WILLIAM E. CASSADY, Magistrate Judge.
This cause is before the Magistrate Judge for issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b), on the notice of removal (Doc. 1), defendant Pamela Donovan's motion for dismissal for fraudulent joinder (Doc. 2), plaintiffs' motion to strike the affidavit of Tony Nix (Doc. 13), plaintiffs' motion to remand (Doc. 15), defendants' opposition and brief in response to plaintiffs' motion to remand (Doc. 19), defendants' response and opposition to plaintiffs' motion to strike the affidavit of Tony Nix (Doc. 20), and plaintiffs' combined reply to defendants' response to motion to remand and motion to strike affidavit of Tony Nix (Doc. 21). Upon consideration of the foregoing pleadings, it is recommended that the Court
State Farm Fire and Casualty Company issued a homeowners policy, Policy Number 01-BE-Q252-4, to the plaintiffs on August 12, 2009, covering their home at 139 Augusta Court, Mobile, Alabama 36532. (Compare Doc. 1, Exhibit A, HOMEOWNERS POLICY, at 1 with Doc. 1, Exhibit C, Affidavit of Tony Nix, at ¶ 4.)
The policy was in full force and effect on December 26, 2009, when the plaintiffs' home was damaged by fire. (Doc. 1, Exhibit A, COMPLAINT, at ¶¶ 14-15.) At the time of the fire, the Connallys were on a family vacation in Orlando, Florida. (Id. at ¶ 15.) The Connallys notified State Farm of the fire loss on December 26, 2009 (id. at ¶ 16) and immediately returned home from their vacation (id. at ¶ 17).
State Farm appointed Pamela Donovan ("Donovan") as its claims representative to investigate and adjust the Connallys' claim. (Id. at ¶ 18.) In addition, State Farm, acting through Donovan or others, hired Harold Deese and Perry Hopkins "to investigate and opine as to the cause and origin of the fire and to rule out causes of the fire loss for anything other than arson." (Id. at ¶ 19.) Deese began his investigation on January 5, 2010 and concluded it on January 13, 2010. (Id. at ¶¶ 20-21.) On March 5, 2010, Deese issued a report to State Farm "in which he opined that the fire which occasioned the loss was intentionally set." (Id. at ¶ 22.) However, Deese did "not conclude in his report that Ronald Connally, or any member of the Connally family, `procured' the fire event which caused the loss and resulted in the subsequent claim." (Id. at ¶ 23.) Contrary to Deese's report, the Alabama Fire Marshal assigned to investigate the fire "did not determine that the fire had been intentionally set by anyone[.]" (Id. at ¶ 24 (emphasis in original).)
On June 8, 2010, plaintiff Ronald Connally signed and mailed to State Farm a Sworn Proof of Loss. (Compare Doc. 1, Exhibit C, Sworn Proof of Loss attached to the Affidavit of Tony Nix with Doc. 1, Exhibit D, Ronald Connally's July 16, 2010 Examination Under Oath, at 150-151.
On September 23, 2010, the mortgagee, Auburn Bank, mailed to State Farm a Sworn Statement in Proof of Loss. (Doc. 1, Exhibit C, Sworn Statement in Proof of Loss attached to Affidavit of Tony Nix.) The mortgagee made a claim for $1,300,000 for the damaged residence. (Id.)
On February 7, 2011, State Farm penned a denial letter to Ronald Connally in care of his attorney, Charles, Potts, Esquire. (Doc. 1, Exhibit C, February 7, 2011 Letter attached to the Nix aff.)
