Smeltz v. Ford Motor Company

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF OKLAHOMA

VINCENT J. SMELTZ as personal

representative of the Estate of Lauren

Smeltz, deceased,

Plaintiff, 25-CV-00170-TMR

v. OPINION

FORD MOTOR COMPANY AND

WOODY MOTOR CO., INC.,

Defendants.

Dated: October 2, 2025

Michael D. Denton, Jr., Denton Law Firm, of Mustang, OK, for plaintiff Vincent J.

Smeltz.

Mary Q. Cooper, Andrew L. Richardson, Dru A. Prosser, McAfee & Taft, P.C., of

Tulsa, OK, for defendants Ford Motor Company and Woody Motor Co., Inc.

TIMOTHY M. REIF, Judge, United States Court of International Trade, Sitting by

Designation:

Before the court is the motion to remand of Vincent J. Smeltz (“plaintiff”).

See Pl.’s Mot. to Remand and Br. in Supp. Thereof (“Pl. Br.”), ECF No. 9; see also

Pl.’s Reply to Ford Motor Co.’s Resp. to Pl.’s Mot. to Remand (“Pl. Reply Br.”), ECF

No. 17. Plaintiff argues that defendants Ford Motor Company (“Ford”) and Woody

Motor Co., Inc. (“Woody Motor”) have “failed to prove there is complete diversity of

jurisdiction in this action” and that this Court “lacks jurisdiction to proceed in this

lawsuit and the case must be remanded to the state court.” Pl. Br. at 1.

For the reasons discussed below, the court denies plaintiff’s motion and

dismisses Woody Motor without prejudice.

BACKGROUND

The instant action arises out of a January 3, 2023 motor vehicle collision in

Pontotoc County, Oklahoma. Def. Ford’s Notice of Removal (“Notice of Removal”),

Ex. 1 (“Am. Pet.”) ¶ 1. The collision involved: (1) a 2020 F-250 Super Duty

commercial truck (“Super Duty truck”) pulling a trailer full of roofing supplies

owned by Oklahoma Roofing & Sheet Metal, LLC (“Oklahoma Roofing & Sheet

Metal”) and driven by Henry Nwajagu (“Nwajagu”); and (2) a pickup truck driven by

plaintiff’s wife, Lauren Smeltz (“decedent”). Id. Decedent died as a result of the

collision. Id. Plaintiff asserts product liability and negligence claims against

defendants. Id. ¶ 24-55.

Plaintiff resides in Pontotoc County, Oklahoma. Id. ¶ 16. Defendant Ford is

a foreign corporation with its principal place of business in Michigan. Id. ¶ 12.

Defendant Woody Motor is an Oklahoma corporation doing business in and

throughout Oklahoma. Id. ¶ 14.

On May 22, 2024, plaintiff filed his petition in the District Court of Pontotoc

County, Oklahoma. See Notice of Removal, Ex. 6 at 2. Plaintiff brought causes of

action against Ford, Woody Motor, Nwajagu and Oklahoma Roofing & Sheet Metal.

Id.

On October 3, 2024, plaintiff dismissed Nwajagu and Oklahoma Roofing &

Sheet Metal with prejudice. Id. at 19.

On March 3, 2025, plaintiff amended his petition. See Am. Pet. On March

26, 2025, Woody Motor moved to dismiss the amended petition. See Notice of

Removal, Ex. 6 at 99.

On April 21, 2025, the state court judge held a hearing on the motion to

dismiss. Id. at 110-13.

On May 20, 2025, defendant Ford filed notice of removal of the instant action

from the District Court of Pontotoc County, Oklahoma to this Court. See Notice of

Removal.

On June 20, 2025, plaintiff filed a motion to remand the instant action to

state court. See Pl. Br.

JURISDICTION AND STANDARD OF REVIEW

“Federal courts are courts of limited jurisdiction [and] must have a statutory

basis for their jurisdiction.” Morris v. City of Hobart, 39 F.3d 1105, 1111 (10th Cir.

