The Town of Pine Hill, Alabama v. 3M Company et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
THE TOWN OF PINE HILL, 	)
ALABAMA, 	)
Plaintiff, 	)
)
v. 	) 	CIVIL ACTION NO. 2:24-00284-KD-N
)
3M COMPANY, et al., 	)
Defendants. 	)
REPORT AND RECOMMENDATION
This civil action is before the Court on the “Motion to Remand” filed August 20,
2024, by the Plaintiff, the Town of Pine Hill, Alabama. (Doc# 18). The assigned
District Judge has referred that motion to the undersigned Magistrate Judge for
appropriate action under 28 U.S.C. § 636(a)-(b), Federal Rule of Civil Procedure 72,
and S.D. Ala. GenLR 72(a). See S.D. Ala. GenLR 72(b); (8/21/2024 electronic reference
notation).
In accordance with the Court’s briefing schedule (see Docs# 23, 31), the
removing Defendant, 3M Company, timely filed a response in opposition to the motion
(Doc# 53), and Pine Hill timely filed a reply to the response (Doc# 58). Said motion is
now 	under 	submission 	and 	ripe 	for 	disposition. 	Upon 	due 	consideration, 	the
undersigned finds that the motion to remand is due to be GRANTED .
I. 	Procedural Background
Pine Hill, “a municipality located in Wilcox County, Alabama, organized under
the laws of the State of Alabama” (Doc# 1-2, PageID.52), commenced this civil action
on July 9, 2024, by filing a complaint against 3M and other defendants with the
Wilcox County Circuit Court. (See id., PageID.49-67). The complaint alleges that
“[e]ach of the Defendants, jointly and severally, have actively caused” pollution to
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the Alabama River through the “release of toxic chemicals, including per- and poly-
fluoroalkyl substances (‘PFAS’)…and related chemicals from paper mills, namely
[Defendant] 	International 	Paper 	[Company].” 	(Doc# 	1-2, 	PageID.50). 1 	More
specifically, International Paper, and three of its employees, are alleged to have
discharging PFAS-containing wastewater, landfill leachate, and/or stormwater into
the Alabama River from three of International Paper’s Alabama mills—one in Pine
Hill, one in Selma, and one in Prattville—while the other named artificial entity
defendants, including 3M, are alleged to have manufactured PFAS-containing
products that were sold to International Paper. (Doc# 1-2, PageID.58-59).
Pine Hill draws raw water from the Alabama River, which it then treats and
provides as drinking water directly to residential and commercial customers in Pine
Hill and other areas in and around Wilcox County. (Id., PageID.50). Pine Hill claims
that PFAS “cannot be removed by the water treatment processes that Pine Hill
currently utilizes[,]” and that as a result of the Defendants’ contamination of the
Alabama River it has had to incur “expenses associated with the future installation
and operation of a filtration system capable of removing PFAS from the water;
expenses associated with the removal or remediation of contaminated property;
expenses incurred to monitor PFAS contamination levels; and expenses associated
with responsible disposal of PFAS laden waste.” (Id., PageID.51). Pine Hill asserts
state law claims for negligence, wantonness, nuisance (public and private), and
trespass, and expressly disclaims that the complaint contains any “federal cause of
1 Per the complaint, “PFAS are man-made, laboratory-produced, synthetic chemicals
that do not exist naturally in the environment, are harmful at extremely low levels,
and for decades were widely used in consumer, household, and other commercial
products, as well as industrial uses.” (Doc# 1-2, PageID.55).
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action.” It demands monetary damages, both compensatory and punitive, as well as
equitable and injunctive relief.
On August 14, 2024, 3M removed the case to this Court, claiming jurisdiction
under (1) 28 U.S.C. § 1442(a)(1) (often referred to as the “federal-officer removal
statute”), and (2) 28 U.S.C. § 1441(a), with original jurisdiction based on diversity of
citizenship under 28 U.S.C. § 1332(a).2 Pine Hill moved to remand six days later.