(Doc. 1, Exhibit C, February 7, 2011 Letter attached to Nix. aff. (emphasis in original; footnote added).) This letter was signed by Tony D. Nix,
On December 23, 2011, plaintiffs Ronald and Becki Connally filed this breach of contract, negligence/wantonness, bad faith, defamation/slander, and fraud/deceit action against named defendants State Farm Fire and Casualty Company and Pamela Donovan, as well as fictitious parties, in the Circuit Court of Mobile County, Alabama. (Doc. 1, Exhibit A, COMPLAINT.) Plaintiffs assert their breach of contract claim only against the corporate defendant, not against Pamela Donovan (compare id. at 12 ("WHEREFORE, . . . Ronald and Becki Connally demand judgment against State Farm for Breach of Contract for compensatory damages in an amount to be determined by a jury, as well as prejudgment interest, attorney's fees, costs, and any other relief the Court may deem appropriate.") with Doc. 15, at 2 n.1 ("Donovan is not a party to Count One (breach of contract)[.]")), and now admit that Counts Two and Three of their complaint fail to state claims as to Donovan (Doc. 15, at 2 n.1 ("The Connallys concede the argument that, under Alabama law, Counts Two (negligence/wantonness in the adjustment of the claim) and Three (bad faith) fail to state claims as to Donovan."). Therefore, the complaint, as to the counts alleged against Donovan, reads, in relevant part, as follows:
(Doc. 1, Exhibit A, COMPLAINT, at 16-19.)
In addition to the foregoing, and to the extent not incorporated in the facts previously set out hereinabove, the plaintiffs' complaint contains the following factual allegations:
(Id. at 3, 4, 5, 6-7, 7-8, 8-10 & 10-12 (some emphasis supplied).)
State Farm was served with the complaint on January 3, 2012 (compare Doc. 1, Notice of Removal, at 1 with Doc. 1, Exhibit A, Case Action Summary Sheet) and timely removed this case to this Court on February 2, 2012 in accordance with the first paragraph of 28 U.S.C. § 1446(b) (see Doc. 1). In the removal petition, the removing defendants argue that Donovan's citizenship need be disregarded by this Court because "there is no possibility that Plaintiffs can establish any of the alleged causes of action against Donovan." (Doc. 1, at 3)
(Id. at 5 & 6-7 (internal citations omitted).) The removing defendants contend, as well, that the requisite jurisdictional amount is readily deducible from the complaint, and supporting documents. (See id. at 9-10.) Since the Connallys concede that their claims exceed $75,000, exclusive of interest and costs (Doc. 15, at 2 n.1), there is no need for the undersigned to specifically cite to the evidence that establishes the jurisdictional minimum.
State Farm attached to the removal petition the affidavit of Tony Nix, Team Manager of the Special Investigative Unit for State Farm. (Doc. 1, Exhibit C, Affidavit of Tony Nix.)
(Id. (emphasis supplied).)
Plaintiffs filed their motion to remand on February 27, 2012 (Doc. 15) and, concurrent therewith, their motion to strike Tony Nix' affidavit (Doc. 13).
In opposition to plaintiffs' motion to remand, the removing defendants direct the Court's attention first to the fact that the only specific instance of defamation the plaintiffs identify in their complaint is alleged publication of the State Farm denial letter sent in February 2011. (Doc. 19, at 2.) Defendants argue that since plaintiffs have offered no evidence "to dispute the sworn testimony of State Farm's Tony Nix that Donovan never orally and/or in writing defamed Plaintiffs, Donovan did not draft, sign or send the denial letter, or that the only external communication of that denial was to Plaintiffs[,]" under Legg, supra, this Court cannot resolve the foregoing facts in plaintiffs' favor based solely upon the unsupported allegations in the complaint. (Id. at 2-3; see also id. at 4-7.) As for the fraud claim, defendants first argue that it is premised solely on Donovan's alleged promise to perform under the contract and to act in good faith in so doing yet Donovan was not a party to the plaintiffs' contract with State Farm and such failure to perform is not sufficient to support a charge of fraud as reflected by the recent decision by the Middle District of Alabama in Jenkins v. State Farm Fire & Cas. Co. (Id. at 8-10.) Moreover, defendants argue that plaintiffs have not shown that their fraud claim, as pled, implicates Donovan's conduct inasmuch as the detrimental reliance spoken of in the complaint was purchase of the homeowners policy and Donovan was not involved in the marketing, selling and/or issuance of plaintiffs' policy of insurance. (See id. at 10-12.) Finally, defendants argue that plaintiffs are mistaken in arguing that because they can amend their complaint a possibility exists that they could establish a fraud claim as to Donovan since an action amended post-removal cannot divest a court of jurisdiction. (Id. at 12-14.) The plaintiffs' reply reads, in relevant part, as follows:
(Doc. 21, at 2-3, 3 & 3-4 (emphasis in original; footnote omitted).)
