Brazell v. General Motors, LLC (Lawyers Weekly No. 002-067-15, 9 pp.) (Timothy Cain, J.) 6:14-cv-04588; D.S.C.
Holding: Defendant General Motors, LLC, argues that, after an initial failed attempt at service, plaintiff has not actively litigated this case against South Carolina defendant-seller Goforth Auto, Inc.; however, under South Carolina law, plaintiff still has the option to attempt service against Goforth (who, plaintiff alleges, should have removed her decedent’s pickup truck from the stream of commerce). GM has not carried the heavy burden required to establish fraudulent joinder.
The court grants plaintiff’s motion for a remand to state court.
It is not inherently bad faith to use strategy to defeat federal jurisdiction. Just as a plaintiff who wants a federal forum can forego valid claims against nondiverse defendants to create complete diversity, plaintiffs can forego federal causes of action to defeat federal question jurisdiction, limit recoverable damages to avoid meeting the amount-in-controversy requirement, or allege a colorable claim against a nondiverse defendant. However, plaintiffs like Brazell who bring an action against a nondiverse defendant must keep the removal spoiler on board through trial to avoid the bad-faith exception.