McLain v. Walmart Inc.

Filing 25

OPINION. Signed by Honorable Judge Myron H. Thompson on 11/25/2024. (LAB)

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
LEAH Y. McLAIN,

)
)
Plaintiff,
)
)
v.
)
)
WALMART, INC., dba Walmart )
Neighborhood Market,
)
)
Defendant.
)

CIVIL ACTION NO.
2:24cv267-MHT
(WO)

OPINION
After being struck by boxes that fell off a Walmart
employee’s

moving

cart,

plaintiff

Leah

Y.

McLain

brought this lawsuit for negligence and wantonness in
an Alabama state court against defendant Walmart, Inc.
Walmart then removed the case to this federal court,
see 28 U.S.C. § 1441, asserting diversity jurisdiction.
See 28 U.S.C. § 1332.
This court now has under submission two motions:
(1)

McLain’s

motion

to

amend

her

complaint

to

join

Walmart employee Danny Johnson; and (2) her motion to

remand.

For the following reasons, both motions will

be granted.

I. ALLEGED FACTUAL BACKGROUND
In early January 2022, McLain had back surgery.
Two months later, in early March, her doctor noted that
her

recovery

was

going

well,

her

pain

was

greatly

recovery

would

reduced, and her surgical site was healing.
But

the

trajectory

of

McLain’s

change in April, when she was shopping at a Walmart
Neighborhood Market in Montgomery, Alabama.
was

shopping,

a

Walmart

employee

was

While she
steering

a

“rolling truck cart overloaded with boxes that toppled
over” and fell on her legs.

Compl. (Doc. 1-2) ¶3.

The

boxes bruised McLain’s legs, caused her back pain, and
aggravated her pre-existing back injuries.

Over the

next few days, she visited several doctors, who noted
that the incident caused her severe pain and interfered
with her post-surgical recovery.
2

Eventually, McLain’s

doctors

responded

by

having

her

take

a

course

of

injections from September 2022 to January 2023 to try
to resolve her pain.
incident,

her

The week after the moving cart

attorney

notified

Walmart

to

preserve

evidence of the incident.
Then, in January 2023, McLain’s attorney contacted
Walmart

again,

offering

medical

records

in

to

exchange

provide
for

it

with

McLain’s

information

on

what

evidence was preserved, any witness statements, and the
name of the employee who was pushing the moving cart.
The attorney contacted Walmart once more a few weeks
later, reattaching the earlier message, indicating the
attorney did not receive the “[requested] items or a
sufficient

reply,”

and

threatening

suit.

See

Pl.’s

Mot. Disc. Ex. A (Doc. 5-1), at 2.
In June, after the injections failed to remedy her
pain, McLain had another back surgery.

All in all, she

allegedly accrued $ 122,849.96 in medical expenses.

3

II. PROCEDURAL BACKGROUND
In

March

2024,

McLain

filed

a

complaint

in

an

Alabama state court, asserting a claim of negligence
and

wantonness

against

Walmart

defendants (A, B, and C).

and

three

fictitious

Walmart was served in April

and then removed the case to this federal court in May.
In July, McLain filed a motion for discovery in
this

court,

requesting

that

Walmart

identity of “Fictitious Defendant A.”

disclose

the

See Pl.’s Mot.

Disc (Doc. 5).

As the discovery motion was filed prior

to

conferring

the

denied

parties
as

premature.

See

under

Rule

26(f),

Order

Denying

it

was

Pl.’s

Mot.

Discovery (Doc. 15), at 1 (discussing Fed. R. Civ. P.
26(d)(1)).
Eventually,

in

September,

after

discovery

commenced, Walmart disclosed to McLain’s attorney the
identity

of

“Fictitious

Defendant

Danny Johnson, an Alabama citizen.

A,”

now

known

as

Three days later,

McLain filed a motion to amend her complaint to join
4

Johnson as a defendant, as well as a motion to remand
this

case

back

to

state

court

for

lack

of

subject-matter jurisdiction.

III. DISCUSSION
As stated, the court now has before it two motions:
(1)

McLain’s

motion

to

amend

her

complaint

to

join

Walmart employee Johnson as a defendant; and (2) her
motion

to

remand

to

state

court

for

state

court

lack

of

may

be

subject-matter jurisdiction.
A

civil

action

brought

in

removed by a defendant to federal court if it could
have

been

instance.

brought

in

federal

court

See 28 U.S.C. § 1441(a).

in

the

first

In this case, as

stated, removal was pursuant to diversity jurisdiction,
which

requires

the

amount

in

controversy

to

exceed

$ 75,000, exclusive of interest and costs, and complete
diversity of citizenship between the parties.
U.S.C.

