Case: 13-15286    Date Filed: 06/02/2015   Page: 1 of 9


                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 13-15286
                           Non-Argument Calendar
                         ________________________

                     D.C. Docket No. 4:13-cv-00171-HLM

DONALD H. KIMBALL,

                                                              Plaintiff-Appellant,

                                     versus

BETTER BUSINESS BUREAU OF WEST FLORIDA,
BETTER BUSINESS BUREAU OF METRO ATLANTA,

                                                           Defendants-Appellees.

                         ________________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                        ________________________

                                 (June 2, 2015)

Before TJOFLAT, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

      Donald Kimball appeals the district court’s dismissal of his complaint for

failure to state a claim under Fed.R.Civ.P. 12(b)(6). Kimball filed the instant

complaint against the Better Business Bureaus of West Florida (“WFL”) and
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Atlanta (“ATL”) (collectively, the “BBBs”) in Paulding County, Georgia Superior

Court, raising state law claims of libel, slander, defamation per se, breach of

contract, and civil conspiracy. WFL removed the complaint to federal district

court, claiming that Kimball had fraudulently joined ATL to defeat complete

diversity and, thereby, evade federal diversity jurisdiction.       The district court

agreed, applied the fraudulent joinder doctrine, and held that it possessed diversity

jurisdiction over Kimball’s complaint pursuant to 28 U.S.C. § 1332(a)(1). On

appeal, Kimball argues that he did not fraudulently join ATL because he had viable

state law claims against it based on the role it played in the conduct giving rise to

his claims. After careful review, we vacate and remand for further proceedings.

      We review subject matter jurisdiction de novo.          Triggs v. John Crump

Toyota, Inc., 

, 1287 (11th Cir. 1998). The district courts have

original jurisdiction over “all civil actions where the matter in controversy exceeds

the sum or value of $75,000 . . . and is between . . . citizens of different States.” 28

U.S.C. § 1332(a)(1). “A civil case filed in state court may be removed by the

defendant to federal court if the case could have been brought originally in federal

court.” 

; see also 28 U.S.C. § 1441(a). If a case is

removed to federal court based on diversity jurisdiction, the federal district court

must remand the case back to state court if complete diversity between the parties

does not exist. Stillwell v. Allstate Ins. Co., 

, 1332 (11th Cir. 2011).


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      Under the fraudulent joinder doctrine, however, when a plaintiff names a

non-diverse defendant solely to defeat federal diversity jurisdiction, the district

court must ignore the presence of the non-diverse defendant and deny any motion

to remand the case to state court. Id.; see also Florence v. Crescent Res., LLC, 

, 1297 (11th Cir. 2007). The fraudulent joinder doctrine applies when

“(1) there is no possibility the plaintiff could establish a cause of action against the

resident [i.e., non-diverse] defendant; or (2) the plaintiff has fraudulently pled

jurisdictional facts to bring the resident defendant into state court.” 

(quotation omitted). The removing party must prove the fraudulent

joinder doctrine’s applicability by clear and convincing evidence. 

whether a plaintiff may establish a claim against a non-diverse

defendant, the court must evaluate factual allegations in the light most favorable to

the plaintiff. 

The court should not weigh the merits of the plaintiff’s

claims beyond determining whether they are arguable under state law, and should

resolve uncertainties about state substantive law in the plaintiff’s favor. 

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

claim against any of the non-diverse defendants, then the joinder was proper and

the federal court must remand the case to the state court. 

standard for assessing fraudulent joinder differs from the one

used for Rule 12(b)(6) motions to dismiss: Rule 12(b)(6)’s “plausibility standard


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asks [federal courts] for more than a sheer possibility that a defendant has acted

unlawfully.”   

    However, “[n]othing in our precedents

concerning fraudulent joinder requires anything more than conclusory allegations

or a certain level of factual specificity” to show the possibility of a viable state

claim. 

“All that is required are allegations sufficient to establish even

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

against any one of the resident defendants.” 

