“[T]o determine whether an attempted joinder is fraudulent, the court is not bound by the allegations of the pleadings, but may instead consider the entire record, and determine the basis of joinder by any means available.” AIDS Counseling & Testing Ctrs, v. Grp, W Television, Inc., 903 F.2d 1000,1004 (4th Cir. 1990) (quotation omitted); see Balt. Cnty. v. Cigna Healthcare, 238 Fed.Appx. 914, 920 (4th Cir. 2007) (unpublished); Boss v, Nissan N. Am., Inc., 228 Fed.Appx. 331, 335 (4th Cir. 2007) (per curiam) (unpublished); Mayes, 198 F.3d at 464. The court may take judicial notice of documents attached to the notice of removal.
However, when fraudulent joinder is alleged, a court is permitted to examine the entire record by any means available in order to determine the legitimacy of the claim against the challenged party, including taking into consideration affidavits submitted by the parties. Id., and Boss v. Nissan N. Am., 228 F. App'x 331, 336 (4th Cir. 2007)(unpublished). Here, the defendants do not allege outright fraud in the plaintiff's pleadings.
Comcast cites Boss as holding that "a defendant is fraudulently joined if there is no reasonable basis for predicting that state law might impose liability on the facts involved." Boss v. Nissan North America, Inc., 228 Fed. Appx. 331, 335 (4th Cir. 2007) (per curiam) (emphasis added). However, Comcast overstates the Fourth Circuit's decision in Boss.
Rather, it requires the Court to ascertain whether there is a "reasonable basis for predicting that state law might impose liability on the facts involved." Boss v. Nissan N. Am., Inc., 228 F. App'x 331, 335 (4th Cir. 2007) (citation and internal quotation marks omitted). The Fourth Circuit has admonished courts not to "incorrectly place[] the burden on [the plaintiff] to show that her claims may succeed rather than requiring [the defendant] to negate all possibility of recovery."
Furthermore, Defendants' reliance upon Boss v. Nissan N. Am. Inc., 228 Fed. App'x 331 (4th Cir. 2007) (unpublished) is misguided. In Boss the court faced allegations that a car's power steering system had been negligently designed, leading to a tragic accident.
“The doctrine of fraudulent joinder permits a federal court to ‘disregard, for jurisdictional purposes, the citizenship of certain nondiverse defendants, assume jurisdiction over a case, dismiss the nondiverse defendants, and thereby retain jurisdiction.'” Boss v. Nissan N. Am., Inc., 228 Fed.Appx. 331, 334-35 (4th Cir. 2007) (citation omitted) . To establish fraudulent joinder, the removing defendant “must show that ‘there is no possibility that the plaintiff would be able to establish a cause of action against the in-state defendant, '”
The Fourth Circuit has clarified that this test is met when "there is no 'reasonable basis for predicting that state law might impose liability on the facts involved.'" Boss v. Nissan N. Am., Inc., 228 F. App'x 331, 335 (4th Cir. 2007) (per curiam) (quoting Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir. 2002)).
Rather, "a defendant is fraudulently joined if there is no 'reasonable basis for predicting that state law might impose liability on the facts involved.'" Boss v. Nissan N. Am., Inc., 228 F. App'x 331, 335 (4th Cir. 2007) (per curiam) (quoting Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir. 2002)). The Fourth Circuit also recognizes the nominal party doctrine, which is another exception to the complete diversity requirement.
"[T]o determine whether an attempted joinder is fraudulent, the court is not bound by the allegations of the pleadings, but may instead consider the entire record, and determine the basis of joinder by any means available." AIDS Counseling & Testing Ctrs. v. Grp. W Television, Inc., 903 F.2d 1000, 1004 (4th Cir. 1990) (quotation omitted); see Balt. Cty. v. Cigna Healthcare, 238 F. App'x 914, 920 (4th Cir. 2007) (unpublished); Boss v. Nissan N. Am., Inc., 228 F. App'x 331, 335 (4th Cir. 2007) (per curiam) (unpublished); Mayes, 198 F.3d at 464.
The court finds this factual inconsistency to be irrelevant to the question of whether UHSC possessed any ownership, possession, control, or custody of the U-Haul truck at issue, either directly or through an employment relationship with Smith. Plaintiff does not dispute the affidavits, or allege facts to contradict Pruitt's or Settles' statements. "When the Defendants' affidavits are undisputed by the Plaintiffs, the court cannot resolve the facts in Plaintiff's favor based solely on the unsupported allegations in the Plaintiff's complaint." SeeBoss v. Nissan North America, Inc. , 228 F. App'x 331, 336 (4th Cir. 2007) (citing Legg v. Wyeth , 428 F.3d 1317, 1323 (11th Cir. 2005) ).Plaintiff has not alleged any facts that would allow a court to reasonably infer a legal duty on the part UHSC flowing to Plaintiff.