§

1332(a).

For

complete
5

diversity,

See 28
all

the

plaintiffs in a case must have diverse citizenship from
all the defendants.

See Lincoln Prop. Co. v. Roche,

546 U.S. 81, 89 (2005).
under

28

U.S.C.

The party seeking removal has,

§ 1446,

the

burden

of

establishing

jurisdiction. See Williams v. Best Buy Co., 269 F.3d
1316, 1319 (11th Cir. 2001).
The record reflects that, at the time of removal,
McClain was a citizen of Alabama and Walmart was a
citizen of Delaware (its place of incorporation) and
Arkansas (its principal place of business).
purposes

of

removal

§ 1441(b)(1)
defendants

based

provides
sued

disregarded.”

under

on

that

diversity,
“the

fictitious

And, for
28

U.S.C.

citizenship

of

names

be

shall

When the case was removed, this court,

had subject-matter jurisdiction because at the time of
removal there was complete diversity of citizenship.
However, at any time after removal, a party may
move to remand the case to state court due to a lack of
subject-matter jurisdiction.
6

See 28 U.S.C. § 1447(c);

Lowery v. Alabama Power Co., 483 F.3d 1184, 1214 n. 64
(11th

Cir.

defendant,
Johnson

2007).
Danny

and

Here,

Johnson,

McLain

are

McLain
an

seeks

Alabama

both

to

join

citizen.

citizens

of

a
As

Alabama,

Johnson’s joinder would destroy complete diversity, for
the plaintiff and a defendant would be citizens of the
same State.

Consequently, this court would be deprived

of federal jurisdiction.
When a plaintiff seeks to join a defendant whose
presence would destroy subject-matter jurisdiction, a
federal court may permit joinder and remand the action
or deny joinder and retain jurisdiction.
§ 1447(e)).

Determining

whether

See 28 U.S.C.

joinder

should

be

permitted requires the court to balance the equities by
considering four factors: “[1] the extent to which the
purpose

of

the

amendment

is

to

defeat

federal

jurisdiction, [2] whether plaintiff has been dilatory
in asking for amendment, [3] whether plaintiff will be
significantly injured if amendment is not allowed, and
7

[4]

any

other

Hensgens

v.

factors

Deere

(5th Cir. 1987).
Fifth

Circuit

&

bearing
Co.,

on

833

the

F.2d

equities.”
1179,

1182

While Hensgens is a case from the
Court

of

Appeals,

this

court

has

repeatedly found its approach compelling.

See, e.g.,

Woodham

1:08cv207,

v.

2008

Wal-Mart

WL

Stores

E.,

1971382

L.P.,

No.

(M.D. Ala. May 2, 2008)

(Thompson, J.)).
Upon considering these Hensgens factors, the court
concludes that McLain should be permitted to join Danny
Johnson.

First, the purpose of amending the complaint

does not appear to be to defeat federal jurisdiction.
An important consideration in determining the purpose
of joinder, is whether Johnson might be independently
liable to McLain.

See, e.g., Schur v. L.A. Weight Loss

Centers, Inc., 577 F.3d 752, 764-67 (7th Cir. 2009).
In this case, Johnson may be independently liable
to McLain.

Under

Alabama

law,

an

“employer

may

be

held vicariously liable for the intentional tort of its
8

employee or agent if the plaintiff produces sufficient
evidence showing ‘that [1] the agent's wrongful acts
were in the line and scope of his employment; or [2]
that the acts were in furtherance of the business of
[the employer]; or [3] that [the employer] participated
in,

authorized,

or

ratified

the

wrongful

acts.’”

Synergies3 Tec Servs., LLC v. Corvo, 319 So. 3d 1263,
1273 (Ala. 2020) (quoting Potts v. BE & K Constr. Co.,
604 So. 2d 398, 400 (Ala. 1992)) (citations omitted).
Yet, an employer’s vicarious liability does not relieve
the

employee

Liberty

Nat.

(Ala. 1987).

of

his

Life

own

Ins.

Rather,

liability.
Co.,

the

514

So.

employee

See

Grimes

v.

2d

965,

968

may

still

be

independently liable to an allegedly wronged person if
the employee breaches a duty he owed to that person.
See id.
Here,

McLain

asserts

a

claim

for

Johnson may independently owe her.
Centers,

Inc.

v.

