Parker et al v. Lowe's Home Centers, Inc. et al
MEMORANDUM OPINION AND ORDER that Plfs' 6 Motion to Remand is GRANTED, and that this action is REMANDED to the Circuit Court of Coffee County, Alabama, pursuant to 28 USC § 1447(c); DIRECTING the Clerk to take appropriate steps to effect the remand. Signed by Chief Judge William Keith Watkins on 10/29/2013. (wcl, ) Modified on 10/29/2013 to reflect the copies of the opinion and docket sheet were mailed to the circuit clerk (wcl, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
CHARLES PARKER, et al.,
LOWE’S HOME CENTERS,
INC., et al.,
) CASE NO. 1:13-CV-553-WKW
MEMORANDUM OPINION AND ORDER
Before the court is Plaintiffs’ motion to remand this removed action back to
the Circuit Court of Coffee County, Alabama. (Doc. # 6.) The motion has been
fully briefed. (Docs. # 7, 13.) After careful consideration of the motion and the
relevant law, the court finds that Plaintiffs’ motion to remand is due to be granted.
I. STANDARD OF REVIEW
Federal courts owe a “strict duty” to exercise the limited jurisdiction
Congress confers on them. Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716
(1996); see also Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994) (Federal courts “possess only that power authorized by Constitution and
statute.”). The law favors remand where federal jurisdiction is not absolutely clear,
and courts must construe removal statutes narrowly. Miedema v. Maytag Corp.,
450 F.3d 1322, 1329 (11th Cir. 2006). “In evaluating a motion to remand, the
removing party bears the burden of demonstrating federal jurisdiction.” Triggs v.
John Crump Toyota, Inc., 154 F.3d 1284, 1288 n.4 (11th Cir. 1998) (citing
Pacheco de Perez v. AT & T Co., 139 F.3d 1368, 1373 (11th Cir. 1998)).
The 28 U.S.C. § 1441(a) removal in this case rests on 28 U.S.C. § 1332(a).
Diversity jurisdiction “requires that no defendant . . . be a citizen of the same state
as any plaintiff.” MacGinnitie v. Hobbs Group, LLC, 420 F.3d 1234, 1239 (11th
Cir. 2005). Even if complete diversity is lacking “on the face of the pleadings,” a
defendant may remove “an action . . . if the joinder of the non-diverse party . . .
[was] fraudulent.” Triggs, 154 F.3d at 1287 (citing Tapscott v. MS Dealer Serv.
Corp., 77 F.3d 1353, 1355 (11th Cir. 1996), abrogated on other grounds by Cohen
v. Office Depot, Inc., 204 F.3d 1069 (11th Cir. 2000)). Where the joinder is
fraudulent, the court “must dismiss the non-diverse defendant and deny any motion
to remand the matter back to state court.” Florence v. Crescent Res., LLC, 484
F.3d 1293, 1297 (11th Cir. 2007).
A defendant’s joinder is deemed fraudulent when no “reasonable possibility”
exists that the plaintiff can establish a cause of action against the non-diverse
defendant. Legg v. Wyeth, 428 F.3d 1317, 1324 (11th Cir. 2005); Stillwell v.
Allstate Ins. Co., 663 F.3d 1329, 1332 (11th Cir. 2011).
The removing party bears the burden of proving fraudulent joinder by “clear
and convincing evidence,” Stillwell, 663 F.3d at 1332, and this burden is a “heavy
one.” Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997) (citation and
internal quotation marks omitted). A court examines fraudulent joinder based on
the plaintiff’s pleadings at the time of removal, but it also “may consider affidavits
and deposition transcripts submitted by the parties.” Id.; see also Legg, 428 F.3d
at 1324. Additionally, the court construes “the factual allegations in the light most
favorable to the plaintiff.” Crowe, 113 F.3d at 1538. In this way, the inquiry
resembles that required on a motion for summary judgment; however, the inquiry
differs in that the court may not “weigh the merits of a plaintiff’s claim beyond
determining whether it is an arguable one under state law.”
ambiguity or doubt about the substantive state law favors remand to state court.”
Id. at 1539.
On Sunday, February 10, 2013, Plaintiffs Gloria and Charles Parker, who are
husband and wife, went shopping for a new rug at Lowe’s in Enterprise, Alabama.
Plaintiffs were browsing in the aisle where rolled rugs were stacked and stored on
high shelving. All of a sudden, one of the “large rolled up rug[s] fell from a shelf
and hit [Mrs. Parker] on the head and neck.” (Compl. ¶ 7.) As a result, Mrs.
