                                                                                     [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS
                                                                                 FILED
                             FOR THE ELEVENTH CIRCUIT                  U.S. COURT OF APPEALS
                                                                         ELEVENTH CIRCUIT
                                                                             JUNE 13, 2001
                               ________________________
                                                                          THOMAS K. KAHN
                                                                               CLERK
                                     No. 00-10963
                              ________________________
                          D. C. Docket No. 98-00748-CV-BH-M

BRENDA D. TILLMAN, as Executrix
under the Last Will and Testament of
Kalen Oliver Tillman, Deceased,
                                                                            Plaintiff-Appellant,

       versus

R. J. REYNOLDS TOBACCO, et al,

                                                                        Defendants-Appellees.

                               ________________________

                       Appeal from the United States District Court
                          for the Southern District of Alabama
                             _________________________
                                    (June 13, 2001)

Before RONEY and HILL, Circuit Judges.*

PER CURIAM:


       *
           This case is being decided by a quorum of the judges who sat for oral argument. During
oral argument, Judge Susan Black discovered that she should recuse herself from consideration of
this appeal. Under such circumstances, it is appropriate for the remaining members of the court to
fulfill their responsibility to consider the appeal if they can reasonably do so. See Federal Sav. &
Loan Ins. Corp. v. D & D Golfview Properties, Inc., 874 F.2d 1509 (11th Cir.1989).
      The key to the appeal in this tobacco/cancer case challenging the diversity

jurisdiction of the district court is whether the complaint states a cause of action under

Alabama law against three resident retail distributors of cigarettes. The district court

held it did not, dismissed the retailers as being fraudulently joined, and proceeded to

summary judgment in favor of the defendant tobacco companies. Before considering

the correctness of the decision against the tobacco companies, we must determine if

the court had jurisdiction. The alleged cause of action against the retail establishments

poses important and undecided questions of Alabama law, therefore, we certify that

issue to the Alabama Supreme Court. In reaching the decision to certify, we affirm

the district court’s ruling that the complaint did not state a cause of action against the

individual resident defendants.      The court properly dismissed them as being

fraudulently joined.

      Plaintiff’s decedent, Kalen O. Tillman, Sr. filed this suit on June 18, 1998, in

circuit court in Mobile County, Alabama, alleging that he developed lung cancer as

a result of his smoking Winston cigarettes beginning in 1968, which led to his death

pending this litigation in April 1999. According to the complaint, Tillman began

smoking in 1968 at the age of 12, more than two years after the Surgeon General’s

warnings were required to be placed on every package of cigarettes sold in the United

States and four years after the Surgeon General’s 1964 report on the adverse health


                                            2
effects of smoking. Plaintiff alleges Tillman became “addicted” to nicotine at an early

age and was a multi-pack a day smoker.

      The complaint contained four counts alleging claims for products liability under

the Alabama Extended Manufacturer’s Liability Doctrine (AEMLD), negligence,

wantonness and civil conspiracy. The complaint named as defendants R.J. Reynolds

Tobacco Co.(Reynolds); its parent company, RJR Nabisco, Inc.; three Alabama

retailers that sold cigarettes to plaintiff, Winn-Dixie of Montgomery, Inc., Food World

and Racetrac Petroleum, Inc.; and five individuals, James Franklin Tate, Jr., Robert

L. Huffman, Michael McDermott, Sr., Dennis Hightower and Dwight Hinson, all of

whom are Alabama residents and current or former employees of Reynolds.

      Defendants removed the case to federal district court, Southern District of

Alabama, on July 20, 1998 on the basis of diversity jurisdiction pursuant to 28 U.S.C.

§ § 1332 and 1441, and plaintiff filed a motion to remand in August 1998. In October

1998, the district court denied plaintiff’s motion to remand and dismissed the retailers

and individual defendants as fraudulently joined. Plaintiff voluntarily dismissed RJR

Nabisco, Inc., which left Reynolds as the sole defendant. Plaintiff is a citizen of

Alabama and Reynolds is a New Jersey corporation with its principal place of

business in North Carolina. In January 2000, the district court granted defendant’s

motion to dismiss for failure to state a claim and entered judgment in favor of


                                           3
Reynolds. See Tillman v. Reynolds Tobacco Co., 89 F.Supp. 2d 1297 (S.D. Ala.

2000).

      For removal under 28 U.S.C. § 1441 to be proper, no defendant can be a citizen

of the state in which the action was brought. 28 U.S.C. § 1441(b). Even if a named

defendant is such a citizen, however, it is appropriate for a federal court to dismiss

such a defendant and retain diversity jurisdiction if the complaint shows there is no

possibility that the plaintiff can establish any cause of action against that defendant.

See Triggs v. John Crump Toyota, Inc., 154 F.3d 1284,1287(11th Cir. 1998). “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.” Coker v. Amoco Oil Co.,

709 F.2d 1433, 1440-41 (11th Cir. 1983), superceded by statute on other grounds as

stated in Wilson v. General Motors Corp., 888 F.2d 779 (11th Cir. 1989). “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(emphasis in original).



