IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
_____________________________________ No. 96-8116 _____________________________________ D. C. Docket No. 1:95-CV-2669
ARTHUR L. CROWE, JR., EDITH CROWE INGRAM, ELEANOR INGRAM KIEFLING, Plaintiffs-Appellants,
versus
DANIEL COLEMAN, CROWN CENTRAL PETROLEUM CORPORATION, CROWN STATIONS, INC.,
Defendants-Appellees.
______________________________________ Appeal from the United States District Court for the Northern District of Georgia _______________________________________ (May 21, 1997)
Before EDMONDSON and BLACK, Circuit Judges, and RONEY, Senior Circuit Judge.
EDMONDSON, Circuit Judge:
Plaintiffs-Appellants appeal from the district court's denial of their motion for remand to the
Superior Court of Cobb County, Georgia and from the grant of summary judgment for Defendant Daniel Coleman. Because the district
court erred in concluding that Plaintiffs could maintain no possible cause of action against Georgia-resident Defendant Coleman, we reverse the district court's denial of Plaintiff's
motion for remand. Because the case must be returned to state court, we vacate the award of summary judgment.
I. Background
Plaintiffs are Arthur Crowe, Jr., Edith Crowe
and Eleanor Ingram Kiefling. Together they own
a parcel of land in Georgia. Plaintiffs filed suit in the Superior Court of Cobb County against
Defendants Crown Stations, Inc. ("Crown"), a
subsidiary of Crown Central Petroleum Corporation, and Daniel Coleman. Jurisdiction in state court was based on Coleman, who is a
Georgia resident. See O.C.G.A. § 9-10-30. In
their complaint, Plaintiffs alleged that Coleman,
2 as the current owner of the land adjoining Plaintiffs' property, and Crown, as the former owner, were liable for damages caused to
Plaintiffs by the escape of gasoline from Defendants' property onto Plaintiffs' property. Defendant Coleman was served with a copy of
the complaint on September 29, 1995. On October 20, Defendants filed a notice of
removal of the case to the District Court for the
Northern District of Georgia; Defendants alleged
that Georgia-resident Defendant Coleman had been fraudulently joined to defeat diversity
jurisdiction. On November 13, Defendant
Coleman submitted a motion for summary
judgment, claiming that he did not cause Plaintiffs' harm. In support of this motion,
Coleman submitted his own affidavit and the affidavit of a Crown engineer. These affidavits said that, although Crown formerly operated a
3 service station on the land adjacent to Plaintiffs' property and stored petroleum in underground storage tanks (USTs), those USTs were removed
from the ground before Coleman became the owner of the property. Coleman swore in his affidavit that, during his ownership, he "never
caused the release of any petroleum products at the S. Atlanta Rd. property [that is, his own
land]."
Also on November 13, Plaintiffs moved for
remand to state court, arguing that they stated a valid claim for continuing nuisance against
Coleman under Georgia law. Defendants
responded by contending that Plaintiffs'
complaint only alleged a cause of action for trespass and, if a nuisance had been alleged,
that Plaintiffs could succeed on no nuisance claim against Coleman. On November 30, Plaintiffs moved to amend their complaint to
4 state expressly a cause of action for nuisance. On January 11, 1996, the district court issued an order (1) denying Plaintiffs' motion to remand to
state court, concluding there was no possibility Plaintiffs could establish a cause of action against Coleman; (2) denying Plaintiffs' motion
to amend the complaint as futile; and (3) granting Defendant Coleman's motion for
summary judgment.
II. Discussion
A. The Law of Remand
In a removal case alleging fraudulent
joinder, the removing party has the burden of proving that either: (1) there is no possibility the plaintiff can establish a cause of action
against the resident defendant; or (2) the
5 plaintiff has fraudulently pled jurisdictional facts to bring the resident defendant into state court. Cabalceta v. Standard Fruit Co., 883 F.2d 1553,
1561 (11th Cir. 1989). The burden of the
removing party is a "heavy one." B, Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. Unit A 1981).
