Ishmael v. General Growth Properties, Inc. et al
Filing
14
ORDER granting 7 Motion to Remand. The Clerk is directed to Remand this case to the Superior Court of Richmond County and closed this civil action. Signed by Judge J. Randal Hall on 12/29/14. (cmr)
ORIGINAL
r-, -i.D
THE T'NITED STATES DISTRICT
IN
FOR TITE SOUTHERN DISTRICT
.'
, '..7
U.S.c,', r ' ,i,'
' '-
COURT
;rvu --
OF GEORGIA
AUGUSTA DIVISION
ASHLIE DANIELLE ISHMAEL,
and as next
individually,
of
AI,AYNA
r"t tr;l/
t.-,.
.;-
'-'itl.' '
friend
A MANOT,
ISHMAEL,
ROSE
2q
nlt 0EC ,A ll:3!
Plaintiff,
cv 114-175
v.
G E N E R A L G R O W T HP R O P E R T I E S , I N C . ;
GENERAL GROWTH MANAGEMENT, INC.;
G E N E R A L G R O W T HS E R V I C E S , f N C . ;
AUGUSTA MALL. LLC; ANDREW PAUL
WILKE;
NATIONAL
LIFE
AND
INSURANCE CO. ; VALOR
,JOHN
SECURITY SERVICES, INC.;
DOE CORPORATIONS 1 - 10 ; and 'JOHN
ACCIDENT
DOES 1_-50,
Defendants
ORDER
case
This
superior
court
's
Pl-aintiff
consideration,
motion
is
comes
of
Richmond
to
Motion
and
,
GRANTED
before
for
the
County.
Remand.
the
reasons
court
on
removal
Now before
(Doc.
stated
7 .)
herein,
from
the
the
Court
Upon
is
due
Plaintiff's
I.
f il-ed
Pfaintiff
of
Court
and her
f| 1 \
!.
|
whila
fTd
{
\fs.
ll
\\-rart
r
u
LLU_
r . {- :r n L l c u n
uu
e n vrJ
in
t-he premises
in
a safe
adequate
(!d.);
(3)
tender
years
an.l
i\ 4 )
l
be
in
close
t'r-]a|]Si no
tl
20f4,
frauduLently
('l)
in
into
joined
making
as
Iir^r
and Valor
-Iocation
lT/l
\
\rq.
water
/
against
f.\
Icol
fountain"
chjldren
(Id.
fountajn"
(Id.
that
area,
"failing
for
for
allege
play
.
(2)
area
difficult
of
a party
the
the
nl:.zcrnrrnd
Notice
Defendants
water
tl 22)r
around
che fountain"
their
interior
Lo keep and mainLain
p.J y
a
fha
it
(Id.
negl-igence
a water
to
Augusta
the
to
^hi
of
(Id.
a
she
Georgia.
Jvurrv
and
20L3,
fountain's
"failinq
locate
Fr-r'n
the
\/.,,r^
acts
proximity
filed
1.)
f !n! r
-
condition"
-rior^r
fhe
falling
(Doc.
iinn/.
four
Lo
thereby
Defendants
Pl ai nti ff -
safeguards
'tchoosing
obstructed
chifdren
..1n..j
In
an
into
proximity
close
compfaint:
her
provide
urrv
rrs
al-l-eges
Pfaintiff
Defendants
f.)
4vev!v+f4:J
t
f ad1
LluuL
Accordi ncr
2n )
zv,
in
cl-aims
|[ 18.)
visited
Augusta,
'r E f ' 1 r
^
614}114
was focated
that
fountain
t-h^ --1
^j-
Superior
asserting
8 Ex. A.
Ishmaef,
Road,
3450 Wrightsboro
at
Mal-l- l-ocated
Doc.
the
on AugusE 28,
that
A]ayna
daughter,
2-year-ofd
20L4,
2a,
(Compl.,
alleges
in
Defendants
Jul-y
on
liabilitsy.
Plaintiff
complaint,
againsts
suit
County
Richmond
based on premises
her
BACKGROITI{D
n 23);
f 1^a f-.r'1j- Fin
anyone
o'
[to
tO
see]
fl 24) .
