United States District Court, D. Connecticut
RULING RE: MOTION FOR REMAND (DOC. NO. 37)
C. Hall, United States District Judge.
the court is plaintiffs' Motion to Remand (Doc. No. 37).
In addition, plaintiffs seek an award of attorney's fees.
Defendants argue that the Motion to Remand should be denied
because plaintiffs fraudulently joined a non-diverse party to
defeat diversity jurisdiction. For the reasons stated below, the
Motion for Remand is GRANTED, insofar as it
seeks to remand the case, and DENIED insofar
as it seeks attorney's fees.
case arises out of the shooting at Sandy Hook Elementary
School in Newtown, Connecticut, on December 14, 2012.
See Notice of Removal, Ex. 1 (Summons and Complaint)
(“Complaint”) (Doc. No. 1-1) ¶ 1. Plaintiffs
Erica Lafferty, David Wheeler, Francine Wheeler, Jacqueline
Barden, Mark Barden, Nicole Hockley, Ian Hockley, Jennifer
Hensel, Jeremy Richman, Donna Soto, Carlee Soto-Parisi,
Carlos M. Soto, and Jillian Soto (collectively
“plaintiffs”), filed suit against defendants Alex
Emeric Jones, Infowars, LLC, Free Speech Systems, LLC,
Infowars Health, LLC, Prison Planet TV, LLC, Wolfgang Halbig,
Cory T. Sklanka, Genesis Communications Network, Inc., and
Midas Resources, Inc. (collectively
“defendants”), in the Superior Court, Judicial
District of Fairfield at Bridgeport, Connecticut, on May 23,
2018. Id. Plaintiffs alleged that defendants are
liable for (1) invasion of privacy by false light; (2)
defamation; (3) intentional infliction of emotional distress;
(4) negligent infliction of emotional distress; and (6)
violation of Conn. Gen. Stat. § 42-110a, et.
seq, the Connecticut Unfair Trade Practices Act
(“CUTPA”). See id. ¶¶ 336-94.
13, 2018, defendants filed a Notice of Removal. See
generally, Notice of Removal (Doc. No. 1). Defendants
argued that removal was proper because plaintiffs
fraudulently joined the only non-diverse defendant, Cory
Sklanka. See Id. ¶ 18. They argued that
plaintiffs' “sole purpose” in naming Sklanka
as a defendant was to “attempt to break diversity,
” see id. ¶ 10, and that “there is
no possibility, based on the pleadings, that [plaintiffs
could] state a cause of action against Mr. Sklanka in state
court, ” id. ¶ 19 (quotations and
31, 2018, plaintiffs filed the Motion to Remand now pending
before this court. See generally, Motion to Remand
(“Mot. to Remand”) (Doc. No. 37). In their
Memorandum of Law in Support of the Motion to Remand
(“Pls.' Mem. in Supp.”) (Doc. No. 38),
plaintiffs argued that this court lacks subject matter
jurisdiction because (1) complete diversity of citizenship
between the parties is lacking, and (2) defendants failed to
meet their burden to prove that plaintiffs fraudulently
joined. See Pls.' Mem. in Supp. at 1. Defendants
Alex Jones, Infowars, LLC, Infowars Health, LLC, Free Speech
Systems, LLC, and Prison Planet TV, LLC filed an Opposition
to the Motion to Remand on September 25, 2018. See
Infowars Defendants' Opposition to Motion to Remand
(“Infowars Defs.' Opp'n”) (Doc. No. 51)
at 1. Defendant Midas Resources, Inc. filed an Opposition to
the Motion to Remand on September 28, 2018. See
generally Midas Resources, Inc.'s Opposition to
Motion to Remand (“Midas Opp'n”) (Doc. No.
54). Plaintiffs filed an Omnibus Reply to Defendants'
Oppositions to Remand (“Pls.' Reply”) (Doc.
No. 57), on October 19, 2018.
bear the burden of proving that removal is proper. See
O'Donnell v. AXA Equitable Life Ins. Co., 887 F.3d
124, 128 (2d Cir. 2018) (citing California Pub.
