HAMBRICK v. Wal-Mart Stores East, LLC et al

Filing 23

ORDER granting 19 Motion for Leave to File; granting 8 Motion to Remand. Ordered by U.S. District Judge CLAY D LAND on 05/14/2014 (jcs)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
EVELYN HAMBRICK,

*

Plaintiff,

*

vs.

*
CASE NO. 4:14-CV-66 (CDL)

WAL-MART
al.,

STORES

EAST,

LP,

et *
*

Defendants.
*
O R D E R
Plaintiff Evelyn Hambrick fell outside of a Wal-Mart store
in Columbus, Georgia and seeks damages for her injuries.

She

sued Wal-Mart Stores East, LP (“Wal-Mart”), its store manager
Mike Bibb, and its garden center department manager Tim Crump in
the State Court of Muscogee County, Georgia.
the

action

to

citizenship

this

Court

jurisdiction.

based

on

Defendants removed

Plaintiff

alleged

diversity

Hambrick,

a

of

Georgia

citizen, filed a motion to remand because Defendants Bibb and
Crump

are

also

citizens

of

Georgia,

and

therefore,

complete

diversity does not exist.

Defendants oppose the motion arguing

that

fraudulently

Bibb

and

Crump

were

joined

and

that

their

citizenship should not be considered for purposes of diversity
jurisdiction.

As explained more fully in the remainder of this

Order, Defendants have failed to establish fraudulent joinder.

Accordingly,

Plaintiff’s

motion

to

remand

(ECF

No.

8)

is

granted.
REMOVAL STANDARD
A defendant may remove a civil action filed in state court
to

federal

court

if

the

action

originally in federal court.
courts
between

have

diversity

citizens

of

could

been

28 U.S.C. § 1441(a).

jurisdiction
different

controversy exceeds $75,000.

have

over

states

all

where

Federal

civil
the

28 U.S.C. § 1332(a).

brought

actions

amount

in

“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).
Fraudulent joinder is a judicially created exception to the
complete diversity requirement.

Id.

A court may disregard a

resident (non-diverse) party’s citizenship if the removing party
establishes

that

“there

is

no

possibility

the

plaintiff

can

establish a cause of action against the resident defendant.”
Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997).
burden of the removing party is a heavy one.”
quotation marks omitted).

“The

Id. (internal

In making this determination, the

Court must consider the plaintiff’s pleadings at the time of
removal
parties.

and

any

supplemental

affidavits

submitted

by

the

Legg v. Wyeth, 428 F.3d 1317, 1322 (11th Cir. 2005).

Any questions of fact raised by the pleadings and affidavits

2

must be considered in the light most favorable to the plaintiff,
and any uncertainties about state substantive law must similarly
be resolved in favor of the plaintiff.

Crowe, 113 F.3d at 1538.

“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 to the state court.”
Triggs, 154 F.3d at 1287.
FACTUAL BACKGROUND
Hambrick alleges that she was injured when she fell due to
an “unsafe and dangerous condition” outside of a store owned and
operated by Defendant Wal-Mart.
2.

Compl. ¶¶ 11, 15-16, ECF No. 1-

She asserts claims against Wal-Mart under Georgia law as the

owner/occupier

of

the

respondeat

superior

employees.

She

property

based

also

on

brings

and

the

under

alleged

negligence

principles

negligence
claims

of

of

its

against

two

individual Wal-Mart employees who worked at the store where she
fell:

Defendant

Defendant

Tim

Mike

Crump,

Bibb,
the

the

Wal-Mart

department

store

manager

of

manager,
the

and

Wal-Mart

garden center.
Defendants contend that Hambrick has no claim under Georgia
law against Bibb and Crump and that, therefore, they have been
fraudulently joined.

To decide this issue, the Court begins

with

of

an

examination

the

record

3

at

this

stage

of

the

proceedings.
level

Hambrick alleges that Bibb and Crump, as senior

managers,

were

responsible

for

the

supervision

of

the

store and the employees at the time of the incident, Id. ¶¶ 2527,

that

they

knew

or

should

have

known

of

the

hazardous

condition present on the front sidewalk, id. ¶¶ 20, 29, and that
they

failed

“to

perform

[their]

supervisory

duties

in

a

reasonable and prudent manner by failing to inspect the premises
to discover the hazard,” id. ¶ 31, by negligently supervising
the assistant managers’ and line-level employees’ store hazard
inspection,

id.

¶¶

31-32,

by

negligently

developing

and

implementing safety polices regarding foreign substances on the
floor, id. ¶¶ 33-35, and by failing to warn of such hazards, id.
¶ 30.

Hambrick further alleges that Bibb and Crump qualify as

occupiers under O.C.G.A. § 51-3-1 such that they owe a statutory
duty to invitees on their premises.

