Aswell v. Wal-Mart Stores Inc
MEMORANDUM OPINION. Signed by Magistrate Judge T Michael Putnam on 11/7/18. (MRR, )
2018 Nov-07 PM 02:07
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
LOYAL THOMAS ASWELL,
WAL-MART STORES, INC.,
Case No. 2:18-cv-01171-TMP
This matter is before the court on Walmart Stores, Inc.’s Partial Motion to
Dismiss Plaintiff’s First Amended Complaint filed on July 27, 2018. (Doc. 3).
Walmart Stores, Inc. (“Walmart”) argues that the claims brought pursuant to the
Fourteenth Amendment are due to be dismissed because the plaintiff has failed to
allege that Walmart is a “state actor.” The plaintiff was given until October 1,
2018, to respond to the motion; to date, the plaintiff has not responded. The parties
have consented to dispositive jurisdiction by a United States Magistrate Judge in
accordance with 28 U.S.C. § 636(c). (Doc. 9). Accordingly, the court enters the
following memorandum opinion.
Plaintiff brought this suit in the Circuit Court of Jefferson County, Alabama,
asserting claims of Fourteenth Amendment violation, false imprisonment,
negligence, and negligent hiring, retention, and supervision. The claims all stem
from an incident at a Walmart store where the plaintiff was accused of shoplifting,
detained by a Walmart employee, and arrested by local police. However, the sole
defendant in the case is Walmart. The case was removed by the defendant on
July 27, 2018, asserting diversity jurisdiction.1 (Doc. 1). The defendant filed the
motion to dismiss that is now pending before the court on July 27, 2018. (Doc. 3).
The plaintiff’s response to the motion was due no later than August 16, 2018.
(Doc. 5). The plaintiff failed to respond within the proper time period, and the
court notified the plaintiff that he was to respond by October 1, 2018. The plaintiff
did not respond.
As will be discussed more fully in the text of this Memorandum Opinion, it is not at all
clear that the removing defendant has adequately alleged or proven diversity-of-citizenship
jurisdiction. The court did not raise this issue sua sponte at the time of removal because the
complaint also alleged a federal cause of action, thus creating federal-question subject-matter
jurisdiction at the time of removal. The court unquestionably has subject-matter jurisdiction to
resolve the instant motion to dismiss, whether that be based on § 1331 federal question or § 1332
diversity of citizenship. The remaining state-law claims came within the court’s supplemental
jurisdiction. 28 U.S.C. § 1367(a). However, upon the granting of the Motion to Dismiss Count
One of the complaint, which is the only federal-law claim alleged in it, the court is faced with
assessing the adequacy of its diversity jurisdiction to preclude remanding the case to the state
circuit court pursuant to 28 U.S.C. § 1367(c). If subject-matter jurisdiction existed based only on
a question of federal law, § 1367(c) is applicable; but if diversity jurisdiction also existed at the
time of removal, the court still retains original jurisdiction over the remaining state-law claims
and § 1367(c) is not applicable.
STANDARD OF REVIEW
On a motion to dismiss, the court must accept as true all of the facts alleged
in the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949-51, 173
L. Ed. 2d 868 (2009). Federal Rule of Civil Procedure 8(a) requires only a “short
and plain statement of the claim showing that the pleader is entitled to relief.”
Liberal notice pleading standards embodied in Rule 8(a) “do not require that a
plaintiff specifically plead every element of a cause of action,” Roe v. Aware
Woman Ctr. For Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001), or set out in
precise detail the specific facts upon which he bases his claim. The complaint
must only “contain either direct or inferential allegations respecting all the material
elements necessary to sustain a recovery under some viable legal theory.” Id.
(quoting In re Plywood Antitrust Litigation, 655 F.2d 627, 641 (5th Cir. Unit A
Sept. 8, 1981)).
The Supreme Court clarified the threshold for a sufficient pleading in Bell
Atlantic Corp. v. Twombly. 550 U.S. 544, 570, 127 S. Ct. 1955, 1965 (2007)
(rejecting the standard from Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed.