II. 	Analysis
Where, 	as 	here, 	a 	case 	is 	removed 	from 	state 	court, 	“[t]he 	burden 	of
establishing subject matter jurisdiction falls on the party invoking removal.” Univ. of
S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 411–12 (11th Cir. 1999). Accord, e.g., City
of Vestavia Hills v. Gen. Fid. Ins. Co., 676 F.3d 1310, 1313 (11th Cir. 2012) (“The
removing party bears the burden of proof regarding the existence of federal subject
matter jurisdiction.”). “Because removal jurisdiction raises significant federalism
concerns,” the general rule is that federal courts must “construe removal statutes
strictly. Indeed, all doubts about jurisdiction should be resolved in favor of remand to
state court.” Univ. of S. Ala., 168 F.3d at 411 (citation omitted). Accord, e.g., Scimone
v. Carnival Corp., 720 F.3d 876, 882 (11th Cir. 2013) (“[W]hen we evaluate whether
the particular factual circumstances of a case give rise to removal jurisdiction, we
strictly construe the right to remove and apply a general presumption against the
2 See 28 U.S.C. § 1446(a) (“A defendant or defendants desiring to remove any civil
action from a State court shall file in the district court of the United States for the
district 	and 	division 	within 	which 	such 	action 	is 	pending 	a 	notice 	of
removal…containing a short and plain statement of the grounds for removal…”);
Baltin v. Alaron Trading Corp., 128 F.3d 1466, 1469 (11th Cir. 1997) (generally, “[i]n
a given case, a federal district court must have at least one of three types of subject
matter jurisdiction: (1) jurisdiction under a specific statutory grant; (2) federal
question jurisdiction pursuant to 28 U.S.C. § 1331; or (3) diversity jurisdiction
pursuant to 28 U.S.C. § 1332(a).”).
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exercise of federal jurisdiction, such that all uncertainties as to removal jurisdiction
are to be resolved in favor of remand.” (quotations omitted)). That general rule,
however, does not appear to apply to the federal-officer removal statute, as the
Supreme Court has “made clear that the statute must be ‘liberally construed.’”
Watson v. Philip Morris Companies, Inc., 551 U.S. 142, 147, 127 S. Ct. 2301, 168 L.
Ed. 2d 42 (2007) (quoting Colorado v. Symes, 286 U.S. 510, 517, 52 S. Ct. 635, 76 L.
Ed. 1253 (1932)). Accord Willingham v. Morgan, 395 U.S. 402, 407, 89 S. Ct. 1813, 23
L. Ed. 2d 396 (1969) (“Congress has decided that federal officers, and indeed the
Federal Government itself, require the protection of a federal forum. This policy
should not be frustrated by a narrow, grudging interpretation of s 1442(a)(1).”).
a. 	Federal-Officer Removal
Under § 1442(a)(1), “[a] civil action or criminal prosecution that is commenced
in a State court…may be removed by them to the district court of the United States
for the district and division embracing the place wherein it is pending” if it “is against
or directed to…[t]he United States or any agency thereof or any officer (or any person
acting under that officer) of the United States or of any agency thereof, in an official
or individual capacity, for or relating to any act under color of such office or on account
of any right, title or authority claimed under any Act of Congress for the apprehension
or punishment of criminals or the collection of the revenue.” “The federal-officer
removal statute protects an officer of the United States from having to answer for his
official conduct in a state court.” State v. Meadows, 88 F.4th 1331, 1338 (11th Cir.
2023) (citing 28 U.S.C. § 1442(a)(1)), cert. denied, No. 24-97, 2024 WL 4743081 (U.S.
Nov. 12, 2024). In general, “[s]ection 1442(a)(1) provides a right of removal to federal
court if a defendant proves that he is a federal officer, his conduct underlying the suit
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was performed under color of federal office, and he has a ‘colorable’ federal defense.”
Id. (citing Caver v. Cent. Ala. Elec. Coop., 845 F.3d 1135, 1142 (11th Cir. 2017)).
While 3M is a private entity, not a federal officer, the Supreme Court has long
held that “the removal statute applies to private persons ‘who lawfully assist’ [a]
federal officer ‘in the performance of his official duty.’” Watson, 551 U.S. at 151
(quoting Davis v. South Carolina, 107 U.S. 597, 600, 2 S. Ct. 636, 27 L. Ed. 574 (1883)).