1994). 28 U.S.C. § 1332 gives federal district courts original jurisdiction over all

civil actions “between . . . citizens of different States” where the amount in

controversy exceeds $75,000. The court lacks complete diversity when any plaintiff

“has the same residency as even a single defendant.” Dutcher v. Matheson, 733 F.3d

980, 987 (10th Cir. 2013).

“While § 1332 allows plaintiffs to invoke the federal courts' diversity

jurisdiction, [28 U.S.C.] § 1441 gives defendants a corresponding opportunity,”

namely the opportunity to remove the case to federal court. Lincoln Prop. Co. v.

Roche, 546 U.S. 81, 89 (2005). Section 1441(a) provides that:

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 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). However, “[a] civil action otherwise removable solely on the

basis of the jurisdiction under section 1332(a) of this title may not be removed if any

of the parties in interest properly joined and served as defendants is a citizen of the

State in which such action is brought.” 28 U.S.C. § 1441(b)(2).

DISCUSSION

I. Oral dismissal order

The court concludes that the state court judge’s oral dismissal of Woody

Motor at the April 21, 2025 hearing provided adequate grounds for removal.

Plaintiff argues that the oral dismissal of Woody Motor by the Pontotoc

County Judge did not render the case removable because “[n]o order or journal

entry was signed by the Pontotoc County Judge or filed in that case and there is no

reference to any such order or journal entry . . . on the state court’s docket sheet.”

Pl. Br. at 4 (citing Notice of Removal, Ex. 5). Plaintiff asserts that under Oklahoma

law, “the state court judge’s oral pronouncement that he was granting the motion to

dismiss of non-diverse [Woody Motor] is not enforceable in whole or in part until it

is reduced to writing, signed by the court and filed in the case.” Id. at 7 (citing

Okla. Stat. tit. 12, § 696.2(A), (E)).

Pursuant to Oklahoma law,

After the granting of a judgment, decree or appealable order, it shall be

reduced to writing . . . , signed by the court, and filed with the court clerk.

The court may direct counsel for any party to the action to prepare a

draft for the signature of the court, in which event, the court may

prescribe procedures for the preparation and timely filing of the

judgment, decree or appealable order, including, but not limited to, the

time within which it is to be submitted to the court. If a written

judgment, decree or appealable order is not submitted to the court by

the party directed to do so within the time prescribed by the court, then

any other party may reduce it to writing and submit it to the court.

Okla. Stat. tit. 12, § 696.2(A).

Moreover, “[a] judgment, decree or appealable order, whether interlocutory or

final, shall not be enforceable in whole or in part unless or until it is signed by the

court and filed.”1 Id. § 696.2(E).

28 U.S.C. § 1446 governs removal of civil actions to federal court. The notice

of removal must be filed “within 30 days after the receipt by the defendant, through

service or otherwise, of a copy of the initial pleading setting forth the claim for relief

upon which such action or proceeding is based.” 28 U.S.C. § 1446(b)(1). But “if the

case stated by the initial pleading is not removable, a notice of removal may be filed

within 30 days after receipt by the defendant, through service or otherwise, of a

copy of an amended pleading, motion, order or other paper from which it may first

be ascertained that the case is one which is or has become removable.” Id. §

1446(b)(3) (emphasis supplied).

1 The statute provides exceptions to this rule for various types of proceedings.

However, none of the stated proceedings describes the instant action. See Okla.

Stat. tit. 12, § 696.2(E).

The U.S. Court of Appeals for the Tenth Circuit (the “Tenth Circuit”) has

stated that “the removal period does not begin until the defendant is able ‘to

intelligently ascertain removability so that in his petition for removal he can make

a simple and short statement of the facts.’” Huffman v. Saul Holdings Ltd. P’ship,

194 F.3d 1072, 1078 (10th Cir. 1999) (quoting DeBry v. Transamerica Corp., 601

F.2d 480, 489 (10th Cir. 1979)). “If the statute is going to run, the notice ought to be

unequivocal. It should not be one which may have a double design.” DeBry, 601

F.2d at 489.