Removal- on
August
Andrew Paul
Security
Wilke
Services
29,
was
was
jurisdiction,
paruies
circuit,
which the
irrri
such
are
a
filed
fo
the
al-l-
resofved
Am. Home Assurance
v.
2001)
of
as
Co.,
courts
on
againsE
is
between
of
as
to
remand."
1040,
In
of
exercise
of
264 F.3d
wfrere
S 1441(b) .
the
favor
limited
of
a ciLizen
uncertainties
in
exists'
diversity
citizenship
28 U.s.c.
filed.
that.
corp.
instant
cl-aim presenUs
jurisdiction
named defendants
is
be
the
may be removed to
where the
removed
case
a presumpt.ion
is
"the.re
srji r-1ion
-
(1)
diversity
suit
(Doc.
purposes.
court
where diversity
remand
complete
jurisdiction,
a state
Federal- courEs,
where one of
or
in
state
must
not
is
there
(2)
or
S 1441(a-b) .
28 U.S.C.
in
fifed
question
shoufd
Court
tEGAI.,. STANDARD
two circumstances:
in
court
federal
the
now'
considers
the Court
initially
Actions
a
thus
jurisdictionaf
for
II.
federaL
and
on september L6, 2014, Plaintiff
10.)
to Remand, which
Motion
partyt
a
citizenship
their
disregard
1 tltl 8,
as
identified
improperly
the
the
this
federal
removal
Rus se 1f
l-050 (1lth
Cir.
(emphasis added).
Even
presence
that
I
of
party
According
rn^^1(1n\
courts
so,
may retain
defendant"
a non-diverse
to
defeat
to
federaf
Defendants
jurisdiction
the
where
party
the
"ignore
is
Mydatt
Services,
the
joined
plaintiff
jurisdiction.
diversity
proper
and
Stil-1well
rnc.
v.
fns
Aflstate
the pfalntiff
such a case/
the
non-di verse
No.
Inc.,
663 F.3d 1329, 1332 (11tsh Cir.
Co.,
is
to
said
'fraudulent.Iy
have
McKenzie
defendanL."
King
v.
*1
2OI2 WL 5473498, at
6:12-cv-055,
2011)
Am.
"In
j oined'
Finishing,
(S.D. Ga. Nov.
9,
201_2).
'the removing party
joinder,
fraudufent
To estabfish
proving
by clear
and convincj-ng
of
has Ehe burden
(1) there is no possibility
the
evidence that either:
pfaintiff
a cause of action against the
can establish
plainLiff
has
the
or
defendanE;
e)
resident
frrrrdrr'lcrrt-
n r s vd
lo
t,
663
F
a motion
the
factual
and
Iaw
substantive
aE
5473498,
"not
^ c - - Fr - L --!rr i. r r.9 : n . r
s 6s- . r
possibility
(intsernal-
that
cause
a
a
of
IL
at
action
?
would
any
federal-
court
must
and remand the
case to
state
court."
a433,
f440-4a
(11th
Cir.
709 F.2d
find
find
there
that
one
that
1983),
the
of
harrnnd
is
f aw. "
even
a
compl-aint
the
joinder
Coker v.
must
court
state
under
the
20l-2 wL
el:im
"tilf
the
defendanEs,
The
.
One
against
F.3d
state
about
McKenzie,
Tndeedf
court
to
favorable
nl:inriff'e
arvuar,r(
L332.
state
most
omitted)
of
dlr
113
must evaluate
court
uncertainties
quotations
.tJ
tha
a.)ltm:n
plaintiff."
the
merits
the
F.3d
district
any
of
hrin.t
omitted) ).
light
the
resolve
favor
in
(afterations
in
1r
Cr.wF
remand, "the
must
wl-at l^ar
663
Stillwell-.
states
*2
weigh
tI
(mrotino
1997)
f11
court.'
1-112
to
f^r-fq
ctn:l
state
affegations
pl-aintiff
erii cti
into
ef
id
1535, l-538 (11th Cir.
With
irrri
defendant
resident
qt- i l lr^rFl l
l r1
r
resident
was proper
Amoco Oif
superseded by
Co.,
statute
on
grounds
other
at
(reversing
1333
the
least,
defendant
t'The burden
of
evidence. "
Po1l v.
