*2 BLACK, Before EDMONDSON and Judges, RONEY, Circuit Senior Circuit Judge.
EDMONDSON, Judge: Circuit Plaintiffs-Appellants appeal from the dis- trict court’s denial of their motion for re- Superior mand to the County, Court of Cobb grant and from summary for Defendant Daniel Coleman. Because the district court erred in conclud- ing that Plaintiffs possible could maintain no cause of action Georgia-resident De- Coleman, fendant we reverse the district court’s denial of Plaintiffs motion for re- mand. Because the case must be returned to we vacate the award summary judgment. Background
I. Crowe, Jr., Plaintiffs are Arthur Edith Ingram Crowe and Eleanor Kiefling. To- gether they parcel own a in Georgia. land Plaintiffs Superior filed suit Court of County against Cobb Defendants Crown Sta- tions, (“Crown”), subsidiary Inc. of Crown Corporation, Central Petroleum and Daniel Coleman. Jurisdiction in state court was Coleman, based on who is a resident. § See O.C.G.A. 9-10-30. In their Coleman, alleged as the cur- adjoining rent owner of the land property, Crown, owner, as the former damages were liable for caused to Plaintiffs by escape from Defendants’ property. onto Plaintiffs’ Defen- copy dant Coleman was served with a 29,1995. September On October Defendants filed a notice of removal of the case to the District Court for Georgia; the Northern District of Defen- alleged Georgia-resident dants Defen- dant fraudulently joined Coleman had been diversity jurisdiction. to defeat On Novem- Barnes, Marietta, Roy GA, E. for Plain- ber Defendant Coleman submitted mo- tiffs-Appellants. tion for judgment, claiming that he Stephen Doolan, O’Day, Mary E. Maclean did support not cause Plaintiffs’ harm. Smith, Russell, Atlanta, GA, motion, Gambrell & Coleman submitted his own affi- Defendants-Appellees. davit and engineer. the affidavit of a Crown that, although court makes these determinations based Crown al said
These affidavits pleadings at the time of station on operated service formerly removal; adjacent to Plaintiffs’ consider affida- land underground storage transcripts deposition submitted stored vits and (USTs), removed those USTs were tanks parties. Id. *3 became the ground before Coleman
from the property. Coleman swore owner of proceeding appropriate for While “the that, ownership, his he during his affidavit joinder resolving a claim fraudulent any petroleum release of “never caused the ruling similar on motion for to that used for a property [that Atlanta Rd. at the S. products summary under Fed.R.Civ.P. judgment is, land].” his own 56(b),” 9, jurisdictional inquiry id. at n. determina “must not subsume substantive 13, for Plaintiffs moved Also on November again, at and over tion.” Id. 550. Over arguing that remand to state “the must certain of for nuisance trial court claim stress stated a valid jurisdiction embarking upon law. Defen- a safa against under its responded contending judgment Plain- dants ri in search of a merits.” only alleged a cause of action complaint considering tiffs’ a motion Id. 548-49. When and, if a nuisance been trespass for remand, weigh courts are not federal alleged, that Plaintiffs could succeed on beyond plaintiff’s merits of a claim deter against On Novem- nuisance claim Coleman. mining arguable one under it is an whether 30, amend their com- Plaintiffs moved to ber possi “If a state law. See Id. there even expressly a cause of action for plaint to state bility a court would find that the 11, 1996, January On district nuisance. against any complaint a of action states cause (1) denying Plaintiffs’ an order court issued defendants, one of the resident federal court, concluding motion to remand to state joinder proper and court must find that was es- possibility Plaintiffs could there was to state court.” Coker v. remand case (2) Coleman; tablish a cause of action (11th Co., 1433, 1440-41 Amoco Oil 709 F.2d denying motion to amend the com- Cir.1983), superseded by on other statute (3) futile; granting Defendant plaint as Manor, Georgetown grounds as stated in judgment. motion Coleman’s Allen, (11th Inc., 1533 Inc. v. Ethan 991 F.2d Cir.1993).