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. Id. at 549. 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. Id. While "the proceeding appropriate for
resolving a claim of fraudulent joinder is similar
6 to that used for ruling on a motion for summary judgment under Fed. R. Civ. P. 56(b)," id. at n.9,
the jurisdictional inquiry "must not subsume
substantive determination." Id. at 550. Over and over again, we stress that "the trial court
must be certain of its jurisdiction before embarking upon a safari in search of a judgment
on the merits." Id. at 548-49. When considering
a motion for remand, federal courts are not to weigh the merits of a plaintiff's claim beyond
determining whether it is an arguable one under
state law. See 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." Coker v. Amoco Oil Co., 709 F.2d 1433, 1440-41 (11th Cir. 1983), superseded by statute on other grounds as stated in
7 Georgetown Manor, Inc. v. Ethan Allen, Inc., 991
F.2d 1533 (11th Cir. 1993).
This consequence makes sense given the law that "absent fraudulent joinder, plaintiff has the right to select the forum, to elect whether to
sue joint tortfeasors and to prosecute his own suit in his own way to a final determination."
Parks v. The New York Times Co., 308 F.2d 474,
478 (5th Cir. 1962). The strict construction of removal statutes also prevents "exposing the
plaintiff to the possibility that he will win a final
judgment in federal court, only to have it
determined that the court lacked jurisdiction on
removal," see Cowart Iron Works, Inc. v. Phillips Constr. Co., Inc., 507 F. Supp. 740, 744
(S.D. Ga. 1981) (quoting 14A C. Wright & A. Miller, Federal Practice and Procedure § 3721), a result that is costly not just for the plaintiff,
8 but for all the parties and for society when the case must be relitigated.
B. The Parties’ Arguments
Plaintiffs argue that removal of this case was improper and that remand is required,
because Plaintiffs have stated a valid nuisance claim against Defendant Coleman.1 Defendants
make two arguments challenging Plaintiffs'
nuisance claim. First, Defendants argue that Plaintiffs' complaint at the time of removal only
stated a claim for trespass and did not
expressly state a claim for nuisance. Second,
Although Plaintiffs' complaint alleged a trespass claim against all Defendants, including Coleman, Plaintiffs acknowledge that they have no trespass claim against Coleman under Georgia law because Coleman did not cause the petroleum to be released onto his property. So, Plaintiffs' argument for remand relies solely on the nuisance claim. 9 Defendants argue that, even if Plaintiffs' complaint otherwise stated a cause of action for nuisance, no possibility exists that Plaintiffs can
establish a nuisance claim against Coleman under Georgia law.
1. Adequacy of Plaintiffs' Pleading for
Nuisance Claim
Plaintiffs' complaint in this case was a
verified one, that is, under oath in respect to the
facts. The complaint says, among other things:
8.
The defendants have allowed the escape of gasoline from their property onto the property of the plaintiffs.
9.
The actions of the defendants in allowing gasoline
10 to escape from their property and to travel onto the property of the plaintiffs is a trespass for which damages may be awarded and which should be permanently enjoined. ... 12.
The plaintiffs have made demands upon the defendants to remove from the property of the defendants the gasoline that they have allowed to trespass and contaminate the plaintiffs' property and which continues to do so. The defendants' failure to so remove the gasoline and accompanying contamination prevents the property of the plaintiffs from being salable. (emphasis added).
When multiple defendants are named in a complaint, the allegations can be and usually are to be read in such a way that each defendant
is having the allegation made about him
11 individually. We also note that, under the liberal requirements of notice pleading, "[n]o technical forms of pleading . . . are required." See Fed. R.
Civ. P. 8(a); O.C.G.A. § 9-11-8(a)(2)(A).
The word "trespass," although it can mean a specific form of tort action, can also mean "a
wrongful entry upon the lands of another" or an "encroachment or intrusion." The Random House Dictionary of the English Language 2016
(2d ed. 1987). So, although Plaintiffs'
unamended complaint -- including paragraph 12 -- might be capable of more than one meaning,
the complaint can easily be read to be a sworn
statement that Coleman has allowed gasoline from his land to intrude wrongfully (and to
continue to intrude) on Plaintiffs' property and to contaminate Plaintiffs' land. Once more, a plaintiff seeking to have his case remanded to
12 state court is to be given the benefit of every reasonable inference in his favor.