“For a private entity to remove a case under § 1442(a)(1), the entity must show that
it: (1) ‘is a person within the meaning of the statute who acted under a federal officer’;
(2) ‘performed the actions for which it is being sued under color of federal office’; and
(3) ‘raise[d] a colorable federal defense.’” Schleider v. GVDB Operations, LLC, 121
F.4th 149, 158 (11th Cir. 2024) (quoting Caver, 845 F.3d at 1142).
In its notice of removal, 3M alleges:
The alleged PFAS contamination of Plaintiff’s drinking water supply
potentially resulted at least in part from the use, storage, and/or
disposal of PFAS containing aqueous film-forming foams (“AFFF”) that
3M and others developed and sold to the U.S. military in accordance
with 	rigorous 	military 	specifications 	(“MilSpec”) 	issued 	by 	the
Department of Defense (“DoD”). AFFF is a firefighting foam used for
firefighting 	and 	fire 	training. 	Given 	the 	allegations 	in 	Plaintiff’s
Complaint here, the purported PFAS contamination of the Alabama
River just as plausibly resulted (at least in part) from AFFF use at
military facilities that are upstream from Plaintiff on the Alabama
River, including the Maxwell Air Force Base, as from the non-AFFF
PFAS sources identified in the Complaint. Maxwell Air Force Base is
located 	on 	the 	Alabama 	River 	approximately 	the 	same 	distance
upstream as International Paper’s paper mill in Prattville, Alabama—
one of the paper mills to which the Complaint attributes the PFAS
purportedly contaminating its drinking water supply. Because the
alleged PFAS contamination of Plaintiff’s water supply just as plausibly
resulted from the use, storage, and/or disposal of MilSpec AFFF as from
non-AFFF PFAS sources identified in Plaintiff’s Complaint, 3M intends
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to assert in this action the federal government contractor defense
recognized in Boyle v. United Technologies Corp., 487 U.S. 500 (1988),
which bars Plaintiff from establishing, among other things, liability for
the design and manufacture of MilSpec AFFF and for the provision of
warnings for the product.
(Doc# 1 ¶ 2, PageID.2-3).
In briefing the present motion to remand with regard to the federal-officer
removal issue, Pine Hill and 3M, both relying primarily on district court and out-of-
circuit opinions in support of their respective positions,3 focus exclusively on whether
Pine Hill’s disclaimer in its complaint of any relief based on contamination by PFAS
from AFFF precludes 3M either from asserting its federal contractor defense or
showing the requisite nexus between Pine Hill’s claims and 3M’s asserted conduct
performed under color of federal law. Even without the express AFFF disclaimer,
however, 3M would still not be entitled to removal under § 1442(a)(1) because none
of Pine Hill’s claims against it is premised on the design, manufacture, or sale of
AFFF to the U.S. military.
An entity asserting entitlement to federal officer removal “must show that it
performed the actions for which it is being sued under color of federal office.” Caver,
845 F.3d at 1142 (emphasis added). See also Meadows, 88 F.4th at 1343 (“Section
1442(a)(1) permits a federal officer to remove a state prosecution that is ‘for or
3 “A decision of a federal district court judge is not binding precedent in either a
different judicial district, the same judicial district, or even upon the same judge in a
different case.” Camreta v. Greene, 563 U.S. 692, 709 n.7, 131 S. Ct. 2020, 179 L. Ed.
2d 1118 (2011) (quotation omitted)). Accord Washington v. Rivera, 939 F.3d 1239,
1244 n.8 (11th Cir. 2019) (“[D]istrict court opinions are not binding precedent.”);
United States v. Cerceda, 172 F.3d 806, 812 n.6 (11th Cir. 1999) (en banc) (per curiam)
(“The opinion of a district court carries no precedential weight, even within the same
district.”); Fox v. Acadia State Bank, 937 F.2d 1566, 1570 (11th Cir. 1991) (per curiam)
(“A district court is not bound by another district court's decision, or even an opinion
by another judge of the same district court…”).
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relating to any act under color of [his] office.’ The officer must establish a ‘causal
connection between the charged conduct and asserted official authority.’ ” (emphasis
added) (quoting Jefferson County v. Acker, 527 U.S. 423, 431, 119 S. Ct. 2069, 144 L.