Further, to

determine whether a state court would find that the complaint states a cause of

action, federal courts “necessarily look to the pleading standards applicable in state

court, not the plausibility pleading standards prevailing in federal court.” 

employ a “notice pleading standard,” under which a plaintiff

may plead conclusions, and those conclusions “‘may be considered in determining

whether a complaint sufficiently states a claim for relief.’” 

v.

Monumental Props., Inc., 

, 371 (Ga. Ct. App. 1977)). Georgia

courts will not grant a motion to dismiss for failure to state a claim

      unless (1) the allegations of the complaint disclose with certainty that the
      claimant would not be entitled to relief under any state of provable facts
      asserted in support thereof; and (2) the movant establishes that the claimant
      could not possibly introduce evidence within the framework of the
      complaint sufficient to warrant a grant of the relief sought.

Sherman v. Fulton Cnty. Bd. of Assessors, 

, 474 (Ga. 2010)

(quotations omitted); see also 

n.3 (citing Sherman, 701


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). In Georgia, a complaint need not set forth all of the elements of a

cause of action as long as, within the framework of the complaint, evidence may be

introduced to sustain a grant of relief to the plaintiff. Scott v. Scott, 

, 811 (Ga. Ct. App. 2011). “The true test [under Georgia’s pleading standard]

is whether the pleading gives fair notice and states the elements of the claim

plainly and succinctly, and not whether as an abstract matter it states conclusions

or facts.” 

(quotation omitted). Moreover, Georgia

courts construe pro se complaints liberally and will dismiss a pro se plaintiff’s

“claims only if [he] cannot prove any facts that would entitle him to relief.” Seay

v. Roberts, 

, 418 (Ga. Ct. App. 2005).

      The elements of a Georgia breach-of-contract claim are the “subject matter

of the contract, consideration, and mutual assent by all parties to all contract

terms.” Broughton v. Johnson, 

, 371 (Ga. Ct. App. 2001) (citing

O.C.G.A. § 13-3-1). “The elements of a right to recover for a breach of contract

are the breach and the resultant damages to the party who has the right to complain

about the contract being broken.” Budget Rent-a-Car of Atlanta, Inc. v. Webb, 

, 713 (Ga. Ct. App. 1996) (quotation omitted).

      Under Georgia law, libel is “a false and malicious defamation of another,

expressed in print, writing, pictures, or signs, tending to injure the reputation of the

person and exposing him to public hatred, contempt, or ridicule.” O.C.G.A. § 51-


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5-1(a).   In Georgia, a viable cause of action for defamation, including libel,

“consists of (1) a false and defamatory statement concerning the plaintiff; (2) an

unprivileged communication to a third party; (3) fault by the defendant amounting

at least to negligence; and (4) special harm or the actionability of the statement

irrespective of special harm.” See Saye v. Deloitte & Touche, LLP, 

, 821 (Ga. Ct. App. 2008) (quotation omitted). A plaintiff must also prove that

the statement was published. See O.C.G.A. § 51-5-1(b); see also 

. Publication means communicating the defamatory statement to anyone

other than the person being defamed; however, there is an exception for

“intracorporate, or between members of unincorporated groups or associations, and

heard by one who, because of his/her duty or authority has reason to receive

information.” 

(quotation and alterations omitted). In

Georgia, moreover, “an individual may have a cause of action for defamatory

statements made about a company when it is known that he is the owner of the

company and his name is a component part of the company name.” WMH, Inc. v.

Thomas, 392 S.E.3d 539, 544 (Ga. Ct. App. 1990), rev’d in part on other grounds,

(Ga. 1990).

      In Georgia, a civil conspiracy occurs when two or more persons combine

      either to do some act which is a tort, or else to do some lawful act by
      methods which constitute a tort. Where it is sought to impose civil liability
      for a conspiracy, the conspiracy of itself furnishes no cause of action. The


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      gist of the action, if a cause of action exists, is not the conspiracy alleged,
      but the tort committed against the plaintiff and the resulting damage.

