Gros v. Warren Properties, Inc. et al
Filing
27
ORDER denying 9 Motion to Remand to State Court; FURTHER ORDERED that Plaintiff's claims against Deborah Bodine are hereby DISMISSED. Signed by Judge Carl Barbier on 11/26/12. (sek, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SEAN GROS
CIVIL ACTION
VERSUS
NO: 12-2184
WARREN PROPERTIES, INC., ET
AL.
SECTION: J(3)
ORDER AND REASONS
Before the Court is Plaintiff’s Motion to Remand (Rec. Doc.
9), which was submitted to the Court on the briefs alone on
November 21, 2012.
and
York
Risk
Defendants Warren Properties, Inc. (“Warren”)
Services
Group,
Inc.
(“York”)
have
filed
an
Opposition to Motion to Remand (Rec. Doc. 17), to which Plaintiff
has replied (Rec. Doc. 19-3).
Having considered the record, the
applicable law, and the parties’ submissions, the Court finds that
the
Plaintiff’s
Motion
to
Remand
should
be
DENIED
and
that
Plaintiff’s claims against Deborah Bodine should be DISMISSED for
reasons set forth more fully below.
PROCEDURAL HISTORY AND BACKGROUND FACTS
On July 25, 2012, Sean Gros (“Plaintiff”) filed a personal
injury suit in the 22nd Judicial District Court for the Parish of
St. Tammany. (Pl.’s Pet. ¶ 1, Rec. Doc. 1-1)
Plaintiff alleges
that on or about July 23, 2011, he occupied a unit in a Slidell
1
condominium building, the Anchorage Condominiums, as a tenant under
a
lease
agreement
(“Warren”).
administered
(Pl.’s Pet. ¶
by
Warren
3, Rec. Doc. 1-1)
Properties,
Inc.
He further alleges
that on or about July 23, 2011, he was descending a common stairway
in a stair tower located within, and forming a part of, the
condominium building, when the stair tower lights suddenly went off
and the emergency back-up lights simultaneously failed to come on,
causing the plaintiff to lose his balance, fall to the floor, and
slide down the stairs on his back and rear side.
4, Rec. Doc. 1-1)
(Pl.’s Pet. ¶
3-
Plaintiff alleges that he sustained serious
personal injuries to his finger, back muscles, and spine as a
result of his fall and the resultant slide down the stairs. (Pl.’s
Pet. ¶¶ 4, 7, Rec. Doc. 1-1)
In his petition, Plaintiff named Warren, York, and Deborah
Bodine (“Bodine”) as Defendants.
(Pl.’s Pet. ¶ 1, Rec. Doc. 1-1)
Plaintiff asserted claims for negligence and strict liability
against
Warren,
the
alleged
owner,
operator,
manager,
and/or
custodian of “a group of residential condominium units,” who
administered
Plaintiff’s
lease
of
a
condominium
unit
in
the
building, and Bodine, who Warren allegedly employed as the property
custodian, resident manager, supervisory employee and/or landlord
of the condominium units and common building areas where Plaintiff
allegedly suffered injuries. (Pl.’s Pet. ¶ 1, Rec. Doc. 1-1)
Plaintiff asserts that Bodine was negligent in failing to discover
2
or test for the vices or defects in the emergency back-up lighting,
and that Bodine “and other management employees of Warren,” were
negligent in failing to warn of and failing to correct the defect
in the emergency back-up lighting.
1-1)
(Pl.’s Pet. ¶¶ 1, 6, Rec. Doc.
Plaintiff also alleges that Bodine negligently managed and
poorly
supervised
vendors/contractors
property
maintenance
regarding
the
employees
performance
of
and
routine
maintenance work on behalf of the building owners and failed to
properly maintain the common areas of the condominiums.
Pet. ¶ 6, Rec. Doc. 1-1)
(Pl.’s
Alternatively, Plaintiff asserts that
Warren and its agents and employees knew of the danger created by
the lighting, yet failed to make timely repairs or change out bulbs
or fixtures.
(Pl.’s Pet. ¶ 6, Rec. Doc. 1-1)
Plaintiff named York
as a defendant on the basis that York provided a liability policy
covering Warren and Warren’s employees.1
(Pl.’s Pet. ¶ 1, Rec.
Doc. 1-1)
On August 31, 2012, Defendants, Warren and York, removed the
action pursuant to 28 U.S.C. §§ 1332 and 1446 asserting that this
Court has jurisdiction over the action pursuant to 28 U.S.C. §
1332, diversity of citizenship.
(Rec. Doc. 1)
In the Notice of
Removal, Defendants asserted that the amount in controversy exceeds
$75,000, that Plaintiff is domiciled in Louisiana, that Warren is
1
On November 7, 2012, the Court granted Plaintiff and York’s joint
motion to dismiss Plaintiff’s claims against York without prejudice on the
grounds that Plaintiff erroneously named York as an insurance carrier when
York was in fact only a third party administrator. (Rec. Docs. 22, 25)
3
a Delaware corporation with its principal place of business in
California, and that York is a New York corporation with its
principal place of business in New Jersey. (Rec. Doc. 1, p. 3)
Defendants further asserted that Bodine, the only non-diverse
defendant, was improperly joined for the sole purpose of destroying
federal jurisdiction, and that the Court could thus disregard
Bodine’s citizenship for diversity purposes
(Rec. Doc. 1, p. 3)
Defendants did not attach any affidavit or declaration supporting
the factual contentions made in their memorandum in support of
their Notice of Removal, contending that they were unable to do so
as a result of Hurricane Isaac.
(Rec. Doc. 1, p. 5, n. 2)
Plaintiff had not requested service of process on Bodine at the
time Defendants filed their Notice of Removal.2
(Rec. Doc. 1, p.
