Alred v. Preferred Compounding Corp

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

EASTERN DIVISION

MEGAN ALRED, individually and

as personal representative of the

estate of WILLIAM ALRED, et al.,

Plaintiffs,

v.

Case No. 1:19-CV-1563-CLM

PREFERRED COMPOUNDING

CORP.; CHARLES MICHAEAL

BARKER; and FICITIOUS

DEFENDANTS 1-10,

Defendants.

MEMORANDUM OPINION

For the reasons stated below, the court finds that Plaintiffs possessed a

reasonable basis for including Defendant Charles Michael “Mike” Barker in their

complaint, and that Barker’s presence in this case divests this court of jurisdiction.

Accordingly, the court grants Plaintiffs’ motion to remand to state court (doc. 6).

BACKGROUND

A group of nine Plaintiffs allege that a facility owned and operated by

Defendant Preferred Compounding Corporation (“PCC”), and managed by

Defendant Barker, contaminated their drinking and bathing water with chemicals

and/or metals that caused the Plaintiffs or their family members to contract cancer.

A. The ProBlend Facility

PCC produces custom rubber products. From 1987 to 2015, PCC and its

predecessor ProBlend operated a rubber production facility in Fruithurst, Alabama

(the “ProBlend facility”). Plaintiffs allege that the ProBlend facility also produced

various chemical and metallic by-products, including arsenic, chromium, and bis(2-

ethylhexyl)phthalate (“DEHP”), each of which has been deemed to cause leukemia

in humans. The Plaintiffs’ case centers on where the Defendants discharged these

pollutants and what (if anything) the Defendants told governmental regulators and

the public about them. The Court starts with the ‘where’—i.e., an artesian well near

the ProBlend facility.

B. The Artesian Well

Water has a natural tendency to rest levelly across surfaces and underground.

This level is referred to as the water table. Sometimes, though, water gets trapped by

impermeable materials and cannot reach the water table. When water is trapped like

this underground by impermeable layers of rock, the layer of trapped water is called

a confined aquifer. If a hole is drilled into a confined aquifer from a point below the

water table, natural pressure will cause the water to rise through the hole to the

surface, as it tries to reach the water table. This is known as an artesian well. The

following graph demonstrates how an artesian well works:

Recharge area

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oi £ mS sear

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United States Geological Survey, Artesian Water and Artesian Wells, https://www.

usgs.gov/media/images/artesian-wells-can-bring-water-land-surface-naturally.!

There is an artesian well approximately 250 feet from the ProBlend facility,

and a runoff ditch connects the facility to the well. This artesian well is located at a

higher elevation than other wells in the Fruithurst area, meaning that it may serve as

a recharging point for the confined aquifer that feeds other wells in the area.

C. ADEM Permitting

Production facilities like ProBlend must obtain a permit from the Alabama

Department of Environmental Management (“ADEM”) to discharge pollutants.

The ProBlend facility, however, operated without a permit from 1987 to 1994.

ProBlend obtained a permit in 1994—-which it renewed in 1997, 2002, and 2007—

but those permits were limited to stormwater discharges (not wastewater discharges)

' This graphic is not contained in Plaintiffs’ complaint. The Court includes it only to assist the

reader’s understanding of (a) how artesian wells work and (b) the Parties’ dispute as to whether ProBlend’s

chemical by-products could have traveled from the Fruithurst artesian well to Plaintiffs’ homes.

and did not disclose the nearby artesian well.

Defendant PCC acquired the ProBlend facility sometime between 2007 and

2012. In June 2012, ADEM sent PCC a notice that ProBlend’s 2007 permit would

expire in September 2012 and that PCC must apply for a new permit.

PCC submitted its application on December 4, 2012. The application was

signed by Defendant Barker, who identified himself as the “Plant Manager” of the

ProBlend facility. Like ProBlend’s previous applications, the 2012 application did

not disclose the nearby artesian well. Plaintiffs allege this failure to disclose means

that PCC was not permitted to discharge wastewater containing the aforementioned

chemicals and metals into the artesian well; yet, the ProBlend facility captured and

stored wastewater in a storage tank that, the Plaintiffs allege, ultimately released the

wastewater into the runoff ditch that ran to the artesian well.

The 2012 Permit required PCC to perform and submit, twice each year, a

storm water discharge monitoring report (“DMR”). The 2012 Permit specifically

required PCC to test for the presence of DEHP, one of the chemicals linked to

leukemia. Plaintiffs allege, however, that PCC did not submit any DMRs for the

ProBlend facility from 2012 to 2015, when PCC closed the ProBlend facility.

D. The Plaintiffs

Each Plaintiff claims that he or she drank and/or bathed in water from the

“Fruithurst city well system,” a term that may or may not include the artesian well

(see infra 21-29). Each Plaintiff was diagnosed with some form of cancer (primarily

leukemia) before January 2018, when they were informed that soil and water tests

of the area revealed levels of DEHP, Arsenic, and Chromium, among other

chemicals and metals.

E. The State Court Lawsuit

Plaintiffs filed the present lawsuit in the Circuit Court of Cleburne County,

Alabama. Plaintiffs included five counts, each pleaded under Alabama state law.

