[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 11, 2003
No. 00-10963 THOMAS K. KAHN
CLERK
________________________
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
_________________________
(August 11, 2003)
Before RONEY and HILL, Circuit Judges.1
1
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 Savings & Loan Ins. Corp. v. D & D Golfview Properties, Inc., 874 F.2d
1509 (11th Cir.1989) Although not a necessary requirement for the quorum’s consideration of
this case, we note that there had been no oral or written exchange between the judges about this
case prior to oral argument, and that immediately after oral argument, Judge Black excused
PER CURIAM:
On June 13, 2001, we issued an opinion in this case in which, inter alia, we
asked the Alabama Supreme Court to answer a certified question regarding the
interpretation of Alabama law concerning the liability of retailers who sell cigarettes.
See Tillman v. R. J. Reynolds Tobacco, 253 F.3d 1302, 1307-08 (11th Cir. 2001).
Federal jurisdiction of this case turns on the answer to our certified question because,
as we stated, “If the complaint states a cause of action against retailers, there is no
federal jurisdiction based on diversity.” Id. at 1307. The question is as follows:
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.
In its response, the Alabama Supreme Court answered our certified question
in the affirmative as to the claims against retail defendants premised on negligence
and wantonness, rejecting the retail defendants’ argument that Tillman’s negligence
and wantonness claims merge into her Alabama Extended Manufacture’s Liability
herself from any discussion of the merits of the case or of the procedures to be followed in
connection herewith.
2
Doctrine statutory claims. See Tillman v. R. J. Reynolds Tobacco Co., et al., No.
1001644, slip op. at 14-15 (Ala. June 30, 2003). With potential state law claims
against the three Alabama retail defendants, the district court erroneously asserted
federal jurisdiction on the ground that they had been fraudulently joined.
As we explained in our June 13, 2001 opinion, If there is a possibility that a
state court would find that the complaint states a cause of action against any of the
resident defendants, the federal court must find that the joinder was proper and
remand the case to the state court. Tillman, 253 F.3d at 1305.
We deny Reynolds’ motion for leave to file a supplemental brief addressing the
Alabama Supreme Court’s recent decision in Spain v. Brown & Williamson Tobacco
Corp., No. 1000143 (Ala. June 30, 2003), which relates to the merits of the claims
asserted against the manufacturers, over which the federal court has no jurisdiction
because of the absence of the requisite complete diversity.
We vacate and remand to the district court with instructions to remand the case
to the state court.
VACATED AND REMANDED WITH INSTRUCTIONS TO REMAND TO
STATE COURT FOR FURTHER CONSIDERATION.
3