Plaintiffs have moved to strike the affidavit of Tony Nix, which was attached to the defendants' notice of removal (Doc. 13). In truth, plaintiffs do not seek to strike the entire affidavit; instead, it is clear from the motion that the plaintiffs simply seek to strike the second and third sentences of the ninth paragraph of the Nix affidavit (see id.), which read as follows: "Pamela Donovan did not draft, sign or send the denial letter. There has been no other external communication of that denial letter, or the facts upon which the denial was based." (Doc. 1, Exhibit C, Nix aff., at ¶ 9.)
In reaching the plaintiffs' motion to strike, the undersigned starts by recognizing that "`[t]he determination of whether a resident defendant has been fraudulently joined must be based upon the plaintiff's pleadings at the time of removal, supplemented by any affidavits and deposition transcripts submitted by the parties.'" Legg v. Wyeth, 428 F.3d 1317, 1322 (11th Cir. 2005) (emphasis in original), quoting Pacheco de Perez v. AT&T Co., 139 F.3d 1368, 1380 (11th Cir. 1998). As explained, consideration of affidavits and deposition transcripts is authorized since "[t]he proceeding appropriate `for resolving a claim of fraudulent joinder is similar to that used for ruling on a motion for summary judgment under Fed.R.Civ.P. 56(b).'" Id. at 1322-1323 (citations omitted). Because the proceedings are similar, the defendants necessarily must agree, therefore, that since "`inadmissible hearsay cannot be considered on a motion for summary judgment[,]'" Wilson v. Tillman, 613 F.Supp.2d 1254, 1262 (S.D. Ala. 2009), quoting Macuba v. Deboer, 193 F.3d 1316, 1322 (11th Cir. 1999), it also cannot be considered in resolving a claim of fraudulent joinder; and that the affiant must be competent to testify on the matters stated and that all matters must be statements of fact based on personal knowledge, compare Fed.R.Civ.P. 56(c)(4) with Hawthorne v. Sears Termite & Pest Control, Inc., 309 F.Supp.2d 1318, 1335 (M.D. Ala. 2003) ("Jackson did not have access to Wakenigg's thought processes and her testimony regarding the true meaning of his statement constitutes conclusory speculation. Similarly, Jackson lacks personal knowledge or an adequate basis for any testimony regarding the reasons Sears failed to promote Hawthorne prior to his resignation. Consequently, her opinion as to what the only possible reason Sears had for its decision not to promote Hawthorne is improperly conclusory and speculative.").
With these principles in mind, and there being undeniable evidence in the record that Tony Nix drafted and signed the denial letter dated February 7, 2011 (see Doc. 1, Exhibit 3 attached to Nix aff.), the undersigned considers plaintiffs' motion to strike the second and third sentences of paragraph 9 of the Nix affidavit. Initially, the undersigned need recommend that the Court decline to strike the sentences (at least the second sentence of paragraph 9 and the first clause of the third sentence of paragraph 9) on the basis that the affidavit "does not state that the affiant has personal knowledge of the matters [testified] to therein or is otherwise competent or authorized to make the statements contained therein[,]" (Doc. 13, at 2) since Nix explicitly states in his affidavit that his testimony is "based upon [his] personal knowledge." (Doc. 1, Exhibit C, at ¶ 4.) Moreover, since Nix is the employee of State Farm who actually signed the denial letter he is certainly competent to make the following statements: "Pamela Donovan did not draft, sign or send the denial letter. There has been no other external communication of that denial letter[.]" The undersigned discerns nothing conclusory about these particular statements, nor are they based upon inadmissible hearsay; therefore, the undersigned cannot recommend that these statements be stricken.