Relevant here, Count I alleges that Defendants PCC and Barker negligently and/or

wantonly breached their duty to prevent the discharge of toxic chemicals and metals

into the groundwater that Plaintiffs drank and/or bathed in and that Defendants’

negligent and/or wanton conduct caused Plaintiffs’ illnesses.

Plaintiffs attached to their complaint a first set of interrogatories and requests

for production. Among other things, Plaintiffs asked Defendant Barker to describe

his role in ensuring environmental compliance at ProBlend (doc. 1-1 at 35-36,

Interrogatories 1, 3-4, 6-7) and to provide copies of any communications he had with

ADEM or any other person or entity related to environmental concerns at ProBlend

(doc. 1-1 at 40-41, requests for production 2, 5).

F. The Removal and Subsequent Proceedings

Defendants removed Plaintiffs’ case to this court (doc 1). See 28 U.S.C. §

1441. In their notice, Defendants argue that Defendant Barker “has been fraudulently

joined” because Plaintiffs “have failed to state a legally sufficient claim” against him

(doc. 1 at 2). Once Barker is removed, Defendants argue, complete diversity exists

between Plaintiffs, each of whom is an Alabama citizen, and Defendant PCC, a

citizen of Ohio and Delaware.2 Complete diversity would vest this court with

subject-matter jurisdiction pursuant to 28 U.S.C. § 1332(a).

Plaintiffs filed a motion to remand (doc. 6). In it, Plaintiffs do not dispute that

the court has diversity jurisdiction if the court determines that Defendant Barker was

fraudulently joined. Plaintiffs instead argue that at least one Plaintiff, Luke

Willingham, has at least one viable claim (Count I: negligence/wantonness) against

Defendant Barker, and thus under Eleventh Circuit law, their entire case must be

remanded back to state court. Accordingly, the court describes the law regarding

fraudulent joinder, and then applies that law to each of Defendants’ three arguments

as they relate to Plaintiff Willingham’s claim of negligence and/or wantonness.

FRAUDULENT JOINDER

Applying the proper standard is particularly critical in fraudulent joinder cases

due to the struggle between a plaintiff’s right to choose his forum, a defendant’s

statutory right of removal, and the federalism concern that state (not federal) courts

should decide issues of state law. Accordingly, the Court details the history and

2 For removal purposes, the court disregards the citizenship of the 10 unnamed fictitious Defendants.

See 28 U.S.C. § 1441(b)(1).

standards for judging fraudulent joinder.

A. Supreme Court Standard: “Reasonable Basis”

District courts have subject-matter jurisdiction over cases between “citizens

of different states,” if the matter in controversy “exceeds the sum or value of

$75,000.” See 28 U.S.C. § 1332(a). The Supreme Court has interpreted the phrase

“citizens of different states” to require that all defendants be citizens of a different

State than all plaintiffs; meaning that if just one defendant is a citizen of the same

State as any plaintiff, diversity-based jurisdiction is destroyed. See Carden v.

Arkoma Assoc., 494 U.S. 185, 187 (1990).

Naturally, the complete diversity requirement opens up the possibility that, to

avoid federal jurisdiction, a plaintiff might add a defendant that shares state

citizenship with at least one plaintiff, even though the plaintiff believes that he has

no viable claim against that defendant.

To combat this tactic, the Supreme Court created the “fraudulent joinder”

doctrine in a series of cases decided through the early 1900’s. See, e.g., Chesapeake

& O.R. Co. v. Cockrell, 232 U.S. 146 (1914) (“this right of removal cannot be

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

with the controversy”), citing Alabama Great So. R.R. Co. v. Thompson, 200 U.S.

206, 218 (1906); Louisville & N. R.R. Co. v. Wangelin, 132 U.S. 599 (1890). In a

nutshell, the doctrine states that federal courts must ignore fraudulently joined

defendants when determining whether diversity among the parties exists.

The Supreme Court’s fraudulent joinder cases turned on the question of

whether the plaintiff had a “reasonable basis” in fact and law for including the

resident defendant. See Chesapeake, 232 U.S. at 153 (“while the plaintiff’s statement

was not conclusive upon the railway company, it did operate to lay upon the latter,

as a condition to a removal, the duty of showing that the joinder of the engineer and

fireman was merely a fraudulent device to prevent a removal. Of course, it was not

such unless it was without any reasonable basis”); Wecker v. Nat’l Enameling &

Stamping Co., 204 U.S. 176, 185 (affirming the finding of fraudulent joinder due to

the “apparent want of basis for the allegations of the petitioner as to [Defendant]

Wettengel’s relations to the plaintiff”); Kansas City Suburban Belt Ry. Co. v.

Herman, 187 U.S. 63, 71 (1902) (“The trial court may have erred in its ruling, or

there may have been evidence which, though insufficient to sustain a verdict, would

have shown that plaintiff had reasonable ground for a bona fide belief in the liability

of both defendants.”). Importantly, this “reasonable basis” standard governed the

Supreme Court’s last case judging fraudulent joinder: “As the joinder was a sham

and fraudulent—that is, without any reasonable basis in fact and without any

purpose to prosecute the cause in good faith against the coemployé—the result must

be the same whether the local law makes for or against a joint liability.” Wilson v.