Employees' Ret. Sys. v. WorldCom, Inc., 368 F.3d 86,
100 (2d Cir. 2004)). Federal courts strictly construe the
removal statute, section 1441 of title 28 of the United
States Code, and resolve any doubts against removability.
Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 32
(2002) (holding that “statutory procedures for removal
are to be strictly construed”); Whitaker v. Am.
Telecasting, Inc., 261 F.3d 196, 201 (2d Cir. 2001).
Strict construction of the removal statute is consistent with
congressional intent to restrict federal court jurisdiction,
and due respect for principles of federalism and the
independence of state courts. See, e.g., Lupo v.
Human Affairs Int'l, Inc., 28 F.3d 269, 274 (2d Cir.
may remove “any civil action of which the district
courts . . . have original jurisdiction.” 28 U.S.C.
§ 1441(a). Generally, district courts have diversity
jurisdiction over an action only where all plaintiffs are
citizens of different states from all defendants.
Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267
(1806); Pampillonia v. RJR Nabisco, Inc., 138 F.3d
459, 460 (2d Cir.1998); 28 U.S.C. § 1332. However,
plaintiffs may not join non-diverse defendants against whom
they have no real claims, in an effort to defeat federal
jurisdiction. The doctrine of “fraudulent
joinder” is designed to prevent this tactic. See
Briarpatch Ltd., L.P. v. Phoenix Pictures Inc., 373 F.3d
296, 302 (2d Cir. 2004).
the doctrine of fraudulent joinder, courts disregard the
presence of non-diverse parties “if from the pleadings
there is no possibility that the claims against that
defendant could be asserted in state court.”
Briarpatch, 373 F.3d at 302 (citing
Pampillonia, 138 F.3d at 461). District courts
in this Circuit strictly apply the “no
possibility” standard. See Mihok v. Medtronic,
Inc., 119 F.Supp.3d 22, 34 (D. Conn. 2015) (collecting
cases). Defendants bear the heavy burden of proving
fraudulent joinder by clear and convincing evidence,
“with all factual and legal ambiguities resolved in
favor of plaintiff.” Briarpatch, 373 F.3d at
302. To meet their burden, “defendants must do more
than show that the plaintiff has failed to state a claim upon
which relief can be granted.” Read v. Nationwide
Mut. Ins. Co., No. 3:06-CV-00514 (JCH), 2006 WL 2621652,
at *1 (D. Conn. Sept. 13, 2006) (citing Stan Winston
Creatures, Inc. v. Toys “R” Us, Inc., 314
F.Supp.2d 177 (S.D.N.Y. 2003)).
determining whether a fraudulent joinder occurred, the court
may examine evidence outside of the pleadings, but only if
that evidence “clarifies or amplifies claims actually
made in the notice of removal.” Wilmington Sav.
Fund Soc'y, FSB v. Universitas Educ., LLC, 164
F.Supp.3d 273, 284 (D. Conn. 2016) (quoting 16 Moore's
Federal Practice - Civil § 107.52 (2018)) (alterations
omitted). However, the court will not reach the merits of the
case, “beyond determining whether the claim is arguable
under state law.” 16 Moore's Federal Practice -
Civil § 107.52 (2018).
argue that this court is without jurisdiction, and this case
must be remanded to the Connecticut Superior Court, because
complete diversity of the parties is lacking, and because the
defendants failed to meet their burden to demonstrate that
Sklanka was fraudulently joined. See Pls.' Mem.
in Supp. at 1. The defendants respond that the Motion to
Remand should be denied because plaintiffs fraudulently
joined Sklanka as a defendant, and he should be overlooked
for the purposes of diversity, and this court therefore has
jurisdiction over the underlying claims. See
Infowars Defs.' Opp'n at 14; Midas Opp'n at 13.
The parties do not dispute, however, that if Sklanka is
properly joined, his Connecticut citizenship bars diversity
jurisdiction and mandates a remand of this action to ...