There can be no doubt but that "[f]ederal courts are courts of limited jurisdiction, and there is a presumption against the exercise of federal jurisdiction, such that all uncertainties as to removal jurisdiction are to be resolved in favor of remand." Russell Corp. v. American Home Assurance Co., 264 F.3d 1040, 1050 (11th Cir. 2001) (citation omitted); see also Allen v. Christenberry, 327 F.3d 1290, 1293 (11th Cir.) ("[R]emoval statutes should be construed narrowly, with doubts resolved against removal."), cert. denied, 540 U.S. 877, 124 S.Ct. 277, 157 L.Ed.2d 140 (2003); University of South Alabama v. American Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999) ("Because removal jurisdiction raises significant federalism concerns, federal courts are directed to construe removal statutes strictly. . . . Indeed, all doubts about jurisdiction should be resolved in favor of remand to state court."); see Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 1675, 128 L.Ed.2d 391 (1994) ("Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree[.]" (internal citations omitted)). Moreover, the removing defendant must bear "the burden of demonstrating federal jurisdiction." Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 n.4 (11th Cir. 1998) (citation omitted); see also McCormick v. Aderholt, 293 F.3d 1254, 1257 (11th Cir. 2002) ("[T]he party invoking the court's jurisdiction bears the burden of proving, by a preponderance of the evidence, facts supporting the existence of federal jurisdiction."). Stated differently, because federal courts are courts of limited jurisdiction "[i]t is . . . presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction[.]" Kokkonen, supra, 511 U.S. at 377, 114 S.Ct. at 1675 (internal citations omitted).
Where, as here, jurisdiction is predicated on diversity of citizenship pursuant to 28 U.S.C. § 1332 (see Doc. 1, at ¶¶ 2 & 4 ("This Court has jurisdiction under 28 U.S.C. § 1332, and removal is proper pursuant to 28 U.S.C. § 1441, in that there is diversity of citizenship among the real and proper parties in interest[.] . . . In addition to diversity of citizenship among the real and proper parties to this cause, this Court has jurisdiction under 28 U.S.C. § 1332, and removal is proper pursuant to 28 U.S.C. § 1441, in that there is a sufficient jurisdictional amount in controversy.")),
As previously indicated, the diversity statute, 28 U.S.C. § 1332, demands complete diversity, such that plaintiffs may not be citizens of the same state as any defendant. See, e.g., Florence v. Crescent Resources, LLC, 484 F.3d 1293, 1297 (11th Cir. 2007) (recognizing "necessary corollary" of diversity jurisdiction that "complete diversity of citizenship" is required); Legg, supra, 428 F.3d at 1320 n.2 ("28 U.S.C. § 1332 requires `complete diversity'—the citizenship of every plaintiff must be diverse from the citizenship of every defendant.").
"Fraudulent joinder is a judicially created doctrine that provides an exception to the requirement of complete diversity." Triggs, supra, 154 F.3d at 1287. Notwithstanding the complete diversity requirement, a non-diverse defendant who is fraudulently joined does not destroy jurisdiction because her citizenship is excluded from the diversity equation. Under well-settled law, a finding of fraudulent joinder is appropriate in circumstances presented here only if "`there is no possibility the plaintiff can establish a cause of action against the resident defendant.'" Henderson v. Washington Nat'l Ins. Co., 454 F.3d 1278, 1281 (11th Cir. 2006) (emphasis supplied; citation omitted); see also Florence, supra, 484 F.3d at 1299 ("[I]f there is any possibility that the state law might impose liability on a resident defendant under the circumstances alleged in the complaint, the federal court cannot find that joinder of the resident defendant was fraudulent, and remand is necessary."); Triggs, 154 F.3d at 1287 ("`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 the joinder was proper and remand the case to the state court.'"). Thus, "[t]he plaintiff need not have a winning case against the allegedly fraudulent defendant; he need only have a possibility of stating a valid cause of action in order for the joinder to be legitimate." Id. (citation omitted); see also Pacheco de Perez, supra, 139 F.3d at 1380 ("Where a plaintiff states even a colorable claim against the resident defendant, joinder is proper and the case should be remanded to state court.").