2460769, rg
*3
in
aE
contrast
to
requires
immateri-al
short
as
Defi
.
In
very
would
cause
a
notice
*3
(quoting
lhe
whether
of
pleading
fair
notice
and p]ain.
given,
The true
test
and
is
joinder
F.3d
aE
standard,
pleading
20L2
conclusions
statement
whelher
the
WL
In
1334)
Georgia
S 9-11-8.
the
cl-aim,
McKenzie,
553
and
p-Leading standards
court.'"
states
quotations
pl-ausibilit.y
See O.C.G.A.
pl-eadinq
is
the
heavy
2007 wL
l-:07-cv-959,
fraudulenE
to
a
is
and convincing
(internal
the
pl-eading
federa]
a
not
Stil-Iwell-,
pleading.
notice
a
Iook
federal
No,
2007)
addressing
in
by clear
Mgirnt., Inc.,
court,
state
prevailing
5473498,
long
must be supported
'musL necessarily
applicable
srandards
the
court
joinder
fraudulent
(N.D. Ga. Aug. 24,
omitted)
Court
"this
to
concludi-ng
t'at
stated
Georgia's
motion
a
state
653 F.3d
,
in
because
complaint
esLablishing
and such a claim
citations
erred
Georgia
given
of
Ethan
.
standards)
one,
court
a
pfaintiff's
the
againsc
acti on
that
v.
Inc.
Stil-l-welf
deniaf
joined
f raudu.Lent.Ly
Manor,
1993);
district
the
that"
concfude
Cir.
court's
the
possible
isl
tit
Georgetown
district
that
was
defendant
(11th
a
holdj-ng
and
remand
in
1533
991 F.2d
Inc.,
Allen,
stated
as
simply
"it
is
or
facts
as
of
clalm
is
Thus,
pleading
gives
carlev
notice
f ai-r
(Ga. ct.
III.
presence
the
above,
F.2d at
a
against
cause
of
Court
110-11
Io9,
order
to
thaE
Mr.
Wilke
a
state
court
action
Pfaintiff
under
determine
whether
Mr.
law.
Wilke.
was
prove
a
Given
the
the
exists
there
that
he
Mr.
jurisdj-ction.3
cannot
Georgia
wou.Id find
aqainst"
because
dj-versity
defeat
alfege
disregard
should
purposes
must
court
that
"possibility
states
in
Defendants
action
the
jurisdictional
for
joined
Specifically,
cause of
S.E.2d
DISCUSSION
that
contend
Defendants
fraudulenlly
472
Lewis,
2
App.
Witke's
v.
a
compfaint
See Coker,
709
L 4 4 0- 4 L .
'
failed
to specifically
a-tIege Mr. Wilke
Defendants argue that Ptaintiff
that
and instead
only asserted
in the compLaint,
was an "owner or occupier"
(Doc. 10 at 4.)
Defendants
further
he was the manager of the shopping ma1l.
"Fa'ls
Lo -nclude any r IegaL-on of whaL, i f a1yt1inq,
chaL P-air riII
croir
which
caused
or
to
do in
that
capacity
or
failed
wilke
did
Defendant
(rd.)
Defendants
thus contend thaL
to the damages sought."
contrabuted
used the generic term "DeterddnLs" in he-r compLainr:, ra!her
because Plaintiff
fL 1-
c^^^iFi^rtt\/
i,-16r-i f.
n6ia-di-
's
aclions,
she
iS
u-able
Lo
(fd. at 7-8.)
a claim against Mr. Wilke.
to specifically
identify
addressed
the failure
the court
rn McKenzie,
that
the
There,
the
defendants
argued
actionsdefendant's
individual
'Defendants'
plura.l
and
not
distinguish
terni
used
ldidl
complaint
"the
McKenzie,
20L2 wI'
individually."
of
each defendant
actions
between the
to
held Lhat the plaintiffs'
"decision
The court expressly
5473498, at *4'Derenda-ts'
p]eadi rg
wich 'eorgia''
no.ice
is
corsis!e-!
use rre pl-ra
Although
PLaintiff
used Lhe more
fd.