5 n. 3)
PARTIES’ ARGUMENTS
Plaintiff argues that the civil action should be remanded to
the 22nd Judicial District Court for the Parish of St. Tammany,
because Bodine was properly joined as a defendant in the state
2
Plaintiff explains in his reply that on August 10, 2012, seventeen
days after his paper petition arrived at the clerk of state court, Michael
Continho (“Mr. Continho”) emailed counsel for Plaintiff on behalf of York,
thanking Plaintiff’s counsel for granting him an extension of time to plead
and suggesting that the extension would provide enough time for all defendants
to file a response. (Rec. Doc. 19-3, p. 4) Plaintiff also explains that when
Defendants filed their Notice of Removal on August 31, 2012, there was still
sufficient time for Plaintiff to timely serve Bodine. (Rec. Doc. 19-3, p. 4)
4
action.
seeking
Plaintiff emphasizes that Defendants,3 as the parties
removal,
bear
the
burden
of
proving
that
Bodine
is
improperly joined. Plaintiff asserts that Defendants have not
carried their burden of showing that there is no possible way for
Plaintiff to recover against Bodine under Louisiana law for two
reasons.
First, Plaintiff argues that under a 12(b)(6)-type
analysis, the allegations in his pleadings must be taken as true,
and his pleadings state a claim against Bodine under Louisiana law.
Plaintiff characterizes the Defendants’ burden of showing improper
joinder as a burden of showing “that there can be no possible
theory or set of facts that would allow a recovery on the claims
stated”
against
the
non-diverse
defendants.
Specifically,
Plaintiff claims that it is possible that he will be able to
recover against Bodine under Louisiana Civil Code Articles 2315,
2322, 2695, as well as under the theory of employee liability
outlined by the Louisiana Supreme Court in Canter v. Koehring, 283
So. 2d 716, 722 n. 7 (La. 1973), superseded on other grounds by
statute, La. Rev. Stat. 23:1032 (1998).
Second, Plaintiff argues
that the Court must resolve all contested factual issues in his
favor, and implies that his description of Bodine’s duties in his
3
The Court uses the plural term Defendants, because Warren and York
were both parties to the instant suit on October 16, 2012 when they filed
their opposition to the instant Motion to Remand. However, because the Court
subsequently dismissed Plaintiff’s claims against York without prejudice on
November 7, 2012, see supra n. 1, Warren is the only Defendant currently
opposing Plaintiff’s Motion to Remand.
5
state court pleadings4 create a contested factual issue that must
be resolved in his favor, because it is in conflict with Defendants
assertions in their Notice of Removal.5
Third, although Plaintiff
implies that discovery is unnecessary, because the Court must
resolve all contested factual issues in his favor, Plaintiff
asserts
that if the Court does pierce the pleadings and order
discovery, the discovery should be limited to identify discrete,
undisputed
facts
that
might
bar
Plaintiff’s
recovery
against
Bodine.
Defendants counter that removal was proper, that the Court has
diversity jurisdiction, and that Plaintiff’s Motion to Remand
should be denied, because Plaintiff improperly joined Bodine as a
defendant. Defendants assert that Plaintiff is unable to establish
a
reasonable
reasons.
possibility
of
recovery
against
Bodine
for
two
First, Defendants contend that under a Rule 12(b)(6)
analysis, Plaintiff has failed to state a cause of action against
Bodine under any negligence or strict liability theory.
Second,
the Defendants argue that even if Plaintiff has stated a valid or
reasonably arguable cause of action against Bodine under Rule
4
Plaintiff argues that he has sufficiently pled in paragraphs 1 and 6
of his state court petition that Bodine had duties to maintain, inspect, and
discover with respect to the common areas of the condominium complex.
5
Plaintiff observes that Defendants’ Notice of Removal was unsupported
by any affidavit or declaration when filed, but does not explain the
significance of this fact, and does not address the fact that Defendants
submitted Bodine’s declaration to support their contentions in their Notice of
Removal with their opposition to the instant Motion to Remand.
6
12(b)(6), the Defendants, as the removing parties, may use summary
judgment type evidence to establish that Plaintiff is unable to
prove all facts necessary to establish the cause of action or
prevail.
Defendants implicitly argue that the Court should pierce
the pleadings in this case, review the facts supporting improper
joinder in a summary judgment type manner, and need not, under
Badon v. RJR Nabisco Inc., 236 F.3d 282 (2000), resolve any factual
controversies
in
Plaintiff’s
favor,
unless
both
parties
have
submitted evidence of contradictory facts.
According to the Defendants, there is no factual controversy
to resolve in Plaintiff’s favor in this case.
Defendants claim
that Plaintiff’s allegations that Bodine, as Warren’s resident
property manager and as the custodian of the condominium building,
owed a duty to Plaintiff
to maintain the common stairwell and the
stairwell
insufficient
lights,
are
submitted contrary evidence.
because
Defendants
have
Specifically, Defendants submitted
Bodine’s declaration under penalty of perjury, in which she claims
that currently, and at the time of the alleged incident, she was
employed by Warren as a Leased Unit Manager and that her employment
with Warren did not include any responsibility for, authority over,
or custody of the alleged faulty lighting in the condominium
stairwell where Plaintiff allegedly fell, or any other duty to
maintain, inspect, or repair other common elements of the Anchorage
Condominiums.
(Rec. Doc. 17-1, ¶¶ 5-7, 9-11)
7
In her declaration,
Bodine further avers: (1) that her sole responsibilities currently,
and at the time of the alleged incident, were to lease and maintain
the interior of units managed by Warren, (2) that she had no
responsibility for the common elements of the condominium property
on behalf of the condominium association, (3) that she never
personally performed maintenance or directed others to perform
maintenance on the stairwells and stairwell lighting at the time of
the alleged accident, (4) that she was unaware of any problem or
defect with the stairwell lighting at the time of Plaintiff’s
alleged accident, and (5) that she did not sign the lease agreement
entered into between Plaintiff and Warren.
(Rec. Doc. 17-1).
According to Defendants, these facts are uncontested and negate the
possibility that Bodine owed Plaintiff a duty under any of the
legal theories that Plaintiff asserts, specifically addressing
negligence under La. Civ. Code art. 2315, strict liability under
La. Civ. Code art. 2317.1, and the theory outlined by the Louisiana
Supreme Court in Canter.