"The determination of whether a resident defendant has been fraudulently joined must be based upon the plaintiff's pleadings at the time of removal, supplemented by any affidavits and deposition transcripts submitted by the parties. . . . In making its determination, the district court must evaluate factual allegations in the light most favorable to the plaintiff and resolve any uncertainties about the applicable law in the plaintiff's favor." Pacheco de Perez, 139 F.3d at 1380 (citations omitted); see also Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997) ("To determine whether the case should be remanded, the district court must evaluate the factual allegations in the light most favorable to the plaintiff and must resolve any uncertainties about state substantive law in favor of the plaintiff. . . . The federal court makes these determinations based on the plaintiff's pleadings at the time of removal; but the court may consider affidavits and deposition transcripts submitted by the parties."); Cabalceta v. Standard Fruit Co., 883 F.2d 1553, 1561 (11th Cir. 1989) ("In addressing the issue of fraudulent joinder, the district court should resolve all questions of fact and controlling law in favor of the plaintiff and can consider any submitted affidavits and/or deposition transcripts.").
Crowe, supra, 113 F.3d at 1538 (internal citations omitted).
"In a fraudulent joinder inquiry, `federal courts are not to weigh the merits of a plaintiff's claim beyond determining whether it is an arguable one under state law.'" Pacheco de Perez, 139 F.3d at 1380-1381 (quoting Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997)).
Crowe, 113 F.3d at 1541-1542 (internal citations omitted).
Because the removing defendants must show by clear and convincing evidence that there is no possibility the plaintiffs can establish a cause of action against the resident defendant, Henderson, 454 F.3d at 1281, it is no surprise that courts describe the burden on the removing parties to prove fraudulent joinder as a "heavy one." Crowe, 113 F.3d at 1538 (citation omitted).
Since the Connallys and Donovan are Alabama citizens for diversity purposes, State Farm and Donovan predicate removal jurisdiction under § 1332 on their argument that Donovan's citizenship does not count in the diversity analysis since she was fraudulently joined. The analysis in this case has been distilled down to whether a possibility exists that plaintiffs can establish a defamation or fraud claim against the resident defendant.
Under Alabama law, "[t]he elements of a cause of action for defamation are: 1) a false and defamatory statement concerning the plaintiff; 2) an unprivileged communication of that statement to a third party; 3) fault amounting at least to negligence on the part of the defendant; and 4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication of the statement." McCaig v. Talladega Publishing Co., Inc., 544 So.2d 875, 877 (Ala. 1989) (emphasis in original; citation omitted); see also Drill Parts & Service Co., Inc. v. Joy Manufacturing Co., 619 So.2d 1280, 1289 (Ala. 1993) (same); Blevins v. W.F. Barnes Corp., 768 So.2d 386, 390 (Ala. Civ. App. 1999) ("The elements of a cause of action for defamation are 1) a false and defamatory statement concerning the plaintiff; 2) an unprivileged communication of that statement to a third party; 3) fault amounting at least to negligence; and 4) either actionability of the statement irrespective of special harm [(per se)] or the existence of special harm caused by the publication of the statement [(per quod)]." (internal quotation marks omitted)); see Atkins Ford Sales, Inc. v. Royster, 560 So.2d 197, 200 (Ala. 1990) ("To establish a prima facie case of defamation, the plaintiff must show that the defendant published a false and defamatory statement concerning the plaintiff to a third person."). "There are two types of defamation: libel, which involves the use of print media to publish the defamatory comment, and slander, which involves the oral expression of a defamatory comment." Blevins, supra, citing Michael L. Roberts & Gregory S. Cusimano, Alabama Tort Law, § 24.0.1 (1996). Finally, it is clear under Alabama law that an insurance agent/adjuster can be liable for libeling or slandering her insureds. Cooper v. Alabama Farm Bureau Mut. Cas. Ins. Co., Inc., 385 So.2d 630, 631-632 (Ala. 1980) (recognizing not only that an insurance agent can be individually held liable for slanderous statements but, as well, that "a corporation may be held liable for a slanderous utterance made by one of its agents if the slanderous utterance was made within the line and scope of the agent's employment."); see also Foley v. State Farm Fire & Cas. Ins. Co., 491 So.2d 934, 934-935 & 937 (Ala. 1986) (affirming jury verdict in favor of insurance company and its agent, Kenneth Baker, on issues of breach of contract and slander where the allegedly defamatory statement was made by the agent).
