Ferguson v. Easton Technical Prods., Inc.

JASON FERGUSON, Plaintiff, v. EASTON TECHNICAL PRODUCTS, INC., et al., Defendants.

Case No.: 5:13-cv-01931-SGC

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA NORTHEASTERN DIVISION

December 21, 2015

MEMORANDUM OPINION AND ORDER¹

This is a products liability action removed from the Circuit Court of Jackson County, Alabama by defendants Big Daddy's Outdoors, Inc., and Big Daddy's Fireworks, LLC, on the basis of diversity jurisdiction. (Doc. 1). Defendant Easton Technical Products consented to removal as required by 28 U.S.C. § 1446(b)(2)(A). (Doc. 1 at ¶ 4; Doc. 2). Big Daddy's Outdoors and Big Daddy's Fireworks allege the plaintiff, Jason Ferguson, Easton Technical Products, and Big Daddy's Outdoors are of diverse citizenship and the citizenship of Big Daddy's Fireworks should be ignored because it is fraudulently joined. (Id.). Big Daddy's Fireworks has filed a motion seeking its dismissal from this action on the same grounds alleged as the basis of its fraudulent joinder. (Doc. 6). Ferguson opposes dismissal of Big Daddy's Fireworks and seeks remand on the grounds Big Daddy's Outdoors is not diverse from him and Big Daddy's Fireworks is not fraudulently joined. (Doc. 10). Ferguson filed a renewedmotion to remand on September 9, 2015, reiterating the arguments made in his original motion. (Doc. 22). For the reasons discussed below, Ferguson's motions to remand are due to be denied. Furthermore, Big Daddy's Fireworks is due to be dismissed from this action as fraudulently joined, and its motion to dismiss is due to be denied as moot.

I. Background

A. Complaint

Ferguson alleges he was injured when an Easton brand arrow he purchased from Big Daddy's, which he defines as encompassing both Big Daddy's Outdoors and Big Daddy's Fireworks, broke and splintered on release from his compound bow, puncturing the area of his left wrist and arm. (Doc. 1-2 at ¶¶ 5, 14-17). He asserts claims against all defendants under the Alabama Extended Manufacturer's Liability Doctrine and for negligence, recklessness, and/or wantonness, breach of express warranty, and breach of implied warranty. (Id. at Counts I - IV).

B. Notice of Removal

In their notice of removal, Big Daddy's Outdoors and Big Daddy's Fireworks allege Ferguson is a resident citizen of Jackson County, Alabama (Doc. 1 at ¶ 11), Big Daddy's Outdoors is a foreign corporation organized under the laws of the State of Tennessee with its business address at 1500 Elm Avenue in South Pittsburg, Tennessee (id. at ¶ 12), and Easton Technical Products is a foreign corporation organized under the laws of the State of Utah with its principal place of business in that state (id. at ¶ 13). They further allege Big Daddy's Fireworks is fraudulently joined because there is no possibility Ferguson can establish any of his asserted causes of action against it. (Id. at¶¶ 2, 15-40).² Finally, they allege the amount in controversy exceeds $75,000, exclusive of interests and costs. (Id. at ¶¶ 41-50).

Attached to the notice of removal is the affidavit of Lew Wilson Loyd, Jr., the president of Big Daddy's Outdoors and Big Daddy's Fireworks. (Doc. 1-3). Loyd testifies Big Daddy's Outdoors was formed in Tennessee, is authorized to do business in Alabama, has its business address at 1500 Elm Avenue in South Pittsburg, Tennessee, and also does business at 52680 U.S. Highway 72 in Bridgeport, Alabama. (Id. at 1). He further testifies Big Daddy's Fireworks was formed in Alabama and has its business address at 52680 U.S. Highway 72 in Bridgeport, Alabama. (Id.). According to Loyd, Big Daddy's Outdoors and Big Daddy's Fireworks are completely separate entities, and the latter does not sell hunting or sporting goods but rather, only sells fireworks. (Id. at 1-2). He specifically testifies Big Daddy's Fireworks did not design, manufacture, distribute, sell, own, maintain, service, transport, market, or otherwise have any responsibility for the arrow in question. (Id. at 2). Attached to Loyd's affidavits are photographs of what Loyd testifies are the exterior and interior of the building where BigDaddy's Outdoors operates throughout the year, as well as the exterior and interior of the building where Big Daddy's Fireworks operates for the few weeks around the Fourth of July. (Id. at 1, 4-7).