Republic Iron & Steel Co., 257 U.S. 92, 98-99 (1921) (emphasis added).

B. Eleventh Circuit Standard: “No possibility of recovery”

Ninety-nine years have passed since the Supreme Court last decided a

fraudulent joinder case, and as you might expect, the circuits’ standards for judging

fraudulent joinder claims have diverged over the years. See E. Farish Percy, Making

a Federal Case of It: Removing Civil Cases to Federal Court Based on Fraudulent

Joinder, 91 Iowa L. Rev. 189, 216-20 (describing four versions of the fraudulent

joinder test). Some circuits apply the same “reasonable basis for the claim” test that

the Supreme Court articulated in the early 1900’s. See id. at 216, n. 126 (citing cases

from the Third, Sixth, Eighth, and Tenth Circuit Courts of Appeals).

Other circuits—including the Eleventh Circuit—have gone from judging

whether the plaintiff had “reasonable basis” for including the resident defendant, to

judging whether there is a “possibility that a state court would find that the complaint

states a cause of action against any one of the resident defendants.” Crowe v.

Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997). In other words, the Eleventh

Circuit standard places federal courts in the state court’s shoes instead of the

plaintiff’s shoes. In fact, the Eleventh Circuit has analogized a federal district court’s

role in determining whether fraudulent joinder exists as being “similar to that used

for ruling on a motion for summary judgment under Fed. R. Civ. P. 56(b),” id.,

including consideration of evidentiary materials such as “affidavits and deposition

transcripts submitted by the parties.” Id.

That said, the Eleventh Circuit has cautioned that the jurisdictional inquiry

“must not subsume substantive determination,” id. and that “federal courts are not

to weigh the merits of a plaintiff’s claim beyond determining whether it is an

arguable one under state law.” Id. Furthermore, “the district court must evaluate

all factual allegations in the light most favorable to the plaintiff and must resolve

any uncertainties about state substantive law in favor of the plaintiff.” Id. “If

there is even a possibility that a state court would find that the complaint states a

cause of action against any one of the resident defendants, the federal court must

find that joinder was proper and remand the case to state court.” Id.

C. The Common Defense Rule

The Eleventh Circuit has yet to weigh in on another relevant standard/factor:

the “common defense” or “common defect” rule. See Henderson v. Washington

Nat. Ins. Co., 454 F.3d 1278 n.4 (11th Cir. 2006) (declining to address the issue

because the Court was reversing on other grounds); Shannon v. Albertelli Firm, P.C.,

610 Fed. Appx. 866, 872 n.4 (11th Cir. 2015) (same).

In a nutshell, the “common defense” rule states that any argument/defense that

would decide the case on behalf of all defendants—not just the defendant alleged to

be fraudulently joined—cannot form the basis of a federal court’s finding of

fraudulent joinder and corresponding denial of a motion to remand. The Fifth Circuit

has explained the rationale for the rule thusly:

[W]hen, on a motion to remand, a showing that compels a holding that

there is no reasonable basis for predicting that state law would allow

the plaintiff to recover against the in-state defendant necessarily

compels the same result for the nonresident defendant, there is no

improper joinder; there is only a lawsuit lacking in merit. In such cases,

it makes little sense to single out the in-state defendants as “sham”

defendants and call their joinder improper.

Smallwood v. Illinois Cent. R.R. Co., 385 F.3d 568, 574 (5th Cir. 2004). Put

another way, the federal court’s job is to look for fraudulent joinder; not decide

issues that resolve the entire case. That’s the job of the state court.

The circuits have split on whether the “common defense” rule applies. See

Percy, supra, at 230-39 (discussing the split and arguments on each side). This

court (the Northern District of Alabama) seems to have addressed the issue only in

an unpublished opinion. See Skelton v. Saia, 2018 WL 1784381 (N.D. Ala. April 13,

2018). In Skelton, the court initially denied Plaintiff’s motion to remand, but

reversed itself on a motion to reconsider when the Plaintiff raised the common

defense rule for the first time. Id. The court held that (a) the “common defense”

argument could not be waived due to its jurisdictional nature, (b) the court would

apply the rule, despite the Eleventh Circuit having yet to do so, and (c) the defense

at issue (i.e. Alabama’s survival statute) was common to all Defendants and thus

could not support a finding of fraudulent joinder. Id. at 1-4. Accordingly, the court

reversed its earlier decision and remanded the case.

Of course, this court is not bound by its own unpublished opinion. That said,

for consistency’s sake, the court will apply the common defense rule to the two

arguments raised by Defendants that apply equally to PCC and Barker—i.e.

violation of Alabama’s two-year statute of limitations (Argument #1) and the factual

impossibility that Plaintiff Willingham drank or bathed in water from the artesian

well (Argument #3).

