Opinion
Case No. 5:09-CV-228 (HL).
February 24, 2010
ORDER
This matter is before the Court on the Motion to Dismiss Kevin McCuen (Doc. 9) (the "Motion") filed by Wal-Mart Stores East LP, Wal-Mart Stores East Inc. and Wal-Mart Stores Inc. (the "Wal-Mart Defendants"). For the following reasons, the Motion is denied.
The Wal-Mart Defendants filed this motion to dismiss Defendant McCuen on the theory that he was fraudulently joined. "Fraudulent joinder is a judicially created doctrine that provides an exception to the requirement of complete diversity." Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998). Fraudulent joinder is "[t]he filing of a frivolous or otherwise illegitimate claim against a non-diverse defendant solely to prevent removal. . . ." Brooks v. Paulk Cope, Inc., 176 F.Supp. 1270, 1273 (M.D. Ala. 2001). In this case, the question of defeating removal by joining Defendant McCuen is irrelevant because, pursuant to this Court's Orders (Docs. 19 23), this case was properly removed based on diversity of citizenship subject matter jurisdiction. Therefore. the question of fraudulent joinder is moot and the Motion (Doc. 9) is denied.