with the 

duty of acting with due care and is liable for negligence in 

connection therewith.” Bryan, 20 So. 3d at 119 (citations 

omitted). Stated differently, “when a person undertakes an 

employment, which requires care and skill, whether for reward or 

not, a failure to exert the measure of care and skill 

appropriate to the measure of such employment is negligence for 

which an action will lie.” Beasley v. MacDonald Eng’g Co., 249 

So. 2d 844, 846 (1971).

In one of the earliest cases recognizing the assumed duty 

doctrine, the Alabama Supreme Court explained: “while a 

volunteer is not responsible for the failure of success of the 

act done by him, . . . if by undertaking to do it, . . . he 

brings about a state of affairs which results in injury that 

would not have occurred if he had not made the effort at all, he 

is liable.” H.H. Parker & Bro. v. Hodgson, 55 So. 818, 819

(1911) (holding that “while an excavator on an adjoining lot is 

Case 2:16-cv-00111-B Document 21 Filed 10/20/16 Page 14 of 22
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not under any obligation ‘to brace, underpin, or otherwise 

protect the walls of buildings on adjoining lands, to keep them 

from settling or falling on account of such excavation,’ yet, if 

he ‘undertakes to do this, he is liable for failure to use 

reasonable skill and care in the performance of the work.’”).

For over one hundred years, the Alabama courts have applied

the assumed duty doctrine in various contexts, as evidenced by 

the following cases, see, e.g.: Springhill Hospitals, 5 So. 3d 

at 520 (finding as a matter of law that a pharmacist did not 

voluntarily undertake a duty of care to a patient and stating 

that “the scope of the duty voluntarily undertaken . . . by a 

pharmacy is a fact-specific inquiry based on the totality of the 

pharmacy’s communications with the patient and the patient’s 

reasonable understanding, based on those communications, of what 

the pharmacy has undertaken to provide.”); Bryan, 20 So. 3d at 

119 (holding that Alabama Power Company did not assume a duty to 

farmers to operate a dam so as to prevent flooding on their

property where there was no evidence of a relationship between 

the parties such that the farmers changed the way they used 

their property in reliance on Alabama Power Company’s 

activities); Dailey v. City of Birmingham, 378 So. 2d 728, 729 

(Ala. 1979) (finding a dispute of fact as to whether the City 

voluntarily assumed a duty to protect the public when it began 

the construction of a fence next to a ditch and then negligently 

Case 2:16-cv-00111-B Document 21 Filed 10/20/16 Page 15 of 22
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failed to complete the construction); Parker v. Thyssen Mining 

Constr., Inc., 428 So. 2d 615, 618 (Ala. 1983) (finding that an 

employer did not assume a duty to obtain evidence for its 

employee, which was needed to enhance the employee’s potential 

lawsuit against a third-party); Dailey v. Housing Auth. for 

Birmingham Dist., 639 So. 2d 1343, 1346 (Ala. 1994) (refusing to 

hold that the Housing Authority, “by hiring a security guard and 

setting out that guard’s duties and roles, voluntarily assumed 

the duty to provide a totally crime-free environment for 

[plaintiff]. Such a holding would discourage housing authorities 

and other landlords from hiring security guards or otherwise 

working to protect their tenants from criminal acts.”).

More precisely, the Alabama courts have applied this 

doctrine in the context of wrongful “failure to procure 

insurance,” as alleged here. See, e.g., Thompson v. United 

Companies Lending Corp., 699 So. 2d 169, 175 (Ala. Civ. App. 

1997) (recognizing that “[b]oth a negligent failure and a wanton 

failure to procure insurance are actionable under Alabama law” 

and holding that a mortgagee voluntarily undertook the duty to 

procure insurance coverage for its mortgagor); Timmerman Ins. 