During the April 21, 2025 hearing, the state court judge in the instant action

issued an oral order granting defendant Woody Motor’s motion to dismiss the

amended petition. Pl. Br. at 4; Ford’s Resp. to Pl.’s Mot. to Remand (“Defs. Br.”) at

3, ECF No. 14. Parties agree that the state court judge did not sign a written order

or make a docket entry memorializing the oral order. See Pl. Br. at 4; Defs. Br. at 3-

4. Regardless, the oral order constituted adequate grounds for removal.

In Huffman, the Tenth Circuit held that deposition testimony “constitutes an

‘other paper’ within the meaning of § 1446(b).” See Huffman, 194 F.3d at 1078. The

court explained that the intent of § 1446 is to ensure “that a defendant has an

opportunity to assert the congressionally bestowed right to remove upon being given

notice in the course of the case that the right exists.” Id. (citation omitted).

Accordingly, “[f]or purposes of the removal statute, deposition testimony stands on

equal footing with written forms of discovery, such as interrogatories and requests

for information.” Id.

Deposition testimony is at a remove from an oral order, but the logic of

Huffman applies regardless. An oral dismissal order issued during a hearing would

give a defendant even more “notice in the course of the case that the right [to

remove] exists” than deposition testimony because the order comes from a judge in

an open proceeding with all parties. Id. If deposition testimony “stands on equal

footing with written forms of discovery,” then it follows that an oral order “stands on

equal footing with” written orders for the purposes of the removal statute. Id.

Whether such oral orders carry the force of law under Oklahoma law is a separate

question not before the court.

Indeed, a court in this circuit applied the logic of Huffman to oral orders in

Carter v. UZGlobal LLC, No. 23-CV-01013-MV-JHR, 2024 WL 4562891 (D.N.M.

Oct. 24, 2024). The Carter court concluded that “a defendant can remove to federal

court on the basis of an oral order” because “[a]n oral order occurs on the record,

clearly notifies a defendant when it dismisses a non-diverse party, and helps

facilitate § 1446’s goal of effecting removal as soon as possible.”2 Id. at *4 (citing

Huffman, 194 F.3d at 1078).

The court acknowledges that the New Mexico law at issue in Carter bears

important differences from the Oklahoma law at issue here. See id. at *3 (“While

New Mexico law states that its courts’ orders generally are not final and effective

until written, it also holds that entry of a written order is a ‘ministerial act’ that

does not affect a judgment's validity.”). However, such differences are not relevant

given that Ҥ 1446(b)(3) supersedes state procedural rules on whether an oral

order’s medium would prevent defendants from removing where [the oral order’s]

substance proves the grounds for removal.” Id.; see Budinich v. Becton Dickinson &

Co., 486 U.S. 196, 198 (1988) (“Although state law generally supplies the rules of

decision in federal diversity cases, . . . it does not control the resolution of issues

governed by federal statute.” (citations omitted)). Such is the case here.

2 Moreover, other “[f]ederal district courts have ruled that a state court judge‘s

pronouncement from the bench that a non-diverse defendant was no longer party to

the action is sufficient notice of [the] action’s removability.” See Est. of Combas

Martinez v. Barros & Carrion, Inc., 668 F. Supp. 2d 334, 343 (D.P.R. 2009); see also

Ford v. Healthport Techs., LLC, No. 3:08-CV-208, 2008 WL 3927146, at *3 (E.D.

Tenn. Aug. 21, 2008) (“The court . . . concludes that the time for removal under §

1446(b) commenced when the Chancellor orally granted plaintiffs’ motion to amend

the complaint, not when the order memorializing the oral ruling was entered by the

court. To hold otherwise, would be to exalt form over substance.”); King v. Kayak

Mfg. Corp., 688 F. Supp. 227, 229-30 (N.D.W.V. 1988); cf. 14C Wright & Miller’s

Federal Practice and Procedure § 3731 (Rev. 4th ed. 2018) (“Courts ordinarily hold

that oral statements do not trigger removability because those statements do not

qualify as an ‘other paper.’ A limited exception to this principle is that a renewed

period of removability can be triggered by oral statements made in the courtroom

during the course of the action.” (footnotes omitted)).

The lack of a docket entry memorializing the April 21, 2025 hearing does not

mean that the oral order of the state court judge did not “occur[] on the record.”