* * *

In summary, Eleventh Circuit precedent requires this court to determine

whether there exists any “possibility that a state court would find that the complaint

states a cause of action against any one of the resident defendants,” which, in this

case, is Defendant Mike Barker. Crowe, 113 F.3d at 1538. While it is not required

by the Eleventh Circuit, the court will also determine whether the common defense

rule applies to any of Defendants’ arguments.

ANALYSIS

Plaintiffs argue that Luke Willingham’s negligence/wantonness claim against

Barker demonstrates that there is a “possibility that a state court would find that the

complaint states a cause of action against [Barker].” Crowe, 113 F.3d at 1538.

Defendants have raised three arguments that, they contend, demonstrate that

there is no possibility that a state court would find Willingham’s negligence claim

viable. See Doc. 1 (notice of removal), 13 (opposition to motion to remand). The

court addresses all three of these arguments, as applied to Willingham’s negligence

or wantonness claim, in the order Defendants raised them.

I. Two-Year Statute of Limitations.

In their notice of removal, Defendants argue that all negligence claims against

them are barred by Alabama’s two-year statute of limitations. Doc. 1 at 13 (citing

Ala. Code § 6-2-38; Griffin v. Unocal, Corp., 990 So.2d 291 (Ala. 2008).

In their motion to remand, Plaintiffs note that Alabama law tolls the two-year

statute until a person reaches 19 years of age. Doc. 6 at 9 (citing Ala. Code § 6-2-8).

Because Plaintiff Willingham was born in December 2012 (doc. 1-1 at 24), Plaintiffs

argue that the two-year statute cannot apply to Willingham. Id. Defendants did not

respond to Plaintiffs’ argument in their opposition to the motion to remand (doc. 13).

Defendants’ argument fails for three reasons. First, by failing to respond to

Plaintiffs’ argument that the statute was tolled, Defendants have waived whatever

argument they might have had against Plaintiff Willingham.

Second, there is “a possibility that a state court would find” that Alabama’s

age exception applies to Plaintiff Willingham and thus his negligence claim is not

time barred. Crowe, 113 F.3d at 1538. The court interprets Defendants’ silence on

the issue to be an acknowledgment that Plaintiffs are, in fact, correct.

Third, this argument is precluded by the common defense doctrine. A statute

of limitations defense applies equally to PCC and Barker. If this court held that

there is no possibility that Willingham’s claim vis-à-vis Barker could survive, and

thus denied remand, the court would necessarily then rule that the same defense

barred Willingham’s case against PCC on a Rule 12 motion. The result would be

this federal court dismissing Plaintiffs’ entire case on a matter of state law; a result

that violates the Eleventh Circuit’s admonition that the district court’s jurisdictional

inquiry “must not subsume substantive determination.” Crowe, 113 F.3d at 1538.

II. Barker’s Personal Participation in Negligent and/or Wanton Conduct.

Plaintiffs allege in their complaint that Barker was the “Plant Manager” of the

ProBlend facility and that PCC told ADEM that Barker was “the official

representative of the facility who had overall responsibility for the operations” (doc.

1-1 at 7). Under Alabama law, for a manager to be deemed personally liable for a

corporation’s negligent or wanton acts, Plaintiffs must prove that the manager

personally contributed to, or participated in, the acts. See Ex parte McInnis, 820

So. 2d 795, 798-99 (Ala. 2001) (“A corporate agent who personally participates,

albeit in his or her capacity as such agent, in a tort is personally liable for the

tort.”); Ex parte Charles Bell Pontiac-Buick-Cadillac-GMC, Inc., 496 So. 2d 774,

775 (Ala. 1986) (“In Alabama, the general rule is that officers or employees of a

corporation are liable for torts in which they have personally participated,

irrespective of whether they were acting in a corporate capacity.”).

Defendants argue that there is no possibility that Plaintiffs can prove that

Barker personally contributed to the alleged contamination at the ProBlend facility

in Fruithurst because Barker did not manage the ProBlend facility; he instead

managed its sister facility in Tallapoosa, Georgia (doc. 1 at 9-13; doc. 13 at 5-12).

Defendants claim that a different man, David Brown, was in charge of day-to-day

operations at ProBlend. Defendants must provide “clear and convincing evidence”

that there is no possibility Plaintiff Willingham could establish a negligence or

wantonness claim against Barker. Henderson, 454 F.3d at 1281.

1. Defendants’ Submissions: To support this argument, Defendants submitted

a sworn declaration from Barker in which he declares that he “never worked at

PCC’s Facility in Fruithurst, Alabama (‘ProBlend’);” he instead “served as the Plant

Manager at PCC’s Facility in Tallapoosa” (doc. 1-2 at 2). Barker declares that

David Brown was the on-site “Operations Manager at ProBlend” (doc. 1-2 at 4) and

that Brown “worked to ensure site safety and compliance with environmental

regulations and permitting,” including “any testing and sampling required by the

Alabama Department of Environmental Management (‘ADEM’)” (doc. 1-2 at 4).

According to Barker, his only “involvement in the alleged environmental

issues at ProBlend” was signing PCC’s permit application in 2012 (doc. 1-2 at 5).