Agency, Inc. v. Miller, 229 So. 2d 475, 478 (1969) (holding that 

a jury question existed as to whether an insurance agent had 

undertaken the duty to secure insurance on behalf of his 

customer, the insured, and noting that, in such cases, “a broker 

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or agent is liable for failure to notify the owner that he 

cannot obtain insurance.”); Waldon v. Commercial Bank, 281 So. 

2d 279, 282–83 (Civ. App. 1973) (finding that bank/lender 

voluntarily undertook duty to procure credit life insurance for 

its customer/borrower and stating “[t]he present cause of action

rests . . . on the appellee’s alleged undertaking to secure 

credit life insurance for consideration for the joint obligors 

on the life of . . . appellant’s husband. Appellant alleges 

reliance upon such undertaking. This court, therefore,

concludes that the [allegations] . . . give rise to a duty owed 

by appellee to appellant.”).

Having considered the relevant case law at length, and 

viewing Plaintiff’s allegations and the evidence presented by 

the parties in a light most favorable to the Plaintiff, the 

Court finds that there is no possibility that a cause of action 

for negligent or wanton failure to procure insurance exists in 

this case. First, the Court finds that the cases recognizing 

the assumed duty doctrine are inapposite to the circumstances at 

issue in the present case. Here, the allegations, taken with 

the evidence submitted by the parties, reflect a joint 

undertaking in which Cherise Williams, Plaintiff’s girlfriend, 

“assist[ed] Plaintiff in obtaining affordable homeowner’s 

insurance,” including making inquiries to insurance companies on 

his behalf. (Doc. 1-1 at 8) (emphasis added). Plaintiff

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describes his relationship with Williams as one in which 

Williams “assist[ed]” him in procuring insurance (id.), 

including speaking to insurance companies on his behalf and 

obtaining insurance quotes, which she then presented to 

Plaintiff. (Id. at 124-25). It was Plaintiff, however, who 

retained the decision-making authority and chose between the 

quotes, electing to go with Ameriprise because they gave him the 

better deal. (Id.). Ameriprise then mailed Plaintiff the 

insurance application form, and Plaintiff signed the completed 

form, providing answers to requested information about his home

and property. (Id. at 124-25, 145-46). According to Plaintiff, 

Defendant Williams subsequently informed him that the insurance 

policy would be cancelled if Plaintiff did not meet with the 

Ameriprise representative at his home for an inspection; 

however, the inspection never took place because Plaintiff was 

waiting on the Ameriprise Defendants to call him back to set up 

an inspection. (Id. at 127-30).

The instant facts are not analogous to those in which the 

Alabama courts have imposed an assumed duty to act, much less an 

assumed duty to procure insurance. Williams is not an insurance 

broker or a banker. She was merely Plaintiff’s girlfriend who 

offered to assist him with obtaining insurance on his home. 

Although Plaintiff alleges that Williams voluntarily 

undertook to provide information to the Ameriprise Defendants on 

Case 2:16-cv-00111-B Document 21 Filed 10/20/16 Page 18 of 22
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his behalf and then performed that duty negligently, Plaintiff 

has failed to establish that Williams’ actions in providing 

“wrong or improper” information to the Ameriprise Defendants 

“brought about a state of affairs which result[ed] in injury 

that would not have occurred if [she] had not made the effort at 

all,” see Hodgson, 55 So. at 819. This is particularly true 

given that Plaintiff reserved the control in the joint 

undertaking for himself, i.e., he decided which insurance quote 

was chosen; he signed the completed application that was given 

to the Ameriprise Defendants; and he failed to meet with the 

Ameriprise representatives for a home inspection while fully

aware that his failure to do so would result in cancellation of 

the policy. In sum, Plaintiff’s own allegations and testimony, 

viewed in the light most favorable to him, provides no basis for 

a finding that Williams voluntarily undertook to procure 

insurance for his home and that he reasonably relied upon such 

to his detriment.