In this case, given plaintiffs' allegations against Donovan, as previously set forth, it is clear that they have alleged claims of libel and slander per se with respect to the resident defendant. Compare Blevins, supra, at 390 ("`In cases of libel, if the language used exposes the plaintiff to public ridicule or contempt, though it does not embody an accusation of crime, the law presumes damage to the reputation, and pronounces it actionable per se. [To] constitute slander actionable per se, there must be an imputation of an indictable offense involving infamy or moral turpitude . . . .'") with Ala.Code § 13A-7-42(a) ("A person commits the crime of arson in the second degree if he intentionally damages a building by starting or maintaining a fire or causing an explosion.") and Waters v. Jones, 3 Port. 442, 1836 WL 1325, *3 (Ala. June Term, 1836) ("To burn a cotton house, is made arson, by statute; an offence, involving a great deal of moral turpitude . . . To maintain an action for slander, it is not necessary that the charge of a crime should be direct and positive—the imputation may be inferred from an indirect communication."). Given, of course, plaintiffs' failure to dispute the affidavit statements of Nix that Donovan did not draft, sign or send the denial letter dated February 7, 2011—or that there was no other external communication of that letter to anyone other than the plaintiffs, through their attorney—plaintiffs simply have no chance of establishing a libel per se claim against Donovan. This is both because Donovan did not author the defamatory statement/letter concerning the plaintiffs and because that defamatory statement, implying their guilt of arson, was not published to a third party, see Watters v. Louisiana Pacific Corp., 156 Fed.App. 177, 179, 2005 WL 3150516, *1 (11th Cir. Nov. 28, 2005) ("[T]he publication element is generally satisfied where the defamatory matter was communicated to someone other than the plaintiff[.]").
As aforesaid, however, and for reasons that need not be reiterated, it is the undersigned's opinion that the Nix affidavit cannot be read as establishing, as an evidentiary matter, that Donovan did not orally utter a slanderous statement to a third party accusing the plaintiffs of procuring the fire that caused their losses. The undersigned thus considers whether, based on the allegations of the complaint, plaintiffs have a possibility of establishing a claim of slander per se against Donovan. Succinctly stated, plaintiffs allege in their complaint that Donovan orally and falsely accused Ronald Connally, and/or other members of the Connally household, of procuring the fire that caused the loss and published that accusation to others. (See Doc. 1, Exhibit A, COMPLAINT, at ¶¶ 52-56.) While the complaint does not specify the third party to whom Donovan is alleged to have published the allegedly false and slanderous statement accusing plaintiffs of arson, there is no requirement under Alabama law that the complaint be so specific. Indeed, the Alabama Supreme Court has recognized that construction of a plaintiff's pleading alleging libel and slander "is governed by Rule 8(f), Ala.R.Civ.P., which states that `[a]ll pleadings shall be so construed as to do substantial justice.' `In order to do substantial justice, pleadings are to be construed liberally in favor of the pleader.'" Poff v. Hayes, 763 So.2d 234, 241 (Ala. 2000) (citations omitted); see also Rule 8, Ala.R.Civ.P., Committee Comments ("Rule 8 is expressly intended to repudiate the long standing doctrine in Alabama of construing the pleadings strictly against the pleader, when ruling on demurrer."); cf. Ex parte Stenum Hosp., 81 So.3d 314, 317-318 (Ala. 2011) (citing the provisions of Rule 8(a) and noting that "[i]t is settled law that the purpose of notice pleading is to provide a defendant with adequate notice of the claims against it and that, pursuant to the rules of pleading, a court will construe a pleading liberally to effect the purpose of the Alabama Rules of Civil Procedure."). Thus, in Poff—where plaintiff alleged that on June 16, 1994 and on many numerous other occasions the defendant libeled and slandered him and the defendant claimed that the complaint pertained solely to acts committed on June 16, 1994, "and that the phrase `and on many other numerous occasions' ha[d] no legal significance[]"—the Supreme Court disagreed with "Poff's assertion that the vague language in the complaint regarding dates of publication—the phrase `and on many other occasions'—is meaningless[]" and ultimately determined, in reversing the trial court's grant of summary judgment in favor of Poff, that Poff's statute of limitations argument was due to be rejected. 763 So.2d at 241.
