Gibson v. Wal-Mart Stores East LP et al

Filing 25

ORDER denying 9 Motion to Dismiss Party. Ordered by Judge Hugh Lawson on 2/24/2010. (nbp)

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF GEORGIA M AC O N DIVISION E L E C H IA GIBSON, P la in tiff, v. W A L -M A R T STORES EAST, LP, W A L -M A R T STORES EAST, INC., W A L -M A R T STORES, INC., and K E V IN MCCUEN, D e fe n d a n ts . : : : : : : : : : : : :

C a s e No. 5:09-CV-228 (HL)

ORDER T h is matter is before the Court on the Motion to Dismiss Kevin M c C u e n (Doc. 9) (the "Motion") filed by W a l-M a rt Stores East LP, W a l-M a rt S to re s East Inc. and W a l-M a rt Stores Inc. (the "W a l-M a rt Defendants"). For the following reasons, the Motion is denied. T h e W a l-M a rt Defendants filed this motion to dismiss Defendant M c C u e n on the theory that he was fraudulently joined. "Fraudulent joinder is a judicially created doctrine that provides an exception to the re q u ire m e n t of complete diversity." Triggs v. John Crump Toyota, Inc., 154 F .3 d 1284, 1287 (11th Cir. 1998). Fraudulent joinder is "[t]he filing of a frivo lo u s or otherwise illegitimate claim against a non-diverse defendant s o le ly to prevent removal . . . ." Brooks v. Paulk & Cope, Inc., 176 F.Supp. 1 2 7 0 , 1273 (M.D. Ala. 2001). In this case, the question of defeating re m o va l by joining Defendant McCuen is irrelevant because, pursuant to

this Court's Orders (Docs. 19 & 23), this case was properly removed based o n diversity of citizenship subject matter jurisdiction. Therefore. the q u e s tio n of fraudulent joinder is moot and the Motion (Doc. 9) is denied. S O ORDERED, this the 24 th day of February, 2010.

s / Hugh Lawson HUGH LAW S O N , SENIOR JUDGE jc h

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