2d 80 (1957), that any “conceivable” set of facts supporting relief is sufficient to
withstand a motion to dismiss). To show that “the pleader is entitled to relief,”
under Rule 8(a)(2), the complaint must allege facts that “plausibly” demonstrate a
viable cause of action. The threshold of plausibility is met when the plaintiff
“pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). To withstand scrutiny under
Rule 12(b)(6) a plaintiff must plead “enough facts to state a claim to relief that is
plausible on its face,” and that will thus “nudge [his] claims across the line from
conceivable to plausible.” Twombly, 550 U.S. at 570. This requires “more than
labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do.” Twombly, 550 U.S. at 555. The Eleventh Circuit Court of
Appeals has explained that the principles set forth in Twombly and Iqbal require
the complaint to set forth sufficient facts that “raise a right to relief above the
speculative level.” Speaker v. U.S. Dep’t of Health and Human Servs. Centers for
Disease Control and Prevention, 623 F.3d 1371, 1380 (11th Cir. 2010).
I. Motion to Dismiss Count One
Count One of the complaint in this case expressly alleges a claim under the
Fourteenth Amendment to the United States Constitution.
Section 1 of the
Fourteenth Amendment provides:
All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State
wherein they reside. No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within
its jurisdiction the equal protection of the laws.
U.S. Const. amend. XIV, § 1. It is well-settled that the Fourteenth Amendment is
a limitation on the power of States and those who act under the states’ authority as
“state actors.” See District of Columbia v. Carter, 409 U.S. 418, 423, 93 S. Ct.
602, 34 L. Ed. 2d 613 (1973) (citing Civil Rights Cases, 109 U.S. 3, 3 S. Ct. 18, 27
L. Ed. 2d. 835 (1883); United States v. Harris, 106 U.S. 629, 1 S. Ct. 601, 27 L.
Ed. 290 (1883); United States v. Cruikshank, 92 U.S. 542, 23 L. Ed. 588 (1876)).
“The Fourteenth Amendment itself ‘erects no shield against merely private
conduct, however discriminatory or wrongful.’” Id. (quoting Shelley v. Kraemer,
334 U.S. 1, 13, 68 S. Ct. 836, 842, 92 L. Ed. 1161 (1948).
The remedial vehicle for enforcing the rights enshrined in the Fourteenth
Amendment is the cause of action provided by 42 U.S.C. § 1983, which states in
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress, . . . .
Under this statute a plaintiff must demonstrate that the constitutional wrong about
which he or she complains was committed “under color of state law.”
American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50, 119 S. Ct. 977, 143
L. Ed. 2d. 130 (1999); Adickes v. S. H. Kress & Co., 398 U.S. 144, 150 (1970)
(action under § 1983 requires proof of a constitutional deprivation and that the
deprivation occurred “under color of state law”). Private conduct may be properly
regarded as “state action” only where “there is sufficiently close nexus between the
State and the challenged action of the regulated entity so that the action of the latter
may be fairly treated as that of the State itself.” Jackson v. Metropolitan Edison
Co., 419 U.S. 345, 351, 95 S. Ct. 449, 42 L. Ed. 2d 477 (1974) (citing Moose
Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S. Ct. 1965, 32 L. Ed. 2d. 627 (1972).
Also, a private party may be held responsible under § 1983 if he conspires with a
state official to deprive another of constitutionally-guaranteed rights. See Adickes
v. S.H. Kress & Co., 398 U.S. 144, 152 (1970) (“[A] private party involved in such
a conspiracy [with a state actor], even though not an official of the State, can be
liable under § 1983.”); see also Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922,
931 (1982) (citing Adickes in holding that joint action by state officials and private
creditors to attach property for the collection of a debt prior to judgment subjects
private creditors to § 1983 liability).