Given that Alabama is a notice-pleading state and Donovan, through the current pleadings filed on her behalf, has certainly recognized the defamation claims asserted against her, this Court simply cannot find that plaintiffs have no possibility of establishing that Donovan slandered them because of the simple failure to specifically identify the third party to whom the publication of the slanderous utterance was made. Inasmuch as the undersigned has previously determined that Nix is not competent to testify that Donovan did not orally slander the plaintiffs, this Court is left with the complaint allegations that Donovan orally and falsely accused Ronald Connally, and/or other members of the Connally household, of procuring the fire that caused the loss and published that accusation to others. These allegations, and the remaining allegations of the plaintiffs' complaint, track the elements of a cause of action for defamation in Alabama and while plaintiffs might ultimately be unsuccessful on the merits of this claim, it is one that they have a possibility of establishing and which need be decided, at its earliest, on summary judgment. See, e.g., Watters, supra, 156 Fed.App. at 179 ("[T]he district court was clearly correct in granting summary judgment based on the lack of any evidence of publication to a third party."); Temploy, Inc. v. National Council on Compensation Ins., 650 F.Supp.2d 1145, 1157 (S.D. Ala. 2009) (granting summary judgment in favor of defendant on plaintiff's claim of defamation); Williams v. Wal-Mart Stores, Inc., 2000 WL 1367977, *4 (S.D. Ala. Sept. 5, 2000) (granting summary judgment in favor of defendant on plaintiff's defamation claim); Lightfoot v. Floyd, 667 So.2d 56, 69-70 (Ala. 1995) (finding the grant of summary judgment in favor of the defendants on the plaintiff's claims of defamation proper); Drill Parts & Serv. Co., Inc., supra, 619 So.2d at 1290 (affirming summary judgment as to the plaintiffs' defamation claim); McCaig, supra, 544 So.2d at 879 ("Because truth is always an absolute defense to any action for libel or slander, this court must affirm the trial court's summary judgment as to the McCaigs' defamation claim."); Foley, supra, 491 So.2d at 934-935 & 937 (affirming jury verdict in favor of insurance company and its agent, Kenneth Baker, on issues of breach of contract and slander); Cooper, supra, 385 So.2d at 630 (reversing and remanding the trial court's "order granting a motion for summary judgment in favor of defendant Alabama Farm Bureau Mutual Casualty Insurance Company[.]"); Blevins, supra, 768 So.2d at 391, 392 & 393 (affirming summary judgment for Barnes on the slander count and for the newspaper on the libel claim but reversing the grant of summary judgment "as to Blevin's defamation claim based upon the letter to the attorney general's office[.]"). In other words, there certainly exists in this case a reasonable basis for predicting that Alabama law might impose liability on Donovan based upon circumstances alleged in the complaint. Thus, the standard for proving fraudulent joinder has not been met and it is necessary that this Court remand this action to state court.
For the reasons set forth above, it is
The instructions which follow the undersigned's signature contain important information regarding objections to the report and recommendation of the Magistrate Judge.
l. Objection. Any party who objects to this recommendation or anything in it must, within fourteen (14) days of the date of service of this document, file specific written objections with the Clerk of this court. Failure to do so will bar a de novo determination by the district judge of anything in the recommendation and will bar an attack, on appeal, of the factual findings of the Magistrate Judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982)(en banc). The procedure for challenging the findings and recommendations of the Magistrate Judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), which provides that:
A magistrate judge's recommendation cannot be appealed to a Court of Appeals; only the district judge's order or judgment can be appealed.
2. Transcript (applicable Where Proceedings Tape Recorded). Pursuant to 28 U.S.C. § 1915 and FED.R.CIV.P. 72(b), the Magistrate Judge finds that the tapes and original records in this case are adequate for purposes of review. Any party planning to object to this recommendation, but unable to pay the fee for a transcript, is advised that a judicial determination that transcription is necessary is required before the United States will pay the cost of the transcript.
(Doc. 21, at 1-2.)
