United States District Court, D. Connecticut
DONNA L. SOTO, ET AL., Plaintiffs,
BUSHMASTER FIREARMS INTERNATIONAL, LLC., ET AL., Defendants
Corrected October 15, 2015.
Donna L. Soto, Administratrix of the Estate of Victoria L.
Soto, William D. Sherlach, Executor of the Estate of Mary Joy
Sherlach, William D. Sherlach, individually, Leonard Pozner,
Administrator of the Estate of Noah S. Pozner, Gilles J.
Rousseau, Administrator of the Estate of Lauren G. Rousseau,
David C. Wheeler, Administrator of the Estate of Benjamin A.
Wheeler, Neil Heslin, Co-Administrator of the Estate of Jesse
McCord Lewis, Mark Barden, Co-Administrators of the Estate of
Daniel G. Barden, Mary D'Avino, Administratrix of the
Estate of Rachel M. D'Avino, Natalie Hammond, Nicole
Hockley, Co-Administrator of the Estate of Dylan C. Hockley,
Scarlett Lewis, Co-Administrator of the Estate of Jesse
McCord Lewis, Jacqueline Barden, Co-Administrator of the
Estate of Daniel G. Barden, Plaintiffs: Joshua D. Koskoff,
LEAD ATTORNEY, Koskoff, Koskoff & Bieder, P.C., Bridgeport,
CT; Alinor Clemans Sterling, Bridgeport, CT.
Remington Arms Company, LLC, also known as, Freedom Group,
Inc, also known as, Bushmaster Firearms Int., Inc, also known
as, Remington Outdoor Company, Remington Outdoor Company,
Inc., also known as, Freedom Group, Inc, Defendants: Andrew
A. Lothson, James B. Vogts, LEAD ATTORNEYS, PRO HAC VICE,
Swanson, Martin & Bell, LLP, Chicago, IL; Jonathan P.
Whitcomb, LEAD ATTORNEY, Matthew C. Wagner, Diserio Martin
O'Connor & Castiglioni, LLP, Stamford, CT.
Camfour, Inc., Camfour Holding, LLP, also known as, Camfour
Holding, Inc., Defendants: Christopher Renzulli, Scott
Charles Allan, Renzulli Law Firm, LLP, White Plains, NY.
Riverview Sales, Inc., David Laguercia, Defendants: Michael
Ryan Patrick, Patrick, LLC, Stamford, CT.
N. Chatigny, United States District Judge.
an action for damages and injunctive relief arising from the
mass shooting at Sandy Hook Elementary School in Newtown,
Connecticut, in which twenty children and six adults were
killed by a shooter using a Bushmaster AR-15 rifle. The case
is brought by or on behalf of victims of the shooting. The
defendants are a number of entities and one individual
involved in the manufacture, distribution and sale of the
rifle. The case was filed in Connecticut Superior Court
initially. In response to the state court complaint, two of
the defendants removed the case to this Court invoking
federal jurisdiction on the basis of diversity of
citizenship. The issue addressed in this memorandum
is whether the case must be remanded to state court because
federal jurisdiction is lacking. For reasons that follow, I
conclude that remand is required.
contend that this Court has jurisdiction based on the
diversity of citizenship statute, 28 U.S.C. §
1332(a)(1), which confers on district courts " original
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." For diversity jurisdiction to exist,
there must be complete diversity between the plaintiffs and
the defendants, in other words, no plaintiff can be a citizen
of the same state as any of the defendants. See Exxon
Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546,
553, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005). In this case,
all the plaintiffs are citizens of Connecticut;
and one of the defendants, Riverview Sales, Inc. ("
Riverview" ), is also a Connecticut
citizen. Defendants claim that the presence of
Riverview may be disregarded for purposes of diversity
jurisdiction because Riverview has been fraudulently joined
as a defendant.
have moved to remand the case on the ground that defendants
cannot sustain their heavy burden of establishing fraudulent
joinder. The defendants do bear the burden of establishing
that federal jurisdiction exists, and the burden is a heavy
one. See Briarpatch Ltd., L.P. v. Phoenix Pictures,
Inc., 373 F.3d 296, 302 (2d Cir. 2004). To establish
fraudulent joinder, the defendants " must demonstrate,
by clear and convincing evidence, either that there has been
outright fraud committed in the plaintiff's pleadings, or
that there is no possibility, based on the pleadings, that
[the] plaintiff[s] can state a cause of action against the
non-diverse defendant in state court." Pampillonia
v. RJR Nabisco, Inc., 138 F.3d 459, 460-61 (2d Cir.
