Marano v. Sam's East, Inc. et al

Filing 20

ORDER denying #15 Motion to Remand to State Court. See Order for further details. Signed by Magistrate Judge Kyle C. Dudek on 2/5/2024. (CGW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MARIA F. MARANO,
Plaintiff,
v.

Case No.: 2:23-cv-1204-JLB-KCD

SAM’S EAST, INC. and JEFF
WILLIAMS,
Defendants.
/
ORDER
Before the Court is Plaintiff Maria Marano’s Second Amended Motion to
Remand (Doc. 15), and Defendant Sam’s East, Inc.’s (“Sam’s Club”) response
in opposition. (Doc. 16).1 For the reasons below, Marano’s motion is denied.
I. Background
Marano sued Sam’s Club and its manager, Jeff Williams, in state court
accusing them of negligence after she slipped and fell in a Naples store. (Doc.
6.) Sam’s Club, a citizen of Arkansas, removed the case to federal court,
claiming diversity jurisdiction. (Doc. 1.) One problem. Williams and Marano
are both Florida citizens, which typically precludes diversity jurisdiction. But

Unless otherwise indicated, all internal quotation marks, citations, and alterations have
been omitted in this and later citations.
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Sam’s Club argues the Court should ignore Williams’ citizenship because he is
fraudulently joined to the suit. (Id. ¶ 6.)
Marano disagrees and now moves to have the case sent back to state
court for lack of diversity. She claims the factual allegations in her complaint
state a cause of action against Williams, making him a proper defendant. (See
Doc. 15.) According to Marano, Williams owed her duties to “inspect[] the
premises,” “maintain[] [it] in a reasonably safe condition,” and warn her of
“dangerous conditions” and “latent perils.” (Doc. 6 ¶ 22.) And Williams
breached these duties by “creating the condition,” “failing to maintain the
location in a reasonably safe condition,” letting the dangerous condition exist
for an unreasonable length of time, “failing to timely and properly inspect” the
premises, neglecting to warn visitors, and “failing to otherwise exercise due
care with respect to the matter.” (Id. ¶ 23.)
Sam’s Club has filed a declaration from Williams that refutes the
complaint. (Doc. 1-6.) Notably, Williams states he was not responsible for
inspecting or cleaning the store’s floors. (Id. ¶ 7.) And he was unaware of any
hazardous condition, could not see the location where Marano fell, and “played
no role in any of the events giving rise” to her fall. (Id. ¶¶ 9, 10, 11.)
II. Legal Standard
Federal courts have jurisdiction over disputes between citizens of
different states where the amount in controversy exceeds $75,000. 28 U.S.C. §
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1332. A defendant may remove a case to federal court if those prerequisites are
satisfied. 28 U.S.C. § 1441(a).
To trigger diversity jurisdiction under § 1332, no defendant can be a
citizen of the same state as the plaintiff. Jolly v. Hoegh Autoliners Shipping
AS, No. 3:20-CV-1150-MMH-PDB, 2021 WL 1172807, at *3 (M.D. Fla. Mar. 29,
2021). “Diversity jurisdiction requires complete diversity; every plaintiff must
be diverse from every defendant.” Triggs v. John Crump Toyota, Inc., 154 F.3d
1284, 1287 (11th Cir. 1998). But there is an exception. A “plaintiff’s fraudulent
joinder of a non-diverse defendant will not defeat complete diversity.” Jackson
v. Bank of Am., NA, 578 F. App’x 856, 858 (11th Cir. 2014). “Fraudulent joinder
is a judicially created doctrine that provides an exception to the requirement
of complete diversity.” Championship Prop. LLC v. Coan, No. 20-13728, 2022
WL 4455208, at *6 (11th Cir. Sept. 26, 2022). The reviewing court must
disregard fraudulently joined defendants and determine whether there is
complete diversity among the remaining parties. Id.
To establish fraudulent joinder, the removing party must show “by clear
and convincing evidence that . . . there is no possibility the plaintiff can
establish a cause of action against the resident defendant[.]” Jackson, 578 F.
App’x at 858. In considering whether the plaintiff can state a claim that defeats
diversity, the court considers the factual allegations in the record and “draw[s]
all reasonable inferences” and “resolv[es] all contested issues of fact” in the
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plaintiff’s favor. Crowe v. Coleman, 113 F.3d 1536, 1541-42 (11th Cir. 1997);
Jolly, 2021 WL 1172807, at *3. This analysis changes slightly when the
defendant submits facts in an affidavit or declaration, as here, that contradict
unsupported allegations in the complaint. Legg v. Wyeth, 428 F.3d 1317, 1323
(11th Cir. 2005); Crowe, 113 F.3d at 1541-42. In those circumstances, “the
plaintiff generally must come forward with some evidence to dispute the sworn
statements in the affidavit.” Shannon v. Albertelli Firm, P.C., 610 F. App’x.