Parker suffered serious physical injuries, requiring surgeries and other extensive
medical treatment. (Compl. ¶¶ 8, 17.) In this lawsuit, Mrs. Parker sues Lowe’s
and Robert Parker, the store manager, to recover for her injuries.1
The store manager was off duty that Sunday and not present in the store. He
was responsible, however, for implementing store policies, training and
supervising employees with respect to “proper stacking techniques,” monitoring
the condition of stacked merchandise, and warning customers of known safety
hazards. (Compl. ¶ 11.) The store manager had a “duty to maintain the Lowe’s
store premises in a reasonably safe condition for anticipated use by the public,”
and he knew or should have known that the “stacking of large, unsecured
merchandise in high locations on shelving” created unsafe conditions for Lowe’s
customers. (Compl. ¶¶ 11, 12.) As to the particular rug that fell on Mrs. Parker,
Plaintiffs allege that the store manager knew or should have known that the
unsecured rug could fall and injure a customer because the rug’s “unsafe and
dangerous position . . . had existed for a sufficient period of time.” (Compl. ¶ 13.)
The Complaint, originally filed in the Circuit Court of Coffee County,
contains two counts alleging claims under Alabama law. Count One alleges that
Lowe’s and the store manager breached their duty of care owed to Mrs. Parker by
negligently or wantonly failing to maintain the Lowe’s Enterprise store in a
There is no indication in the record that Plaintiffs Charles Parker and Gloria Parker are
related to the store manager, Robert Parker. To avoid confusion, the court refers to Robert
Parker simply as the “store manager.”
reasonably safe condition and that their breach proximately caused her injuries.
Count Two is Mr. Parker’s loss-of-consortium claim. The present motion concerns
only the claims in Count One against the store manager.
Defendant Lowe’s Home Centers, Inc., timely removed this action from
state court, pursuant to 28 U.S.C. §§ 1332(a), 1441, and 1446. Lowe’s contends
that Plaintiff fraudulently joined the store manager, the sole non-diverse defendant,
because there is no possibility under Alabama law that they can establish a cause
of action against an off-duty store manager for negligence or wantonness. Lowe’s
is a North Carolina corporation with its principal place of business in North
Carolina. (Compl. ¶ 5.) Although both Plaintiffs and the store manager are
Alabama citizens, Lowe’s contends that Plaintiffs fraudulently joined the store
manager and that, in his absence, there is complete diversity.
In support of removal, Lowe’s supplements the facts with an affidavit from
the store manager who confirms that “on the date” of Mrs. Parker’s injuries, he
“was not on duty and in fact not even in the store.” (Store Manager’s Aff. 1 (Doc.
# 2-1).) He attests further:
I had no duties or responsibilities which related in any way to the
operation of the store in question at the time of the incident made the
basis of this lawsuit. I did not personally participate in the creation of
any condition cited in the litigation, and I was not in charge of the store
at the time of the incident made the basis of the Plaintiffs’ claims.
(Store Manager’s Aff. 1.)
The propriety of removal in this premises liability case hinges upon whether
Plaintiffs fraudulently joined the store manager to defeat diversity jurisdiction.
Lowe’s argues that there is no reasonable possibility of establishing a cause of
action against the store manager for negligence or wantonness.
It says it is
“unaware of any Alabama court that has addressed the issue of whether a corporate
employee, by simple virtue of his title of manager, can be held personally liable in
a premises liability action when he was not present in the store [n]or on duty when
the incident occurred.” (Def.’s Br. 7.) According to Lowe’s, Alabama “cases
allowing individual liability for a corporate employee require[ ] some direct
participation in the mechanism of the injury, which requires physical presence in a
premises liability case.” (Def.’s Br. 10–11.)
Plaintiffs counter that the mere “fact that [the store manager] was not in the
store when the injury occurred does not relieve him of liability for actions prior to
that time.” (Pls.’ Br. 5–6.) They contend that under Defendant’s logic, if a store
manager observed “a large puddle of water on the floor of an aisle,” ignored it, and
went home, he would escape liability when in his absence a customer slipped and
fell on the wet floor. (Pls.’ Br. 6.) Plaintiffs assert that there are ample allegations
establishing the store manager’s personal participation in the accident through
dereliction of his managerial duties in the days and weeks preceding February 10,
2013, and based upon his “individual conduct” in improperly stacking and securing
merchandise. (Pl.’s Br. 6.)
Both parties agree that Kimbrough v. Dial, a Northern District case
addressing a motion to remand, accurately states Alabama law: “[A]n agent of the
corporation cannot be held individually liable for a corporation’s negligent or
wrongful acts unless [he] contributed or participated in them.” No. 06-0585, 2006
WL 3627102, at *5 (S.D. Ala. Dec. 11, 2006) (citing Ex parte McInnis, 820 So. 2d
795, 798–99 (Ala. 2001) (“A corporate agent who personally participates, albeit in
his or her capacity as such agent, in a tort is personally liable for the tort.”); Ex
parte Charles Bell Pontiac-Buick-Cadillac-GMC, Inc., 496 So. 2d 774, 775 (Ala.