In response to Defendants’ opposition, Plaintiff submitted a
reply to explain why he had not requested service on Bodine6 at the
time Defendants removed the action and to submit the declaration
under
penalty
Plaintiff’s
accident.
6
of
perjury
co-lessee
and
(Rec. Doc. 19-5)
of
Michael
roommate
who
Lewis
(“Lewis”),
witnessed
the
Plaintiff’s
Plaintiff argues that Lewis’s factual
See supra n. 2.
8
claims in his declaration counter many of Bodine’s factual claims
in her declaration.
Plaintiff argues that a fair reading of
Bodine’s declaration suggests that she categorically denies ever
having performed maintenance or supervised others making repairs to
the exterior or common areas of the condominium units.
Plaintiff
argues that Lewis’s declaration controverts that claim, because
Lewis alleges that before Plaintiff’s accident on July 23, 2011, he
observed Bodine supervising an employee who was supposed to be the
“lawn man” working on the common lights outside the “apartments” at
the Anchorage Condos. (Rec. Doc. 19-5, ¶ 4) Lewis also claims that
he observed the “lawn man” wash the stairs at Bodine’s instruction.
(Rec. Doc. 19-5, ¶ 4)
Lewis further claims that on July 20, 2011,
he
supervising
witnessed
Bodine
an
attempting to repair the elevator.
employee
of
the
(Rec. Doc. 19-5, ¶ 5)
condos
Lewis
asserts that approximately ten or twelve days after the accident,
he and his roommates observed Bodine supervising an employee he
believed to be a “yard man” rewiring the emergency lights outside
of their “apartment.”
(Rec. Doc. 19-5, ¶ 6)
Lewis claims that
Bodine and the employee appeared to be installing a new emergency
light,
and
that
when
another
power
outage
occurred
after
Plaintiff’s accident, the emergency lights failed to come on again.
(Rec. Doc. 19-5, ¶ 6) Plaintiff argues that because his pleadings
clearly state a cause of action against Bodine, and Lewis’s
declaration
creates
doubt
about
9
whether
Bodine
supervised
maintenance over common areas including the condominium stairwells
and lighting, the case should be remanded to state court for
further proceedings.
LEGAL STANDARDS
A. Motion to Remand
Generally, a defendant may remove a civil action filed in
state
court
if
jurisdiction.
a
See
federal
court
would
28 U.S.C. § 1441(a).
have
had
original
Original diversity
jurisdiction is appropriate where the matter in controversy exceeds
$75,000 and is between citizens of different states.
28 U.S.C. §
1332(a)(1). A defendant can remove a state action to federal court
based on original diversity jurisdiction unless a properly joined
defendant is a citizen of the state where the
action was brought. 28 U.S.C. § 1441(b). The removing party bears
the burden of establishing that federal jurisdiction exists at the
time of removal.
DeAguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th
Cir. 1995). Ambiguities are construed against removal and in favor
of remand, because removal statutes are to be strictly construed.
Manguno v. Prudential Prop. & Cas. Ins., 276 F.3d 720, 723 (5th
Cir. 2002).
B. Improper Joinder
There are two ways to establish improper joinder: (1) actual
fraud in the pleading of jurisdictional facts, or (2) inability of
10
the plaintiff to establish a cause of action against the nondiverse party in state court.
Smallwood v. Ill. Cent. R.R., 385
F.3d 568, 573 (5th Cir. 2004) (en banc).
When there is no
allegation of actual fraud, the test for improper joinder is
whether the defendant has demonstrated that there is no possibility
of recovery by the plaintiff against an in-state defendant.
Id.
A mere theoretical possibility of recovery is not sufficient to
preclude a finding of improper joinder.
Id.
A court should
ordinarily resolve the issue by conducting a Rule 12(b)(6)-type
analysis, looking initially at the allegations of the complaint to
determine whether the complaint states a claim under state law
against the in-state defendants. Id. Where a plaintiff has stated
a claim, but has misstated or omitted discrete and undisputed facts
that would preclude recovery, the Court may, in its discretion,
pierce the pleadings and conduct a summary inquiry. Id. at 573-74.
DISCUSSION
A. Whether Plaintiff has Stated a Claim Against Bodine Under
a 12(b)(6) Analysis
Ordinarily, if the plaintiff has stated a claim against the
non-diverse defendant, joinder is proper under Smallwood, and
remand is appropriate.
385 F.3d at 574.
Thus, the Court must
first determine whether the factual allegations in the pleadings
state a claim against Bodine under Louisiana law.
Under the
Federal Rules of Civil Procedure, a complaint must contain “a short
11
and plain statement of the claim showing that the pleader is
entitled to relief.”
FED. R. CIV. P. 8(a)(2).
The complaint must
“give the defendant fair notice of what the claim is and the
grounds upon which it rests.”
U.S. 336, 346 (2005).
and direct.”
Dura Pharm., Inc. v. Broudo, 544
The allegations “must be simple, concise,
FED. R. CIV. P. 8(d)(1).
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff
must plead enough facts to “state a claim for relief that is
plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
A claim is facially plausible when the plaintiff pleads facts that
allow the court to “draw the reasonable inference that defendant is
liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678.
The
court “must accept all well-pleaded facts as true and view them in
the light most favorable to the non-moving party.”
In re Southern
Scrap Material Co., LLC, 541 F.3d 584, 587 (5th Cir. 2008).
court
must
draw
all
reasonable
inferences
in
favor
of
A
the
Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232-33
plaintiff.
(5th Cir. 2009).
However, the Court does not accept “conclusory
allegations, unwarranted factual inferences, or legal conclusions”
as true.
2005).
Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir.
While legal conclusions may provide the framework of a
complaint, they must be supported by factual allegations.
556 at 679.
12
Iqbal,
Although
Defendants
contend
that
the
allegations
in
Plaintiff’s petition fail to state a claim against Bodine under a
Rule 12(b)(6)-type analysis, they do not expand on this argument,
instead basing their argument primarily on Bodine’s declaration,
which the Court does not consider in conducting a 12(b)(6)-type
analysis.