Carter, 2024 WL 4562891, at *4. It is undisputed that the state court judge issued

an oral order dismissing defendant Woody Motor in a hearing that involved all

parties. See Pl. Br. at 4; Defs. Br. at 3-4; Pl. Reply Br. at 1-3. This event “clearly

notifie[d] a defendant when it dismisse[d] a non-diverse party,” namely Woody

Motor. Carter, 2024 WL 4562891, at *4. As stated above, the question of whether

this oral dismissal was effectuated under Oklahoma law is separate from the

question of whether the oral dismissal provided the grounds for removal under

federal law. The oral dismissal order in this case provided such grounds. Indeed,

“forcing a party to wait for a written order can create the kind of delays or bad-faith

gaming of technicalities of form that Huffman found contrary to the removal

statute.” Id.

For these reasons, the court concludes that the state court judge’s oral order

dismissing Woody Motor constitutes an “other paper from which it may first be

ascertained that the case is one which is or has become removable.” 28 U.S.C. §

1446(b)(3).

Plaintiff argues in the alternative that if the oral dismissal was valid, it

would have constituted an involuntary change such that the instant action was not

removable. Pl. Br. at 8-9. Defendants respond that notwithstanding an involuntary

change, “Woody Motor has been fraudulently joined” and that “as a result its

citizenship should be disregarded for purposes of diversity jurisdiction.” Defs. Br. at

4-6. It is to these arguments that the court turns next.

II. Fraudulent joinder

A. Legal framework

It is important to note that “fraudulent joinder” is a term of art that “exists

regardless of the plaintiff’s motives when the circumstances do not offer any other

justifiable reason for joining [a] defendant.” Cooper v. Zimmer Holdings, Inc., 320

F. Supp. 2d 1154, 1157 (D. Kan. 2004).

The Supreme Court has stated that a defendant’s “right of removal cannot be

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

with the controversy.” Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97 (1921);

Miller v. Jackson, No. CIV-15-500-RAW, 2016 WL 1464558, at *1 (E.D. Okla. Apr. 4,

2016). “If the removing defendant can show that the non-diverse party was

fraudulently joined, the Court ignores the non-diverse defendant for purposes of

determining diversity and may exercise subject matter jurisdiction over the case.”

Swihart v. Gen. Motors, LLC, No. CIV-21-1141-R, 2022 WL 229901, at *1 (W.D.

Okla. Jan. 25, 2022) (citing Am. Nat. Bank & Trust Co. of Sapulpa v. Bic Corp., 931

F.2d 1411, 1412 (10th Cir. 1991)).

“To establish fraudulent joinder, the removing party must demonstrate

either: (1) actual fraud in the pleading of jurisdictional facts, or (2) inability of the

plaintiff to establish a cause of action against the non-diverse party in state court.”

Dutcher, 733 F.3d at 988 (cleaned up) (quoting Cuevas v. BAC Home Loans

Servicing, LP, 648 F.3d 242, 249 (5th Cir. 2011)).

Moreover, the defendant “bears a heavy burden of proving fraudulent joinder,

and all factual and legal issues must be resolved in favor of the plaintiff.” Id.

(quoting Pampillonia v. RJR Nabisco, Inc., 198 F.3d 459, 461 (2d Cir. 1998)). A

plaintiff has no possibility of recovery against a defendant if “no cause of action is

stated” or “though a cause of action [is] stated . . . in fact no cause of action exists.”

Smoot v. Chicago, R.I. & P. R. Co., 378 F.2d 879, 882 (10th Cir. 1967).

Finally, “upon specific allegation of fraudulent joinder[,] the court may pierce

the pleadings, . . . consider the entire record, and determine the basis of joinder by

any means available.” Id.

B. Analysis

1. Whether fraudulent joinder is an exception to the

involuntary change rule

The involuntary rule disallows removal “as a result of evidence from the

defendant or the result of a court order rendered on the merits of the case.” DeBry,

601 F.2d at 488. This is because dismissal due to evidence presented by a

defendant or a court order does not result from a voluntary act by the plaintiff. Id.

It is well-established that “the circumstances permitting removal must normally

come about as a result of a voluntary act on the part of the plaintiff.” Huffman, 194

F.3d at 1078 (citation omitted); DeBry, 601 F.2d at 488.