Ed. 2d 408 (1999) (citation and internal quotation marks omitted))). “[T]he ‘act’
anchoring removal must be defined by the ‘claim’ brought against the defendant,
and…federal courts have jurisdiction only when ‘one claim cognizable under Section
1442 is present.’ ” Meadows, 88 F.4th at 1344 (quoting Nadler v. Mann, 951 F.2d 301,
306 n.9 (11th Cir. 1992) (emphasis added)). “So an accused’s removal theory must
accord with a claim…brought against him.” Id. See also Caver, 845 F.3d at 1144 (“The
second question for federal officer removal is whether there is a causal connection
between Plaintiff[]’s claims and an act of Defendant…that forms the basis of those
claims.”). Making this determination requires looking to the “heart” or “gravamen” of
a claim, “instead of individually evaluating each overt act alleged…” Meadows, 88
F.4th at 1344-45. “To allow [a defendant] to remove the action if any single
allegation…related to his official duties would run contrary to both the removal
statute and precedent.” Id. at 1345.
In Meadows, the State of Georgia charged Mark Meadows, a former White
House chief of staff, with conspiring to interfere in the 2020 presidential election. Id.
at 1334-35. Meadows removed the state prosecution to federal court, claiming
entitlement to federal-officer removal under § 1442(a)(1). Id. at 1335. The district
court disagreed and remanded, and the Eleventh Circuit Court of Appeals affirmed.
After first holding that § 1442(a)(1) did not apply to former federal officers, it then
alternatively held that, even if it did, “the events giving rise to th[e] criminal action
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were not related to Meadows’s official duties.” Id. 4 In reaching the alternative
holding, the court rejected Meadows’s argument that “each overt act in the indictment
is an ‘act’ for purposes of federal-officer removal[,]” and “that so long as any one of his
actions—sending any message or participating in any meeting—related to his official
duties, he [wa]s entitled to remove.” Meadows, 88 F.4th at 1344. Rather, the court
held that it “must look to the core of the factual allegations to identify whether
Meadows’s conduct in aggregate furthered the alleged enterprise to overturn the
election.” Id. at 1345. Thus, the Eleventh Circuit held, “[t]he district court correctly
determined that we must look to the ‘heart’ of Meadows’s conduct to determine
whether his section 1442(a)(1) ‘act’—of conspiring to ‘unlawfully change the outcome
of the election in favor of Trump’—supports removal.” Id.5
In this case, certainly some of the complaint’s allegations sweep broadly,
referring to 3M’s manufacture and sale of PFAS-containing products in general.
However, as Meadows instructs, the Court cannot “individually evaluat[e] each overt
act alleged[,]” and instead “must look to the core of the factual allegations” to identify
the relevant “act(s)” for which 3M is accused of wrongdoing. Reading the complaint
as a whole, it is clear that the “heart” or “gravamen” of Pine Hill’s claims against 3M
4 “[I]n this circuit additional or alternative holdings are not dicta, but instead are as
binding as solitary holdings.” Bravo v. United States, 532 F.3d 1154, 1162 (11th Cir.
2008). Accord, e.g., Alvarez Perez v. Sanford-Orlando Kennel Club, Inc., 515 F.3d
1150, 1164 (11th Cir. 2008) (“alternative holdings are binding precedent”).
5 While no party relied on or mentioned Meadows in their briefing on the present
motion, the Court is not bound solely by the arguments of the parties in assessing
subject-matter jurisdiction. It is well settled that “courts…have an independent
obligation to determine whether subject-matter jurisdiction exists, even in the
absence of a challenge from any party.”). See also Arbaugh v. Y&H Corp., 546 U.S.
500, 514, 126 S. Ct. 1235, 163 L. Ed. 2d 1097 (2006) (“[C]ourts, including this Court,
have an independent obligation to determine whether subject-matter jurisdiction
exists, even in the absence of a challenge from any party.”).
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is its manufacture of PFAS-containing products for, and suppling of them to,
International Paper specifically for use in its Alabama mills. As was already noted
above, all of Pine Hill’s claims are centered around International Paper’s discharge
of PFAS into the Alabama River from three of its paper mills—indeed, the first
paragraph of the complaint asserts that Pine Hill’s damages are “caused by the past
and present release of toxic chemicals, including per- and poly-fluoroalkyl substances
(‘PFAS’) (other than Aqueous Film Forming Foam) and related chemicals from paper
mills, namely International Paper.” (Doc# 1-2 ¶ 1, PageID.50).