Barker further declares that he was never “tasked with personally monitoring or

personally supervising ProBlend’s waste generation, waste disposal, surfacewater

run-off, wastewater discharge, stormwater discharge, or other environmental

activities” (doc. 1-2 at 5).

Citing this declaration, Defendants argue that Plaintiffs cannot possibly prove

that Barker contributed to the alleged contamination at ProBlend because “Barker

was not personally involved in those activities, and his Declaration is the only

evidence before the Court on that point” (doc. 13 at 9). The Court rejects this

argument for two reasons.

2. Plaintiffs’ Submissions: First, Barker’s declaration is not the only evidence

before the Court regarding Barker’s role at ProBlend. Plaintiffs cite multiple

documents that they claim demonstrate Barker’s personal involvement at ProBlend.

Plaintiffs first point to a November 2012 letter in which PCC’s Vice President of

Manufacturing, Andrew Chan, informed ADEM that “Mike Barker, Plant Manager,

is the official representative of the facility and has overall responsibility for the

operations” (doc. 6-1 at 2).3

Plaintiffs next point to PCC’s application to renew the ProBlend permit (doc.

6-2 at 37-45). Consistent with VP Chan’s letter, Barker signed the application as the

“Plant Manager” of the ProBlend facility, which according to the application, he

could only do by certifying that (a) the application and its attachments “were

3 The letter identifies the facility as “Preferred Compounding Corp. Fruithurst, AL 36262 Location”

(doc. 6-1 at 2).

prepared under [his] direction or supervision” and (b) Barker had “overall

responsibility for the operation of the facility” (id.).

Plaintiffs then point to ADEM’s response, which informs “MIKE BARKER

PLANT MANAGER” that the permit application was granted and that “[y]ou are

responsible for compliance with all provisions of the permit including but not

limited to, the performance of any monitoring, the submittal of any reports, and the

preparation and implementation of any plans required by the permit” (doc. 6-2 at 2).

Finally, Plaintiffs point to two letters that ADEM sent to “MIKE BARKER

PLANT MANAGER” that informed Barker of ProBlend’s failure to comply with

reporting requirements (docs 6-3, 6-4).

3. Posture of the Case: Defendants’ argument that “Barker was not personally

involved in those activities, and his Declaration is the only evidence before the Court

on that point” (doc. 13 at 9) is not only inaccurate, it’s specious. There’s a reason

that Defendants possess the only declaratory evidence of Barker’s role at this point:

Defendants removed this case from the state court before they had to answer

Plaintiffs’ Interrogatories and Requests for Production, many of which go to the

heart of Barker’s role at ProBlend. For example, Plaintiffs asked Barker to provide:

• His job title(s), duties, and responsibilities at PCC (Interrogatory 1);

• What steps he took to see that ProBlend’s discharges were compliant with

applicable licenses, permits, and regulatory authority (Interrogatory 3);

• Any environmental audits he performed at ProBlend (Interrogatory 4);

• All environmental-related reports that PCC prepared while he oversaw

operations at the ProBlend facility (Interrogatory 6); and,

• Any communications he had with other persons regarding environmental

concerns at the ProBlend facility (Interrogatory 7).

Doc. 1-1 at 35-36. Plaintiffs also asked Barker to provide copies of:

• Any communications he had with any regulatory agency related to the

ProBlend facility (RFP 2); and,

• Any communications he had with any person or entity related to

environmental concerns at the ProBlend facility (RFP 5).

Doc. 1-1 at 40-41. And, should their case go forward, Plaintiffs will undoubtedly

seek to depose Barker, David Brown, Andrew Chan, and others regarding the chain

of command for environmental issues at the ProBlend facility.

Perhaps every bit of document production, written responses, and deposition

testimony will corroborate Barker’s declaration. Or, perhaps, an email or cross-

examination response will suggest that Barker had a greater role than his declaration

suggests. The court cannot know. All the court can say, at this point, is that it is

unconvinced that Defendants clearly and convincingly hold the winning hand when

Plaintiffs have yet to be dealt all of their cards.

4. Possibility Standard: The court finds that Defendants have failed to meet

their “heavy burden” of providing clear and convincing evidence that Barker neither

participated in, nor contributed to, the alleged negligent/wanton conduct at

ProBlend. Crowe, 113 F.3d at 1538. Accordingly, the court finds that there is “a

possibility that a state court would find that the complaint states a cause of action”

for negligence or wantonness against Barker. Id.

Again, the job of this court is “not to weigh the merits of a plaintiff’s claim

beyond determining whether it is an arguable one under state law.” Id. Ignoring the

fact that Defendants have yet to be subjected to discovery, and limiting itself to just

the documents submitted to date, the court finds that it is at least “arguable” that

Barker was responsible for ensuring that pollutants from the ProBlend facility would

not be released into surface or ground water. After all, Barker and PCC told ADEM

that was Barker’s role (not David Brown’s), see docs. 1-2, 6-1, 6-2, 6-3, 6-4, and

they never corrected ADEM’s belief that, as “plant manager,” Barker was

responsible for ProBlend’s environmental reporting requirements, despite an

ADEM regulation that appears to require PCC to inform ADEM that “a different

individual or position has responsibility for the overall operation of the facility.”