C. Motion to Remand

Ferguson does not contest certain jurisdictional elements alleged in the notice of removal. First, he does not dispute he is a citizen of Alabama and, furthermore, alleges the same in his motions to remand. (Doc. 10 at 8; Doc. 22 and 8).³ Nor does he contest Easton Technical Products is organized under the laws of the State of Utah with its principal place of business in that state or that Big Daddy's Outdoors is organized under the laws of the State of Tennessee. Finally, he does not contest the amount in controversy exceeds $75,000, exclusive of interest and costs. Rather, Ferguson notes Big Daddy's Outdoors and Big Daddy's Fireworks did not identify Tennessee as Big Daddy's Outdoors's principal place of business and argues that, in fact, that place is located inAlabama, as a result of which Big Daddy's Outdoors is not a diverse defendant. (Doc. 10 at ¶ 5). More specifically, Ferguson argues evidence shows Big Daddy Outdoors's principal place of business is located at the Bridgeport, Alabama address where its president testified it does business, which Ferguson claims is where the building its president testified is where it operates throughout the year is located. (Id. at ¶¶ 5-6).

Attached to Ferguson's motion is the affidavit of Billy Ware, a private investigator who traveled to the Tennessee and Alabama business addresses identified in Loyd's affidavit, as well as a log Ware created and photographs he took in connection with that investigation. (Doc. 10-1). In his affidavit, Ware testifies there is not a 1500 block of Elm Avenue but that his GPS directed him to the corner of 15^th Street and South Cedar Avenue. (Id. at 1-2). He further testifies there is not a business identified as Big Daddy's Outdoors at or around that location. (Id. at 2). According to Ware's investigation log, at the corner of 15^th Street and South Cedar Avenue is a large fireworks compound with a sign identifying it as Atomic Fireworks Wholesale and a sign on the door stating "No retail sales! Big Daddy's Fireworks best bang for your buck. Visit us at I-24 exit 152 or exit 161, Hwy 72 Bridgeport, AL." (Id. at 5). Photographs of this signage are attached to Ware's investigation log. (Id. at 7-8). Also attached to Ware's investigation log is a photograph of a billboard advertising for Big Daddy's outdoors, fireworks, sporting goods, gas, and convenience. (Id. at 9-10). According to Ware's investigation log, this billboard is located just inside the Alabama state line. (Id. at 5).

Ferguson also does not dispute Loyd's sworn testimony that Big Daddy's Fireworks did not design, manufacture, distribute, sell, own, maintain, service, transport,market, or otherwise have any responsibility for the arrow. Rather, he argues Big Daddy's Outdoors and Big Daddy's Fireworks are so intertwined that the latter is properly named as a joint tortfeasor and that the assertion of joint and several liability is sufficient to support the inclusion of Big Daddy's Fireworks as a proper defendant in this action. (Doc. 10 at ¶¶ 8, 10). In support of his argument, Ferguson notes that while Loyd testifies Big Daddy's Outdoors and Big Daddy's Fireworks operate out of separate buildings, records retrieved from the Alabama Secretary of State's website and attached to the motion to remand confirm Big Daddy's Fireworks's registered street address in Alabama is the same address where Loyd testified Big Daddy's Outdoors does business. (Id. at ¶ 11; Doc. 10-2 at 4-5). He also cites the billboard advertising for Big Daddy's outdoors, fireworks, sporting goods, gas, and convenience in support of his argument. (Doc. 10 at ¶ 12; Doc. 10-1 at ¶¶ 5, 9-10).

D. Response to Motion to Remand

In their response to Ferguson's motion to remand, Big Daddy's Outdoors and Big Daddy's Fireworks elaborate on their allegation Big Daddy's Outdoors's is a citizen of Tennessee, exclusively. Specifically, they argue Big Daddy's Outdoors's "nerve center" and, thus, its principal place of business, is located in Tennessee. (Doc. 11 at 2-6). Attached to their response is another affidavit of Lew Wilson Loyd. (Doc. 11-1). In that affidavit, Loyd testifies 1500 Elm Avenue in South Pittsburg, Tennessee is the place where Big Daddy's Outdoors maintains its headquarters, holds corporate meetings, makes corporate decisions, and keeps and maintains its corporate books, records, and files. (Id. at 1-2). He further testifies Big Daddy's Outdoors's bank account is located ata Tennessee bank, its corporate counsel is located in Tennessee, and its president (i.e., Loyd) and secretary are Tennessee residents. (Id. at 2). Attached to the affidavit are the following: Big Daddy's Outdoors's application to transact business in Alabama listing 1500 Elm Avenue in South Pittsburg, Tennessee as the street address of its principal office (Doc. 11-1 at 3), business entity details for Big Daddy's Outdoors retrieved from the Tennessee Secretary of State's website listing the Elm Avenue address as the address of its principal office (id. at 4), and business entity details for Big Daddy's Outdoors retrieved form the Alabama Secretary of State's website listing the Elm Avenue address as its principal address (id. at 5). Loyd testifies the Elm Avenue address has been the location of Big Daddy's Outdoors's corporate headquarters and principal place of business since its formation in 2000. (Id. at 1).

Also in their response to Ferguson's motion to remand, Big Daddy's Outdoors and Big Daddy's Fireworks argue the evidence Ferguson offers in support of his claim they function as the same entity is insufficient to support that claim. (Doc. 11 at 7). They further argue Loyd's affidavit testimony is...