694, 699-702 (5th Cir.1999) (“[A] federal court may consider ‘summary judgment-type evidence such as affidavits and deposition testimony’ when reviewing a fraudulent joinder claim.”); Pampillonia v. RJR Nabisco. Inc., 138 F.3d 459, 461-62 (2d Cir.1998) (examining facts in plaintiffs affidavit to conclude that no cause of action existed against defendant). Affidavits and other types of evidence used at summary judgment may help determine whether a “factual fit [exists] between the plaintiffs’ allegations and the pleaded theory of recovery.” Griggs, 181 F.3d at 701; see AIDS, 903 F.2d at 1003. While such evidence should not be used to resolve uncertain questions of law and fact, some evidence must exist in the record to substantiate the cause of action. Compare Hartley, 187 F.3d at 425 (<HOLDING>) with AIDS, 903 F.2d at 1003 (affirming that
holding that district court should not have made determination concerning novel application of public duty rule to plaintiffs claims recognizing district court application of the same rule holding a district courts application of supplemental jurisdiction is a doctrine of discretion not of plaintiffs right holding that a court of appeals should review de novo a district courts determination of state law holding that courts of appeals should review all aspects of the district courts rule 11 determination for abuse of discretion and noting that the district court has broad discretion to impose rule 11 sanctions