SMITH v. VARIETY WHOLESALERS INC

Filing 9

ORDER granting 5 Motion to Remand to the Circuit Court of Holmes County, Florida. Signed by JUDGE RICHARD SMOAK on 8/22/2012. (jcw) (Copy sent to Holmes County Circuit Court)(jcw).

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
DORIS SMITH,
Plaintiff,
v.

CASE NO. 5:12-cv-239-RS-EMT

VARIETY WHOLESALERS, INC., d/b/a
SUPER DOLLAR STORE, and DEBBIE
GIBBS,
Defendants.
_________________________________/
ORDER
Before me are Plaintiff’s Motion to Remand (Doc. 5) and Defendant’s
Response (Doc. 6). On June 28, 2012, Plaintiff filed a complaint in the Circuit
Court of Holmes County, Florida, alleging that because of display items which
Defendant Gibbs placed on the sidewalk while manager of Super Dollar Store,
Plaintiff tripped, fell, and was injured. It is undisputed that Plaintiff and Defendant
Gibbs are Florida residents. On July 26, 2012, Defendants filed a notice of
removal arguing that removal is proper because of diversity of citizenship
jurisdiction pursuant to 28 U.S.C. § 1332(a).
Complete diversity of citizenship is required for establishing diversity under
28 U.S.C. § 1332(a)—meaning that all plaintiffs must be diverse from all
defendants. See Underwriters at Lloyds, London v. Osting-Schwinn, 613 F.3d

1079, 1085 (11th Cir. 2010). Defendant Variety alleges that “CoDefendant/employee, Debbie Gibbs, has been fraudulently joined in the instant
action for the sole purpose of defeating diversity jurisdiction” and that “Plaintiff
has no intention to pursue a claim for damages against Co-Defendant, Debbie
Gibbs.” (Doc. 6). However, “ ‘[a] defendant alleging fraudulent joinder has the
burden of proving the alleged fraud.’ The burden is a heavy one.” Thomas v. Big
Lots Stores, Inc., 2011 WL 3035269, at *2 (M.D. Fla. July 25, 2011)(internal
citations omitted).
The Court must “evaluate factual allegations in the light most favorable to
the plaintiff and resolve uncertainties about the applicable law in the
plaintiff’s favor.” The fact that the plaintiff may not ultimately prevail
against the resident defendant does not mean that the resident defendant has
been fraudulently joined; only a colorable claim against the resident
defendant is needed.
Id. (internal citations omitted).
In this case, Defendant Variety has not offered any factual support to sustain
its conclusory allegations that Defendant Gibbs was fraudulently joined to defeat
diversity jurisdiction. As quoted above, “the burden is a heavy one” and
Defendant Variety has failed to meet it. Therefore, the case is REMANDED to
the Circuit Court of Holmes County, Florida.
ORDERED on August 22, 2012.
/S/ Richard Smoak
RICHARD SMOAK
UNITED STATES DISTRICT JUDGE