This Court agrees.
requi.ement."
individualLy
identifying
each
rather
than
generic
term
"Defendants"
each DefendanL has been put on notice
it
is clear
that
Defendant,
individual
of the claims.
state
I
presence
Valor
Systems'
for
Security
also
challenge
Defendants
jurisdictionaL
the proper party
is Mydatt Services,
purposes,
claiming
that
presence in the instant
action
Inc.
Because the court finds that Mr. wilke's
-rr. i
, 1 o e s n o ! a d o - L e s sV a l o r S e c u r ' t y S y s t e r s ' s t a t u s .
.tac-'.\'<
6
premises
owner
in
occupier
or
leads
or
induces
purposer
his
caused by
fand,
by
to
faifure
exercise
a duty
^-
^--.1^i
or
the
over
controljusrify
to
r!r9L'LL. /
flrL.,
ct.
question
critical
injury
hqY.
subject
\ \rv^
r .
.^n?\
z=
whether
the
c.,haar
invitation,
implied
for
persons
care
in
keeping
t'he
Thus, to
owe
as
"an
individual
2].2
was
S 5l--3-
exercised
at
the
time
PoI1
liability."
ct i arr.,
owner
person
a
v.
Del-i
(N.D,
Ga.
*4
2007 WL 2460769,
rr
l-awful
injuries
under O.C.G.A.
premises
of
any
for
whether
the
subject
1 :07-cv-0959,
an
must qualify
decermine
imposiLion
the
i /v ^ i tu - ri rrY. t
r
\ r
/
is
"fwlhere
S 51-3-1.
fiability
to
Georgia,
ordinary
Wilke
'tTo
Id.
."
occupier
sufficient
Mr.
statute,
-an.l
nf
an owner or
L,
this
under
such
O.C.G.A.
premises and approaches safe."
of
premises
come upon his
damages to
doctsrine
or
express
in
liabfe
t.he
on
In
complaint.
to
others
is
he
her
of
liability
based
negligence
al-l-eges
Pfaintiff
S.E.2d
29,
3l
of
(Ga,
App. 1975) ) .
The
primary
in
inconsistency
issue
Gcnroi.
..eses
as
premises
property
in
is
liabitity
interest."
Servs.
Inc.
the
Pofl,
v.
of
an
to
Perry,
S 51-3-1
7ega7
at.
387 S.E.2d.898,905
the
or
*4
(citing
(Ga. ct.
Georgia
Pol-l-,
r c r - r r r i* e d
control
other
apparent
by
in
\con1-rcrl'
ownership
2007 WL 2460769,
is
detailed
the
f haf
restricted
form
of
.Tudge story
srrooaqled
"havc
court
interpretation
the
SpecificalIy,
courus.
the
before
over
some
fof
the
possessory
Ga.
Bldg.
App. 1989)).
estabfished
the
controf
Id.
" lml ost
cou.rts
control
will
the
"where
premj-ses
at
with
Consistent
include
to
'owner
of
or
the
the
of
time
view,
supervisory
manager within
a store
v.
Ott
occupier. "'
be
had
l-atter
of
2olo wL 582575, *2
No. 5:09-cv-215,
may
individual
thar: exhibj tj ng some fevel
aqree
definition
liability
that.
subject
cases).
be sufficient
Inc.,
Stores,
the
(Iisting
injury.-
S 51-3-1
statute
over
under
supervisory
recognized
have
courts
Georgia
Other
tshe
Wal-Mart
(M.D. Ga. Feb.
r_6. 2010).
of
A number
possessory
Iegal
include
to
occupier"
or
"owner
(recognizing
qrttv,,Y
ar hor
and
ordinances,
tL rh t r rr -^v c .
- 'i
e
property
manager's
3l-9 S.E.2d
of
an
fact
question
r22,
existed
apartment
premises
to
of
e r .s ru L i
sn J rr
I n r Yl
r r-
and
inspecting,
423 S.E.2d
fact
liability
as
under
123 (Ga. Ct.. App.
as to
complex
qualify
Lang
(Ga. Ct.