ADEM Administrative Code Rules 335-6-5.14(3). Furthermore, as Defendants

concede (doc. 13 at 8), Barker had supervisory authority over ProBlend and David

Brown (doc. 1-2 at 3-4), and there is at least “a possibility” that a state court (or

jury) could find that Barker’s declaration that his oversight was limited to economic,

not environmental, issues was self-serving and designed to avoid liability.

This ruling is consistent with the district court’s opinion in Atwood v.

Weyerhaeuser USA, Inc., 2010 WL 749337 (S.D. Ala. Feb. 26, 2010), a case that

similarly featured Defendants relying on plant managers’ affidavits denying

personal responsibility over environmental issues to defeat a motion to remand. In

Atwood, the district court held that, while one of the plant manager’s “patchy

denials” of personal responsibility over environmental issues “may ultimately be

victorious in denying liability, [] this court is unable to say at this stage that there is

no possibility the plaintiffs have asserted a colorable claim of nuisance, negligence,

wantonness and trespass against [the plant manager]. The decision as to the

sufficiency of the pleadings and [the manager’s] denials is for the state court, ‘and

for the federal court to interpose its judgment would fall short of the scrupulous

respect for the institutional equilibrium between the federal and state judiciaries that

our federal system demands.’” 2010 WL 749337 at *6 (quoting Henderson, 454

F.3d at 1284).

This court wholeheartedly agrees.

5. Reasonable Basis (SCOTUS): Briefly, the court would reach the same

conclusion if it applied the Supreme Court’s standard of determining whether the

Plaintiff possessed a “reasonable basis in fact” to include a negligence claim against

Barker. See Wilson, 257 U.S. at 98-99. Regardless of whether the evidence

ultimately shows that Mike Barker, David Brown, or some other person was

responsible for environmental oversight at the ProBlend facility, the correspondence

between ADEM, PCC, and Barker demonstrates that, when Plaintiffs filed their

complaint, they had a “reasonable basis” to allege that Barker was responsible for

environmental oversight at ProBlend—thus making it impossible to say that

Plaintiffs ‘fraudulently’ included Barker in their complaint.

III. The Link Between the Artesian Well and Plaintiffs’ Homes.

Lastly, Defendants argue that there is no possibility that Plaintiffs can

factually link the alleged contamination of the artesian well to the water used at

Plaintiff’s homes during Barker’s tenure at ProBlend (2012 to 2015). The court

disagrees, but to explain why, the court must first provide some background

regarding the facts and the pleadings; a background that reveals that the real dispute

between the parties is how the Plaintiffs alleged they received water at their homes,

not how they actually got their water.

1. The Facts: Everyone agrees that, starting in 1968, the Fruithurst municipal

water system piped water from a storage tank, the artesian well, and another well to

homes connected to the public system. See Doc. 1-1 at 17-18 (complaint); Doc. 1-

3 at 13 (notes from ADEM’s April 2018 Pre-CERCLA Screening Assessment of the

area around ProBlend). However, Defendants have offered a document that, they

allege, definitively establishes that the municipal water system stopped using water

from the artesian well in 1996 (doc. 1-3 at 13). Relevant to Plaintiff Willingham’s

claim, this document states that the Fruithurst municipal water system has received

its water in from the Anniston municipal water system since 2011 (id.).

Defendants contend that this revelation is fatal to Willingham’s claim because

Willingham was born in 2012 (doc. 1-1 at 24), the same year that Baker assumed

supervisory authority over ProBlend (doc. 1-2 at 3-4). Defendants argue that, if it is

true that the Fruithurst municipal system has piped its water in from Anniston since

2011, then Barker’s alleged negligence could not have caused Willingham’s illness.

Defendants contend that their document creates a “dispositive question” of

fact: “Were any of the Plaintiffs actually still connected to and receiving water from

the two wells and storage tank between 2012 and 2015, when Barker was involved

at ProBlend?” (Doc. 23 at 6-7.) Defendants wish to subpoena governmental

authorities and depose certain Plaintiffs to answer that question (doc. 23 at 7-10).

But, thanks to oral argument and additional briefing on the issue, it is clear

that this is not a factual dispute that must be resolved by documents and depositions;

it’s a legal dispute based on inartful pleading. In fact, the parties acknowledged the

two most relevant facts during oral argument. Plaintiffs’ counsel acknowledged that

the Fruithurst municipal water system stopped distributing water from the artesian

well long before 2012:

THE COURT: So you don’t dispute that in those particular time

periods [1996 and 2011], that the City of Fruithurst or

the Town of Fruithurst water system was changed?

MR. GRESHAM: It changed. Well, in terms of—if you are talking about

municipal water, but all of these people [i.e. Plaintiffs]

were on well water. And they received all of their well

water stemming from the aquifer and artesian well[.]

(Doc. 25 at 25). And, in discussing affidavits submitted by three Plaintiffs,

Defendants’ counsel acknowledged that Plaintiffs take water from their own wells:

MR. SECCO: So the real question is not whether they are getting

water from their well. [The] real question is whether

they have any personal knowledge about continuing

to get water from the two wells near ProBlend. . . .