      1.     Individual defendants.




                                           4
      We affirm the district court’s decision that the complaint failed to demonstrate

any viable cause of action against the five individual defendants. Plaintiff alleged that

these defendants were employed by Reynolds in the promotion, advertising and sale

of cigarettes, and knew that the cigarettes designed, manufactured, and sold by

Reynolds were unreasonably dangerous.             According to the complaint, these

defendants knew that smoking Reynold’s cigarettes would lead to nicotine addiction

and that persons who were addicted would not be able to quit smoking and would buy

more cigarettes. They also knew that persons smoking these cigarettes were likely to

contract lung cancer and other diseases and would likely die as a result. Thus, by

virtue of their positions with Reynolds, these defendants had superior knowledge to

that of the average consumer regarding the addictive nature of Winston cigarettes and

the dangers and hazards attendant with smoking them.

      The district court correctly held that plaintiff failed to tie these defendants to the

underlying allegations of the complaint:

             There is no claim that the plaintiff ever dealt with any of
             them, or that they made any representations on which
             plaintiff relied to start or continue smoking. None of the
             individual defendants had any involvement in the design,
             manufacture, or labeling of Reynolds’ cigarettes. None of
             the individual defendants were even employed by Reynolds
             when plaintiff began smoking in 1968 and allegedly
             became addicted to Reynold’s cigarettes.



                                            5
       2.      Retail Merchants.

       The original complaint            named three retail defendants: Winn-Dixie of

Montgomery, Inc., Racetrac Petroleum, Inc., and Food World, all of whom sold

Winston cigarettes at retail to consumers, including the decedent.1 Plaintiff alleged

they sold cigarettes to decedent when he was under the age of nineteen, in violation

of Alabama Code § 13A-12-3, causing decedent to become addicted to nicotine before

reaching the age of consent.

       Plaintiff alleges a cause of action against the Alabama retail defendants under

the Alabama Extended Manufacturer’s Liability Doctrine (AEMLD), in negligence

and wantonness in the marketing and sales of cigarettes.




       1
                The district court denied plaintiff’s motion to amend the complaint after removal to
include two companies, Bruno’s, Inc, the corporation that operates Food World grocery stores and
Delchamps, Inc., another grocery store chain as defendants. Plaintiff alleged that these retailers had
significantly greater knowledge of the composition of cigarettes, the addictive nature of nicotine,
and the dangers and hazards presented in the consumption of cigarettes than did the consuming
public, by virtue of the fact that these defendants operated pharmacies and employed licensed
pharmacists. Plaintiff claimed that the pharmacists employed by these defendants have been
educated in and are aware of the addictive nature of nicotine and the carcinogenic nature of cigarette
smoke for many years, thus giving these defendants superior knowledge of these facts by virtue of
the knowledge, experience and training of their employees.

               For purposes of considering the specific jurisdictional question before us, we consider
only the original complaint, however, because the question of diversity subject matter jurisdiction
is determined on the plaintiff’s pleadings at the time of removal. See Pullman v. Jenkins, 305 U.S.
534,537 (1939); Cabalceta v. Standard Fruit Co., 883 F.2d 1553,1561 (11th Cir. 1989). We leave
to the Alabama Supreme Court in its consideration of our certified question the issue whether it
would make a difference if a pharmacy was part of a retail defendant’s business.

                                                  6
      This appears to us to be the status of Alabama law at this time. To recover

under the AEMLD, plaintiff must show, among other things, that “an injury was

caused by one who sold a product in a defective condition that made the product

unreasonably dangerous to the ultimate user or consumer....”Bell v. T.R. Miller Mill

Co., 768 So.2d 953, 957 (Ala. 2000); see also Allen v. Delchamps, Inc., 624 So.2d

1065,1068 (Ala. 1993). A product is not unreasonably dangerous unless it fails to

“meet the reasonable safety expectations of an ‘ordinary consumer,’ that is, an

objective ‘ordinary consumer,’ possessed of the ordinary knowledge common to the

community.” Deere & Co. v. Grose, 586 So.2d 196, 198 (Ala. 1991) (citations

omitted); see also Casrell v. Altec Indus., Inc., 335 So.2d 128, 133 (Ala. 1976)

(establishing “reasonable expectations” test and adopting comment i to § 402A of the

Restatement (Second) of Torts); Ex Parte Chevron Chem. Co., 720 So.2d 922, 927

(Ala. 1998) (‘it is clear drafters of Restatement intended § 402A’s concept of an

‘unreasonably dangerous’ product does not include ‘a product the dangers of which

the consumer could be expected to be aware of, an awareness that may be enlightened

by a warning.’”). “Although, under Alabama law, a jury ordinarily evaluates a

plaintiff’s claims that a product is defective, our review of the pertinent case law

convinces us that certain products whose inherent danger is patent and obvious, do




                                         7
not, as a matter of law, involve defects of a sort that a jury should resolve.” Elliott v.

