          Case: 16-13363   Date Filed: 03/28/2017   Page: 1 of 11


                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-13363
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 2:13-cv-00628-KS-SRW



JOSEPH J. BROADWAY,

                                             Plaintiff - Appellant,

versus

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,

                                             Defendant - Appellee.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Alabama
                     ________________________

                            (March 28, 2017)



Before JORDAN, ROSENBAUM, and EDMONDSON, Circuit Judges.
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PER CURIAM:



       Plaintiff Joseph Broadway appeals (1) the denial of Plaintiff’s motion to

remand to state court; (2) the denial of Plaintiff’s motion for leave to file an

amended complaint; and (3) the grant of summary judgment in favor of Plaintiff’s

insurer, State Farm Mutual Automobile Insurance Company (“State Farm”). No

reversible error has been shown; we affirm.

       This appeal arises out of a car collision, in which the car driven by Plaintiff

was struck by a negligent driver. That the other driver was at fault and that

Plaintiff suffered serious injuries as a result of the accident are undisputed.

       On the day of the accident, Plaintiff’s car was insured under an automobile

insurance policy (“Policy”) issued by State Farm, which included uninsured

motorist (“UIM”) benefits. 1 Plaintiff recovered $25,000 from the at-fault driver’s

automobile insurance company: the coverage limit. Plaintiff then filed a claim for

UIM benefits under his Policy with State Farm; he contended that his damages

exceeded the amount recovered from the at-fault driver’s insurance. Plaintiff

sought to recover the full coverage amount of his UIM benefits under the Policy --

$25,000, but State Farm offered Plaintiff only $5,000 in satisfaction of his claim.



1
 Under both the terms of the Policy and under Alabama law, the term “uninsured motorist”
includes “underinsured” motorists. See Lowe v. Nationwide Ins. Co., 521 So. 2d 1309, 1309 n.1
(Ala. 1988).
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      Plaintiff filed this civil action against State Farm in Alabama state court,

purporting to assert claims for breach of contract, bad faith, and for fraud. Plaintiff

also purported to assert a fraud claim against Shane Anderson, the State Farm

insurance agent from whom Plaintiff purchased his Policy.

      State Farm removed the action to federal court. The district court dismissed

Plaintiff’s fraud claims for failure to state a claim. The district court later granted

summary judgment on Plaintiff’s claims for breach of contract and for bad faith

and dismissed the remainder of the complaint, without prejudice, for lack of

subject-matter jurisdiction. This appeal followed.



I. Motion to Remand



      On appeal, Plaintiff contends the district court erred in concluding that he

failed to state a claim for fraud against Anderson: a non-diverse defendant. As a

result, Plaintiff argues that the district court denied erroneously his motion to

remand the case to state court based on a lack of complete diversity.

      “When a defendant removes a case to federal court on diversity grounds, a

court must remand the matter back to state court if any of the properly joined

parties in interest are citizens of the state in which the suit was filed.” Henderson

v. Wash. Nat’l Ins. Co., 454 F.3d 1278, 1281 (11th Cir. 2006). If, however, “a


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plaintiff names a non-diverse defendant solely . . . 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.” Id. In

pertinent part, a defendant seeking to prove a non-diverse co-defendant was joined

fraudulently must show -- by clear and convincing evidence -- that “there is no

possibility the plaintiff can establish a cause of action against the resident

defendant.” Id. We review de novo the district court’s denial of a motion to

remand. Id.

      In his complaint, Plaintiff alleged that Anderson committed fraud by

representing falsely to him -- through State Farm’s advertising slogan -- that State

Farm would treat Plaintiff like a “Good Neighbor.” The district court concluded

that State Farm’s advertising slogan was “mere opinion or puffery” and, thus,

constituted no statement of material fact. We agree.

      To state a claim for fraud under Alabama law, a plaintiff must allege --

among other things -- “a misrepresentation of a material fact.” Allstate Ins. Co. v.

Eskridge, 823 So. 2d 1254, 1258 (Ala. 2001) (emphasis added). The Alabama

Supreme Court has said that “statements of opinion amounting to nothing more

than ‘puffery’ . . . are not statements concerning material facts upon which

individuals have a right to act and, therefore, will not support a fraud claim.”

Fincher v. Robinson Bros. Lincoln-Mercury, Inc., 583 So. 2d 256, 259 (Ala. 1991).


