Court Finds Fraudulent Joinder by Relying on a Sales Rep’s Affidavit and Common Sense
Buckles v. Coombs, 2016 U.S. Dist. Ct. LEXIS 180784 (S.D. Fla. Jan. 4 2017), is a decision that illustrates how a defendant’s proper introduction of facts via an affidavit and a court’s introduction of common sense into its decision process can come together to result in the denial of a plaintiff’s motion to remand an action to state court.
In Buckles, the plaintiff alleged that she was injured due to an allegedly defective cutting device used in her knee replacement. In her state-court complaint, she sued not only the diverse manufacturer, Howmedica, but its non-diverse sales rep. The defendants, having seen that move before, claimed fraudulent joinder of the sales rep and removed the action to federal court based on diversity jurisdiction.
Plaintiff moved to remand the action back to state court. Plaintiff argued that the sales rep was, in fact, a proper defendant because he had been negligent in promoting, marketing, testing and warning about the device—and so on. She supported these arguments with nothing more than the allegations in her complaint, which were fairly broad and conclusory. That was her mistake.
The court made clear that the proper standard under which a court should determine whether a non-diverse defendant has been fraudulently joined is like that applied to summary judgment motions, not the standard for motions to dismiss: “A district court’s process for resolving a claim of fraudulent joinder is similar to that used for ruling on a motion for summary judgment.” Id. at * 5 (citing Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997). And the defendants were relying on more than the general allegations in the complaint. They offered facts from the sales rep himself in an affidavit in which he specifically refuted the general allegations of the complaint:
As set forth in [the sales rep’s] affidavit, however: (1) he was present during [plaintiff’s] surgery “only to facilitate bringing the implants to the operating room and for no other purpose” (2) he did not call on [plaintiff’s] surgeon at any time prior to her surgery on August 21, 2012, or anytime thereafter (3) he did not “promote, advertise, represent, recommend or sell” the Cutting Guide used during [plaintiff’s] surgery; (4) he had no involvement in the preoperative imaging for [plaintiff’s] Cutting Guide and had no other involvement in the planning of her surgery; and (5) he has no medical training, but rather, relies on the materials and information provided to him by Howmedica in carrying out his job duties.
Id. at *8.
The complaint’s allegations stood no chance in the face of the sales rep’s detailed affidavit:
[I]t is well-established by the U.S. Court of Appeals for the Eleventh Circuit that when a defendant’s affidavit is undisputed by a plaintiff, the court cannot then resolve the facts in the plaintiff’s favor based solely on the unsupported allegations in the complaint. In such instance, the defendant’s undisputed evidence is fatal to the plaintiff’s claim.
Id. at *8-9 (citing Legg v. Wyeth, 428 F.3d 1317, 1323 (11th Cir. 2005).) Accordingly, the court dismissed the claims against the sales rep thereby creating diversity between the parties. Id. at *9.
Undaunted—well, maybe a bit daunted—plaintiff argued that the case nonetheless did not meet the jurisdiction threshold of having more than $75,000 in controversy because her complaint stated only that she was seeking more than $15,000 in damages. Id. at *10. That may be true. But the complaint alleged a laundry list of serious damages—revision surgery, permanent and continuing damages, past and future medical expenses, pain, disability, disfigurement, suffering, and mental anguish. Id. at *11.
Boy, that sure does sound like way more than $75,000 was in controversy. And that’s precisely how the court saw it: “Courts need not ‘suspend reality or shelve common sense in determining whether the face of a complaint . . . establishes the jurisdictional amount.’” Id. at *11 (citing Roe v. Michelin N. Am., Inc., 613 F.3d 1058, 1062 (11th Cir. 2010).) Applying that common sense along with its own judicial experience, the court held that plaintiff’s own allegations were enough to satisfy the jurisdiction threshold. Id. (citing Gebbia v. WalMart Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000).) Finding that all the requirement for diversity jurisdiction had been met, the court then denied plaintiff’s motion to remand.
This decision is a good reminder of how to properly use affidavits to show fraudulent joinder and even how sometimes you can rely on the court’s own common sense.