The court follows its sister courts in this circuit in concluding that fraudulent

joinder is an exception to the involuntary change rule. See, e.g., Barrett v. Liberty

Ins. Corp., No. 19-CV-0129-CVE-FHM, 2019 WL 2152515, at *3 (N.D. Okla. May 17,

2019) (“Fraudulent joinder is a recognized exception to the voluntary/involuntary

rule . . . .”); Bailey v. Markham, 611 F. Supp. 3d 1177, 1213 (D.N.M. 2020) (“A

defendant may remove on the basis of fraudulent joinder either while the

nondiverse party is still joined or after it is dismissed from the case ─ the doctrine

can thus function as an exception to either complete diversity or the voluntary-

involuntary rule.”); Lopez v. Spur Energy Partners, LLC, No. CIV 22-0937 JB/LF,

2024 WL 5263705, at *6 (D.N.M. Dec. 31, 2024) (“[Fraudulent joinder] can . . .

function as an exception to either complete diversity or the voluntary-involuntary

rule.”); Gomez v. Dolgencorp LLC, No. CIV-24-705-PRW, 2025 WL 603012, at *2

(W.D. Okla. Feb. 25, 2025) (“The doctrine of fraudulent joinder is a widely accepted

exception to the voluntary-involuntary rule.”).

2. Whether defendant Woody Motor was fraudulently joined

The court concludes that Woody Motor was fraudulently joined to the instant

action.

As mentioned above, “[t]o establish fraudulent joinder, the removing party

must demonstrate either: (1) actual fraud in the pleading of jurisdictional facts, or

(2) inability of the plaintiff to establish a cause of action against the non-diverse

party in state court.” Dutcher, 733 F.3d at 988 (cleaned up) (citation omitted).

Defendants do not argue “actual fraud in the pleading of jurisdictional facts,”

so the court is left to determine only whether plaintiff is unable “to establish a cause

of action against [Woody Motor] in state court.” Id. Defendants argue that

“Plaintiff did not—and cannot—allege facts sufficient to state a claim against

Woody Motor under Oklahoma’s innocent seller statute.” Defs. Br. at 6.

Plaintiff brings both product liability and negligence claims under the

innocent seller statute. The court will consider each in turn.

a. Product liability

With respect to product liability claims, Oklahoma’s innocent seller statute

provides that “[n]o product liability may be asserted against a product seller other

than the manufacturer, unless”:

1. The product seller exercised substantial control over the aspect of

the design, testing, manufacture, packaging, or labeling of the

product that caused the alleged harm for which recovery of

damages is sought; or

2. The product seller altered or modified the product, and the

alteration or modification was a substantial factor in causing the

harm for which recovery of damages is sought; or

3. The product seller made an express warranty as to such product

independent of any express warranty made by a manufacturer as

to such product, such product failed to conform to the product

seller's warranty, and the failure of such product to conform to

the warranty caused the harm complained of by the claimant; or

4. The claimant is unable, despite a good-faith exercise of due

diligence, to identify the manufacturer of the product; or

5. The manufacturer is not subject to service of process under the

laws of the state; or

6. The court determines that the claimant would be unable to

enforce a judgment against the manufacturer.

Okla. Stat. tit. 76, § 57.2(E).

In his amended petition, plaintiff alleges that Woody Motor “failed to warn

consumers of the dangers posed by the [Super Duty truck] by virtue of its design

and lack of collision avoidance technology which was easily available for installation

on the [Super Duty truck].” Am. Pet. ¶ 33. Moreover, according to plaintiff, “[w]hat

warnings were given by [Woody Motor] were inadequate to place consumers on

notice of the unreasonably dangerous conditions described herein.” See id. ¶ 34.

Plaintiff alleges that Woody Motor “had the opportunity and obligation to supply

warnings to the purchaser of the [Super Duty truck] as to the absence of collision

avoidance and mitigation technology available on other substantially similar F-250

models of the same year.” Id. ¶ 41; see also id. ¶¶ 45-46.

In his briefing, plaintiff argues that he has established a cause of action

under § 57.2(E) because he has “repeatedly alleged that Woody Motor Co. failed to

provide the warnings necessary and that the lack of warnings caused the harm.” Pl.