Laxson,
9

655

So.

a

duty

that

See Lowe’s Home
2d

943,

947

(Ala. 1994).

She contends that Johnson injured her by

negligently and wantonly operating the moving cart.

At

a minimum, McLain may be able to prove Johnson was
negligent

because

he

breached

his

duty

to

reasonable care in operating the moving cart.

exercise
See id.

Nevertheless, Walmart argues that the purpose of
joining

Johnson

is

to

destroy

jurisdiction

because

joining him does not provide “any additional avenues”
for

relief

provide.”

“beyond
See

what

Walmart

Walmart’s

may

Response

be

required

(Doc. 23)

to
¶7.

Walmart explains that it is vicariously liable for the
actions of employees acting within the scope of their
employment.

Correspondingly,

it

contends

that,

if

Johnson were acting in his scope of employment, then
Walmart would be responsible and provide the exact same
relief as Johnson.

Accordingly, Walmart contends that

the purpose of adding Johnson is not to bring a claim
against him, but rather to destroy complete diversity.

10

However, elsewhere and critically, Walmart disputes
that Johnson was acting in the scope of his employment.
Compare

Walmart’s

Answer

(Doc. 2),

¶¶ 3,7-8

McLain’s Complaint (Doc. 1-2), ¶¶ 3,7-8.
if

it

were

not

vicariously

liable

with

Resultingly,
for

Johnson’s

actions, then suing Johnson would not be an additional
avenue of relief, but rather McLain’s only avenue of
relief.
Citing Smart v. Circle K Stores, Inc., Walmart also
contends

that

McLain’s

simultaneous

filing

of

her

motion to amend with her motion to remand indicates
that

the

motion

to

amend

diversity jurisdiction.

is

intended

to

destroy

No. 2:24CV73, 2024 WL 4184071

(M.D. Ala. Sept. 9, 2024)

(Pate, M.J.),

report

and

recommendation adopted, No. 2:24CV73, 2024 WL 4363142
(M.D. Ala. Sept. 30, 2024)
misunderstands Smart.

(Thompson, J.).

Walmart

In Smart, the plaintiff knew the

identities of the parties she sought to join prior to
filing her original complaint, and intentionally did
11

not name them.

See id. at *5-7.

What mattered was the

context in which the motions were simultaneously filed,
not that they were filed simultaneously--which does not
inherently

imply

anything.

In

that

context,

the

simultaneous filing was further circumstantial evidence
that joinder was intended to destroy jurisdiction.
id.

See

Contrastingly, McLain did not know Johnson’s name

prior

to

discover

filing
it.

suit

despite

Moreover,

McLain

repeated

efforts

generally

to

described

Johnson as “Fictitious Defendant A” in her original,
state-court complaint and sought to join him three days
after discovering his name.

See Dever v. Fam. Dollar

Stores

755

of

Georgia,

(11th Cir. 2018).

LLC,
In

this

F.

App’x

context,

866,

869

simultaneously

filing both motions seems more like an attempt to save
time than to destroy federal jurisdiction.
Second, McLain has not been dilatory in seeking an
amendment.
discover

For over a year and a half, she tried to

Johnson’s

name

from
12

Walmart.

Moreover,

as

already explained, she generally described Johnson as a
fictitious

defendant

in

her

original,

state-court

complaint and quickly sought to amend after discovering
his name.
Third,

McLain

would

be

significantly

joinder were not permitted.
relief

from

Johnson,

her

injured

if

If she wishes to seek

only

source

of

relief

if

Johnson were found to be acting outside the scope of
his employment, would be to litigate parallel state and
federal cases.

That parallel litigation would increase

her legal costs and risk spawning inconsistent results.
See Hensgens, 833 F.2d at 1182.
Finally,
McLain

to

other

amend.

equitable
This

factors

case

is

in

favor

allowing

its

infancy,

discovery recently began, no dispositive motions have
been filed, and parallel litigation would waste money
and expend the time of two courts rather than one.

13

IV.
For

motion

for

leave to file an amended complaint will be granted.

As

the

the

foregoing

CONCLUSION

addition

deprive

this

of

reasons,

Danny

Johnson

court

of

McLain’s

as

a

federal

defendant

will

subject-matter

jurisdiction, McLain’s motion to remand will also be
granted once the amended complaint has been filed.
Appropriate orders will be entered.
DONE, this the 25th day of November, 2024.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

14