II. Discussion consequence given the This makes sense A. Law Remand The joinder, plaintiff “absent fraudulent law that join alleging forum, In a removal case fraudulent right to elect has the to select der, removing party has the burden of joint prose- whether to sue tortfeasors and (1) possibility is no proving that either: way final own suit his own a cute his plaintiff can establish New York determination.” Parks v. The (2) defendant; the resident Cir.1962). Co., (5th 478 Times fraudulently pled jurisdictional plaintiff has of removal statutes The strict construction bring into facts to the resident defendant plaintiff prevents “exposing the also v. Fruit state court. Cabalceta Standard that he will win final (11th Cir.1989). Co., F.2d court, only in federal to have it determined removing party is a burden jurisdiction on that the court lacked remov- Co., B, “heavy Brewing Inc. v. Miller one.” Works, al,” Phillips see Iron Inc. v. Cowart (5th 1981). A Cir. Unit Co., Inc., 740, 744 F.Supp. Constr. (S.D.Ga.1981) Wright, A (quoting 14A C. To whether the ease should be determine Cooper, E. Miller & Federal Practice remanded, court must evaluate 3721), costly § Procedure result that is fight allegations the factual most favor- plaintiff, just for the but for all the any able and must resolve society and for when the must relit- uncertainties about state substantive law plaintiff. igated. Id. at The feder- favor of the ’Arguments Parties multiple
B. The When defendants are named in a allegations usually can be and argue that removal of this ease are to way be read such a that each required, improper and that remand is having defendant the allegation made Plaintiffs have stated a valid nui- because individually. that, about him We also note Defendant Coleman.1 sance requirements under the liberal of notice arguments challenging Defendants make two pleading, technical pleading “[n]o forms of First, Plaintiffs’ nuisance claim. Defendants 8(a); ... required.” See Fed.R.Civ.P. argue that Plaintiffs’ at the time of 9-11-8(a)(2)(A). § O.C.G.A. only trespass stated á claim for removal expressly did not state a claim for nuisance. “trespass,” although The word it can mean Second, argue if Plain- Defendants even action, specific form tort can also mean *4 complaint of tiffs’ otherwise stated a cause wrongful entry upon “a the lands of another” nuisance, possibility for no exists or an “encroachment or intrusion.” The Plaintiffs can establish a claim nuisance Dictionary Random House English the of against Coleman Georgia under law. (2d 1987). So, Language although ed. complaint including Plaintiffs’ unamended — Adequacy Pleading 1. of Plaintiffs’ for paragraph might capable be of more 12— Nuisance Claim meaning, complaint easily than one the complaint Plaintiffs’ be read a sworn to be statement that Cole- one, is, gasoline a verified oath in man under has allowed from his to land (and says, respect complaint wrongfully to the facts. intrude in- The to continue to trude) among things: property on other Plaintiffs’ and to contami- more,
nate land. Plaintiffs’ Once a seeking to have his case remanded to state 8. given every is to the be benefit of escape have The defendants allowed the of reasonable inference in his favor. gasoline property prop- from their onto the erty plaintiffs. the of Georgia
2. Claim Nuisance Under Law 9. must We now decide whether the allowing The actions the defendants in alleged facts Plaintiffs’ state gasoline escape property to and their arguable even an cause action under Geor property plaintiffs to travel onto the of the gia “yes.” law. The answer is trespass damages may is for which be Georgia contend that Defendants law cre- permanently awarded which should be ates no of action landowner enjoined. for the to abate a failure nuisance property caused his where the landowner
12. again, did not the nuisance: one create plaintiffs upon gasoline spill have made demands claims that Coleman caused to And, proper- Georgia the defendants to remove from the onto his land. case law But, ty gasoline they of the defendants point the in conflict on this issue. at this is, trespass procedural history have allowed to and contaminate the of the case—that (as remand, plaintiffs’ property analysis the contin- on a our which motion for well court’s) do ues to so. The defendants’ failure to so as must be limited accompanying an determining remove whether Plaintiffs have even So, prevents arguable any ambiguity contamination claim. or doubt salable, being re- about the substantive state law favors added). mand to court. state Although complaint alleged gia pe So, Plaintiffs’ a tres law because Coleman did not cause the Defendants, pass including property. all claim troleum to be released onto his Coleman, acknowledge solely for remand relies trespass Geor Coleman under nuisance claim. Georgia 41-1-5(a) obligated predict Su pro how Georgia Code
Section
person owning prop
rule
this issue
preme
of a
Court would
“The alienee
vides:
Supreme
for con
injured may
Georgia
maintain an action
erty
certify
question
determining
the alienee
nuisance
wheth
purposes
tinuance
For
Court.
is re
causing the nuisance
be remanded
er this ease should
guid
provides no
however,
The statute
sponsible.”
inquiry by
judges
federal
alienee,
as Cole
an
such
about whether
go
ance
far:
must
so
man, may
responsible for a nuisance
be held
only
This is an Erie
problem
part,
case,
in no act —in this
engaged
he
where
diversity situation a
part.