Br. at 13. The court disagrees.

A product seller’s failure to provide warnings is not one of the six exceptions

provided by the statute. See Okla. Stat. tit. 76, § 57.2(E). Plaintiff maintains that

“[w]arnings constitute labeling of the product and are an integral part of the sales

process” such that the first exception would apply. Pl. Br. at 13. To start, such an

argument is post-hoc and altogether missing from the pleadings. See Am. Pet.

However, even if the court were to read warnings as a form of “labeling”, plaintiff

has failed to plead that Woody Motor “exercised substantial control over the aspect

of the . . . labeling of the [Super Duty truck] that caused the alleged harm.” Okla.

Stat. tit. 76, § 57.2(E); see Am. Pet. ¶ 41 (stating only that “Woody had the

opportunity and obligation to supply warnings to the purchaser of the [Super Duty

truck] as to the absence of collision avoidance and mitigation technology”); id. ¶ 49

(characterizing Woody Motor’s role as the marketing, promotion, advertisement,

distribution and sale of automobiles and component parts of automobiles).

Similarly, plaintiff has not pleaded that Woody Motor made an express

warranty regarding collision avoidance technology such that the third exception

under § 57.2(E) would apply.3 See Am. Pet. Indeed, there is no mention of an

express warranty anywhere in the pleadings. See generally Notice of Removal. The

closest plaintiff comes to alleging an express warranty is his assertion that Woody

Motor generally “promote[s]” safety and collision avoidance technology that was not

present in the Super Duty truck. See Am. Pet. ¶ 28. But the promotion of

technology in other vehicles, however vital, does not in itself create an express

warranty for all vehicles sold. Such an interpretation would run afoul of the plain

meaning of “express.”4

3 The court is unable to map any of the remaining four exceptions to allegations in

the pleadings or to arguments in plaintiff’s briefing. See Am. Pet.; Pl. Br.; Pl. Reply

Br.

4 See Express, Merriam-Webster Online Dictionary (last visited Sept. 9, 2025),

https://www.merriam-webster.com/dictionary/express (defining “express” as

“directly, firmly, and explicitly stated”); see also Express, Cambridge Online

Dictionary (last visited Sept. 9, 2025),

https://dictionary.cambridge.org/us/dictionary/english/express (defining “express” as

“clearly and intentionally stated”).

The court is required to resolve all factual and legal issues in favor of

plaintiff, Dutcher, 733 F.3d at 988, but the court may not redraft the pleadings to

establish a cause of action. Accordingly, the court concludes that plaintiff is unable

to establish a product liability cause of action against Woody Motor under

Oklahoma’s innocent seller statute.

b. Negligence

With respect to negligence claims, Oklahoma’s innocent seller statute

provides that “[a] product seller other than a manufacturer is liable to a claimant on

the basis of negligence if the claimant establishes that”:

1. The product seller sold the product involved in such action;

2. The product seller did not exercise reasonable care:

a. in assembling, inspecting, or maintaining such product, or

b. in passing on warnings or instructions from such product’s

manufacturer about the dangers and proper use of such

product; and

3. Such failure to exercise reasonable care was a proximate cause of

the harm complained of by the claimant.

Okla. Stat. tit. 76, § 57.2(G).

Plaintiff’s second claim against Woody Motor is one of negligence for

breaching its duty to warn consumers “of the hazards posed by the [Super Duty

truck] not being equipped with collision avoidance technology and collision

mitigation technology which was readily available to Defendant Ford.” Am. Pet. ¶

53.

Plaintiff argues that he has established a cause of action under § 57.2(G)

because Woody Motor “owed a duty to warn consumers of the hazards of the [Super

Duty truck]” and Woody Motor’s “lack of reasonable care was a proximate cause of

the harm.” Pl. Br. at 14 (internal quotation marks omitted).

Neither Ford nor Woody Motor warned consumers of the lack of collision

avoidance technology in the Super Duty truck. See Am. Pet. Plaintiff affirms this

implicitly via his allegation that defendants’ failure to warn constitutes negligence.

