Cataudella v. Sam's East, Inc. d/b/a Sam's Club et al
ORDER denying 5 Plaintiff's Motion to Remand. See Order for details. Signed by Judge John L. Badalamenti on 4/28/2021. (NM)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
Case No: 2:21-cv-77-JLB-MRM
SAM’S EAST, INC., doing business
as Sam’s Club, and KEN LORD,
Presently before the Court is Plaintiff Vincent Cataudella’s Motion to
Remand his one-count, slip-and-fall negligence claim he filed in Florida state court.
(Doc. 5.) For the reasons discussed below, Plaintiff’s motion is DENIED because
Defendant Sam’s East Inc. (“Sam’s East”), a citizen of both Arkansas and Delaware,
has demonstrated complete diversity of citizenship to satisfy the jurisdictional
requirements for removal from Florida state court.
Plaintiff commenced this action by filing a complaint against Defendant
Sam’s East in Florida state court on or about October 8, 2020. (Doc. 1-4 at 7–9.)
Plaintiff alleged that, on May 3, 2020, he tripped and fell in the parking lot of a
Sam’s Club store. (Id. ¶ 5.) Plaintiff pleaded a single claim for negligence based
on Sam’s East’s purported “nondelegable duty of care” to maintain the store free
from, or to warn invitees of, dangerous and hazardous conditions on the premises.
(Id. ¶ 7.)
Approximately two and a half months after serving Sam’s East with the
complaint, the Florida state court granted Plaintiff leave to amend such that he
could add store manager Ken Lord, allegedly a citizen of Florida, as an additional
defendant. (Doc. 1-2 at 2.) Twenty days later, Sam’s East filed a notice of removal
alleging federal court jurisdiction because: (1) Plaintiff and Sam’s East are citizens
of different states, and (2) Plaintiff had “fraudulently joined” the store manager as a
defendant in an effort to avoid federal diversity jurisdiction. 1
This Court previously discussed at length the fraudulent joinder doctrine as
it applies to circumstances similar to those here. Opinion and Order,
Fashingbauer v. Wal-Mart Stores East, L.P., No. 2:20-cv-523-JLB-NPM (M.D. Fla.
Oct. 13, 2020), ECF No. 26. 2 There, the Court rejected application of the
fraudulent joinder doctrine and remanded the case to state court. Sam’s East
asserts that Fashingbauer is an “outlying case.” (Doc. 7 at 6 n.1.) As the Court
noted in Fashingbauer, slip-and-fall cases where the defendant store removes on
the basis of the plaintiff’s purported fraudulent joinder of a non-diverse store
manager are fairly evenly divided between those that apply the fraudulent joinder
doctrine and those that do not. See Fashingbauer, No. 2:20-cv-523-JLB-NPM, at
The parties do not dispute that the amount in controversy satisfies the
jurisdictional minimum requirement for removal pursuant to 28 U.S.C. § 1332(a).
A copy of the Opinion and Order can be accessed through the Court’s
electronic CM/ECF database.
7–8 nn. 6 & 7. That Sam’s East acknowledges only Fashingbauer, and one other
case 3 falling into the latter category, does not make Fashingbauer an “outlier” (a
word often used euphemistically to describe a case that is “wrongly decided”).
Sam’s East appears to argue for a blanket rule that a store manager can
never be held liable for negligence flowing from his administrative responsibilities.
But as discussed in Fashingbauer, that would be a contravention of the established
law. Instead, the different outcomes in the cases are the result of different facts
and different allegations in the complaints at issue. A store manager’s managerial
responsibilities may very well be implicated under a particular set of facts in such a
way that Florida law might permit a claim for personal negligence against the
manager. See White v. Wal-Mart Stores, Inc., 918 So. 2d 357, 358 (Fla. 1st DCA
2005); see also Henderson v. Wash. Nat’l Ins. Co., 454 F.3d 1278, 1284 (11th Cir.
2006) (holding that the fraudulent joinder doctrine does not turn on “the sufficiency
of the pleadings” but rather on “whether . . . there is no possibility [the plaintiff] has
asserted a colorable claim”).
The other case cited by Plaintiff in his motion to remand is Hunt v. Target
Corp., No. 14-80266-CIV, 2014 WL 1515262 (S.D. Fla. 2014). Sam’s East
distinguishes Hunt because the defendant corporation in that case submitted an
affidavit of the store manager, in which the manager admitted he was present at
the store on the date in question. Here, Sam’s East has submitted an affidavit
from Mr. Lord in which he states he was off duty on the date of the incident and
therefore not present at the store when Plaintiff was injured. (See Doc. 7-1 at 2.)
Mr. Lord’s affidavit raises the question whether or under what circumstances a
court can consider facts outside the complaint in deciding the issue of fraudulent
joinder. But because the Court finds that Plaintiff has not alleged a colorable
claim against Mr. Lord under Florida law, the Court need not address that issue
Sam’s East also attempts to distinguish Fashingbauer by asserting that,
“[u]nlike in Fashingbauer, Plaintiff here has failed to allege a colorable claim
against Lord under Florida law.” (Doc. 7 at 6–7 n.1.) Although Sam’s East fails to
explain why Plaintiff has not alleged a colorable claim against the store manager,
the Court agrees that Plaintiff has not done so. Plaintiff alleges a claim against
the store manager in Count II of the Amended Complaint, which is entitled
“Vicarious Liability Against Defendant Ken Lord.” (Doc. 1-1 at 4.) Further, the
only substantive allegation against Mr. Lord in Count II, or anywhere else in the
complaint, is the conclusory allegation that Mr. Lord is vicariously liable for Sam’s
East’s negligence. (See id. ¶ 11 (alleging that Mr. Lord “is vicariously liable for the
negligent acts of Defendant, SAM’S EAST, INC [sic]”).) A claim for vicarious
liability against a store manager is plainly precluded by Florida law, which holds
that tort liability may not be vicariously imposed on a corporate officer or employee
but instead must be based on a breach of duty through personal fault. See White,
918 So. 2d at 358; McDaniel v. Sheffield, 431 So. 2d 230 (Fla. 1st DCA 1983);
Kimmons v. IMC Fertilizer, Inc., 844 F. Supp. 738 (M.D. Fla. 1994).
A conclusory claim against a store manager that alleges an invalid legal
theory of “vicarious liability” and no supporting facts that arguably could suggest an
unpleaded claim for personal fault, does not give rise to the “possibility” of a
“colorable claim” sufficient to avoid application of the fraudulent joinder doctrine.
Henderson, 454 F.3d at 1284. Accordingly, the Court will apply that doctrine to
disregard the presence of Mr. Lord as a defendant in this lawsuit in determining
whether Sam’s East has sufficiently shown diversity of citizenship. With this in
mind, Sam’s East has sufficiently demonstrated diversity of citizenship such that its
removal to this Court was proper, as Plaintiff’s citizenship is Florida and Sam’s
East’s citizenship is Arkansas and Delaware.
For the reasons stated above, Plaintiff’s Motion to Remand, Doc. 5, is
ORDERED at Fort Myers, Florida, on April 28, 2021.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?