With regard to 3M, the complaint alleges that “3M has for many years
manufactured and supplied PFAS to one or more of the Defendants in this action[,]”
none of whom are federal government officers or agencies. (Doc# 1-2 ¶ 16, PageID.52).
More specifically, the complaint alleges that “Defendants have long supplied PFAS
to the paper industry in Alabama[,]” that 3M and other defendants “manufacture[s],
suppl[ies], and sell[s] PFAS and products that contain PFAS which are used in paper
manufacturing in Alabama, specifically by International Paper[,]” and that it “sold
PFAS treatment to create oil and grease-resistant paper to paper mills and for use in
other paper-manufacture processes, including to International Paper in Alabama.”
(Id. ¶¶ 36, 51, 56, PageID.55, 58). At the very least, the fact that the complaint
expressly disclaims any damages or cause of action based on PFAS-containing AFFF
lends further support to the determination that 3M’s manufacture for and supplying
of AFFF to the U.S. military are not at the “heart” of Pine Hill’s claims against 3M.
Those are not “actions for which [3M] is being sued,” but instead actions 3M seeks to
assert as a defense against the claims for which it is being sued.
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Because 3M has not shown that it performed “the actions for which it is being
sued under color of federal office,” the undersigned finds that 3M is not entitled to
federal-officer removal in this action.
b. 	Diversity Jurisdiction & Fraudulent Joinder
“A defendant may remove an action to a district court that would have original
jurisdiction if complete diversity between the parties exists and the amount in
controversy exceeds $75,000.” City of Vestavia Hills, 676 F.3d at 1313 (citing 28 U.S.C.
§ 1332). “A party removing a case to federal court based on diversity of citizenship
bears the burden of establishing the citizenship of the parties.” Rolling Greens MHP,
L.P. v. Comcast SCH Holdings L.L.C., 374 F.3d 1020, 1022 (11th Cir. 2004) (per
curiam). Accord Hertz Corp. v. Friend, 559 U.S. 77, 96, 130 S. Ct. 1181, 175 L. Ed. 2d
1029 (2010) (“The burden of persuasion for establishing diversity jurisdiction, of
course, remains on the party asserting it.”). Generally, “[d]iversity jurisdiction
requires complete diversity; every plaintiff must be diverse from every defendant.”
Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998).
Here, 3M concedes that complete diversity is lacking because the three named
natural person defendants—Shannon Dixon, Steve Webb, and Carla Pearson—are,
like Pine Hill,6 citizens of Alabama. (See Doc# 1 ¶ 55, PageID.30). However, 3M
argues that those defendants’ citizenships should be disregarded because they have
6 “[A] political subdivision of a State, unless it is simply the arm or alter ego of the
State, is a citizen of the State for diversity purposes.” Moor v. Alameda Cnty., 411
U.S. 693, 717, 93 S. Ct. 1785, 36 L. Ed. 2d 596 (1973) (quotation and footnote omitted).
See also City of Vestavia Hills, 676 F.3d at 1313-15 (treating Alabama municipality
as a citizen of Alabama for purposes of diversity jurisdiction).
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been fraudulently joined in this action. “Fraudulent joinder is a judicially created
doctrine that provides an exception to the requirement of complete diversity.” Triggs,
154 F.3d at 1287. “When a plaintiff names a non-diverse defendant solely in order to
defeat federal diversity jurisdiction, the district court must ignore the presence of the
non-diverse defendant and deny any motion to remand the matter back to state court.
The plaintiff is said to have effectuated a ‘fraudulent joinder,’ and a federal court may
appropriately assert its removal diversity jurisdiction over the case.” Henderson v.
Washington Nat. Ins. Co., 454 F.3d 1278, 1281 (11th Cir. 2006) (citation omitted).
“A defendant seeking to prove that a co-defendant was fraudulently joined
must demonstrate either that: ‘(1) there is no possibility the plaintiff can establish a
cause of action against the resident defendant; or (2) the plaintiff has fraudulently
pled jurisdictional facts to bring the resident defendant into state court.’ ” Id. (quoting
Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997)). Here, 3M asserts only the
first type. In analyzing this type of fraudulent joinder, 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. The 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.” Triggs, 154 F.3d at
1287. (citation and quotation omitted). Accord, e.g., Crowe, 113 F.3d at 1538 (“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.