384 n.2
,fones
App.
camnl
ianr-o
r^r f h
i
maintaining,
owed a duLy under S 51-3-1);
Mgimt., Inc. ,
a
v.
manager who was responsible
regulations,
(finding
a
l-ess than
382,
repairj ng Lhe premises, "
Bal-cor Prop.
something
a property
that
t:^r
with
of
62'7 S.E.2d
Inc.,
2OO5t
those
tshe meaning
interpreted
Norman
SeS_r___S-:_g_.,
interest.
Americas,
Lasaffe
have
courLs
ceorgia
whether
an
a
15
(Ga. Ct.
management
S 51-3-l-) r
1984)
a partner
exercised
as
to
14,
or
company
that
v.
control
occupier)
;
v.
1992)
and
Trupp,
a question
whose partnership
sufficient
owrler
Ashley
App.
Gregory
(holding
and
owned
over
the
Coffer
v.
the
S.E.
or
person
owner
certain
"
nafand:ni-q
possibility
Wifke
Mr.
on
two
on
jurisdiction.
l-.t
of
under
Matos
Court
which
the
Georgia
court
in
store.
Id.;
not
could
cL.
nr..'r
Adams v.
. 1 ^ L " q yn !i F rI '
. - r
O.C.G.A.
asserted
him. ") .
no
case,
of
vL
under
a997],
App.
j-n this
l-iab1e
be hel-d liabfe
t.hc
S
other
as
("Rega-rdless
sFars'
51-3-1,
an owner
basis
for
a
Eo
he
matter
imposing
or
the
held
Sears
cannot
law,
be
Adams
a
of
a
150,
l-53
might
be
an
hefd
and
the
that
490 S.E.2d
personal
No.
occupier
was neither
of
defeat
Inc.,
on
whecher
washington
sf ore.
as
claiming
In denying
Appeals
of
of
premises
a
joined
Sears Roebuck & Co.,
because
Adams v.
and
heavily
relied
l-aw,
Georgia
Wa1-MarL Stores,
v.
nO
1S
citizenship,
fraudufently
was
the
manager
(ca.
WL
2007
thefe
removed
defendants
diversity
that
Wal-Mart
v.
remand.
Eo
decision,
"under
supervisory
4;05-cv-2!3 -WTM, Doc. 39 (S.D. Ga. May 9, 2006).
motion
to
duty
Pol-l-,
show
l-iable
Matos
the
Matos,
manager
store
diversity
sufficient
hefd
be
cases:
based
action
the
that
a
managel: may,
a
S 51-3-1.
^i-t-pmnl.
could
In
Roebuck.
liability
l-hai r
in
nrimari l1, l.Flv
Sears
under
liable
owes
that
*5.
at
2460769,
with
and
hefd
be
property
that
(holding
19321
App.
the
demonstl:ate
circumstances
authoritv,
ct.
of
charge
in
cases
These
invitees),
(ca.
L1-9, L22
L67
Bradshaw,
'owner
f iabl-e
Adams has
liability
upon
the
Although
dec j-ded t.he weight
(M.D.
manager must
*3
(M.D. Ga. July
a
states
of
cause
Wal-Mart
*1
2010 WL L48-12L3, at
325,
courts
potential
case.
Based on the
could
defendantl
WL 582576, at
means of
of
liability
*3
store
existing
case
(finding
[the
store
Iaw,
LP,
it
is
No.
with
a
5:09-cv-
to
regard
slip-and-fa11
possibl-e
that
lthe
law.");
Ott,
2010
Georgia
duty
manager'sl
under
("Georgia
2010)
however,
in
conclude
complaint
to
pfausibfe
a]
S 51--3-1 "provide Is
that
to
manager
72,
manager
under
liable
be held
establishing
a
unabfe
East,
guidance,
v.
Parker
Plaintiff's
(M.D. Ga. Apr.
clear
provided
have not
a
2011 wL 3236095, aL
a
Stores
in
-Lmposed on
favor) ;
is
the
against"
state
this
"uncertainties
may be
Court
that
action
Stephens v.
S 51-3-L.);
the
possibilicy
no
is
there
that
("IT]he
20Ll)
28,
the
that
No. 5:11-cv-136,
a1 .,
et
Goshen Real-ty Corp.
of
See Hambrick v.