Compl. ¶¶ 28, 30, 36.

Bibb was the store manager when Hambrick fell but was not
physically present at the store at the time.
¶¶ 2-3,

ECF

No.

20-1.

Wal-Mart’s

policy

Bibb 1st Aff.

provides

that

“all

employees are instructed to be vigilant for hazards existing on
the property and to take steps to correct them.”
states

that

maintaining

he
and

does

“not

repairing

have
the

the

sole

premises,”

Id. ¶ 7.

Bibb

responsibility

does

not

set

of

store

policies, and is “only one of over 300 employees who carry out”
those policies set by Wal-Mart.

Id. ¶¶ 5, 7, 10.

4

Bibb contends

that he did not create the alleged hazardous condition where
Hambrick fell, was not aware that there was any such dangerous
condition, and was not aware of any other incident of a person
falling “on the sidewalk due to some defect in the sidewalk.”
Bibb 2d Aff. ¶¶ 4-5, ECF No. 13 at 15.
Crump was the department manager of the garden center who
was on duty when Hambrick fell, but at the time he was not near
the sidewalk area where she fell.
No. 1-4 at 27.

Crump 1st Aff. ¶¶ 2-3, ECF

Like Bibb, Crump states that he, along with

every employee, has a nonexclusive responsibility to look out
for and correct hazards on the premises.

Id. ¶ 7.

contends

responsible

not

personally

sidewalks outside the store.”

Id. ¶ 11.

he

does

dangerous

that

not

he

set

“was

store

condition,

policies,

and

was

not

did

for

the

And he explains that

not

aware

He further

of

create
it

the

nor

falling incidents due to a defect in that sidewalk.

alleged

any

other

Id. ¶ 5;

Crump 2d Aff. ¶¶ 4-5, ECF No. 20-2.
It is undisputed that neither Bibb nor Crump is a party to
the lease of the property and that they cannot arbitrarily admit
or exclude customers from the store.
Crump 1st Aff. ¶¶ 6, 9.

Bibb 1st Aff. ¶¶ 6, 9;

They also are not responsible for

paying Wal-Mart’s bills, taxes, or wages to employees.
Aff. ¶ 8; Crump 1st Aff. ¶ 8.

5

Bibb 1st

In her reply brief, 1 Hambrick specifies that the hazardous
condition of the sidewalk consisted of a bicycle display with a
long chain lying on the ground, which was set up by an employee
and which blocked the sidewalk near an uneven curb.

The present

record, when construed in Hambrick’s favor, shows that Hambrick
fell as she was walking in the area between the street and the
sidewalk trying to avoid the chain that secured the bicycles.
DISCUSSION
Defendants

argue

that

Georgia

law

does

not

recognize

a

claim against individual employees for their negligence when the
gravamen of the complaint is that a dangerous condition existed
on their employer’s property.

Relying on two Georgia Court of

Appeals

maintain

decisions,

Defendants

that

retail

managers,

categorically, are not owners or occupiers under O.C.G.A. § 513-1 and thus cannot be liable for negligence associated with
keeping their employer’s premises safe. 2

In Adams v. Sears,

Roebuck & Co., the plaintiff sued a store manager for failing to
inspect and maintain the store where she slipped on a hanger on
the floor and fell.
52 (1997).

227 Ga. App. 695, 695, 490 S.E.2d 150, 151-

The summary judgment record contained an affidavit

1

Defendants filed a motion for leave to file a sur-reply to Hambrick’s
reply brief.
The Court hereby grants that motion (ECF No. 19) and
considers Defendants’ sur-reply in its ruling.
2
Section 51-3-1 provides, “[w]here an owner or occupier of land, by
express or implied invitation, induces or leads others to come upon
his premises for any lawful purpose, he is liable in damages to such
persons for injuries caused by his failure to exercise ordinary care
in keeping the premises and approaches safe.” O.C.G.A. § 51-3-1.

6

of the manager stating that while he was the general manager, he
had no ownership interest in the property.
S.E.2d at 152.

Id. at 695-96, 490

The court concluded in two sentences that the

store manager was not an “owner or occupier” under O.C.G.A § 513-1 and that the store manager was entitled to summary judgment
because

the

plaintiff

“asserted

personal liability on him.”

no

other

basis

for

imposing

Id. at 697, 490 S.E.2d at 153.

In

Wagner v. Casey, the plaintiff sought to hold the alleged owner
or occupier of a liquor store individually liable for personal
injuries sustained on the premises.
313

S.E.2d

756,

757

(1984).

The

169 Ga. App. 500, 500-01,
summary

judgment

record

included the defendant’s affidavit establishing that “he had no
individual operation or control over the property on which the
alleged injury occurred, nor superior right to possession so as
to establish liability within the purview of O.C.G.A. § 51-3-1.”
Id. at 501, 313 S.E.2d at 757.