866, 871 (11th Cir. 2015). When a plaintiff fails to do so, the court “must give
weight to the sworn testimony rather than [the] unsupported allegations in the
complaint.” Broadway v. State Farm Mut. Auto. Ins. Co., 4 F. Supp. 3d 1271,
1276 (M.D. Ala. 2014).
After reviewing the complaint and any other evidence submitted, the
court must determine whether “[Florida] law might impose liability on the”
resident defendant. Crowe, 113 F.3d at 1541-42. “If there is even a possibility
that a state court would find that the complaint states a cause of action against
any one of the resident defendants, the federal court must find that the joinder
was proper and remand the case [back] to the state court.” Ullah v. BAC Home
Loans Servicing LP, 538 F. App’x. 844, 846 (11th Cir. 2013).
III. Discussion
Marano sues Williams for negligence. (Doc. 6 at 6-8.) “[T]o state a cause
of action for negligence, a plaintiff must establish that the defendant owed the
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plaintiff a duty, the defendant breached that duty, the breach was the
proximate cause of the plaintiff’s injuries, and the plaintiff suffered damages
as a result of those injuries.” Vincent v. C.R. Bard, Inc., 944 So. 2d 1083, 1084
(Fla. Dist. Ct. App. 2006).
As mentioned, Williams was the store manager where Marano fell. That
relationship adds an extra layer to the analysis. “Under Florida law, a store
manager, or other agent or employee of a corporation acting within the course
and scope of their employment, may not be held individually liable in tort
unless the complaining party first alleges and proves that the officer or agent
owed a duty to the complaining party, and that the duty was breached through
personal (as opposed to technical or vicarious) fault.” Ruscin v. Wal-Mart
Stores, Inc., No. 8:13-CV-101-T-35TGW, 2013 WL 12157850, at *4 (M.D. Fla.
July 16, 2013). In other words, a store manager “may not be held personally
liable simply because of his general administrative responsibility or
performance of some function of his employment—he . . . must be actively
negligent.” Id.
Marano says her complaint “clearly states a negligence cause of action
against Williams.” (Doc. 15 at 4.) But “[a] pleading that offers labels and
conclusions or a formulaic recitation of the elements of a cause of action will
not do. Nor does a complaint suffice if it tenders naked assertion[s] devoid of
further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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Marano does not plead facts that show Williams owed her a duty beyond “his
general administrative responsibility.” Ruscin, 2013 WL 12157850, at *4. The
complaint is also devoid of facts showing Williams was actively negligent. (Id.)
Thus, the complaint does not state a negligence claim against Williams.
There is another obstacle for Marano. Not only are her allegations
impermissibly conclusory, they are contested. As noted, Williams’ declaration
refutes the complaint. (Doc. 1-6.) And Marano offers nothing in response. (See
Doc. 15.) This is a problem because facts dictate whether there is “a reasonable
basis for predicting that [Florida] law might impose liability[.]” Crowe, 113
F.3d at 1541-42. The Court cannot resolve conflicts between the unsupported
allegations in the complaint and Williams’ declaration in favor of Marano.
Legg, 428 F.3d at 1323; Crowe, 113 F.3d at 1541-42. “[W]here the [defendant]
has presented unrebutted evidence in the form of an affidavit or declaration,
courts must give weight to the sworn testimony rather than unsupported
allegations in the complaint.” Broadway, 4 F. Supp. 3d at 1276. Considering
the factual record, as the Court must, it is further apparent that Marano
cannot show Williams owed her an independent duty of care or breached that
duty through active negligence. These are fundamental elements of her
negligence claim. Vincent, 944 So. 2d at 1084.
At bottom, there is no possibility Marano can maintain her negligence
claim against Williams on the existing record. Thus, the Court concludes that
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he has been fraudulently joined. Excluding Williams, the parties are
completely diverse and jurisdiction is appropriate under 28 U.S.C. § 1332.
Marano’s Motion to Remand (Doc. 15) is therefore DENIED.
ORDERED2 in Fort Myers, Florida on February 5, 2024.

Copies: All Parties of Record

Because a motion to remand does not address the merits of the case but merely challenges
the forum, it is a non-dispositive matter that is appropriately handled by order. See Franklin
v. City of Homewood, No. CIV.A. 07-TMP-006-S, 2007 WL 1804411, at *3 (N.D. Ala. June 21,
2007).
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