2. Nuisance Claim Under Georgia Law
We now must decide whether the facts
alleged in Plaintiffs' complaint state even an
arguable cause of action under Georgia law. The answer is "yes."
Defendants contend that Georgia law creates no cause of action against a landowner
for the failure to abate a continuing nuisance
caused by his property where the landowner did not create the nuisance: again, no one claims
that Coleman caused gasoline to spill onto his land. And, Georgia case law may be in conflict on this issue. But, at this point in the
procedural history of the case -- that is, on a
13 motion for remand, our analysis (as well as the district court's) must be limited to determining whether Plaintiffs have even an arguable claim.
So, any ambiguity or doubt about the substantive state law favors remand to state court.
Section 41-1-5(a) of the Georgia Code provides: "The alienee of a person owning
property injured may maintain an action for
continuance of the nuisance for which the
alienee of the property causing the nuisance is responsible." The statute provides no guidance
about whether an alienee, such as Coleman,
may be held responsible for a nuisance where
he engaged in no act -- in this case, the storage of petroleum -- which initially caused the
nuisance if he, after notice, refuses to abate the continuing nuisance: in this case, petroleum seeping from his land onto adjoining land. The
14 parties point to no Georgia Supreme Court case
that has decided the issue.2 Each party relies on a Georgia Court of Appeals case to support its argument.
Defendants point to C&S Trust Co. v. Phillips Petroleum Co., 385 S.E. 2d 426, 428 (Ga. App. 1989), where the court rejected the plaintiffs'
nuisance claim against the subsequent owner of adjoining property when that adjoining property
was already contaminated and its subsequent
owner did not contribute to the contamination. Plaintiffs point to Hoffman v. Atlanta Gas Light
In their brief, Defendants cite the Georgia Supreme Court case of Cox v. Cambridge Square Towne Houses Inc., 239 Ga. 127 (1977), for the proposition that "a defendant must engage in some act or operation which continues a nuisance in order to be liable." In Cox, the plaintiff sued the owner of adjoining property; the defendant had installed the storm sewer that was the subject of the nuisance claim. Cox did not involve a suit against an alienee who owned property after the creation of the nuisance; so the court did not decide the issue. 15 Co., 426 S.E. 2d 387, 391 (Ga. App. 1992), where the court permitted a nuisance claim where the
defendant did not cause the initial contamination of the defendant's land, but where the preexisting contamination of the
defendant's land continued to migrate onto the plaintiffs' property.
On the face of these opinions, there appears
to be a conflict on this issue in the Georgia
appellate decisions. Defendants, and Judge
Roney in his dissent, point to factors which might distinguish this case from Hoffman.3 If
this case were properly before the district court
We do not reject the proposed distinctions. We accept that they may possibly be appropriate; but, more important, we do not see them as doubtlessly correct either. For example, Hoffman never seems to reply completely on some contract concept to support the cause of action allowed in that case: a nuisance claim against the property owner who created no contamination, but whose property was the source of the contamination of his neighbors’ -- the plaintiffs -- land. 16 (and this court) under original diversity jurisdiction, we would be obligated to predict how the Georgia Supreme Court would rule on
this issue or to certify the question to the Georgia Supreme Court. For purposes of determining whether this case should be
remanded to state court, however, the inquiry by federal judges must not go so far:
This is an Erie problem in part, but only part. In the usual diversity situation a Federal Court, no matter how difficult the task, must ascertain (and then apply) what the state law is. . . . But here the question is whether there is arguably a reasonable basis for predicting that the state law might impose liability on the facts involved. If that possibility exists, a good faith assertion of such an expectancy in a state court is not a sham, is not colorable and is not fraudulent in fact or in law.
17 Bobby Jones Garden Apartments v. Suleski, 391
F.2d 172, 176-77 (5th Cir. 1968) (citations
omitted). In this case, the arguable confusion in Georgia law itself supports remanding this case to state court. See Parks, 308 F.2d at 477 (noting in fraudulent joinder case that, "doubtful
issues of law due to absence of definite pronouncements by the state supreme court are
to be tried in the court having original
jurisdiction of the case and are not to be determined in a removal proceeding.").