See Am. Pet. ¶ 39 (alleging that Ford and Woody Motor failed to supply notices to

consumers); see also id. ¶ 41 (“The dangerous conditions and defective designs and

lack of warnings existed at the time the [Super Duty truck] left the control of each

Defendant . . . .” (emphasis supplied)). It follows then that Woody Motor could not

have “pass[ed] on warnings or instructions from [Ford] about the dangers and

proper use of” the Super Duty truck because, according to the pleadings, Woody

Motor never received such warnings or instructions from Ford. Okla. Stat. tit. 76, §

57.2(G).

Plaintiff argues for the first time in his briefing for the instant motion that

Woody Motor “failed to pass on warnings and instructions from Ford.”5 Pl. Reply

Br. at 8; Pl. Br. at 4; see Notice of Removal. Plaintiff cannot remedy his repeated

failure to: (1) establish a cause of action by reciting statutory language that he had

theretofore avoided; and (2) provide any factual basis for such a recitation. See

Smoot, 378 F.2d at 882. Resolving all factual and legal issues in favor of plaintiff,

the court concludes that plaintiff is unable to establish a negligence cause of action

against Woody Motor under Oklahoma’s innocent seller statute.6

Defendants as the removing parties have demonstrated the “inability of the

plaintiff to establish a cause of action against the non-diverse party in state court.”

5 In plaintiff’s response to defendant Woody Motor’s motion to dismiss the amended

petition, plaintiff stated the following:

Defendant Ford does not send its employees out to pass along warnings

to the consumers, it relies upon its dealerships such as Defendant Woody

Motors [sic] to pass along warnings and to warn of hazards posed by the

products, both those known to Defendant Ford but also those known to

Defendant Woody Motor.

Notice of Removal, Ex. 6 at 125. Missing from this argument and the amended

petition is any allegation that Woody Motor failed to pass along warnings that it

received from Ford regarding the lack of collision avoidance technology in the Super

Duty truck, which would be necessary for a valid cause of action under the

Oklahoma innocent seller statute. See Okla. Stat. tit. 76, § 57.2(G). Again, the

court must read the pleadings in the light most favorable to plaintiff, but it may not

redraft the pleadings to establish a cause of action.

6 Plaintiff does not argue that Woody Motor “did not exercise reasonable care . . . in

assembling, inspecting, or maintaining” the Super Duty truck. See Am. Pet.; Pl.

Br.; Pl. Reply Br.; Okla. Stat. tit. 76, § 57.2(G)(2). Regardless, any such claim would

fail for the same reasons described above. Woody Motor could not have introduced a

defect to the Super Duty truck that was alleged to have been lacking from the

original design.

Dutcher, 733 F.3d at 988 (citation omitted). The court lacks accordingly “a

reasonable basis to believe the plaintiff might succeed in at least one claim against

the non-diverse defendant.” Nerad v. AstraZeneca Pharms., Inc., 203 F. App’x 911,

913 (10th Cir. 2006).

In light of plaintiff’s fraudulent joinder of Woody Motor, the court dismisses

Woody Motor from the instant action without prejudice. See Brazell v. Waite, 525 F.

App’x 878, 884 (10th Cir. 2013) (“Once it determined that Waite had been

fraudulently joined, . . . the district court lacked jurisdiction to enter judgment on

the merits on the claims against him. Rather, it was required to dismiss him from

the case without prejudice.”). With Woody Motor dismissed, the court concludes

that it has subject matter jurisdiction over the instant action. The remaining

parties are completely diverse, and the amount in controversy exceeds the statutory

threshold. See Pl. Br. at 7; Am. Pet. ¶¶ 12, 16, 57; see also 28 U.S.C. § 1332.

CONCLUSION

For the foregoing reasons, it is hereby

ORDERED that plaintiff’s motion to remand to state court is DENIED; and

it is further

ORDERED that Woody Motor is dismissed without prejudice.

The Clerk of the Court is respectfully directed to terminate the open motion

at ECF No. 9.

SO ORDERED.

Dated: October 2, 2025 /s/ Timothy M. Reif

New York, New York United States Court of International Trade

Sitting by Designation

United States District Court for the

Eastern District of Oklahoma