1986) (“In Alabama, the general rule is that officers or employees of a corporation
are liable for torts in which they have personally participated, irrespective of
whether they were acting in a corporate capacity.”)).
The parties disagree,
however, on how Alabama law defines personal participation in a premises
liability case where the store manager is off-duty when the accident occurs.
McInnis and Charles Bell are not premises liability cases, but Kimbrough is.
In Kimbrough, the plaintiff slipped and fell on a slippery substance on the floor of
a business establishment.
She brought Alabama common-law claims for
negligence and wantonness against the business and the store manager, seeking to
recover for the injuries she suffered in the fall. The defendants removed the action
on the basis of diversity jurisdiction and the fraudulent joinder of the store
The defendants argued that the store manager had not personally
contributed to the plaintiff’s injuries and, thus, that no reasonable possibility
existed of a claim against the store manager. The court disagreed. It found that the
defendants had not met their burden of showing that the allegations – namely, that
the store manager “personally failed to maintain the store in a reasonably safe
condition, that she personally failed to warn [the plaintiff] of the unreasonably
dangerous condition, and that she personally caused or allowed the unreasonably
dangerous condition to exist” – were “insufficient as a matter of law to satisfy
Alabama’s ‘personal participation’ prerequisite for personal liability for a
corporate agent.” Kimbrough, 2006 WL 3627102, at *5. Accordingly, the court
remanded the case, finding that the defendants had not met their burden of
demonstrating the fraudulent joinder of the non-diverse defendant. See id.
Here, Plaintiffs make similar allegations. They allege that, prior to the date
of Mrs. Parker’s injuries, the store manager fell short in his duties pertaining to
implementing store policies, training and supervising employees in how to stack
merchandise properly, warning customers of safety hazards, and monitoring the
store’s safety, and that those deficiencies ultimately resulted in the rug toppling
down on Mrs. Parker. These allegations do not hinge liability solely on a title, but
rather on what the store manager did and failed to do to contribute to Mrs. Parker’s
The store manager’s affidavit does not contradict Plaintiffs’ allegations. The
affidavit restricts the time frame of the store manager’s lack of control over the
store’s operations to the “time of the incident,” but the store manager’s supervisory
and other shortcomings of which Plaintiffs complain occurred prior to that time.
Moreover, in his affidavit, the store manager does not deny that at that time of the
incident he was the store manager (albeit absent from the store) or that in the days
preceding the time of the incident, he was the store manager. He also does not
deny that he had supervisory responsibilities similar or identical to those attributed
to him by Plaintiffs, nor does the store manager deny that he was aware of the
manner in which the rugs were stacked.
Furthermore, the store manager’s
assertion that he “did not personally participate in the creation of any condition
cited in the litigation” is a legal conclusion that is insufficient to amount to factual
support. Cf. Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991) (A nonmoving
party may not defeat summary judgment by “simply relying on legal conclusions
or evidence which would be inadmissible at trial. The evidence presented cannot
consist of conclusory allegations or legal conclusions.” (internal citation omitted)).
Finally, while perhaps it can be implied from Kimbrough that the store
manager was present in the business establishment on the day the plaintiff slipped
and fell (at least there was no allegation that the store manager was absent),
Lowe’s provides no citation of authority to support its argument that under
Alabama law, “personal participation” requires the “physical presence” of an onduty manager (Def.’s Br. 10–11), and the court is aware of none. Finally, to the
extent that there is any ambiguity under Alabama law as to whether under the facts
alleged in this case, the store manager may be held liable for Mrs. Parker’s injuries
despite his absence, on a fraudulent joinder analysis, that ambiguity must be
resolved in Plaintiffs’ favor. See Crowe, 113 F.3d at 1539.
Lowe’s has not met its heavy burden on removal to prove that Plaintiffs
fraudulently joined the store manager. 2 This action must be remanded.
Based on the foregoing, it is ORDERED that Plaintiffs’ motion to remand
(Doc. # 6) is GRANTED, and that this action is REMANDED to the Circuit Court
of Coffee County, Alabama, pursuant to 28 U.S.C. § 1447(c). The Clerk of the
Court is DIRECTED to take appropriate steps to effect the remand.
DONE this 29th day of October, 2013.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
Because the presence of the store manager destroys diversity jurisdiction, the court need
not address the parties’ arguments with regard to § 1332(a)’s amount-in-controversy
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