Because it is unnecessary to pierce the pleadings and
consider Bodine and Lewis’s affidavits if the Plaintiff’s petition
cannot withstand a Rule 12(b)(6)-type inquiry, the Court will
consider whether the factual allegations in Plaintiff’s complaint
state a legally cognizable claim against Bodine under Louisiana
law.
Plaintiff’s petition can hardly be characterized as “short,”
“plain,” “simple,” “concise,” or “direct.”
redundancy
and
the
type
of
conclusory
It is fraught with
allegations
conclusions that the Court is not bound to accept.
and
legal
However,
Plaintiff claims that under the facts pled, Bodine owed Plaintiff
a duty either under Louisiana Civil Code Articles 2315, 2322, 2695,
2317.1, or on the theory that Bodine’s employer, Warren, delegated
its duties to maintain the stairwell lighting to Bodine as resident
manager, pursuant to the doctrine the Louisiana Supreme Court laid
out in Canter. Although Plaintiff suggests that Defendants’ burden
of proving improper joinder requires a showing that there is
absolutely no possibility of recovery under any theory of liability
expressed
or
implied
from
his
13
petition,
a
mere
theoretical
possibility of recovery does not preclude a finding of improper
joinder.
Smallwood, 385 F.3d at 573.
Moreover, the Rule 12(b)(6)
standard is rigorous, and although the Court is required to assume
all well-pleaded facts are true, view them in the light most
favorable to Plaintiff, and draw all reasonable inferences in favor
of
Plaintiff,
conclusions
the
couched
Court
as
may
properly
factual
disregard
allegations.
all
Applying
legal
this
standard, the Court is required to disregard much of the conclusory
content in Plaintiff’s petition.
Articles 2315, Article 2317.1, and Canter, all establish
negligence standards, and the threshold question in any negligence
inquiry is whether the defendant owed the plaintiff a duty.
Hanks
v. Entergy Corp., 2006-477 (La. 12/18/06); 944 So. 2d 564, 580.
Whether the defendant owed the plaintiff a duty is a question of
law that requires the court to engage in a fact-specific inquiry.7
Myers v. Dronet, 01-5 (La. App. 3 Cir. 6/22/01);
1109.
801 So. 2d 1097,
However, the source of the duty and the specific factual
inquiry used to determine whether a defendant owed the plaintiff a
duty under Article 2315, Article 2317.1, and Canter
identical.
are not
Under Articles 2317 and 2317.1, the duty arises as a
7
Contrary to Plaintiff’s assertion otherwise, Plaintiff’s claims in his
petition that Bodine “was...charged with the duty to inspect, maintain,
discover and remedy or repair hidden defects in the property,” and “accepted
this duty,” are legal conclusions couched as factual allegations that need not
be accepted as true for purposes of a Rule 12(b)(6) inquiry, and thus, are
insufficient to create contested issues of fact that must be resolved in
Plaintiff’s favor for purposes of the improper joinder inquiry.
14
result of the defendant’s status as a custodian, which hinges on a
factual inquiry about the party’s right of direction and control
over the defective thing, and the type of benefit the party derived
from the thing.
Dupree v. City of New Orleans, 99-3651 (La.
8/31/00); 765 So. 2d 1002, 1009.
Under Article 2315, the duty
arises as a result of the relationship and circumstances of the
parties, and courts examine several policy factors to determine
whether to impose a duty in a particular case.
Under Canter, the
employee’s duty is the result of the employer’s delegation of a
duty that the employer owed to the third party to the employee.
Thus, in this case, under the pleading requirements of Rule 8 and
the
Rule12(b)(6)
standard
articulated
in
Iqbal
and
Twombly,
Plaintiff’s mere assertion that Bodine owed a duty is insufficient
in the absence of well-pled facts that would give rise to duty
under one of these legal theories.
1. Did Plaintiff State a Claim Against Bodine under
Canter?
Plaintiff’s allegations in his petition and his argument in
his
Motion
to
Remand
focus
most
heavily
on
the
theory
that
Plaintiff has pled sufficient factual allegations to hold Bodine
personally liable as Warren’s agent under Canter.
However, the
Court finds that under a Rule 12(b)(6)-type inquiry, Plaintiff has
failed to state a cause of action against Bodine under the Canter
doctrine.
Under Canter, a corporate officer, agent, or employee
15
may be held personally liable for injuries to third persons under
certain circumstances. Guillory v. PPG Indus., Inc., 434 F.3d 303,
312 (5th Cir. 2005).
To hold the officer, agent, or employee
personally liable for his damages, the plaintiff must prove the
following: (1) “that the principal or employer owes a duty of care
to the third person . . .
breach of which has caused the damage
for which recovery is sought,” (2) that the “duty [was] delegated
by the principal or employer to the defendant,” (3) that the
“defendant officer, agent, or employee has breached this duty
through personal (as contrasted with technical or vicarious) fault”
by failing “to discharge the obligation with the degree of care
required
by
circumstances
ordinary
—
prudence
whether
such
under
failure
the
be
due
same
to
or
similar
malfeasance,
misfeasance, or nonfeasance, including when the failure results
from not acting upon actual knowledge of the risk to others as well
as from a lack of ordinary care in discovering and avoiding such
risk of harm which has resulted from the breach of the duty.”
Canter, 283 So. 2d at 721.
Finally, the Canter court explained:
[w]ith regard to the personal (as contrasted with
technical or vicarious fault, personal liability cannot
be imposed upon the officer, agent, or employee simply
because of his general administrative responsibility for
performance of some function of the employment. He must
have a personal duty towards the injured plaintiff,
breach of which specifically has caused the plaintiff’s
damages. If the defendant’s general responsibility has
been delegated with due care to some responsible
subordinate or subordinates, he is not himself personally
at fault and liable for the negligent performance of this
16
responsibility unless he personally knows or personally
should know of its non-performance or mal-performance and
has nevertheless failed to cure the risk of harm.
Id.
Plaintiff has failed to plead facts establishing that Bodine’s
employer/principal, Warren, owed Plaintiff a duty to maintain the
lighting in the common stairwell of the condominium complex where
Plaintiff
sustained
injuries.