Taking all of the allegations in the plaintiff’s complaint as true, as the court
must at this juncture of the case, nowhere within the plaintiff’s complaint does he
allege that Walmart acted under color of state law when he claims the company
violated his rights. The plaintiff’s Fourteenth Amendment cause of action states,
in its entirety:
The Fourteenth Amendment states as follows: “All persons born or
naturalized in the United States, and subject to the jurisdiction thereof,
are citizens of the United States and of the state wherein they reside.
No state shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any
state deprive any person of life, liberty, or property, without due
process of the law; nor deny to any person within its jurisdiction the
equal protection of the laws.” As a direct and proximate result of the
unlawful policies and acts of the defendants 2 described herein, the
plaintiff has incurred economic damage including damage to his
reputation and still suffers both physical pain and suffering and
psychiatric injury all to plaintiff’s damage in an amount which
exceeds the jurisdictional monetary threshold of the Court, the
specific amount to be proven at trial, plus reasonable attorneys’ fees,
costs, and disbursements.
(Doc. 1-1, p. 8). This and plaintiff’s other claims stem from his detention by a
Walmart Asset Protection Officer (alleged to be an employee of Walmart) and his
subsequent arrest after he was suspected of shoplifting. Id. at 7. The plaintiff has
The reference in the complaint to “defendants” in the plural follows from the complaint’s
naming as defendants both Walmart and one of its employees (the “Asset Protection Officer
employed at Wal-Mart”) as a fictitious defendant. The complaint does not attempt to name any
police officer or other state actor as a defendant.
not pleaded facts from which the court can conclude plausibly that there is a
sufficiently close nexus between Walmart and the state to attribute Walmart’s
actions to the state, or that Walmart conspired with a state actor to deprive the
plaintiff of his Fourteenth Amendment rights. It is not enough to allege merely
that a Walmart employee initially detained the plaintiff against his will and later
reported to police that the plaintiff had committed a crime. This allegation fails to
allege an agreement or “meeting of the minds” between Walmart and the police to
carry out the purpose of depriving the plaintiff of his rights. Weiland v. Palm
Beach County Sheriff's Office, 792 F.3d 1313, 1327 (11th Cir. 2015) (“To state a
claim for conspiracy under § 1983, a plaintiff must allege that (1) the defendants
reached an understanding or agreement that they would deny the plaintiff one of
his constitutional rights; and (2) the conspiracy resulted in an actual denial of one
of his constitutional rights”) (citing Hadley v. Gutierrez, 526 F.3d 1324, 1332
(11th Cir. 2008)). Absent an agreement to infringe constitutional rights, there was
no actionable conspiracy and Walmart, as a private entity, is not subject to a cause
of action under § 1983. As a result, the plaintiff has failed to state a claim for
which relief can be granted against any named defendant in this action.
Defendant’s motion to dismiss Count One the plaintiff’s claim arising under
the Fourteenth Amendment is due to be granted because the plaintiff has failed to
demonstrate that Walmart is a state actor or otherwise subject to liability under
§ 1983. The court will enter a separate Order dismissing Count One with prejudice
for failure to state a claim for which relief can be granted. In doing so, however,
the question arises whether the court still retains federal subject-matter jurisdiction
over the remaining counts of the complaint or whether the court should decline to
exercise its supplemental jurisdiction under § 1367(c) upon the dismissal of all
II. What Now—Retain or Remand the Case?
Having concluded that the only federal-law claim in the complaint is due to
be dismissed, the court ordinarily would entertain whether to remand the remaining
state-law claims under the authority of 28 U.S.C. § 1367(c)(3). With respect to
supplemental jurisdiction, “[t]he district courts may decline to exercise
supplemental jurisdiction over a claim under subsection (a) if—(1) the claim raises
a novel or complex issue of State law, (2) the claim substantially predominates
over the claim or claims over which the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original
jurisdiction, or (4) in exceptional circumstances, there are other compelling
reasons for declining jurisdiction.”