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      Under the circumstances of this case and viewed in the light most favorable

to Plaintiff, we cannot say that State Farm’s advertising slogan -- “like a good

neighbor, State Farm is there” -- is a representation of a material fact. The

advertising slogan, instead, constitutes nothing more than a statement of opinion or

“puffery.” See, e.g., Bellsouth Mobility, Inc. v. Cellulink, Inc., 814 So. 2d 203,

217 (Ala. 2001) (representation that company was “committed to its agents”

constituted “puffery” and was no statement of material fact); Fincher, 583 So. 2d at

259 (statements that a car would be a “fine car,” “would be dependable and

reliable,” “was well-suited for [plaintiff’s] purposes,” and “was well and properly

constructed” were mere “puffery” or predictions about the anticipated performance

of the car, not statements of material fact). Because Plaintiff failed to allege a

misrepresentation of material fact, the district court concluded correctly that

Plaintiff failed to state a claim under Alabama law for fraud. Given the lack of a

viable claim against Anderson, federal diversity jurisdiction existed; and the

district court committed no error in denying Plaintiff’s motion to remand.



II. Motion for Leave to Amend



      Plaintiff next challenges the district court’s denial of his motion for leave to

amend his complaint. Plaintiff sought to add an amended claim of fraud against


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State Farm and Anderson and also to add claims against Anderson for fraudulent

suppression and for negligent procurement of insurance.

      We review for abuse of discretion the district court’s refusal to grant leave to

amend a complaint. Thomas v. Farmville Mfg. Co., 705 F.2d 1307, 1307 (11th

Cir. 1983).

      About Plaintiff’s proposed amended fraud claim, the district court concluded

the claim was barred by the court’s earlier order dismissing with prejudice

Plaintiff’s fraud claim for failure to state a claim. Contrary to Plaintiff’s argument

on appeal, the proposed amended fraud claim -- similar to Plaintiff’s initial fraud

claim -- also relied in substance on State Farm’s “Good Neighbor” advertising

slogan, which Plaintiff understood to mean that State Farm would treat its

customers fairly and reasonably. Especially given the similarity between

Plaintiff’s initial and proposed amended fraud claims, the district court abused no

discretion in concluding that Plaintiff’s proposed amended fraud claim was barred.

      Looking at Rule 9(b), the district court also determined that Plaintiff’s

proposed claim for fraudulent suppression (if added) would be subject to dismissal.

In Plaintiff’s proposed amended complaint, the “facts” Plaintiff alleged that

Anderson failed to disclose consisted only of conclusory allegations about State

Farm’s supposed pattern and practice of misconduct. These allegations constituted

no “material facts.” Moreover, Plaintiff failed to allege that Anderson in fact knew


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about the information he allegedly failed to disclose. For these reasons, we agree

with the district court’s determination that Plaintiff failed to state a cause of action

for fraudulent suppression under Alabama law. See Code of Ala. § 6-5-102

(fraudulent suppression under Alabama law involves the “[s]uppression of a

material fact which the party is under an obligation to communicate”); McGowan

v. Chrysler Corp., 631 So. 2d 842, 847 (Ala. 1993) (“A party must have knowledge

of a fact in order to be liable for its suppression.”). Because Plaintiff’s fraudulent

suppression claim would have been subject to dismissal, the district court abused

no discretion in denying -- as futile -- the proposed amendment.

      The district court also abused no discretion in determining that Plaintiff

failed to state a claim for negligent procurement of insurance. The proposed

amended complaint contained no allegation -- and nothing evidences -- that

Anderson failed to procure Plaintiff the insurance coverage that Plaintiff requested

and that Anderson agreed to provide. Plaintiff alleges, instead, only that Anderson

failed to advise Plaintiff to purchase an insurance policy with higher coverage

limits for UIM benefits. Because Plaintiff has failed to allege sufficiently that

Anderson breached a duty owed to Plaintiff, Plaintiff can state no cause of action

for negligent procurement of insurance under Alabama law. Cf. Highlands

Underwriters Ins. Co. v. Elegante Inns, Inc., 361 So. 2d 1060, 1065 (Ala. 1978)

(once the parties agree on the insurance to be procured, the insurance agent is


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under a duty to “exercise reasonable skill, care, and diligence in effecting

coverage,” and may be held liable for negligence if he fails to fulfill that duty);

Crump v. Geer Bros., Inc., 336 So. 2d 1091, 1093-94 (Ala. 1976) (sufficient

evidence existed to support a finding that the insurance agent owed a duty to

procure “complete and adequate” coverage where the insurance agent had several

detailed discussions with the insured about the nature of the insured’s business and

the necessity of adequate insurance, had access to the insured’s financial records,

and examined personally the insured’s warehouses).

