# Smeltz v. Ford Motor Company

> District Court, E.D. Oklahoma · October 2, 2025

URL: https://www.frixlaw.com/law-library/cases/11154651

## Case

- **Court:** District Court, E.D. Oklahoma
- **Decided:** October 2, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11154651

## Opinion text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11154651. Public record. Not legal advice.