Thus,
Warren
could
not
have
delegated any duty to maintain the lighting in the common stairwell
to its agent/employee, Bodine.
To hold an agent or employee
personally liable, the agent or employee’s principal or employer
must have owed the Plaintiff a duty and delegated that duty to the
employee.
In the instant case, Plaintiff claims that he sustained
injury as a result of Bodine’s breach of a duty to maintain
emergency
back-up
lighting
condominium building.
in
a
common
within
(Pl.’s Pet. ¶ 3 Rec. Doc. 1-1)
alleges that Bodine was Warren’s agent.
Doc. 1-1)
stairway
the
Plaintiff
(Pl.’s Pet. ¶
1, Rec.
Plaintiff alleges that Warren owned and/or operated
and/or managed “a group of residential condominium units.”
(Pl.’s
Pet. ¶ 1, Rec. Doc. 1-1) The Louisiana Condominium Act provides in
pertinent
part
that
“except
to
the
extent
provided
by
the
declaration, or Section 1123.112,8 the association is responsible
8
Section 1123.112 of the Louisiana Condominium Act places limits on the
condominium association’s responsibility for repairing and replacing the
common elements but does not shift the responsibility for maintaining the
common elements from the condominium association. See La. R.S. 1123.107(G).
17
for maintenance, repair, and replacement of the common elements,
and each unit owner is responsible for maintenance, repair and
replacement of his unit.”
La. R.S. 1123.107.
Thus, the default
rule in Louisiana is that the condominium association has the duty
to maintain, repair, and replace the common elements of the
condominium building, not owners of groups of condominium units.
Plaintiff has not alleged that Warren was charged with a duty to
maintain and repair the common elements of the condominium building
in the condominium declaration.
Absent any allegation that the
condominium declaration delegated the duty of the condominium
association to maintain the common elements to Warren, Warren’s
duties under Louisiana law, as the alleged owner of a group of
condominium units, extended only to the maintenance of the units
that Warren allegedly owned, operated, or managed. Thus, the first
element of Canter is not satisfied in the instant case.
Moreover, even assuming that Warren had a duty to maintain the
common elements on behalf of the condominium association, which it
properly
delegated
to
its
alleged
agent,
Bodine,
Plaintiff’s
allegations demonstrate that he is attempting to hold Bodine liable
as a result of her general administrative responsibility for the
performance of a function of her employment rather than the breach
of a specific personal duty owed to Plaintiff.
Plaintiff alleges
that Bodine acted as Warren’s “property custodian and resident
manager and/or as a supervisory employee and/or as a landlord of
18
the condominium units ... and common buildings,” and that she was
negligent in failing to discover or test for the vices or defects
in the emergency back-up lighting. (Pl.’s Pet. ¶ 1, Rec. Doc. 1-1)
Plaintiff
further
alleges
that
Bodine
“and
other
management
employees of Warren,” were negligent in failing to warn of and
failing correct the defect in the emergency back-up lighting.
(Pl.’s Pet. ¶¶ 1, 6, Rec. Doc. 1-1)
Bodine
negligently
maintenance
managed
employees
and
and
Plaintiff also alleges that
poorly
supervised
vendors/contractors
property
regarding
the
performance of routine maintenance work on behalf of the building
owners and failed to properly maintain the common areas of the
condominiums.
(Pl.’s Pet. ¶ 6, Rec. Doc. 1-1)
Alternatively,
Plaintiff asserts that Warren and its agents and employees knew of
the danger created by the lighting, yet failed to make timely
repairs or change out bulbs or fixtures.
(Pl.’s Pet. ¶ 6, Rec.
Doc. 1-1)
Plaintiff argues that the instant case is analogous to Adams
v. Southwood Realty, No. 05-2471, 2005 WL 3543935 (E.D. La. Oct.
17, 2005), in which a different section of this Court found that
the
Plaintiff
stated
a
personally under Canter.
the instant case.
apartment
claim
against
an
apartment
manager
However, Adams is distinguishable from
In Adams, the plaintiff sued the owner of the
building,
the
owner’s
liability
insurer,
and
the
apartment manager after her daughter was diagnosed with lead
19
poisoning. Id. at *1. The Adams plaintiff alleged in her petition
that the apartment manager, “was the person most familiar with the
condition of the plaintiff’s residence, knew of the condition of
the
lead
paint
in
plaintiff’s
responsible
for
the
residence.”
Id. at *2.
residence,
maintenance
and
and
repair
was
of
personally
plaintiff’s
The Adams plaintiff also alleged that the
apartment manager was the only person who interacted with the
plaintiff, signed the lease documents, and failed to provide lead
paint disclosures to the plaintiff as required by law.
Id. at *1.
In the instant case, Plaintiff makes no allegation that Bodine was
personally responsible for the maintenance and repair of the common
elements of the condominium.
that
Warren
and
its
agents
Moreover, although Plaintiff alleges
knew
of
the
allegedly
defective
condition of the lighting, this is a conclusory allegation that the
court is not required to accept, and it does not amount to an
allegation that Bodine personally knew of the allegedly defective
condition of the emergency back-up lighting.
Thus, Plaintiff
cannot properly rely on Adams to demonstrate that the factual
allegations in his state court petition stated a claim against
Bodine under Canter.
Although there are not many cases analyzing the personal
liability of an alleged resident condominium or apartment manager
under Canter, there are several cases addressing the personal
liability of store and hotel managers under Canter in slip and fall
20
cases, which suggest that Plaintiff’s allegations are insufficient
to state a claim against Bodine under Canter.
E.g., Black v.
Lowe’s Home Ctrs., Inc., No. 10-478, 2010 WL 4790906, at *1-3 (M.D.