Savannah Coll. of Art & Design, Inc. v. Sch. of Visual Arts of Savannah Inc., 

, 896 (Ga. Ct. App. 1995) (quotations omitted).

      A thorough review of Kimball’s complaint reveals a viable breach of

contract claim against ATL under Georgia’s easier pleading standards. In the

complaint, Kimball alleged that: (1) a contract existed between himself

individually and ATL; (2) the contract contained the necessary elements, including

consideration and a mutual agreement to terms (i.e., Kimball received his

membership, which generated revenue for ATL, in exchange for a promise to

report accurately); (3) ATL breached the contract (i.e. the promise to report

accurately) by issuing a false report concerning the LLC; and (4) his business was

damaged by ATL’s allegedly false report (i.e., once WFL posted a fraudulent F

rating and ATL republished the F rating, Kimball noticed a decline in the number

of calls turning into sales following those events). The fact that these allegations

were conclusory or contained factual gaps does not matter for purposes of

Georgia’s notice pleading standards, since Kimball could conceivably have

introduced evidence within the framework of his complaint establishing that he

was entitled to relief. Moreover, Kimball’s statement that he did not request relief

for his breach of contract claim is not fatal to his claim. Construed liberally, this

statement conveyed that he did not seek monetary damages for the breach of
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contract claim; however, he still sought other general relief that could conceivably

have related to this claim. For instance, Kimball asked that the BBBs, including

ATL, retract the allegedly false report and post an apology for one year.

      Kimball’s complaint likewise contains a possible claim for libel against

ATL. Kimball alleged that WFL published a fraudulent F rating of the LLC on its

website, which harmed his business reputation, and WFL refused to remove the

rating even after Kimball pointed out that no complaints had been filed against his

business and the rating was, therefore, unwarranted. He also alleged that ATL

republished that same unwarranted rating. Again, while Kimball’s complaint may

have gaps with respect to this claim, it is possible that, within the framework of the

complaint, he could produce evidence showing he is entitled to relief. Indeed, he

may be able to show that (1) the rating was unwarranted; (2) ATL’s republication

of the allegedly unwarranted F rating amounted to negligence or ATL was aware

that the rating was unwarranted; and (3) one or more specific business deals fell

through as a result of the allegedly fraudulent rating, showing damages.

      Furthermore, the complaint, construed liberally, contains sufficient

allegations for libel against ATL in particular: Kimball alleged (1) early in the

complaint, that the F rating was fraudulent and that ATL republished the fraudulent

rating on its website, and (2) later in the complaint, that Claim 1 (the libel claim)

incorporated by reference all previous allegations. As for the BBBs’ argument that


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Kimball lacked standing to bring a defamation claim on behalf of the LLC,

Georgia law does not conclusively preclude this claim. Since Kimball’s company

name was comprised of his initials, he may have a cause of action for defamation

under Georgia law.

      What’s more, Kimball’s complaint states a possible civil conspiracy claim

against ATL under Georgia’s notice pleading standard.             Kimball specifically

alleged that WFL “enlist[ed]” ATL into a conspiracy to substitute ATL’s A+ rating

with the fraudulent F rating. Although Kimball’s complaint does not identify an

underlying tort for the conspiracy, construed liberally, it alleges a conspiracy to

commit libel. As we’ve noted, Kimball might be able to introduce evidence

showing that ATL knew of the allegedly defamatory nature of the F rating, but

agreed to publish it nonetheless.

      In short, because ATL has not established that Kimball could not possibly

introduce evidence within the framework of his complaint sufficient to warrant a

grant of the relief sought in state court, Kimball had viable claims under Georgia

law against ATL. As a result, the district court erred in applying the fraudulent

joinder doctrine to determine that it had diversity jurisdiction. Accordingly, we

vacate the district court’s dismissal of Kimball’s complaint and remand the case

with instructions that the district court remand Kimball’s complaint to state court.

      VACATED AND REMANDED.


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