Otey v. Retzer Resources Inc et al

Filing 25

ORDER granting 11 Plaintiff Nokia Otey's motion for remand because this court lacks subject matter jurisdiction. Otey can amend her complaint to name the correct manager once the case is returned to the Phillips County Circuit Court. Signed by Chief Judge Brian S. Miller on 5/23/2017. (kdr)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
EASTERN DIVISION
NOKIA OTEY
v.

PLAINTIFF
CASE NO. 2:17CV00007 BSM

RETZER RESOURCES, INC.,
RETZER, LLC,
THE RETZER GROUP, INC., and
SHARENA GILLIAM

DEFENDANTS
ORDER

Plaintiff Nokia Otey’s motion for remand [Doc. No. 11] is granted because this court
lacks subject matter jurisdiction.
Otey filed suit in the Phillips County Circuit Court claiming she was injured as a result
of eating food purchased at the West Helena McDonald’s restaurant. She alleged that the
McDonald’s is owned, managed, operated, directed, and controlled by defendants Retzer
Resources, Inc. (“Retzer Resources”), Retzer, LLC (“Retzer”), and The Retzer Group, Inc.
(“Retzer Group”) and managed by defendant Sharena Gilliam. See Compl., Doc. No. 2.
Retzer Resources removed to this court on the basis of diversity of citizenship. 28
U.S.C. § 1332(a)(1). Notice ¶ 5, Doc. No. 1. Otey seeks remand because she, Retzer, Retzer
Group, and Gilliam are residents of Arkansas. Br. Supp. Mot. Remand 3, Doc. No. 12; see
also Compl. ¶¶ 3–9 (alleging citizenship). In response to Otey’s motion to remand, Retzer
Resources argues that Retzer, Retzer Group, and Gilliam were fraudulently joined and
therefore their citizenship should be disregarded. Def.’s Resp. Pl.’s Mot Remand ¶¶ 2, 5,
Doc. No. 18.

Diversity of jurisdiction requires complete diversity “so that no defendant is a citizen
of the same state as any plaintiff.” Walker v. Norwest Corp., 108 F.3d 158, 161 (8th Cir.
1997) (citations omitted). A plaintiff, however, “cannot defeat a defendant’s ‘right of
removal’ by fraudulently joining a defendant who has ‘no real connection with the
controversy.’” Knudson v. Sys. Painters, Inc., 634 F.3d 968, 976 (8th Cir. 2011) (quoting
Chesapeake & Ohio Ry. Co. v. Cockrell, 232 U.S. 146, 152 (1914)). “Fraudulent joinder
occurs when a plaintiff files a frivolous or illegitimate claim against a non-diverse defendant
solely to prevent removal.” In re Prempro Prods. Liab. Litig., 591 F.3d 613, 620 (8th Cir.
2010) (citation omitted). To establish fraudulent joinder, Retzer Resources must show there
is no “reasonable basis in fact or law to support a claim against the non-diverse
defendant[s].” Id. “State law must be analyzed to determine whether there is a reasonable
factual and legal basis for the claim against the non-diverse defendant; however, the question
is ultimately one of federal law.” Duncan v. Exxon Mobil Corp., 968 F. Supp. 2d 996, 9991000 (E.D. Ark. 2013) (quotation omitted).
Otey asserts two claims against Gilliam, individually, as the manager of the West
Helena McDonald’s. See Compl. ¶¶ 31–48. A corporate employee can be sued, individually,
when she is personally involved in the events surrounding an injury. Bayird v. Floyd, 344
S.W.3d 80, 84 (Ark. 2009). Of course the manager responsible for supervising the people
who prepared the food that made Otey sick can be sued individually. The problem with
Otey’s claims against Gilliam, however, is that the record clearly shows that Gilliam was not

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on duty the day that Otey purchased the food. See Def.’s Br. Supp. Resp. Pl.’s Mot. Remand
15, Doc. No. 17; see also id., Ex. C (monthly schedule showing Gilliam not scheduled to
work the day Otey purchased the food).
Otey’s motion for remand is granted, however, because failing to do so would be akin
to choosing form over substance. While it is clear that Gilliam was not on duty the day Otey
purchased the food that made her sick, it is also clear that this problem can be rectified by
permitting Otey to amend her complaint to correctly name the manager on duty, who is sure
to be an Arkansas resident. To save time and money, remand is granted now, and Otey can
amend her complaint to name the correct manager once the case is returned to the Phillips
County Circuit Court.
IT IS SO ORDERED this 23rd day of May 2017.
________________________________
UNITED STATES DISTRICT JUDGE

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