The opinion of the court was delivered by: Thomas W. Phillips United States District Judge
This matter is before the court on plaintiffs' Motion to Remand [Doc. 13] and defendants' response in opposition thereto [Doc. 14]. For the reasons that follow, the motion is GRANTED.
The facts of this case are in dispute. Plaintiffs purchased frozen ground beef patties from Sam's East, Inc. ("Sam's")*fn1 in Knoxville, Tennessee, on or about September 27, 2007. The next day, plaintiffs learned of a recall of Wal-Mart ground beef due to E-coli contamination. Concerned about the safety of the beef they had recently purchased, plaintiffs telephoned Sam's and requested to speak with the "Meat Manager." Plaintiffs were directed to defendant James Harrison, an Assistant Manager in the "Fresh Foods Area" of Sam's. Plaintiffs allege that Mr. Harrison assured them the meat was safe and that Sam's did not purchase their ground beef from the same company as Wal-Mart. Based on this information, plaintiffs cooked and ate the meat. Later that day, plaintiffs allege they fell ill with common symptoms of food poisoning.
Plaintiffs claim they called Sam's to report their illness the day after they fell ill, on or about September 30, 2007, at which time no one was available to speak to them, and once on October 1, 2007. On this later date, plaintiffs allege that they were again told that the meat purchased was not part of the recall. Plaintiffs allege they filed, or believed they were filing, an incident report at this time. Subsequently, on October 2 and October 3, plaintiffs allege that two employees of defendant Cargill Meat Solutions Corporation ("CMSC") contacted them to gather information for an incident report. On October 6, 2007, a recall was issued of ground beef sold at Sam's. Via another phone call to Sam's, plaintiffs filed an incident report on October 8, 2007.
Plaintiffs initiated this action on January 11, 2008, in the Circuit Court for Knox County, Tennessee, alleging claims of strict liability, negligence, and gross negligence. Defendants removed to this court on the basis of diversity jurisdiction, 28 U.S.C. § 1332. Plaintiffs now move to remand, arguing that defendants have not established complete diversity of citizenship, as plaintiffs and defendant Harrison are citizens of Tennessee.*fn2 Defendants argue, however, that plaintiffs have fraudulently joined defendant Harrison in order to defeat diversity of citizenship; as there is no basis under state law for imposing liability on Harrison, defendants argue, the true parties enjoy complete diversity of citizenship, and removal was proper.
In support of this argument, defendants contest several of the facts as alleged by plaintiffs. Most importantly for purposes of this motion, per a declaration of defendant Harrison, he claims not to recall speaking to either of the plaintiffs until October 6, 2007, the date of the recall of the Sam's ground beef. On this date, according to Mr. Harrison, he spoke to Mr. Freeman and prepared an incident report immediately following their conversation. [Doc. 15 ¶ 8].
28 U.S.C. § 1441 provides for removal to this court of any civil action filed in state court of which this court has original jurisdiction. 28 U.S.C. § 1441(a)(2006). Defendants premised removal on this court's original jurisdiction based on diversity of citizenship. This court "shall have jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between ... citizens of different States." 28 U.S.C. § 1332(a). This requires complete diversity of the parties, meaning "no plaintiff may be a citizen of the same state as any defendant." Probus v. Charter Commc'ns, LLC, 234 F. App'x 404, 407 (6th Cir. 2007). On its face this presents a problem, as defendant Harrison and plaintiffs are all citizens of Tennessee, and there is no other basis for this court's original jurisdiction over the matter. Defendants attempt to overcome this problem, however, by alleging that defendant Harrison was fraudulently joined.
"Fraudulent joinder is a judicially created doctrine that provides an exception to the requirement of complete diversity." Triggs v. John Crump Toyata, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998), quoted in Coyne v. Am. Tobacco Co., 183 F.3d 488, 493 (6th Cir. 1999). "[I]t is the removing party's burden to demonstrate fraudulent joinder ...." Probus, 234 F. App'x at 406. For a claim of fraudulent joinder to succeed, it must be "clear that there can be no recovery under the law of the state on the cause alleged or on the facts in view of the law." Alexander v. Elec. Data Sys. Corp., 13 F.3d 940, 949 (6th Cir. 1994) (quotation removed). Accordingly, "[t]o prove fraudulent joinder, the removing party must present sufficient evidence that a plaintiff could not have established a cause of action against non-diverse defendants under state law." Coyne, 183 F.3d at 493. Conversely, "if there is a colorable basis for predicting that a plaintiff may recover against non-diverse defendants," the court must remand. Id.; see also Alexander, 13 F.3d at 949. "All doubts as to the propriety of removal are resolved in favor of remand." Coyne, 183 F.3d at 493.
Defendants argue that plaintiffs cannot recover against defendant Harrison due to Tennessee products liability law, the statutory framework of which defendants argue preempts plaintiffs' common law allegations of negligence and gross negligence. Defendants alternatively argue that plaintiffs have no basis for recovering against defendant Harrison under these common law theories. The court will address each argument in turn.
Although plaintiffs alleged their claims against Harrison under Tennessee common law theories of negligence and gross negligence, [Doc. 1, Attach. 1 at 16-17], defendants assert that plaintiffs' claims fall within the purview of the Tennessee Products Liability Act of 1978 ("TPLA"), Tenn. Code Ann. §§ 29-28-101 to -108 (2008), as the TPLA by definition includes actions brought for or on account of personal injury, death or property damage caused by or resulting from the manufacture, construction, design, formula, preparation, assembly, testing, service, warning, instruction, marketing, packaging or labeling of any product. "Product liability action" includes, but is not limited to, all actions based upon the following theories: strict liability in tort; negligence; breach of warranty, express or implied; breach of or failure to discharge a ...