1998). Any doubts must be resolved in favor of remand. See
Purdue Pharma L.P. v. Kentucky, 704 F.3d 208, 213
(2d Cir. 2013).
do not claim that plaintiffs have engaged in outright fraud
by joining a non-diverse defendant having no real connection
to the case. Indeed, Riverview is alleged to have sold the
rifle used in the shooting. They claim, rather, that there is
no legal basis for plaintiffs' claims against Riverview
because the Protection of Lawful Commerce in Arms Act ("
PLCAA" ), 15 U.S.C. § § 7901, et seq.,
provides Riverview with immunity from this suit. The record
establishes that the immunity provided by this statute will
also be asserted with regard to the claims against the other
" no possibility" standard used to assess claims of
fraudulent joinder aims to identify cases in which it is
objectively reasonable for the court to conclude that the
plaintiff has improperly sued a non-diverse defendant in
order to deprive the other defendants of their right to a
federal forum under the removal statute. Said differently,
fraudulent joinder exists when it is objectively reasonable
to infer that the plaintiff has engaged in a form of
litigation abuse. See 14B Wright, Miller & Cooper, Federal
Practice & Procedure § 3723 (4th ed.) (noting that
fraudulent joinder doctrine tries to avoid " reward[ing]
abusive pleading by plaintiffs" ). If there is no
possibility a plaintiff can state a cause of action against a
non-diverse defendant, then it is objectively reasonable to
infer that the plaintiff is guilty of a form of cheating, and
remand is an appropriate response to the plaintiff's
improper conduct. But if the plaintiff's claim is not
precluded as a matter of law - if there is any possibility
the plaintiff can state a claim against the non-diverse
defendant - an inference that the plaintiff is guilty of
improper conduct is unwarranted, and adjudicating the case in
federal court would violate the plaintiff's right to
choose the forum for the litigation.
in light of this purpose, the " no possibility"
standard for fraudulent joinder is similar to the Rule 11
standard for identifying instances of litigation abuse for
which sanctions should be imposed. Rule 11 seeks to deter
frivolous litigation without chilling creative advocacy. See
Fed.R.Civ.P. 11 advisory committee's note to 1993
amendment. Thus, the Rule provides that arguments for
extensions, modifications, or reversals of existing law or
for creation of new law are not sanctionable, provided they
are not frivolous. See id. In deciding whether a
claim exceeds the limits of permissible partisan advocacy,
courts apply a standard of objective reasonableness. See
ATSI Communications, Inc. v. Shaar Fund, Ltd., 579
F.3d 143, 150 (2d Cir. 2009). Because an " objectively
unreasonable" standard may have an inhibiting effect on
vigorous advocacy, to the detriment of the effective
functioning of the adversarial system, a safe harbor
provision gives lawyers an opportunity to withdraw a
submission challenged by an adversary. See In re Pennie &
Edmonds LLP, 323 F.3d 86, 91 (2d Cir. 2003).
analysis under both Rule 11 and fraudulent joinder therefore
turns not on how likely a claim is to succeed, but rather on
whether the claim is objectively frivolous. See Davis v.
Prentiss Properties Ltd., Inc., 66 F.Supp.2d 1112, 1115
(C.D. Cal. 1999) (concluding, based on Rule 11 standard, that
" if a diversity-defeating claim is not frivolous, the
plaintiff has the right to have it considered by the state
court in which it was filed" ). Applying the " no
possibility" standard with the restraint characteristic
of sanctions determinations ensures that litigants do not
withhold claims that could be brought in good faith and in
furtherance of the public interest in order to avoid the risk
it is necessary to determine whether there is any possibility
the plaintiffs in this case can state a claim against
Riverview. See Kenneson v. Johnson & Johnson, No.
3:14cv-01184(MPS), 2015 WL 1867768, at *6 (D. Conn. Apr.
23, 2015) (holding that party was not fraudulently joined
because claim " appear[ed] to be possible under
Connecticut law" and " ha[d] not been foreclosed by
controlling authority" ); see also Retirement Prog.
for Employees of the Town of Fairfield v. NEPC, LLC, 642
F.Supp.2d 92, 97 (D. Conn. 2009)(holding that party was not
fraudulently joined because " [t]he applicability of
[the misrepresentation rules in § 522 of the Restatement
(Second) of Torts] in Connecticut is not clear." ). More
specifically, the ...