In the present case, neither the words of
Plaintiffs' verified complaint nor -- as we will
discuss more -- the remainder of the record
before the district court forecloses the possibility that petroleum, which had already leaked onto Defendants' property from the
removed tanks, has continued to seep onto Plaintiffs' property during Coleman's ownership
18 of the former service station site. Unlike the complaint, Defendant Coleman's answer is not under oath; but he denies wrongdoing. His
denial, of course, does nothing to undercut the fact that plaintiffs have set out an arguable nuisance claim against him; the answer, at
most, shows a controversy that needs to be resolved.
3. Defendants' Affidavits
Defendants also submitted affidavits which
say that -- before Coleman's ownership of the former service station site -- the USTs were
removed from the ground, and no petroleum
products have been since stored or sold at the
property. In addition, Coleman specifically says in his affidavit: "I have never caused the release of any petroleum products at [Defendants'] property." (emphasis added).
19 Coleman submitted the affidavits in support of his motion for summary judgment before the
district court ruled on Plaintiffs' motion for remand. Although submitted in support of a motion for summary judgment, Defendants'
affidavits were probably properly considered by the district court on the question of remand;
and we too will take them into account in
deciding the limited question of whether a possibility exists that Plaintiffs have stated a
nuisance cause of action against Coleman. See Cabalceta, 883 F.2d at 1561.
Seemingly on the basis of Defendants'
affidavits4, the district court found and
Based on the docket entries, we suppose that a hearing at which the parties were allowed to argue was held on the motions in the district court. We know that when motions are orally argued (even when the pertinent hearing is for argument only and not one for the presentation of evidence), important things sometimes happen which impact on the factual record -- for example, the judge while interrogating the lawyers obtains stipulations, concessions, and 20 concluded it to be undisputed that: "Since at
least May 14, 1991, there have been . . . no petroleum releases from the site" (emphasis added). If "release," as used by the district
court, means no seepage or leakage onto Plaintiffs' land,5 we cannot see how that fact can be said to be undisputed from the paper record
before the district court and us. Coleman's
so on. But in this case, no one has said the oral argument in district court amended the paper record. And the transcript of the hearing in the district court is not part of the appellate record. So, we believe we are looking at the same factual record that was before the district court. The district court might have used "release" to mean no release of gasoline onto the Defendants' own land. This fact is undisputed. The district court may then have gone on to conclude that Georgia law allows no cause of action against Coleman even if gasoline, which had been released into the soil at the service station site before Coleman owned it, had seeped onto Plaintiffs' land after Coleman bought the former service station site. This approach would be erroneous, because it would entail a decision about Georgia law when the state's precedents are not plainly consistent. 21 affidavit and Plaintiffs' sworn complaint seem to leave open -- as completely disputed -- whether gasoline from Coleman's land (after he became
the landowner) has intruded, and continues to intrude, onto Plaintiffs' land. By the way, we note that Plaintiffs -- before the district court
ruled on the summary judgment motion -- filed, pursuant to the district court's local rules, a
"Statement of Material Facts to Which There
Remains a Genuine Issue to Be Tried," which
included this statement: "Gasoline continues to leak from the contaminated property owned by
Coleman onto the property of the Plaintiffs."
In the light of the ostensible dispute of fact
appearing in the documents in the record -- including those under oath -- summary
judgment for defendant Coleman was very possibly erroneous. But, as a reviewing court, we need not go so far as to say summary
22 judgment was wrongfully entered. We can just say (and we do say with more certainty) that the motion for remand was improperly denied.
In terms of this circuit's law, the main point for us is this one: For a Plaintiff to present an arguable claim against an in-state defendant
and, therefore, to require a case removed to federal court to be remanded to state court, the
plaintiff need not show that he could survive in
the district court a motion for summary
judgment filed by that in-state defendant. For a remand, the plaintiff's burden is much lighter
than that: after drawing all reasonable
inferences from the record in the plaintiff's favor
and then resolving all contested issues of fact in favor of the plaintiff, there need only be "a
reasonable basis for predicting that the state law might impose liability on the facts
involved." B., Inc., 663 F.2d at 550 (quoting
23 Bobby Jones Garden Apartments, 391 F.2d at
177) (emphasis added). Because the
procedures are similar while the substantive standards are very different, district courts must exercise extraordinary care to avoid jumbling up
motions for remand and motions for summary judgment that come before them.