La. Oct. 22, 2010) (allegations that store manager, inter alia,
failed to properly supervise employees, failed to properly inspect
the premises/aisle, failed to maintain a safe environment for
shoppers,
and
failed
to
reorganize
and
eliminate
dangerous
condition were insufficient to hold store manager personally liable
under Canter absent allegations that store manager was personally
involved
in
condition);
creating
the
allegedly
unreasonably
dangerous
Bertrand v. Fischer, No. 09-76, 2009 WL 5215988, at
*6-7 (W.D. La. Dec. 29, 2009) (allegations that store manager
failed to properly supervise and train employees and failed to
implement a procedure for inspection and cleaning of store floors
were insufficient to hold store manager personally liable under
Canter where store manager did not personally cause spill or have
knowledge of spill that caused plaintiff to slip and fall); Carter
v. Wal-Mart Stores Inc., No. 04-0072, 2005 WL 1831092, at *2-3
(W.D. La. July 28, 2005) (generic allegations that manager failed
to properly supervise and train store employees and institute
procedures for maintaining safe conditions of store rack that
allegedly fell on customer were insufficient to hold store manager
personally
liable
under
Canter,
because
they
concerned
store
manager’s general administrative responsibilities); Compare Gerald
21
v. Hospitality Props. Trust, No. 09-2989, 2009 WL 1507570, at *4
(E.D. La. May 7, 2009)
(allegations that hotel managers actually
knew that there were problems with condensation on the flooring
where plaintiff slipped, that hotel managers made the decision to
have plastic covering placed on an iron gate which allegedly
limited airflow and contributed to the accumulation of condensation
on the floor, and that hotel managers failed to have the covering
removed when the temperature and humidity did not drop, stated a
claim that hotel managers were personally at fault for their
decisions to have plastic covering placed on the gate and their
failure to have the covering removed); Flitter v. Walmart Stores,
Inc., No. 09-236, 2009 WL 2136271, at *3 (M.D. La. June 19, 2009)
(allegations that store manager “was aware of the fact that the
roof of the building was defective and leaked during rain showers
and was aware of the fact that the condition of the floors in the
buildings due to the leaks in the roof,” and failed to remedy the
known
defective
condition
stated
a
claim
that
store
manager
breached a personal duty to the plaintiff under Canter).
The allegations in Plaintiff’s petition are more analogous to
those in Black, Bertrand, and Carter than those in Gerald and
Flitter.
Because Plaintiff has not alleged that Bodine actually
knew about the allegedly defective condition of the lighting9 and
9
Although it is unnecessary for the Court to examine the parties’
declarations as there is no allegation that Bodine knew about the allegedly
defective condition of the lighting at the time of Plaintiff’s accident,
22
failed to take steps to repair it or that Bodine was personally
involved in creating the allegedly defective condition, it appears
that Plaintiff is seeking to impose liability on Bodine for a
breach of general administrative duties as a resident apartment
manager to supervise, inspect, and test, rather than breach of a
personal duty, which Canter prohibits.
Black, 2010 WL 4790906 at
*3.
2. Did Plaintiff State a Claim Against Bodine Under
Articles 2317 and 2317.1?
Plaintiff’s allegation that Bodine was Warren’s agent who
acted as the resident manager and/or property custodian of the
common building where Plaintiff sustained injury, is insufficient
to give rise to an inference that Bodine owed Plaintiff a duty
under Louisiana Civil Code articles 2317 and 2317.1 by virtue of
her custody of the allegedly defective stairwell lighting. Article
2317.1 of the Louisiana Civil Code provides that:
The owner or custodian of a thing is answerable for
damage occasioned by its ruin, vice, or defect, only upon
a showing that he knew or, in the exercise of reasonable
care, should have known of the ruin, vice, or defect
which caused the damage, that the damage could have been
prevented by the exercise of reasonable care, and that he
failed to exercise such reasonable care...
La. Civ. Code art. 2317.1
Bodine’s allegation that she had no knowledge of any problem or defect in the
emergency stairwell lighting in her declaration is uncontroverted. (Rec. Doc.
17-1, p. 2, ¶ 12)
23
To recover under article 2317, “a plaintiff must prove he was
injured by the thing, the thing was in the defendant’s custody,
there was a vice or defect creating an unreasonable risk of harm in
the thing, and the injured person’s damage arose from such a
defect.”
In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 838
F. Supp. 2d 497, 511 (E.D. La. 2012) (citing Spott v. Otis Elevator
Co., 601 So. 2d 1355, 1363 (La. 1992)). Article 2317.1, enacted in
1996,
abrogates
the
concept
of
“strict
liability”
in
cases
involving defective things and imposes a negligence standard based
on the owner or custodian’s knowledge or constructive knowledge of
the
defect.
1/23/02);
805
Hagood
So.
v.
2d
Brakefield,
1230,
1233
35-570
(La.
(citations
App.
omitted).
2
Cir.
The
constructive knowledge requirement of 2317.1 imposes a reasonable
duty to discover apparent defects in things under the defendant’s
garde, but cannot be construed so broadly as to revive the regime
of strict liability.
Id.
In order to have a duty under Article
2317.1, a person must have custody of the defective thing. Custody
or garde is a broader concept than ownership, and whether a person
has custody of thing is a fact-driven determination that hinges on:
(1) whether the party had “the right of direction and control over
the thing,” and (2) the type of benefit the party derived from the
thing, if any.
Dupree, 765 So. 2d at 1009.
To determine whether
a party has direction and control of a thing, courts consider
factors, including “whether the party has the right to use,
24
alienate, encumber, or lease the thing, or otherwise grant a right
of use to others, whether the party has the right to authorize
alterations or repairs to the thing, and whether the party has an
unfettered right to access the thing at will, versus only a limited
access to enter.”
In re FEMA, 838 F. Supp. 2d at 512; See Bethea
v. Great Atlantic & Pacific Tea Co., 2007-1385 (La. App. 4 Cir.
9/30/11); 22 So. 3d 1114, 1116.
Based on Akerman v. Dawes, 94-0757 (La. App. 4 Cir. 1/19/95);
658 So. 2d 1270, the Court finds that Plaintiff has failed to plead
sufficient facts to show that Bodine had custody of the allegedly
defective stairwell lighting.
In Akerman, the plaintiff fell from
the second-story porch of the apartment building where she lived
after a rotten railing collapsed.
Id. at 1272.
She sued, inter
alia, the apartment building manager, and the lessee of the
building alleging that both had custody of the apartment building
and were strictly liable to her under Article 2317.
Id.