Thus, the Court finds that there is no possibility that 

Plaintiff can prove a cause of action against Defendant Williams 

for negligent or wanton failure to procure insurance on the 

facts of this case. This finding is buttressed by the fact that 

the parties have presented no Alabama case law imposing 

liability under circumstances even remotely analogous to those 

presented here, and the Court’s research has not uncovered any 

Case 2:16-cv-00111-B Document 21 Filed 10/20/16 Page 19 of 22
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such cases.

Last, Plaintiff asserts a claim against Defendant Williams 

for breach of her alleged fiduciary duty of trust to him. (Doc. 

1-1 at 13). While Alabama law recognizes a cause of action for 

breach of fiduciary duty, the cases involve vastly different 

circumstances than those involved here. Under Alabama law, the 

elements of the tort of breach of fiduciary duty are: “(1) the 

existence of a fiduciary duty between the parties; (2) the 

breach of that duty; and (3) damages suffered as a result of the 

breach.” Regions Bank v. Lowrey, 101 So. 3d 210, 219 (Ala. 

2012) (finding that a bank, serving as trustee, did not breach 

its fiduciary duty to beneficiaries of a trust). The Alabama 

courts have described circumstances in which a fiduciary 

relationship may arise as follows:

Such a relationship is one in which one 

person occupies toward another such a 

position of adviser or counselor as 

reasonably to inspire confidence that he 

will act in good faith for the other’s 

interests, or when one person has gained the 

confidence of another and purports to act or 

advise with the other’s interest in mind; 

where trust and confidence are reposed by 

one person in another who, as a result, 

gains an influence or superiority over the 

other; and it appears when the circumstances 

make it certain the parties do not deal on 

equal terms, but, on the one side, there is 

an overmastering influence, or, on the 

other, weakness, dependence, or trust, 

justifiably reposed; in both an unfair 

advantage is possible. It arises in cases in 

which confidence is reposed and accepted, or 

Case 2:16-cv-00111-B Document 21 Filed 10/20/16 Page 20 of 22
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influence acquired, and in all the variety 

of relations in which dominion may be 

exercised by one person over another.

Power Equip. Co. v. First Alabama Bank, 585 So. 2d 1291, 1297–98 

(Ala. 1991) (citations, internal quotation marks, and brackets

omitted). As discussed above, such are not the circumstances 

alleged here.5 Therefore, based on the foregoing authorities, 

the Court finds that there is no possibility that Plaintiff 

could recover against Defendant Williams for an alleged breach 

of fiduciary duty.

Accordingly, the Court finds that Cherise Williams’ joinder 

in this case is fraudulent, and that the Ameriprise Defendants

properly removed this action from state court. 

III. Conclusion

For the reasons discussed herein, it is ORDERED that 

 5 Even banks and insurance agents have been held not to owe a

fiduciary duty to their clients. See, e.g., Maloof v. John 

Hancock Life Ins. Co., 60 So. 3d 263, 274 (Ala. 2010) (“though 

cordial and long-standing,” there was no evidence that the 

relationship between the insurance agent and the plaintiff was 

“anything special or outside the typical salesperson-customer 

relationship.”); Nettles v. First Nat. Bank of Birmingham, 388 

So. 2d 916, 921 (Ala. 1980) (“Although [the bank] took an active 

role in attempting to save [plaintiff’s] Company, the facts 

simply do not establish that they assumed control of the 

management of the business. Similarly, the fact that [plaintiff] 

reposed great confidence in [the bank’s] ability to save his 

business and the fact that he acquiesced in their 

recommendations, ultimately to his financial detriment, does not 

serve to establish some special fiduciary relationship which 

renders appellees liable for the unfortunate events of this 

case.”).

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Plaintiff’s Motion to Remand (Doc. 9) is DENIED. In addition, 

for the reasons stated herein, Defendants’ Motion to Strike 

(Doc. 14) is DENIED. 

DONE this 20th day of October, 2016.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

Case 2:16-cv-00111-B Document 21 Filed 10/20/16 Page 22 of 22