In the remand context, the district court's
authority to look into the ultimate merit of the
plaintiff's claims must be limited to checking for
obviously fraudulent or frivolous claims. Although we have said that district courts may
look beyond the face of the complaint, we
emphasize that the district court is to stop short of adjudicating the merits of cases that do not
appear readily to be frivolous or fraudulent. Applying these principals to this case, we conclude that the district court -- given the
record before it -- should have remanded the
24 case to state court and should have never addressed the motion for summary judgment.
4. Oral Argument in the Appellate Court
This case, however, presents one more question. In dissent, Judge Roney points out a
statement made at oral argument in this court by Plaintiffs' counsel; Judge Roney concludes
from the statement that Plaintiffs cannot in fact
dispute that no gasoline has intruded onto Plaintiffs' land from Coleman's land since
Coleman was the landowner. Therefore, we
must answer this question: If the district court
erred on the record before it, does this error become harmless given Plaintiffs' counsel's words to the appellate court?
25 The pertinent statement of Plaintiff-
Appellants' counsel occurred during the rebuttal in the context of the following exchange:
Judge Roney: "Is [the district court judge] correct or incorrect when he says, 'The following facts are undisputed: There have been no petroleum releases from the site since May 14, 1991.'"
Counsel: "He is correct that there has been no -- that was the day the tanks were taken out. There could have been no new releases, but it is undisputed that the gasoline remains on . . . "
Judge Roney: "I'm not talking about that. I'm talking about whether any gasoline flowed from the property Mr. Coleman owned after he owned it?"6
At this point, Judge Roney may be asking a question which is different from the one the district court addressed when the district court said, "[s]ince at least May 14, 1991 . . . there 26 Counsel: "We could not prove one way or the other. So, I cannot technically say that the new flow since Coleman ran it is disputed." That concessions and admissions of
counsel at oral argument in appellate courts can count against them is doubtlessly true. See, e.g., Rozar v. Mullis, 85 F.3d 556, 563 (11th Cir.
1996); United States v. Gerber, 994 F.2d 1556, 1558 (11th Cir. 1993). But waivers and concessions made in appellate oral arguments
need to be unambiguous before they are
allowed to change the outcome of an appeal
from a reversal to an affirmance. See Glick v.
White Motor Co., 458 F.2d 1287, 1291 (3d Cir. 1971) ("[T]o be binding, judicial admissions
must be unequivocal.") In the context of the entire oral argument in this case and of Plaintiffs' briefs, we are unwilling to base the
have been no petroleum releases from the site." See supra note 5. 27 outcome of this case on a few words uttered in the last minute of Plaintiffs' counsel's rebuttal.
For example, earlier in the same oral argument, the following exchange occurred between Judge Roney and Appellants' counsel:
Judge Roney: "Where is the evidence that there was any continued leaking after Coleman got the property?"
Counsel: "There is evidence. It is alleged in the complaint . . ." Judge Roney: "No. It is very diffuse."
Counsel: "Here is the confusion. There is not the leakage from the tanks. The tanks are gone. But, there is gasoline on the adjoining property that, number one, continues to leak onto the . . . " [counsel was interrupted]
28 At another point in the oral argument, Appellants' counsel spoke these words: Counsel: "[The defendants] did not claim or deny in the summary judgment that the gasoline continues to be there. Nobody denies that, because it is." Judge Roney: "Continues to be where?" Counsel: "In the ground."
Judge Roney: "On your client's property?" Counsel: "On our client's property and on [the defendants'] property."