      On this record, the district court abused no discretion in denying Plaintiff

leave to amend his complaint.



III. Summary Judgment



      Plaintiff next challenges the district court’s grant of summary judgment in

favor of State Farm on Plaintiff’s claims for breach of contract and for bad faith.

We review de novo the district court’s grant of summary judgment; we view the

evidence and all reasonable factual inferences in the light most favorable to the

nonmoving party. Hollowell v. Mail-Well Corp., 443 F.3d 832, 836 (11th Cir.

2006).




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      Alabama courts have made clear that “[t]here can be no breach of an

uninsured motorist contract, and therefore no bad faith, until the insured proves

that he is legally entitled to recover.” See, e.g., LeFevre v. Westberry, 590 So. 2d

154, 158 (Ala. 1991). To show that he is “legally entitled to recover,” Plaintiff

“must be able to establish fault on the part of the uninsured motorist, which gives

rise to damages and must be able to prove the extent of those damages.” See

Pontius v. State Farm Mut. Auto. Ins. Co., 915 So. 2d 557, 564 (Ala. 2005).

Absent a preexisting determination about the extent of a plaintiff’s damages, a

claim for breach of contract or for bad-faith is filed prematurely and must be

dismissed, without prejudice, for lack of subject-matter jurisdiction. Id.

      The record establishes the existence of a dispute between Plaintiff and State

Farm about the extent of Plaintiff’s damages. In support of his demand for the full

UIM policy limits, Plaintiff asserted that his damages exceeded $50,000.

Plaintiff’s lawyer, however, reported to State Farm that Plaintiff had incurred

“medical bills totaling $5,194.37 and loss of income totaling $6,385.06.” And the

medical records supplied by Plaintiff indicated that Plaintiff would likely have

some permanent disability but was “recovering satisfactorily” and would likely not

require surgery. Based on this information, State Farm valued Plaintiff’s entire

claim against the at-fault driver as being worth between $20,000 and $30,000.




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      In July 2012, State Farm sent Plaintiff a letter in which State Farm

acknowledged that the parties had been unable to agree on an amount of damages;

and State Farm made an “initial offer” of $5000. State Farm also indicated its

willingness to engage in continued negotiations and to consider “any and all new

information you may have that could affect our evaluation.” Thereafter, Plaintiff

cashed the $5000 check but engaged in no further negotiations nor submitted

additional documentation of his damages.

      “[W]here the evidence of the extent of damages is disputed, the insured has

not proven . . . that he is ‘legally entitled to collect’” for purposes of proving a

claim for breach of contract or for bad faith. LeFevre, 590 So. 2d at 160. Because

undisputed evidence in the record establishes that the amount of Plaintiff’s

damages was still in controversy when Plaintiff filed this civil action, Plaintiff had

not yet proved the amount to which he was “legally entitled to recover.” As a

result, Plaintiff’s claims for breach of contract and for bad faith -- as a matter of

Alabama law -- were filed prematurely and were subject to dismissal without

prejudice for lack of subject-matter jurisdiction. See Ex parte Safeway Ins. Co. of




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Ala., Inc., 990 So. 2d 344, 352 (Ala. 2008); Pontius, 915 So. 2d at 564. 2

       AFFIRMED.




2
 We reject Plaintiff’s contention that the district court was precluded -- by that court’s earlier
order denying State Farm’s motion to dismiss Plaintiff’s claims on ripeness grounds -- from
determining at the summary judgment stage that Plaintiff’s claims were unripe. The District
Court’s own order could not preclude that court simply from changing its mind: “law of the
case” doctrine inapplicable. See, e.g., Robinson v. Parrish, 720 F.2d 1548, 1550 (11th Cir. 1983)
(“New developments or further research often will convince a district court that it erred in an
earlier ruling, or the court may simply change its mind. We believe it would be wasteful and
unjust to require the court to adhere to its earlier ruling in such an instance.”). Moreover, each
stage of the proceedings involves different considerations and burdens. Thus, that a complaint
alleges sufficiently facts to withstand a motion to dismiss says nothing about whether a
plaintiff’s claim will survive ultimately a motion for summary judgment.
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