They are not representing: We are getting water

from our own well. That would be noncontroversial.

(Doc. 25 at 35). That Plaintiffs get water from their own wells is indeed

“noncontroversial,” id., as demonstrated by the fact that at least two Plaintiffs (Alred

and Griffith) have given television interviews that include video of their wells. See

Brian Pia, Well water dangers: Research shows 23% have contamination, Aug. 6,

2019, http://www.abc3340.com/news/abc-3340-news-iteam/well-water-dangers;

Brian Pia, Growing number of Cleburne County cancer cases raising concerns, Feb.

18, 2019, http://www.abc3340.com/news/abc-3340-news-iteam/growing-number-

of-cleburne-county-ala-cancer-cases-raising-concerns.

If the parties agree on the facts, what then is the dispute? It is whether

Plaintiffs pleaded that the contaminated water traveled from the artesian well to their

homes either, (a) via underground aquifers that fed their private wells or (b) via the

Fruithurst municipal water system. Option (a) is factually viable; option (b) is not.

2. The Pleadings: In their complaint, each of the nine Plaintiffs allege that,

during the relevant time period, the “Fruithurst city well system” was their “primary

water source” (doc. 1-1 at 23-26). In an earlier section of the complaint, Plaintiffs

describe the “city well system” as follows:

B. The Fruithurst Artesian Well and City Well System.

21. The Fruithurst city well system was first opened in October of 1968

and consisted of two wells and one storage tank. One of these wells

was an artesian well that still produces water today.

22. The artesian well which provides water to the Fruithurst city well

system is located approximately 250 feet from the Facility (the

“Artesian Well”). The Facility has a runoff ditch which runs directly

to the Artesian Well.

23. The Artesian Well is located at a higher elevation than other wells in

the area, making it a likely groundwater recharging site for the area.

(Doc. 1-1 17-18). The parties, as is apparent by now, interpret the term “Fruithurst

city well system” differently.

Defendants read the term to refer to the Fruithurst municipal water system,

which as previously mentioned, drew water from two wells and a storage tank from

1968 to 1996, from the county water authority from 1996 to 2011, and from the

Anniston municipal water system from 2011 to present. See Doc. 1-3 at 13.

Reading the complaint this way would break the causal link between Barker’s

alleged negligence, which must have occurred after 2011, and the Plaintiffs’ water

supply.

Plaintiffs maintained at oral argument that their complaint, read plainly,

alleges that they drink well water that “is being recharged by the artesian well” (doc.

25 at 16). According to Plaintiffs, they continued to use well water after the

Fruithurst municipal water system switched to county water, then Anniston water,

and Plaintiff Willingham used well water from his birth in 2012 until his diagnosis

in 2016 (doc. 1-1 at 14-15). Reading the complaint this way would maintain the

causal link between Barker’s alleged negligence and Plaintiff Willingham’s illness.

3. Possibility of Recovery (CA11): Again, under Eleventh Circuit precedent,

this court must determine whether there is “even a possibility that a state court would

find that the complaint states a cause of action against any one of the resident

defendants.” Crowe, 113 F.3d at 1538. If the answer to that question is ‘yes, there

is a possibility,’ then the court must reject Defendants’ fraudulent joinder argument

and remand the case. The court finds two possible ways that Plaintiffs could survive

a dispositive motion filed in state court, which individually and collectively warrant

remand.

First, multiple statements in Plaintiffs’ complaint make it possible that a state

court could read Plaintiffs’ complaint as Plaintiffs argue they wrote it—i.e. to allege

that water contaminated at the ProBlend facility drained into the artesian well, which

served as the recharging point for the underground aquifer that fed the Plaintiffs’

private wells. Two such statements stand out.

The first, and most compelling, is the allegation in Paragraph 23 that “the

Artesian Well is located at a higher elevation than other wells in the area, making it

a likely groundwater recharging site for the area” (doc. 1-1 at 18). If Plaintiffs took

their water from a municipal water system, rather than their own private wells, then

why would the existence of “other wells in the area,” or the elevation of those wells,

matter? Why would it matter that the artesian well was “the recharging site” for the

“other wells” in the area? Paragraph 23, which is in the “facts” section that

describes the term “Fruithurst city well system,” only makes sense if it was included

to support the theory that the artesian well served as the recharging point for the

aquifer that provided water for the Plaintiffs’ wells.

A second supporting statement is found in paragraphs 52 and 53:

52. Soil and water tests conducted through the area serviced by the

Fruithurst city well system revealed levels of DEHP, Arsenic,

and Chromium, among other compounds and metals, which well

exceed the EPA’s respective acceptable limits.

53. Upon information and belief, there are no other sources for

DEHP, Arsenic and Chromium in the area at the levels found in

the soil and water tests, other than PCC’s operations at the

Facility.

(doc. 1-1 at 22-23). If Plaintiffs alleged that they received their water from the

municipal water system, rather than from the ground via private wells, then why

would it matter that both “soil and water” was tested throughout the area? Soil tests

from sites other than the ProBlend facility/artesian well are relevant only if Plaintiffs

are taking their water from the ground, not pipes.