For other representations of plaintiff-
appellants on the timing of the seepage of gasoline onto their land, see Appellant's Brief at
page 13 (characterizing the continuing nuisance as "the exuding gasoline") and at page 15 ("the pollutants currently obtruding Plaintiffs'
29 property represent the continuing nuisance"). See also Appellant's Reply Brief at page 6 ("The cause of action against Coleman stems, not
from any involvement with the leaky USTs, but rather, from his passive acquiescence of the continuing exudation of contamination from his
property after failing his statutory duty to abate
it upon Appellants' request.") (emphasis in
original). Taken as a whole, we cannot say that
Plaintiff-Appellants' counsel's statements about
when gasoline has seeped onto his clients’ land were so consistent, plain and favorable to
Coleman as to make the district court's error, in
the light of the record before it, harmless in reality. Again, if there is ambiguity about what
Plaintiffs' counsel has said, Plaintiffs are entitled to the construction most favorable to remand.
30 III. Conclusion
If removal is doubtful, we remand the case. Therefore, we send this case back to the district
court to remand it to state court.7 In doing so, we express no view of the ultimate outcome on
the merits. Georgia's state courts -- which have the final word on Georgia law -- will decide all
that.
SUMMARY JUDGMENT VACATED. REVERSED and REMANDED.
RONEY, Senior Circuit Judge, dissenting:
I respectfully would affirm for the reasons set forth in Judge Moye’s Order.
Because we decide that the district court erred by denying Plaintiffs' motion for remand based on the unamended complaint, we do not address Plaintiffs' argument that the district court erred by refusing to allow Plaintiffs to amend their complaint. 31 The reversal is based on the fact that there is “petroleum seeping from his [Coleman’s] land onto adjoining land” and that “the preexisting
contamination of the defendant's land continued to migrate onto the plaintiffs’ property.” The majority opinion recites that “neither the words
of Plaintiffs’ complaint nor the remainder of the record foreclose the possibility that petroleum
has continued to seep onto Plaintiffs’ property
during Coleman’s ownership.”
This is contrary to the record, the understanding of Judge Moye, and the
admissions of counsel at oral argument. Judge
Moye recited as undisputed that since May
1991, prior to Coleman’s ownership: “There have been no petroleum releases from the site.”
The parties do not dispute this fact on appeal. When asked directly about the accuracy of this statement at oral argument, counsel for
32 plaintiffs said: “We could not prove one way or the other. So I cannot technically say that the new flow since Coleman owned it is disputed.”
Therefore, the case presented to this Court is based on this undisputed critical paragraph in Judge Moye’s opinion:
Since at least May 14, 1991, there have been no deliveries of petroleum products to the former service station, there have been no petroleum products sold from the site, there have been no petroleum products stored at the site, and there have been no petroleum releases from the site.
On these undisputed facts, Georgia law is
clear. If Coleman did not own the property or
the offending tanks that caused the contamination, he cannot be held responsible for the fact that the contaminants remain on the
plaintiffs’ property. Citizens & So. Trust v. Phillips Petro., 385 S.E.2d 426, 428 (Ga. App. Ct. 1989)
(“That there was no reoccurrence of a leak from the underground storage tanks after
33 [defendants] purchased the property and relined the tanks is undisputed. . . . Accordingly, the trial court did not err in granting summary
judgment in favor of the [defendants].”). To the extent that plaintiffs seek to read
Hoffman v. Atlanta Gas Light Co., 426 S.E.2d 387 (Ga. App. Ct. 1992), to the contrary, they overlook
the critical facts of that case. “Atlanta Gas Light now holds and controls the easement and the
pipeline which are the physical source of the contamination. . . . We will not hold that the
alienee of the easement and pipeline has no legal
duty to abate a continuing nuisance, particularly under the easement agreement in effect between Atlanta Gas
Light and [the complaining landowners].” Id. at 391. (Emphasis added). In this case, Coleman never held, controlled or owned the tanks that caused the contamination, nor did he have any
34 contractual relation with the complaining landowners. Plaintiffs' argument is that they made a
demand of Coleman to remove the contamination on their property and that his refusal to do so amounts to a continuing
nuisance. There is no authority for the proposition that by demanding the removal of a
nuisance by someone who has had nothing to
do with the source or maintenance of it, or the
things which caused it, can somehow create a cause of action against them for a “continuing”
nuisance, which they have never had anything
to do with in the first place.
Under the undisputed facts as presented to this Court on appeal, plaintiffs have no cause of
action against Coleman, and the district court correctly so ruled. I would affirm.