The
plaintiff secured a default judgment against the building manager
based on evidence that he collected the rent, was the person to
contact about repairs, and had the repairs done as an agent for the
lessee. Id. at 1273. The plaintiff presented no evidence that the
building manager had any type of ownership, leasehold or other
interest in the building.
Id.
The court found that this evidence
was not sufficient to show that the building manager had “custody”
within
the
meaning
of
Article
25
2317.
Id.
In
reaching
its
conclusion, the Court relied on Loescher v. Parr, 324 So. 2d 441
(La. 1975), in which the Louisiana Supreme Court stated that while
a lessee has “custody” for purposes of Article 2317 of the Civil
Code, an agent does not.10
Akerman, 658 So. 2d at 1273 (citing
Loescher, 324 So. 2d at 449).
The Court also relied on Brown v.
Soupenne, 416 So. 2d 170 (La. Ct. App. 1982), in which the
Louisiana Fourth Circuit Court of Appeals found that an agent who
undertakes to manage the premises for the principal does not
increase his responsibilities to third persons and cannot be held
liable to the third persons by failing to perform the obligations
he owes to the principal.
Id. at 175.
The Plaintiff in this case, like the plaintiff in Ackerman,
has sued Bodine alleging that she was Warren’s agent, the alleged
owner or lessee of the condominium building, who managed the
condominium building where Plaintiff allegedly sustained injury.
Although Plaintiff refers to Bodine as the “landlord” of the common
building
petition,
where
he
sustained
his
injuries
once
in
his
state
(Pl.’s Pet.¶ 1, Rec. Doc. 1-1), this is a conclusory
allegation that provides no information about the alleged nature of
Bodine’s interest, for instance whether she allegedly owned the
10
Although Akerman was based on La. Civ. Code art. 2317, which was
abrogated by La. Civ. Code art. 2317.1 in 1996, the year after Akerman was
decided, the abrogation eliminated strict liability replacing it with a
negligence regime based on the owner or custodian’s actual or constructive
knowledge of the defect. Hagood, 805 So. 2d at 1233. There is no indication
that article 2317.1 altered the custody requirement. Thus, Akerman’s
interpretation of the custody requirement remains relevant and on-point.
26
common areas or held a lease of the common areas.11
Plaintiff’s
allegation that Bodine was the condominium building manager or
property custodian is insufficient to give rise to an inference
that Bodine had custody of the condominium building.
Plaintiff
has
not
alleged
that
Bodine
owned
the
Because
condominium
building, Plaintiff has not alleged any facts giving rise to a
reasonable inference that Bodine had a right to alienate, encumber,
lease, or otherwise grant a right of use in the stairwell or the
stairwell lighting.
In addition, because Plaintiff alleges that
the incident occurred in the common area of a condominium building,
simply alleging that Bodine acted as the property custodian and
resident manager of the common area where Plaintiff suffered injury
does not give rise to a reasonable inference that Bodine had the
right to authorize repairs where the Louisiana Condominium Act, as
a default rule, places responsibility for the repair, replacement,
and maintenance of the common elements of a condominium building
with the condominium association. La. R.S. 1123.107. In addition,
Plaintiff has not alleged that as a property custodian or resident
manager, Bodine derived any distinct benefit from the stairwell,
the stairwell lights, or the condominium buildings itself.
Thus,
11
Also, in his Motion to Remand, Plaintiff does not argue that Bodine
owed Plaintiff a duty that stemmed from Bodine’s status as owner of the
condominium building or as lessor. (Rec. Doc. 9-1, pp. 10-13) Plaintiff
relies on Canter and the theory that Warren delegated its duties as the owner
or lessor to Bodine, who Plaintiff characterizes as a resident agent whose
malfeasance caused his injuries. However, Plaintiff has not alleged any
specific act of malfeasance on Bodine’s part, as discussed supra Part A(1).
27
the Court finds that on balance, Plaintiff’s allegations are
insufficient to establish that Bodine had the right of direction or
control over the stairwell lights in the common stairway or that
Bodine derived any special benefit from the common stairwell
lighting.
Consequently, the Court finds that Plaintiff failed to
plead sufficient facts showing that Bodine had custody of the
common stairwell lighting.
3. Did Plaintiff State a Cause of Action Against Bodine
Under Article 2315?
Louisiana Civil Code Article 2315, which provides the general
basis of negligence liability in Louisiana, states: “Every act
whatever of man that causes damage to another obliges him by whose
fault it happened to repair it.”
La. Civ. Code Ann. Art. 2315(A).
To determine who is at fault for purposes of article 2315, the
Louisiana Supreme Court employs a duty-risk analysis, under which
the plaintiff bears the burden of proving: (1) that given the
relationship and circumstances of the parties, the law imposes upon
the defendant a duty of reasonable conduct for the benefit of the
plaintiff, the violation of which is considered fault, (2) that the
defendant’s conduct fell short of the standard, (3) that the
defendant’s negligence was a cause-in-fact of the plaintiff’s
damage, and (4) that the defendant’s negligence was the legal cause
of the plaintiff’s damage, meaning that some part or all of the
plaintiff’s damage should be legally ascribed to the defendant. In
28
re FEMA Trailer Formaldehyde Prods. Liab. Litig., 838 F. Supp. 2d
at 504-05 (citing Pitre v. Opelousas Gen. Hosp., 530 So. 2d 1151,
1155
(La.
1988)).
The
policy
factors
courts
consider
in
determining whether to impose a duty in a particular case include:
(1)
“whether
the
imposition
of
a
duty
would
result
in
an
unmanageable flow of litigation;” (2) “the ease of association
between the plaintiff’s harm and the defendant’s conduct;” (3) “the
economic impact on society as well as the economic impact on
similarly situated parties;” (4) “the nature of the defendant’s
activity;” (5) “moral considerations, particularly victim fault;”
and (6) “precedent as well as the direction in which society and
its institutions are evolving.”