Brunswick Corp., 903 F.2d 1505, 1507 (11th Cir.1990).

      The question whether cigarettes are unreasonably dangerous as a matter of

Alabama law has been certified to the Alabama Supreme Court by this Court in Spain

v. Brown & Williamson Tobacco Corp., 230 F.3d 1300 (11th Cir. 2000). Plaintiff also

included counts in negligence and wantonness and civil conspiracy against the retail

defendants. As the defendant did in this case, the defendant in Spain also asserted the

claims were barred by the statute of limitations. The court in Spain invited the

Alabama Supreme Court to clarify the law regarding these claims as well. See Spain,

230 F.3d at 1312.

      Plaintiffs in Spain brought suit only against the manufacturers. Thus, even

assuming the state supreme court determined there was a cause of action under any

of these theories and that the statute of limitations was not a bar to the action, that

decision would leave unanswered the issue whether a cause of action existed against

the retailers, the controlling question in this case. We have found no Alabama case,

nor have the parties referred us to any decided under the AEMLD involving cigarettes.

The Alabama cases cited by the parties involve different products. See Atkins v.

American Motors Corp., 335 So.2d 134 (Ala. 1976) (automobile product liability

case); Allen v. Delchamps, Inc., 624 So.2d 1065 (Ala. 1993) (celery hearts).


                                            8
        Two published federal district court opinions have looked at the specific

question before us with differing conclusions. In Clay v. Brown & Williamson, 77

F.Supp. 2d 1220 (M.D. Ala. 1999), the court granted plaintiff’s remand motion,

determining that the affidavit from a licensed pharmacist and former employee of a

cigarette distributor not a defendant in the case regarding the superior knowledge of

retailers was sufficient to give plaintiff a viable AEMLD claim against retail

defendants. Clay, at 1225. The court in Wakeland v. Brown & Williamson, 996

F.Supp. 1213 (S.D. Ala. 1998), reached a contrary result, denying plaintiff’s motion

to remand where the case involved non-diverse distributor defendants. The court

determined that the distributor defendants were fraudulently joined because there was

“‘no possibility’ that the plaintiff could establish any cause of action against them.”

Wakeland, 996 F.Supp. at 1217(citation omitted).           The court concluded that

defendants involved only in distributing and selling cigarettes are entitled to the

defense of lack of causal relation as a matter of law. See Wakeland, 996 F.Supp. at

1218.

        If the complaint states a cause of action against retailers, there is no federal

jurisdiction based on diversity. We would then vacate and remand to the district

court with instructions to remand the case to state court. We would not reach the

merits of the claim against the manufacturers. If the complaint does not state a cause


                                            9
of action against the retailers, the plaintiff and the remaining defendants are diverse

and jurisdiction properly rests with the Court. We would then review the merits of the

appeal against the favorable judgments for the manufacturers, which would be

impacted by the Alabama Supreme Court’s response to the certified questions in

Spain.

         Accordingly, we respectfully certify the following question to the Alabama

Supreme Court pursuant to Alabama Rule of Appellate Procedure 18:

         WHETHER THERE IS ANY POTENTIAL CAUSE OF ACTION
         UNDER ANY THEORY AGAINST ANY RETAIL DEFENDANTS
         INCLUDING THOSE THAT EMPLOY PHARMACISTS WHO SELL
         CIGARETTES FOR CLAIMS BROUGHT UNDER THE ALABAMA
         EXTENDED MANUFACTURER’S LIABILITY DOCTRINE, OR
         PREMISED ON NEGLIGENCE, WANTONNESS, OR CIVIL
         CONSPIRACY UNDER ALABAMA LAW.

         Our phrasing of the question is not intended to restrict the scope or inquiry by

the Supreme Court of Alabama. As we have stated recently in Spain v. Brown

&Williamson, 230 F.3d 1300 (2000):

                [T]he particular phrasing used in the certified question is
               not to restrict the Supreme Court's consideration of the
               problems involved and the issues as the Supreme Court
               perceives them to be in its analysis of the record certified in
               this case. This latitude extends to the Supreme Court's
               restatement of the issue or issues and the manner in which
               the answers are to be given, whether as a comprehensive
               whole or in subordinate or even contingent parts. Blue
               Cross & Blue Shield of Alabama, 116 F.3d at 1414 (quoting
               Martinez v. Rodriguez, 394 F.2d 156, 159 n. 6 (5th

                                             10
            Cir.1968) (citations omitted)). That means, among other
            things, that if we have overlooked or mischaracterized any
            state law issues or inartfully stated any of the questions we
            have posed, we hope the Alabama Supreme Court will feel
            free to make the necessary corrections.
Spain, 230 F.3d at 1312.

      The entire record, including the briefs of the parties, is transmitted herewith.

      QUESTION CERTIFIED.




                                          11