28 U.S.C. § 1367(c) (bolding added for
emphasis). Thus, if the original jurisdiction of the court were only federal-question
jurisdiction under 28 U.S.C. § 1331, the dismissal of the only federal-law claim in
the action would trigger the exercise of discretion to decline supplemental
jurisdiction over the remaining state-law claims.
In the instant action, however, defendant Walmart removed the case on the
basis not of federal-question jurisdiction, but on diversity-of-citizenship
jurisdiction under 28 U.S.C. § 1332. If it is correct that diversity jurisdiction
exists, the court still retains original jurisdiction over the remaining claims and,
ordinarily, may not simply decline to exercise that jurisdiction by remanding the
state-law claims. 3
The question becomes, therefore, whether the defendant
properly removed the case on the basis of diversity jurisdiction, which the court
must assess sua sponte. “Thus, even if the litigants do not question the court’s
jurisdiction, the court must inquire into its jurisdictional basis sua sponte.” Mirage
Resorts, Inc. v. Quiet Nacelle Corp., 206 F.3d 1398, 1401 (11th Cir. 2000) (citing
University of S. Ala. v. American Tobacco Co., 168 F.3d 405, 410 (11th
Ultimately, it is not clear whether diversity jurisdiction supports this action
or not. In the notice of removal, the defendant alleged that it is a citizen of
Delaware (where it is incorporated) and Arkansas (where its principal place of
Ordinarily, federal courts have a “‘virtually unflagging obligation ... to exercise the
jurisdiction given them.’” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716, 116 S. Ct. 1712,
1720, 135 L. Ed. 2d 1 (1996) (quoting Colorado River Water Conservation Dist. v. United
States, 424 U.S. 800, 821, 96 S. Ct. 1236, 1248, 47 L. Ed. 2d 483 (1976)). However, there can
be “exceptional circumstances” where the denial of a federal forum serves important
countervailing interests. Id. The Colorado River abstention doctrine is an example.
business is located). But with respect to the plaintiff’s citizenship, the notice of
removal states only the following:
According to the Complaint, Plaintiff is a resident citizen of the state
of Virginia. See Complaint, Parties, ¶ 3. Therefore, he is now, and
was at the time of the filing of the complaint, a citizen of Virginia for
diversity of citizenship purposes.
Other than asserting that the plaintiff himself alleged in his complaint that he is a
Virginia citizen, the notice of removal offers no other evidentiary proof of that fact.
Indeed, contrary to the allegation in the notice of removal, paragraph three of the
complaint states only that “Plaintiff Loyell Thomas Aswell (hereinafter “Aswell”)
is a resident in Salem, Virginia.” (Italic added). 4 It clearly does not state that the
plaintiff is a citizen of Virginia. 5 It is well-known, of course, that residency is not
the same as citizenship for purposes of diversity jurisdiction.
allegation in the notice of removal rests entirely on the complaint, which, in fact,
does not support the allegations of the notice, the court is required to inquire
beyond the mere allegation to assess whether there is evidence of the existence of
actual diversity jurisdiction. As the Supreme Court has instructed, “We have
The plaintiff spells his name different ways. In the caption of the complaint, it is spelled
“Loyal,” but in paragraph three of the body of the complaint, it is spelled “Loyell.”
The court notes also that paragraph 11 of the complaint alleges, “The Plaintiff then he
[sic] had to drive from Salem, Virginia, where he lives, and then drive back Four (4) times [sic]
to go to Municipal Court in Adamsville, Alabama.” (Italics added). This adds little to the
jurisdictional determination because it simply confirms that plaintiff’s residence in Virginia, not
interpreted the diversity jurisdiction statute to require courts in certain contexts to
look behind the pleadings to ensure that parties are not improperly creating or
destroying diversity jurisdiction.” Mississippi ex rel. Hood v. AU Optronics Corp.,
571 U.S. 161, 174, 134 S. Ct. 736, 745, 187 L. Ed. 2d 654 (2014).
Consider the case of Travaglio v. American Exp. Co., 735 F.3d 1266
(11th Cir. 2013), where a plaintiff filing suit against several defendants on the basis
of diversity-of-citizenship jurisdiction alleged only that she was a “resident of the
State of Florida.”