In re FEMA Trailer Formaldehyde
Prods. Liab. Litig., 838 F. Supp. 2d at 505 (citing Meany v. Meany,
639 So. 2d 229, 233 (La. 1994)).
Plaintiff contends that he has pled sufficient facts in his
state petition to render Bodine personally liable to him, because
“by dent of the implicit common sense duties imposed on persons in
her position as a resident apartment manager,” she was responsible
for the safety of tenants.
Rec. Doc. 9-1, p. 10)
(Pl.’s Mem. in Supp. of Mot. to Remand,
However, Plaintiff cites no case where a
court has held a resident apartment manager personally liable for
breach of such generalized common sense duties to keep tenants
safe.
The Court finds that the policy factors described above
weigh against imposing a duty on Bodine by virtue of her status as
29
Warren’s apartment manager or property custodian.
4. Did Plaintiff State a Claim Against Bodine Under
Articles 2322 or 2695?
Although Plaintiff mentions Articles 2322 and 2695 as sources
of personal liability for Bodine, Plaintiff has failed to plead
facts showing Bodine owed Plaintiff a duty under either of these
Articles.
Article
2322
governs
the
liability
of
owners
of
buildings, and provides:
The owner of a building is answerable for the damage
occasioned by its ruin, when this is caused by neglect to
repair it, or when it is the result of a vice or defect
in its original construction. However, he is answerable
for damages only upon a showing that he knew or, in the
exercise of reasonable care, should have known of the
vice or defect which caused the damage, that the damage
could have been prevented by the exercise of reasonable
care, and that he failed to exercise such reasonable
care. Nothing in this Article shall preclude the court
from the application of the doctrine of res ipsa loquitur
in an appropriate case.
Prior to the 2004 revisions of the Louisiana Civil Code,
Article 2695 stated:
The lessor guarantees the lessee against all the vices
and defects of the thing, which may prevent its being
used even in case it should appear he knew nothing of the
existence of such vices and defects, at the time the
lease was made, and even if they have arisen since,
provided they do not arise from the fault of the lessee;
and if any loss should result to the lessee from the
vices and defects, the lessor shall be bound to indemnify
him for the same.
See Maiorana v. Melancon Metal Bldgs., Inc., 05-933 (La. App.
5 Cir. 4/25/06); 927 So. 2d 700, 703 n.1 (explaining that Act No.
30
821, effective January 1, 2005, revised Louisiana Civil Code, Book
III, Title IX, “Of Lease” and that the former Article 2695 is a
partial source for the present Articles 2696 and 2697);
Barnes v.
Riverwood Apartments P’ship, 38-331 (La. App. 2 Cir. 4/7/04); 870
So. 2d 490, 492.
Article 2696, effective since January 1, 2005,
states:
The lessor warrants the lessee that the thing is suitable
for the purpose for which it was leased and that it is
free of vices or defects that prevent its use for that
purpose. This warranty also extends to vices or defects
that arise after the delivery of the thing and are not
attributable to the fault of the lessee.
La. Civ. Code art. 2696
Article 2697 provides:
The warranty provided in the preceding Articles also
encompasses vices or defects that are not known to the
lessor. However, if the lessee knows of such vices or
defects and fails to notify the lessor, the lessee’s
recovery for breach of warranty may be reduced
accordingly.
La. Civ. Code art. 2697
Because Plaintiff has not alleged that Bodine was either the
owner of the condominium building or Plaintiff’s lessor, Plaintiff
has failed to state a claim against Bodine under Article 2322 or
Articles 2696 and 2697.12 Moreover, with respect to the allegations
in Plaintiff’s petition pertinent to Bodine, Plaintiff has failed
12
Although it is unnecessary to consider the parties declarations where
the factual allegations in the pleadings do not state a claim, the lease
agreement submitted shows that Bodine was not Plaintiff’s lessor.
31
to state a claim under any legal theory sufficient to withstand a
Rule 12(b)(6) analysis.
B. Whether it is Appropriate to Pierce the Pleadings and
Consider Bodine and Lewis’s Declarations
The Fifth Circuit has acknowledged that, “there are cases,
hopefully few in number, in which a plaintiff has stated a claim,
but has misstated or omitted discrete facts that would determine
the propriety of joinder.” Smallwood, 385 F.3d at 573.
In those
cases, the “the district court may, in its discretion, pierce the
pleadings and conduct a summary inquiry.”
district
has
procedure
discretion
necessary
in
in
a
determining
given
case,
the
the
Id.
type
Fifth
Although the
of
summary
Circuit
has
cautioned that “a summary inquiry is appropriate only to identify
the presence of discrete and undisputed facts that would preclude
plaintiff’s recovery against the in-state defendant.”
Id.
The
type of discrete and undisputed facts that warrant a summary
inquiry include that “the in-state doctor defendant did not treat
the plaintiff patient, the in-state pharmacist defendant did not
fill a prescription for the plaintiff patient, a party’s residence
was not as alleged, or any other fact that easily can be disproved
if not true.”
Id. at 573-74 n. 12.
Moreover, the Fifth Circuit
emphasized that the purpose of piercing the pleadings is to simply
and quickly expose the chances of the claim against the in-state
defendant.
Id. at 574.
Since Plaintiff’s allegations against
32
Bodine can not survive a Rule 12(b)(6) challenge, Bodine’s joinder
is improper, and it is unnecessary to pierce the pleadings to
consider the declarations the parties submitted.
CONCLUSION
In sum, the Court finds that Defendants have demonstrated that
there is no reasonable basis to predict that Plaintiff will recover
in a Louisiana state court on his claims against the sole nondiverse defendant, Bodine. Consequently, Defendants have satisfied
their heavy burden of demonstrating that Bodine was improperly
joined and that complete diversity exists. As a result, this Court
has subject matter jurisdiction over the above-captioned matter and
concludes that Plaintiff’s Motion to Remand should be denied.
Accordingly,
IT IS ORDERED that Plaintiff’s Motion to Remand (Rec. Doc. 9)
is hereby DENIED.
IT IS FURTHER ORDERED that Plaintiff’s claims against Deborah
Bodine are hereby DISMISSED.
New Orleans, Louisiana this 26th day of November, 2012.
CARL J. BARBIER
UNITED STATES DISTRICT COURT
33
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