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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.” (citation and quotation
omitted)). “The burden of the removing party [to prove fraudulent joinder] is a heavy
one.” Crowe, 113 F.3d at 1538 (quotation omitted). “The defendant must make such a
showing by clear and convincing evidence.” Henderson, 454 F.3d at 1281 (citing Parks
v. New York Times Co., 308 F.2d 474, 478 (5th Cir. 1962)7).
The Eleventh Circuit has held 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.” Pacheco de Perez v. AT&T Co., 139
F.3d 1368, 1380 (11th Cir. 1998) (emphasis added). The 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).” Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997) (quoting
B, Inc. v. Miller Brewing Co., 663 F.2d 545, 549 n. 9 (5th Cir. Unit A
1981)). 	In 	such 	a 	proceeding, 	the 	district 	court 	must 	“resolve 	all
questions of fact ... in favor of the plaintiff.” Cabalceta v. Standard Fruit
Co., 883 F.2d 1553, 1561 (11th Cir. 1989).
Legg v. Wyeth, 428 F.3d 1317, 1322–23 (11th Cir. 2005).
7 On “October 1, 1981 pursuant to the Fifth Circuit Court of Appeals Reorganization
Act of 1980, P.L. 96-452, 94 Stat. 1995, … the United States Court of Appeals for the
Fifth Circuit was divided into two circuits, the Eleventh and the ‘new Fifth.’ ” Bonner
v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc). “The
Eleventh Circuit, in the en banc decision Bonner v. City of Prichard, 661 F.2d 1206,
1209 (11th Cir.1981), adopted as precedent decisions of the former Fifth Circuit
rendered prior to October 1, 1981.” Smith v. Shook, 237 F.3d 1322, 1325 n.1 (11th Cir.
2001) (per curiam).
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“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’” Crowe, 113 F.3d at 1541-42 (quotation
omitted). However, “[t]he potential for legal liability must be reasonable, not merely
theoretical. In considering possible state law claims, possible must mean more than
such a possibility that a designated residence can be hit by a meteor tonight. That is
possible. Surely, as in other instances, reason and common sense have some role.”
Legg, 428 F.3d at 1325 n.5.
“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…district courts may look beyond the face of the complaint, … the
district court is to stop short of adjudicating the merits of cases that do not appear
readily to be frivolous or fraudulent.” Crowe, 113 F.3d at 1542.
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Nevertheless, “there must be some question of fact before the district court can
resolve 	that 	fact 	in 	the 	plaintiff’s 	favor…When 	[a 	defendant’s] 	affidavits 	are
undisputed by the Plaintiff[], the court cannot then resolve the facts in the Plaintiff[’s]
favor based solely on the unsupported allegations in the…complaint.” Legg, 428 F.3d
at 1323. Therefore, “the plaintiff generally must come forward with some evidence to
dispute the sworn statements in the affidavit.” Shannon v. Albertelli Firm, P.C., 610
F. App’x 866, 871 (11th Cir. 2015) (per curiam) (unpublished) (citing Legg, 428 F.3d
at 1323-25). However, “[d]oubt…with respect to the allegations concerning the
resident defendants being false as when the question depends upon the credibility of
witnesses or the weight of evidence will not render the joinder fraudulent.” Parks,
308 F.2d at 477.8
Per the complaint, each of International Paper’s three Alabama mills at issue
manufacture containerboard and discharge wastewater containing PFAS into the
Alabama River. (Doc# 1-2, PageID.58-59). Dixon and Webb are both employed at
International Paper’s Pine Hill mill as Environmental Manager and Mill Manager,
respectively, while Pearson serves as an Environmental Specialist at its Selma mill.
(Id., 	PageID.54). 	Pine 	Hill 	alleges 	that 	each 	of 	these 	individuals 	“personally
8 On “October 1, 1981 pursuant to the Fifth Circuit Court of Appeals Reorganization
Act of 1980, P.L. 96-452, 94 Stat. 1995, … the United States Court of Appeals for the
Fifth Circuit was divided into two circuits, the Eleventh and the ‘new Fifth.’ ” Bonner
v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc). “The
Eleventh Circuit, in the en banc decision Bonner v. City of Prichard, 661 F.2d 1206,
1209 (11th Cir.1981), adopted as precedent decisions of the former Fifth Circuit
rendered prior to October 1, 1981.” Smith v. Shook, 237 F.3d 1322, 1325 n.1 (11th Cir.
