Warren v. Wal-Mart Stores, Inc. et al

Filing 38

ORDER granting 8 Motion to Remand to State Court. Signed by Judge Thomas W. Thrash, Jr on 10/23/2015. (anc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
MOLLY M. WARREN,
Plaintiff,
v.

CIVIL ACTION FILE
NO. 1:15-CV-1310-TWT

WAL-MART STORES, INC.
doing business as
Wal-Mart Store #0615, et al.,
Defendants.

OPINION AND ORDER

This is a personal injury action. It is before the Court on the Plaintiff’s Motion
to Remand to State Court [Doc. 8]. The Plaintiff moves to remand this case to state
court because the complete diversity requirement is not met. Specifically, one of the
Defendants, Jeremy Lightsey, is a Georgia resident. The Plaintiff is also a Georgia
resident. The statute governing diversity jurisdiction, 28 U.S.C. § 1332(a), requires
that each plaintiff’s citizenship be diverse from each defendant’s citizenship.1 The
Defendants argue that Mr. Lightsey was fraudulently joined, however, and therefore
that his citizenship should be disregarded when analyzing diversity. The Eleventh

1

Caterpillar, Inc. v. Lewis, 519 U.S. 61, 68 (1996).

T:\ORDERS\15\Warren\15cv1310\remandtwt.wpd

Circuit has held that a defendant is fraudulently joined when named solely for the
purpose of defeating federal diversity jurisdiction.2 When a non-diverse defendant is
fraudulently joined, courts may disregard that defendant’s citizenship when
determining whether diversity jurisdiction exists.3 A defendant can prove fraudulent
joinder by showing either that the plaintiff cannot possibly establish a cause of action
against the non-diverse defendant or that the plaintiff plead fraudulent facts.4
Here, there is no allegation that the Plaintiff fraudulently pleaded facts. Instead,
the Defendants allege that it is impossible for the Plaintiff to establish a cause of
action against Mr. Lightsey. While the Plaintiff initially only mentioned Mr. Lightsey
in the caption of its complaint, she has since filed an amended complaint including
allegations against Mr. Lightsey.5 Additionally, the Plaintiff presented evidence that
the first complaint she filed was a draft accidentally filed instead of the full version.6
The Plaintiff amended its complaint after the Defendants moved to dismiss, as is
allowed. Additionally, the Plaintiff offers evidence of diligent attempts to serve Mr.

2

Henderson v. Washington Nat’l Ins. Co., 454 F.3d 1278, 1281 (11th Cir.

2006).
3

Id.

4

Id.

5

Am. Compl. ¶¶ 4, 10, 22-23, 25, 28-29.

6

Maiero Aff. ¶¶ 4-5.

T:\ORDERS\15\Warren\15cv1310\remandtwt.wpd

-2-

Lightsey. It is therefore not impossible for the Plaintiff to make out a case against Mr.
Lightsey, the non-diverse defendant.7 The Plaintiff’s motion to remand [Doc. 8] is
GRANTED because this Court lacks subject matter jurisdiction over this matter.
SO ORDERED, this 23 day of October, 2015.

/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge

7

Pl.’s Reply to Defs.’ Resp. to Motion to Remand, at Exs. A-C.

T:\ORDERS\15\Warren\15cv1310\remandtwt.wpd

-3-