The Court found that summary

judgment was proper as to the individual defendant because the
plaintiff failed to establish any breach of duty owed to her by
him individually.

Id.

Hambrick responds with citation to another Georgia Court of
Appeals decision, Lee v. Myers, in which the court held that the
manager of the farmer’s market where the plaintiff was injured
owed her a duty to exercise reasonable care in maintaining the
premises

under

O.C.G.A.

§

51-3-1,

7

affirming

the

denial

of

summary judgment as to the manager.
S.E.2d

797,

unclear,

and

798-800
other

(1988).
federal

189 Ga. App. 87, 87-88, 374

Georgia
district

wrestled with this uncertainty.

law

in

courts

this

in

area

Georgia

is

have

See Parker v. Goshen Realty

Corp., No. 5:11-CV-136 (MTT), 2011 WL 3236095, at *2-*3 (M.D.
Ga.

July

28,

2011)

(discussing

Adams

and

reasoning

that

the

uncertainty in the law leaves the court “unable to conclude that
there is no possibility that the . . . complaint states a cause
of action against [the store manager]”); Stephens v. Wal-Mart
Stores East, LP, No. 5:09-CV-325 (CAR), 2010 WL 1487213, at *1*2

(M.D.

Ga.

Apr.

12,

2010)

(remanding

case

to

state

court

because “Georgia law was unclear as to a manager’s liability in
a slip-and-fall case”); Ott v. Wal-Mart Stores, Inc., No. 5:09CV-215 (HL), 2010 WL 582576, at *2-*3 (M.D. Ga. Feb. 16, 2010)
(citing

Lee

and

distinguishing

Adams

to

find

that

plaintiff

stated a plausible claim based on the Wal-Mart manager’s breach
of “duty to keep the premises safe”); Poll v. Deli Mgmt., Inc.,
No. 1:07-CV-959-RWS, 2007 WL 2460769, at *4-*7 (N.D. Ga. Aug.
24, 2007) (comparing Adams with Lee and several other O.C.G.A.
§ 51-3-1 cases and concluding that this “uncertainty is enough
to require remand”).

But see Woodward v. Wal-Mart Stores East,

L.P., No. 5:09-CV-428 (CAR), 2010 WL 942286, at *2 (M.D. Ga.
Mar. 12, 2010) (finding that plaintiff cannot establish cause of
action

against

current

store

8

manager

whose

affidavit

undisputedly established that he was not employed at Wal-Mart at
the time of the incident two years earlier).
Absent clear guidance from Georgia courts, this Court must
resolve such uncertainties in Georgia law in Hambrick’s favor.
Crowe, 113 F.3d at 1538.

Thus, the Court cannot conclude that

for purposes of the present motion to remand that no cause of
action exists under Georgia law for a claim against Bibb and/or
Crump based on their individual failure to exercise reasonable
care to keep the premises safe for customers such as Hambrick. 3
Furthermore,

the

Court

finds

that

the

present

record,

when

viewed in the light most favorable to Hambrick, id., does not
preclude the possibility of individual causes of action against
them. 4

Accordingly, the Court finds that Defendants have not

carried their burden of demonstrating that Bibb and Crump were
fraudulently joined.

With Bibb and Crump as defendants in this

3

This conclusion, of course, does not prohibit the Georgia courts from
deciding definitively that no such cause of action exists under
Georgia law under these circumstances. Moreover, the Court hastens to
add that if it were deciding the issue de novo in another case in a
different procedural posture, it may decide the issue differently.
But under the fraudulent joinder standard, the Court is convinced that
Defendants have not carried their burden.
4
To avoid any misunderstanding of the Court’s ruling, the Court
emphasizes that it does not intimate that Bibb or Crump may not be
entitled to dismissal or summary judgment on remand, a call to be made
by the Georgia courts. All this Court decides today is that it does
not have jurisdiction to decide that issue because Defendants have not
carried their heavy burden of establishing fraudulent joinder.
See
Stillwell v. Allstate Ins. Co., 663 F.3d 1329, 1333 (11th Cir. 2011)
(per curiam) (noting the difference between a defendant’s burden of
establishing that a claim is not plausible to prevail on a 12(b)(6)
motion to dismiss and a defendant’s heavier burden of establishing
that a claim is not even possible to establish fraudulent joinder).

9

action, complete diversity of citizenship does not exist, and
this action must be remanded to the State Court of Muscogee
County.
CONCLUSION
For

the

reasons

explained

above,

Hambrick’s

Motion

to

Remand to the State Court of Muscogee County (ECF No. 8) is
granted,

and

the

Clerk

is

directed

to

remand

this

action

accordingly.

IT IS SO ORDERED, this 14th day of May, 2014.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE

10