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
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