usual
initially
petroleum
caused
storage of
—which
Court, no matter how difficult the
Federal
notice,
he, after
refuses to
nuisance if
(and
task,
apply) what
ascertain
then
must
continuing nuisance:
in this
abate
question
But
the state law is----
here
adjoin
his
seeping from
land
arguably
a reasonable
is whether
to no
ing
land. The
the state law
predicting
basis
that has decided the
Supreme Court case
liability on
facts involved.
might impose
issue.2
exists,
good faith
If that
asser-
Court of
party relies on
Each
expectancy in a state court
tion of such an
support
argument.
its
De-
Appeals case to
sham,
and is not
not a
colorable
*5
& Southern Trust
Citizens
point to
fendants
fraudulent
in fact or
law.
Co.,
Phillips Petroleum
Ga.App.
v.Co.
Suleski,
Apartments v.
Bobby Jones Garden
426,
499,
(1989),
where the
385 S.E.2d
(5th Cir.1968) (citations
172, 176-77
rejected
plaintiffs’
claim
the
nuisance
court
omitted).
case,
arguable
In this
the
confu
adjoining
against
subsequent
the
owner of
supports remanding
in Georgia
sion
law itself
property
adjoining
property when
Parks,
court. See
case to
this
subsequent
already
contaminated
its
joinder ease
(noting in fraudulent
at 477
to
did not contribute
the contamina-
owner
law
to absence of
“doubtful
of
due
issues
v. Atlanta
point
to
tion.
Hoffman
by
pronouncements
the state su
definite
Co.,
Light
Ga.App.
Gas
426 S.E.2d
preme court are to be tried
court
(1992),
permitted
the
where
court
jurisdiction
case
having original
of the
the
did
nuisance claim where
defendant
not
pro
not to
determined in a removal
be
the
of the defen-
initial contamination
ceeding.”).
land,
the
con-
preexisting
but where
dant’s
land
tamination
the defendant’s
continued
present
the
In the
neither
words of
plaintiffs’
migrate
property.
to
onto the
we
Plaintiffs’
nor —as
will
verified
of the record
discuss more —the remainder
opinions,
ap
the
these
On
face of
possi-
the
the
court forecloses
district
to
on
pears
be a conflict
this issue
the
bility
already
petroleum,
which
Defendants,
appellate
decisions.
from
property
Defendants’
the
dissent,
leaked onto
Judge Roney
in his
to
tanks,
seep
to
removed
has continued
onto
might
this
distinguish
factors which
during
property
Coleman’s owner-
properly
If this
case were
Hoffman.3
(and
court)
ship
the
site.
un
former service station
Un-
before the district court
jurisdiction,
original diversity
like the
Defendant Coleman’s an-
der
we would
brief,
reject
proposed
3. We do
the
distinctions.
In their
Defendants cite the
Su
not
Cambridge Square
preme
appropriate;
accept
possibly
Court case of Cox v.
We
be
Inc.,
but,
239 Ga.
Seemingly
defendant
case
on the
of Defendants’ affi-
basis
4,
removed to federal court to be
to
the district court
remanded
davits
found
conclud-
court,
undisputed
the
need not
ed it to be
that: “Since at least
show
14, May
...
he could survive in the district court a
petro-
there have been
motion
from,
summary judgment
by
leum releases
the site”
add-
for
filed
that in-state
ed).
“release,”
remand,
plaintiffs
If
as
For
the
used
defendant.
bur
leakage
drawing
or
seepage
lighter
means no
is much
that:
den
than
after
land,5
see
in
we cannot
how that fact
all reasonable inferences from the record
entries,
suppose
might
4.
on the docket
we
have
to
Based
district court
used "release”
hearing
at which the
were allowed to
gasoline
mean no release of
onto the Defendants'
argue was held on the
in the district
motions
undisputed.
land.
own
This fact is
The district
orally
We know
motions are
court.
argued
when
gone
may
court
then have
on to conclude that
(even
pertinent hearing
when the
is for
law allows no cause of action
only
argument
presentation
for the
not one
gasoline,
Coleman even
which had
if
been re-
evidence), important things
happen
sometimes
leased
the
into the soil at
service station site
impact
record—for exam-
factual
interrogating
it,
seeped
before Coleman
owned
onto Plain-
judge
ple,
lawyers
while
the
bought
tiffs’ land after
former ser-
concessions,
stipulations,
and so
obtains
on. But
approach
vice station
neous,
be
site. This
would
erro-
case,
argument
in this
no one has said the oral
entail a
because it would
decision about
paper
court amended
record.
district
And
precedents
law when the state’s
are not
transcript
hearing
in the district
plainly consistent.
