Parker v. Goshen Realty Corporation et al

Filing 23

ORDER GRANTING 14 Motion to Remand and DENYING 18 Motion to Dismiss Robert Neely. Ordered by Judge Marc Thomas Treadwell on 07/28/2011. (tlh)

IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
DYRA PARKER,
Plaintiff,
v.
GOSHEN REALTY CORPORATION;
BRISTOL PROPERTIES
CORPORATION; VARIETY
WHOLESALERS, INC., d/b/a ROSE’S;
ROBERT NEELY; and JOHN DOE,
Defendants.

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CIVIL ACTION NO. 5:11-CV-136 (MTT)

ORDER
This matter is before the Court on Plaintiff Dyra Parker’s Motion to Remand (Doc.
14) and the Defendants’ Motion to Dismiss Robert Neely (Doc. 18). The Plaintiff claims
the Defendants’ removal of this action was improper and moves the Court to remand
the case to the Superior Court of Bibb County, Georgia, where the case was originally
filed. The Defendants filed a response to the motion alleging fraudulent joinder and
moving the Court to dismiss Defendant Robert Neely. (Docs. 17 and 18). Having
reviewed the arguments of the parties and the relevant authorities, the Court finds that
the Plaintiff has not fraudulently joined Defendant Neely. Accordingly, the Motion to
Remand is granted, and the Defendants’ Motion to Dismiss Robert Neely is denied.

DISCUSSION
This action involves a premises liability claim arising under the laws of Georgia.
The Plaintiff originally filed suit against the Defendants in the Superior Court of Bibb
County. In the complaint, the Plaintiff alleges that she tripped over a water collection
bucket and injured herself in a Rose’s retail store. The Defendants timely removed to
this Court based on diversity of citizenship. On the face of the complaint, there is no
federal subject matter jurisdiction because the parties are not completely diverse. The
Defendants contend, however, that Defendant Robert Neely, a citizen of Georgia, was
“fraudulently joined solely for the purpose of defeating diversity jurisdiction.” (Doc. 1 at
4).
“Fraudulent joinder is a judicially created doctrine that provides an exception to
the requirement of complete diversity.” Triggs v. John Crump Toyota, Inc., 154 F.3d
1284, 1287 (11th Cir. 1998). To prove fraudulent joinder, the Defendants must show
that either “(1) there is no possibility the plaintiff can establish a cause of action against
the resident defendant; or (2) the plaintiff has fraudulently pled jurisdictional facts to
bring the resident defendant into state court.” Crowe v. Coleman, 113 F.3d 1536, 1538
(11th Cir. 1997) (internal quotation marks and citation omitted). The burden of
establishing fraudulent joinder is a heavy one, and “[i]f 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 state court.” Triggs, 154 F.3d at 1287 (emphasis in original) (internal
quotation marks and citation omitted). “The determination of whether a resident
defendant has been fraudulently joined must be based upon the Plaintiff’s pleadings at
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the time of removal, supplemented by any affidavits and deposition transcripts
submitted by the parties.” Pacheo de Perez v. AT&T, 139 F.3d 1368, 1380 (11th Cir.
1998) (citation omitted). The Court must evaluate all factual allegations in the light most
favorable to the Plaintiff and resolve any uncertainties in the applicable law in the
Plaintiff’s favor. Id.
The Plaintiff’s complaint alleges claims against Defendant Neely under the
doctrines of active negligence, common law misfeasance, and statutory liability
pursuant to O.C.G.A. § 51-3-1. The Defendants contend that Defendant Neely should
be disregarded for jurisdictional purposes because there is no possibility the Plaintiff
can establish a cause of action against him based on any of the above-mentioned
theories of liability. The Court disagrees.
The Plaintiff’s claims of active negligence and misfeasance revolve around the
Plaintiff’s general allegations that Defendant Neely failed to ensure that the Rose’s store
was kept in a safe condition. Specifically, the Plaintiff claims that Defendant Neely, as
store manager, breached his duties by allowing a hazard to exist without giving warning
to patrons, by placing or causing to be placed the water collection bucket that allegedly
caused the Plaintiff’s trip and fall in an area where he knew customers would be
shopping, and by failing to inspect or initiate proper inspection procedures.
An agent can be individually liable for his or her actions involving misfeasance.
Reed v. Arrington-Blount Ford, Inc., 148 Ga. App. 595, 597, 252 S.E.2d 13, 15 (1979).
Misfeasance is the “improper doing of an act which the agent might lawfully do,” and “[i]t
may also involve to some extent the idea of not doing; as where an agent engaged in

