Phillips v. Graoch Associates #55 Limited Partnership et al

Filing 17

ORDER granting 7 Motion to Remand and REMANDING CASE TO Circuit Court of Miller County, Arkansas. Signed by Honorable Paul K. Holmes, III on July 19, 2011. (cap)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
CRYSTAL PHILLIPS, as administrator
of the Estate of Charles Harriston
Ezekiel Matthew, Deceased
v.

PLAINTIFF

No. 4:11-CV-04003

GRAOCH ASSOCIATES #55 LIMITED
PARTNERSHIP, and JUDY GOSSETT

DEFENDANTS
ORDER

Currently before the Court are the Plaintiff’s Motion to
Remand (Doc. 7) and supporting documents, Defendants’ Response
(Doc. 9) and supporting documents, and Plaintiff’s Reply (Doc. 11).
Plaintiff argues that this Court does not have jurisdiction over
this lawsuit because Plaintiff and Separate Defendant Judy Gossett
are citizens of Arkansas and therefore not diverse. Defendants
argue that Plaintiff fraudulently joined Ms. Gossett as a Defendant
to

improperly

defeat

diversity

jurisdiction.

For

the

reasons

reflected herein, Plaintiff’s Motion to Remand (Doc. 7) is GRANTED.
I.

Discussion
On August 9, 2010, Crystal Phillips’ fifteen year old son died

as a result of a catastrophic brain injury he received in a
swimming pool

at

the Fox

Creek

apartment

complex

located

in

Texarkana, Arkansas on August 5, 2010. On December 13, 2010,
Plaintiff, the administrator of the child’s estate, filed suit in
state court against the owner of the apartment complex, Graoch
Associates #55 Limited Partnership and the apartment manager, Judy
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Gossett. Both Plaintiff and Separate Defendant Judy Gossett are
citizens of Arkansas. Plaintiff alleges that Defendants negligently
designed, built, operated, and maintained the pool and pool area,
and, as a result of the alleged negligence, the child suffered
catastrophic brain injury resulting in his death. Defendants filed
their Notice of Removal on January 11, 2011, alleging fraudulent
joinder of Ms. Gossett to defeat federal diversity jurisdiction.
Plaintiff filed her Motion to Remand on January 24, 2011.
Generally, “federal courts, as opposed to state trial courts
of general jurisdiction, are courts of limited jurisdiction marked
out by Congress.” Aldiner v. Howard, 427 U.S. 1, 15, 96 S.Ct. 2413,
49 L.Ed.2d. 276 (1976). Federal courts must strictly construe the
federal removal statute, and resolve all doubts about federal
jurisdiction in favor of remand. Transit Casualty Co. v. Certain
Underwriters at Lloyd’s of London, 119 F.3d 619, 625 (8th Cir.
1997). An action may be removed to federal court only if it
presents a federal question or if diversity jurisdiction exists. 28
U.S.C. § 1441. “As the party seeking removal and opposing remand,
[defendant] has the burden of establishing federal subject matter
jurisdiction.” McNutt v. Gen. Motors Acceptance Corp., 298 U.S.
178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Hatridge v. Aetna
Cas. & Sur. Co., 415 F.2d 809, 814 (8th Cir. 1969); In re: Business
Men’s Assurance Co. of Am., 992 F.2d 181, 183 (8th Cir. 1993).
Defendants assert that the joinder of Separate Defendant
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Gossett was “improper or fraudulent, in order to defeat diversity.”
(Doc. 9). Joinder is fraudulent and removal is proper “when there
exists no reasonable basis in fact and law supporting a claim
against the resident defendants.” Menz v. New Holland N. Am., Inc.
440 F.3d 1002, 1004 (8th Cir. 2006); Wiles v. Capitol Indemnity
Corp., 280 F.3d 868, 871 (8th Cir. 2002). See also In re Prempro
Products Liability Litigation, 591 F.3d 613 (8th Cir. 2010). Courts
review fraudulent joinder challenges to determine “whether there is
arguably a reasonable basis for predicting that the state law might
impose liability based upon the facts involved.” Filla v. Norfolk
Southern Ry. Co., 336 F.3d 806, 811 (8th Cir. 2003). The relevant
inquiry in analyzing fraudulent joinder focuses on whether a
plaintiff “might” have a “colorable” claim under state law against
a fellow resident. Wilkinson v. Shackelford, 478 F.3d 957, 964 (8th
Cir. 2007).
Plaintiff asserted a negligence claim against Ms. Gossett
based on an agency relationship with the other Defendant, Graoch
Associates

#55,

Limited

Partnership.

Generally,

Arkansas

law

imposes liability upon parties shown to be negligent in their acts
or

omissions

if

damages

result

as

a

proximate

cause

of

the

negligence. Paragraph 10 of Plaintiff’s Complaint alleges that
“Graoch’s agents and/or employees, including but not limited to
Judy Gossett”, breached their duty to the child by “negligently
designing, building, operating and maintaining the pool and pool
Page 3 of 4

area” which caused the death of the child.
The allegations contained in the Plaintiff’s complaint are
sufficient to state a cause of action for negligence against Ms.
Gossett upon which liability could result. Although Plaintiff’s
complaint is not as artful as it might have been, the Court finds
that there is a reasonable basis in fact and law supporting a claim
against Ms. Gossett. See Junk v. Terminex Intern. Co., 628 F.3d 439
(8th Cir. 2010). The Court has no difficulty predicting that an
Arkansas court might impose liability on Ms. Gossett based on the
allegations contained in the complaint.
II.

Conclusion
It is the finding of this Court that Judy Gossett, a citizen

of Arkansas, is properly joined as a defendant in the instant case.
Accordingly, Plaintiff’s Motion to Remand (Doc. 7) is GRANTED. This
case shall be remanded forthwith to the Circuit Court of Miller
County, Arkansas.

IT IS SO ORDERED this 19th day of July, 2011.

/s/ Paul K. Holmes, III
PAUL K. HOLMES, III
UNITED STATES DISTRICT JUDGE

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