So,
part
appellate
is
we
record.
be-
looking
lieve we are
at
factual
the same
record
that was before the
court.
district
releases
resolving all
have been
favor and then
plaintiff’s
”
14,1991.’
May
plain
favor of
the site since
of fact in
issues
contested
tiff,
only
“a reasonable basis
need
be
there
“He
correct
Counsel:
might
im
law
predicting that
the state
for
day
the tanks
no—that was
been
Inc.,
B.,
involved.”
pose liability on the facts
have been
taken out. There could
were
Bobby
Jones Gar
(quoting
Counsel: “On client’s and on nor the remainder the record foreclose the property.” [the defendants’] petroleum has continued to representations plaintiff-ap- For other seep onto Plaintiffs’ property during Cole- timing pellants seepage ownership.” man’s land, gasoline Appellant’s onto their see Brief contrary record, This is the under- page (characterizing at continuing nui- standing Judge Moye, and the gasoline”) admissions exuding page sance as “the and at (“the argument. Moye counsel oral Judge pollutants currently obtruding Plain- undisputed May 1991, recited as that since property represent tiffs’ continuing nui- prior to sance”). Coleman’s ownership: “There have Appellant’s See also Reply Brief at petroleum (“The been releases from the site.” page cause of action Coleman do not stems, dispute ap- fact any not from involvement with the peal. directly When asked about leaky USTs, rather, the accura- passive his cy argument, of this at oral statement coun- acquiescence exudation of sel for said: prove ‘We could not contamination from failing his after way one or the other. I cannot So technical- statutory duty upon Appel- his to abate it ly say that the new flow since Coleman request.”) original). lants’ Therefore, it disputed.” owned the case whole, say Taken as a we cannot presented to this Court is based on this Plaintiff-Appellants’ counsel’s statements undisputed paragraph Judge critical seeped about when onto his Moye’s opinion: consistent, plain clients’ land were so 14, 1991, May Since at least there have favorable to as to make the district been no petroleum products deliveries of error, light court’s of the record before station, the former service there have been it, reality. Again, harmless in if thei’e is site, products sold ambiguity about what Plaintiffs’ counsel has petroleum products there have been no said, Plaintiffs are entitled to the construc- site, stored at the and there have been no tion most favorable to remand. petroleum releases from the site. III. Conclusion facts, undisputed On these *8 Georgia law is clear. If not Coleman did own the doubtful, If removal is we remand the ease. offending or the tanks that caused the con- Therefore, we send this case back to the tamination, responsible he cannot be held district court to remand it to state court.7 the fact that the contaminants remain on the so, doing express view the ultimate plaintiffs’ property. & Citizens So. Trust v. outcome on Georgia’s the merits. Petro., Phillips Ga.App. 385 S.E.2d courts —which have final word on Geor- (1989) (“That 426, 428 there was no reoccur- gia law—will decide all that. underground rence of a leak from the stor- SUMMARY JUDGMENT VACATED. age purchased tanks after [defendants] REVERSED AND REMANDED. undisput- relined the taixks is argument 7. Because we decide that the district court erred Plaintiffs’ that the district court erred by denying by refusing Plaintiffs’ motion for remand based allow Plaintiffs amend their complaint. unamended we do address ed____ did Accordingly, trial court in favor Billy MAGWOOD, granting Petitioner. In re: Joe
err
[defendants].”).
No. 97-1141.
to read
seek
To the extent
Appeals,
States Court
United
Co.,
Light
206 Ga.
v. Atlanta Gas
Hoffman
Eleventh Circuit.
(1992),
con
App.
are tion____ that the alienee of will not hold
We legal duty pipeline has no
the easement and nuisance, particularly continuing
to abate a be agreement in
under the easement effect complain Light [the tween Atlanta Gas at 391.
ing Id. S.E.2d landowners].” added).
(Emphasis In this held, the tanks controlled or owned
never contamination, nor did he
that caused the com any contractual relation with
plaining landowners. they made is that contami- to remove the
demand of Coleman property and that his refusal
nation on their to a nuisance.
to do so amounts authority proposition
There is no of nuisance
by demanding the removal nothing to do with the
someone who had it, things or the
source or maintenance it, create
which caused somehow “continuing” them for
of action
nuisance, any- they have never
thing place. to with the first do presented undisputed facts as
Under the plaintiffs have no appeal, Court Coleman, and the
cause of action correctly ruled.
district court so
I affirm. would