2001) (per curiam).
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participated in the tortious conduct of International Paper by failing to properly
capture PFAS-laden material, waste, waste streams, and effluent in a water-
intensive manufacturing process, causing PFAS contamination of the Alabama River
upstream and adjacent to Pine Hill’s source water intake[,] despite knowledge that
PFAS is toxic, biomagnifying, does not degrade, and does not naturally dissipate in
surface waters.” (Id., PageID.59).
3M does not argue that there is “no possibility that [Pine Hill] can prove a
cause of action against” any of these defendants solely from the face of the complaint,
instead relying on supplemental evidence to show fraudulent joinder—specifically,
unsworn declarations made under 28 U.S.C. § 1746 from Dixon, Webb, Pearson, and
non-party Kevin Gramelspacher. Pearson’s declaration states that she has worked at
International Paper’s Selma mill in various roles since about March 1990, during
which time that mill “has not produced any grease resistant products[,]” and “[a]s
such, [PFAS] or fluorochemicals were not used as a process chemical…” (Doc# 1-8,
PageID.483-484). Similarly, Dixon and Webb’s declarations both state that the Pine
Hill mill “has not produced any grease resistant products[,]” and “[a]s such, [PFAS]
or fluorochemicals were not used as a process chemical[,]” since they began working
at that mill on September 26, 2022, and May 21, 2021, respectively. (Doc# 1-5,
PageID.476; Doc# 1-6, PageID.478). Gramelspacher, who has worked at the Pine Hill
mill since July 9, 2001, and is currently employed as its Manufacturing Excellence
Leader—Finished Products, goes further and states that the Pine Hill mill “has never
produced any grease resistant products” “[s]ince its inception” and has thus never
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used PFAS “as a process chemical in its production.” (Doc# 1-7, PageID.481). Webb
further states that, prior to transferring to the Pine Hill mill, he had worked at the
Prattville mill since 2017, during which time that mill “did not produce grease-
resistant products[,]” and “[a]s such, [PFAS] or fluorochemicals were not used as a
process chemical in its production.” (Doc# 1-6, PageID.478-479).9
The undersigned agrees with Pine Hill that the declarations do not completely
foreclose any possibility that Pine Hill could state a valid claim against Dixon, Webb,
or Pearson. Each of the declarants is careful to state only that his or her respective
mill(s) did not produce “grease resistant products” during the declarant’s tenure, and
that this means, “as such,” PFAS were not used as “a process chemical” during those
times. However, while it does mention the use of PFAS in making grease resistant
paper, nothing in the complaint claims that this is the only use International Paper
would have for PFAS at its Alabama mills—indeed, the complaint expressly alleges
that PFAS were used both “to create oil and grease-resistant paper…and for use in
other paper-manufacture processes…” (Doc# 1-2 ¶ 56, PageID.58 (emphasis)). 3M has
presented no evidence indicating that the use of PFAS in the paper industry is
9 Pine Hill derides these declarations as “self-serving and designed to avoid liability”
(Doc# 18, PageID.663). As 3M correctly points out, though, that alone is not sufficient
grounds to disregard them as evidence. See Losch v. Nationstar Mortg. LLC, 995 F.3d
937, 944 (11th Cir. 2021) (“According to Experian, a plaintiff’s ‘self-serving affidavit,’
standing alone, can’t prove emotional damages sufficiently to survive summary
judgment. But that argument runs headlong into our en banc decision in United
States v. Stein, in which we held that ‘[a] non-conclusory affidavit which complies
with Rule 56 can create a genuine dispute concerning an issue of material fact, even
if it is self-serving and/or uncorroborated.’ 881 F.3d 853, 858–59 (11th Cir. 2018) (en
banc).”).