'a
plaintiff's
the
in
resolved
be
was
2 0 1 4 W L 1 9 2 ] - 3 4 1, a L * 4
I iabif ity
w h et . h e r
.Law" rega rding
ceorgia
(holding
decision
Matos
since
courts
result
a contrary
1-4, 20L4)
May
Ga.
federal
EasL, LP, No. 4:1-4-cv-66,
Stores
Wal-Mart
Adams
the
years
the
in
authority
of
and now dictates
has shifted
in
Matos,
in
result
the
supports
that
recognizes
Court
keep the
premises
n
j-s
following
the Adams decision
supreme court
from the ceorgia
An opinion
was
held
thaL
a director
of
security
Court
There,
the
instructive.
Anderson v. Atlanta
of the premises at issue.
neither
an owner nor occupier
Tn so
53? S.E.2d 345, 350 (Ga. 2000) .
Games, Inc.,
Ollmpic
Comm. for
with that of a
r L compared a securi ty d i rec .or's .LiabiLiry
J^ooi ng, Lhe Co,r
for
the proposition
Bourn v. Herring
manager,
citing
or general
corporation
uv
vr
u ' v!,er
yv!
Lf
.
r ^ t 4 v ri J r n
gr
r
ra
'ln.l
r^iFind
-ni',arar
E^rryn \z
nav
HFrrirl.'
l-0
ha
<' hjp--
il
r-66 S.E.2d
i:hj
A9,
92
l:-v
lca.
rs
owne.Ls
1959)).
2oO7 WL 2460769,
Pol-f,
safe.");
j udgment
summary
did
not
its
fine
of
earfier
owner
or
cfear
rrndor
is
2460769, at
*7.
oI
v.
Triggs
Cir.
John
to
carry
their
as
there
is
cause
of
at
action
whether
a
either
as
an
'owner
the
the
Court
heawy burden
Inc.,
least
against
finds
of
Wilke.
1-1
T h at
154
stating
be
F.3d
that
For
that
WL
be contingent
nots
ouLcome
because
a valid
cause
See
IegiLimate. "
L28'7 (11th
l-284,
Defendants
that
2007
litigation
of
Lo
is
or
'owner
an
Polf,
might
establ-ishing
some possibility
Mr.
See
in
stage
joi nder
store
^rinnin'ac
exercised
have a possibiliLy
for
of
as an agent
liabiliLy
he
crump ToyoEa,
Thus,
1-998).
makes
to
as
;.ren.\'
wilke's
early
this
order
in
action
liabLe
controf
need "only
Pfaincif'
under
opinions
various
-amrn6l ."
of
at
determinative
these
I r^.1 iti.,)nel
That Mr.
degree
the
abandon
liabl-e
be
stiIl
exists
enorr^h
, r r.u.s.!- a r -L a fi n tI - v J
q
L
ur
tLIe
the manager was not
coul-d
S 51-3-1-, or
O.c.G.A.
under
n L u u r n i a rI ,c !
vnnr P
on
between
held
be
may
manager
he
1and,
uncertainty
"some
occupier'
of
or
"overrule
(3) even if
and
cases,"
Ehe disparity
that
to
(2)
available,
.
agency principles)
Indeed,
was
remand and
on a mot j-on for
was decided
it
an intent
indicate
occupier
(ordering
evidence
more
where
Adams court
an
(1)
Adams because
distinguishing
*5
at
have
fraudulent
Pl-aintif
f
reason,
faifed
joinder
states
a
compl-ete
iurisdiction
is
citizenship
of
diversity
over
this
7)
is
to
the
further
hereby
the
on
foregoi
GRAIi|1[ED.
superior
di.rected
court
to
Lhe
court
facks
CONCI,USION
ng,
The
of
Pfainciff's
Clerk
is
Richmond
Augusta,
to
Motion
DIRECTED
county,
motions
TERMINATE all
ORDER ENTERED at
and
matt.er.
IV.
Based
present.
not
Georgia,
to
Remand {Doc.
REIIAND this
The
Clerk
and CLOSE tshis
case.
Georgia.
this
H
STATES DISTRTCT
DISTRICT
is
u^oor
Pt
December, 2 01-4.
L2
case
.JUDGE
OF GEORGIA
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