The court of appeals, examining jurisdiction sua sponte,
“concluded the allegations of citizenship were ‘fatally deficient’ and that ‘nothing
in the record ha[d] been called to our attention’ that adequately demonstrated the
parties were completely diverse.” Id. at 1268. The court went on to explain:
[T]he allegations in Travaglio’s complaint about her citizenship are
fatally defective. Residence alone is not enough. Denny v. Pironi,
141 U.S. 121, 123, 11 S. Ct. 966, 35 L. Ed. 657 (1891); Taylor, 30
F.3d at 1367 (“Citizenship, not residence, is the key fact that must be
alleged in the complaint to establish diversity for a natural person.”).
“Citizenship is equivalent to ‘domicile’ for purposes of diversity
jurisdiction.” McCormick v. Aderholt, 293 F.3d 1254, 1257 (11th
Cir. 2002). And domicile requires both residence in a state and “an
intention to remain there indefinitely....” Id. at 1258 (internal
quotation marks omitted).
Travaglio v. American Exp. Co., 735 F.3d 1266, 1269 (11th Cir. 2013). The court
of appeals remanded the case to the district court with instructions to dismiss it for
want of subject-matter jurisdiction. In the instant case, if the court lacks diversity
jurisdiction, it would be free to decline supplemental jurisdiction over the
remaining claims and remand the action to state court.
Although Travaglio dealt with jurisdictional allegations in a complaint, the
same is true of notices of removal. Because the removing defendant is the party
who invokes the federal court’s subject-matter jurisdiction, the notice of removal
must allege adequately the “citizenship” of the parties, and alleging residence
alone is not enough. It is true that the notice of removal here alleges that the
plaintiff is a “resident citizen” of Virginia, but there is no factual basis for that
conclusory assertion beyond reference to the complaint. In fact, however, the
complaint does not allege that the plaintiff is a citizen of Virginia; it alleges only
that he “resides” and “lives” there.
Moreover, the unsworn complaint is not
evidence sufficient to prove the fact of the plaintiff’s citizenship.
question exists about jurisdiction, courts “consistently have required some
evidence to assure us jurisdiction exists before we will ignore defective
jurisdictional allegations that the plaintiff [or removing defendant] does not
amend.” Id., citing Williams v. Best Buy Co., 269 F.3d 1316, 1320 (11th Cir.
Based on this authority, it appears in this case that the notice of removal
based on diversity-of-citizenship jurisdiction defectively alleged the citizenship of
Certainly, defective allegations of jurisdiction can be amended
pursuant to 28 U.S.C. § 1653, but evidence proving diversity still must be
Accordingly, the removing defendant Walmart must be given a
reasonably opportunity to show, in fact, that the plaintiff is a citizen of Virginia (or
some State other than Delaware and Arkansas) before the court can reach the
conclusion that no diversity jurisdiction exists.
Based on the foregoing considerations, the defendant’s Motion to Dismiss
Count One of the complaint is due to be granted and Count One dismissed. The
court will enter a separate order to that effect.
It is hereby ORDERED that defendant Walmart Stores, Inc., shall have until
Friday, November 16, 2018, to present to the court any evidence it has to prove
that the plaintiff, Loyal Thomas Aswell, is a citizen of the Commonwealth of
Virginia (or some State other than Delaware and Arkansas), such that actual
diversity of citizenship exists between the parties in this action. In the event a
sufficient showing of diversity is made so that the court has actual diversity-ofcitizenship jurisdiction, the court will retain jurisdiction of the remaining claims.
If a sufficient showing of diversity is not made, the court will decline, under 28
U.S.C. § 1367(c)(3), to exercise supplemental jurisdiction over the remaining state-
law claims and will remand the action to the state court from whence it was
DONE and ORDERED on November 7, 2018.
T. MICHAEL PUTNAM
UNITED STATES MAGISTRATE JUDGE
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