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the performance of his undertaking does not do something which it is his duty to do
under the circumstances, or does not take that precaution or does not exercise that care
which a due regard to the rights of others requires.” Coffer v. Bradshaw, 46 Ga. App.
143, 167 S.E. 119, 122 (1932).
Here, although the record does not contain any details of Defendant Neely’s
duties as store manager, it is likely that the general maintenance and upkeep of the
store would fall within his job description. The fact that, as set forth in his affidavit,
Defendant Neely was out of town at a managers meeting for the two days before the
Plaintiff’s trip and fall does not completely absolve Defendant Neely from potential
liability. Neither party has produced any evidence regarding the specific circumstances
leading to the Plaintiff’s injury. Consequently, the Court cannot at this time conclude
solely because Defendant Neely was not in the store at the time of the incident that he
had no involvement with the incident and that there is no possibility of recovery against
him. Accordingly, it is conceivable that the Plaintiff will be able to state an actionable
claim against Defendant Neely under a theory of misfeasance.
The Plaintiff’s complaint also contains claims against all the Defendants for
failure to keep the premises and approaches safe, in violation of O.C.G.A. § 51-3-1.
Section 51-3-1 states, “[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.” By its express language,
liability may be imposed under O.C.G.A. § 51-3-1 only against an “owner or occupier” of
the premises. Georgia courts have defined an “owner or occupier” as a “person who
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maintains a place of business to sell goods or services,” Rhodes v. K-Mart Corp., 240
Ga. App. 57, 58, 522 S.E.2d 563, 565 (1999), an “owner or person in charge of the
premises,” Coffer v. Bradshaw, 46 Ga. App. 143,167 S.E. 119, 122 (1932), or an
individual responsible for “ensuring compliance with laws, ordinances, and regulations,
and inspecting, maintaining, and repairing the premises” on behalf of the owner,
Norman v. Jones Lang Lasalle Americas, Inc., 277 Ga. App. 621, 622 n.2, 627 S.E.2d
382, 384-86 (2006). Based on these decisions, this Court, Judge Lawson presiding,
noted that “[m]ost courts agree that exhibiting some level of supervisory control will be
sufficient to include a store manager within the § 51-3-1 definition of ‘owner or
occupier.’” Ott v. Wal-Mart Stores, Inc., 2010 WL 582576 at *2 (M.D. Ga. Feb. 16,
2010) (citation omitted).
The Defendants, relying primarily on Adams v. Sears, Roebuck & Co., 277 Ga.
App. 695, 490 S.E.2d 150 (1997) and Anderson v. Atlanta Committee for Olympic
Games, 273 Ga. 113, 537 S.E.2d 345 (2000), contend that liability under O.C.G.A. § 513-1 cannot be extended to a managerial employee. In Adams and Anderson, the
Georgia Court of Appeals and the Georgia Supreme Court, respectively, affirmed
summary judgments in favor of the defendants, concluding that the individual
defendants operating in their managerial capacities were not owners or occupiers under
O.C.G.A. § 51-3-1. Adams, 277 Ga. App. at 697, 490 S.E.2d at 153; Anderson, 273
Ga. at 118, 527 S.E.2d at 350. Notably, however, the decisions in Adams and
Anderson appear to be limited to the specific facts of those cases, and, contrary to the
Defendants’ assertion, they do not supply a hard and fast rule of law to which no
exceptions apply. See Poll v. Deli Management, Inc., 2007 WL 2460769 at *6-7 (N.D.

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Ga. Aug, 24, 2007).1 Moreover, as this Court and others have pointed out, “some
uncertainty exists as to whether a store manager … may be held liable as either an
‘owner or occupier’ under O.C.G.A. § 51-3-1, or as an agent of an ‘owner or occupier’
under traditional agency principles.” Poll, 2007 WL at *7. That is not to say that merely
including a resident store manager as a Defendant will always be enough to prevent
removal. In this case, however, viewing the facts and applicable law in the light most
favorable to the Plaintiff and with the record as it currently exists, the Court is unable to
conclude that there is no possibility that the Plaintiff’s complaint states a cause of action
against Defendant Neely. Accordingly, the Plaintiff’s Motion to Remand is GRANTED
and the Defendants’ Motion to Dismiss Robert Neely is DENIED.
SO ORDERED, this 28th day of July, 2011.

S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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This Court and others have also noted that the conclusions reached in Adams and Anderson followed
motions for summary judgment in which the cases had undergone intensive fact-finding and the records
were significantly more developed. See Ott, 2010 WL at 3; see also Poll, 2007 WL at *6.

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