This is not to say that Defendants cannot cite portions of the complaint that

support their reading of the term “Fruithurst city well system.” They can. But it is

not this court’s job to decide which party has the better reading. This court’s role is

limited to determining whether there is “even a possibility” that a state court would

permit Plaintiffs’ case to move forward. Crowe, 113 F.3d at 1538.

Under Alabama law, when faced with a motion to dismiss for failure to state

a claim, “a complaint must be construed in favor of the pleader and should not be

dismissed unless it appears beyond all doubt that the plaintiff can prove no facts in

support of the claim which would entitle him to relief under some legally cognizable

theory.” Jennings v. City of Huntsville, 677 So. 2d 228, 229-30 (Ala. 1996) (quoting

Fontenot v. Bramlett, 470 So. 2d 669, 671 (Ala. 1985)). Because Alabama law

requires state judges to construe complaints in favor of Plaintiffs, and multiple

allegations in the complaint support Plaintiffs’ construction of the complaint, this

court finds that there is at least a possibility that a state court would read Plaintiffs’

complaint in a manner consistent with Plaintiffs’ theory and thus deny a dispositive

motion filed by Defendants on this issue.

There is a second possible outcome that favors Plaintiffs; the more likely one.

Assume that instead of removing the case to federal court, Defendants had filed a

Rule 12(b) motion to dismiss based on the same theory, and supported the motion

with affidavits showing that the Fruithurst municipal water system no longer drew

water from the artesian well. Rather than fight this interpretive battle, Plaintiffs

almost certainly would have filed an amended complaint that clarified what they

meant by the term “Fruithurst city well system.” Because this case has not been

set for trial, the state court would “freely allow” the amendment, see Ala. R. Civ. P.

15(a), and Defendants’ dispositive motion attacking the inartfully pleaded complaint

would be rendered moot. In this scenario, Plaintiff Willingham’s negligence/

wantonness claim would certainly move forward.

In sum, Plaintiffs prevail under the Eleventh Circuit’s “possibility” standard

for either of two reasons: (1) It is possible that a state court would deny Defendants’

dispositive motion by reading Plaintiffs’ complaint in the manner Plaintiffs’

intended and/or (2) it is possible that Plaintiffs could avoid a dispositive motion by

amending their complaint to eliminate any confusion. See Crowe, 113 F.3d at 1538.

4. Reasonable Basis (SCOTUS): Briefly, the court would reach the same

conclusion if it applied the Supreme Court’s standard of determining whether

Plaintiff Willingham possessed a “reasonable basis in fact” to include a negligence

claim against Barker. See Wilson, 257 U.S. at 98-99. Plaintiffs had reason to

believe that PCC contaminated water that recharged their wells (doc. 1-1, ¶¶ 47-53),

and as previously discussed, Plaintiffs had reason to believe that Barker was in

charge of ensuring environmental compliance at PCC (doc. 1-1, ¶¶ 47-53).

Whether Plaintiffs inartfully pleaded the causal link between PCC and Barker’s

(in)actions would play no role in determining whether Plaintiff Willingham

fraudulently added Barker as a defendant.

5. Common Defense: Finally, the court finds that Defendants’ argument, as

it pertains to Plaintiff Willingham, is precluded by the common defense theory.

Again, Defendants argue that Plaintiff Willingham could not have been harmed by

contamination at the ProBlend facility because the town of Fruithurst has provided

water from Anniston (not the artesian well) since before Willingham’s birth. This

defense applies equally to Barker and PCC.

If this court held that there was no possibility that Willingham’s claim vis-à-

vis Barker could survive, and thus denied remand, the court would necessarily rule

that the same defense barred Willingham’s case against PCC. That result would

prove that Plaintiffs were guilty of inartful pleading; not fraudulently joining Barker

to avoid federal court. Furthermore, accepting an argument that results in the

dismissal of all Defendants would violate the Eleventh Circuit’s admonition that the

district court’s jurisdictional inquiry “must not subsume substantive determination.”

Crowe, 113 F.3d at 1538.

* * *

This court’s ruling is limited: Based largely on the correspondence between

Barker, PCC, and ADEM, Plaintiffs possessed a non-fraudulent reason to include

Barker as a defendant. This court passes no judgment on Plaintiffs’ ability to prove

Barker’s negligence or wantonness, nor their ability to link Barker’s actions or

inactions to their injuries. Those issues must be decided in state court.

For the reasons stated above, this Court finds that Defendant’s request for

additional discovery (doc. 23) is due to be denied and Plaintiffs’ motion to remand

(doc. 6) is due to be granted. Defendant’s motion to strike (doc. 18) is moot. The

court notes that its decision regarding additional discovery and remand would be the

same even if Plaintiffs’ affidavits (docs. 17-1, 17-2, 17-3) were stricken. This matter

will be remanded to the Circuit Court of Cleburne County, Alabama. A separate

order consistent with this Opinion is issued herewith.

Done on January 28, 2020.

COREY . MAZE 7

UNITED STATES DISTRICT JUDGE

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