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restricted solely to making grease resistant paper.10 Moreover, none of the declarants
has 	expressly 	disclaimed 	ever 	using 	PFAS 	during 	their 	respective 	tenures 	at
International 	Paper’s 	Alabama 	mills, 	nor 	have 	they 	contradicted 	Pine 	Hill’s
allegations that 3M and other company defendants sold PFAS-containing products to
International 	Paper 	for 	use 	in 	its 	Alabama 	mills. 	Thus, 	even 	accepting 	the
declarations as true, they do not completely foreclose the use of PFAS or PFAS-
containing material to some degree during the declarants’ tenures at their respective
mills, and thus do not wholly contradict Pine Hill’s allegation that Dixon, Webb, and
Pearson, 	in 	some 	manner, 	“personally 	participated 	in 	the 	tortious 	conduct 	of
International Paper by failing to properly capture PFAS-laden material, waste, waste
streams, and effluent in a water-intensive manufacturing process…” (Doc# 1-2,
PageID.59).11
In sum, 3M has failed to meet its “heavy burden” of showing that all three of
the non-diverse defendants were fraudulently joined in this action. Thus, their
citizenships cannot be disregarded, and 3M has conceded that this would deprive this
action of the complete diversity required by § 1332(a). And as 3M has failed to
10 Pine Hill, on the other hand, has attached to its motion to remand two scientific
papers (Docs# 18-1, 18-2) indicating that PFAS have a “broad range” of “industrial
applications.” (Doc# 18-2, PageID.679).
11 See Taylor Newman Cabinetry, Inc. v. Classic Soft Trim, Inc., 436 F. App’x 888,
891–92 (11th Cir. 2011) (per curiam) (unpublished) (holding that plaintiffs did not
have to produce evidence of their own to defeat fraudulent joinder claim where it was
“not 	clear 	that 	the 	portion 	of 	the 	deposition 	cited 	by 	Defendants 	squarely
contradict[ed] the allegations in the complaint[,]” and where, “[g]iven [the deponent]’s
role 	in 	overseeing…safety 	procedures, 	the 	question 	of 	whether 	he 	personally
participated in the alleged tort depends on the credibility of his testimony”).
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sufficiently prove either of its asserted grounds for subject-matter jurisdiction over
this action, Pine Hill’s motion to remand is therefore due to be granted.12
III. 	Conclusion
In accordance with the foregoing analysis, the undersigned RECOMMENDS
that Pine Hill’s “Motion to Remand” filed August 20, 2024 (Doc# 18), be GRANTED,
and that this action be REMANDED to the Circuit Court of Wilcox County, Alabama,
under 28 U.S.C. § 1447(c) for lack of subject-matter jurisdiction.
NOTICE OF RIGHT TO FILE OBJECTIONS
A copy of this report and recommendation shall be served on all parties in the
manner provided by law. Any party who objects to this recommendation or anything
in it must, within 14 days of the date of service of this document, file specific written
objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b);
S.D. Ala. GenLR 72(c). The parties should note that under Eleventh Circuit Rule 3-1,
“[a] party failing to object to a magistrate judge's findings or recommendations
contained in a report and recommendation in accordance with the provisions of 28
U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order
based on unobjected-to factual and legal conclusions if the party was informed of the
12 The removal statutes provide that “[a]n order remanding [a] case may require
payment of just costs and any actual expenses, including attorney fees, incurred as a
result of the removal.” 28 U.S.C. § 1447(c). Pine Hill has not requested such an award
in its present motion, and the undersigned does not find grounds to sua sponte impose
such “costs” and “expenses” in this instance. See Martin v. Franklin Capital Corp.,
546 U.S. 132, 141, 126 S. Ct. 704, 163 L. Ed. 2d 547 (2005) (“Absent unusual
circumstances, courts may award attorney’s fees under § 1447(c) only where the
removing 	party 	lacked 	an 	objectively 	reasonable 	basis 	for 	seeking 	removal.
Conversely, when an objectively reasonable basis exists, fees should be denied.”).
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time period for objecting and the consequences on appeal for failing to object. In the
absence of a proper objection, however, the court may review on appeal for plain error
if necessary in the interests of justice.” 11th Cir. R. 3-1. In order to be specific, an
objection must identify the specific finding or recommendation to which objection is
made, state the basis for the objection, and specify the place in the Magistrate Judge’s
report and recommendation where the disputed determination is found. An objection
that merely incorporates by reference or refers to the briefing before the Magistrate
Judge is not specific.
DONE this the 14th day of February 2025.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
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