Breashears v. Dollar Tree Stores, Inc. et al

Filing 12

ORDERED that the 7 Motion to Remand is DENIED. FURTHER ORDERED that Wayland Charles is DISMISSED from this lawsuit. Signed by Judge Martin L.C. Feldman on 1/25/17. (clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BETTY BREASHEARS

CIVIL ACTION

V.

NO. 16-16723

DOLLAR TREE STORES, INC.
AND WAYLAND CHARLES

SECTION "F"
ORDER AND REASONS

Before the Court is the plaintiff’s motion to remand. For the
following reasons, the motion is DENIED.
Background
This case arises out of a slip and fall accident at a Dollar
Tree Store, located at 4115 S. Carrollton Avenue in New Orleans.
According to the state court petition, on July 5, 2016, the
plaintiff, Betty Breashears, fell over merchandise that was on the
floor of an aisle inside the store. The plaintiff alleges she
suffered serious injuries to her right leg, neck, and back. The
injuries require one or more surgeries, in addition to other
treatment. She also suffered past and future mental anguish and
physical suffering, loss of enjoyment of life, and past and future
expenses for medical care.
On September 12, 2016, the plaintiff sued for damages in Civil
District Court for the Parish of Orleans against Dollar Tree Store,
Inc. and Wayland Charles, the supervising manager of the location
where

the

plaintiff

was

injured.

On

November

30,

2016,

the

defendants removed the suit to federal court on the basis of
1

diversity. 1 Although complete diversity is lacking because the
plaintiff and Wayland Charles are both Louisiana citizens for the
purposes of diversity jurisdiction, Dollar General asserts that
the plaintiff improperly joined Charles because the plaintiff has
no arguable or reasonable basis on which to state a cause of action
against him.
The plaintiff moves to remand, contending that she properly
joined Charles as a defendant and that complete diversity does not
exist, and thus this Court lacks jurisdiction. The sole issue
before the Court is whether Charles was improperly joined.
I.
It is the removing party’s burden to establish improper
joinder,

and

the

burden

is

a

“heavy

one.”

Lundquist

v.

J&J

Exterminating, Inc., No. 07-CV-1994, 2008 WL 1968339, at *2 (W.D.
La. May 2, 2008) (quoting Smallwood v. Illinois Central R.R. Co.,
385 F.3d 568, 574 (5th Cir. 2004) (en banc)). The Fifth Circuit
recognizes two ways for the removing party to establish improper
joinder: (1) “actual fraud in the pleading of jurisdictional
facts;” or (2) an “inability of the plaintiff to establish a cause
of action against the non-diverse party in state court.” Smallwood,
385 F.3d at 573 (en banc) (citing Travis v. Irby, 326 F.3d 644,

1

The plaintiff and Wayland Charles are residents of Louisiana.
Dollar Tree Stores, Inc. is a foreign corporation incorporated in
Virginia with its principal place of business also in Virginia.
2

646–47 (5th Cir. 2003)). Here, there is no allegation of actual
fraud. As such, “[t]he test for improper joinder where there is no
allegation

of

actual

fraud

is

whether

the

defendant

has

demonstrated that there is no possibility of recovery by the
plaintiff against an in-state defendant.” Rodrigue v. Continental
Ins. Co., No. 14-1797, 2014 WL 4999465, at *2 (E.D. La. Oct. 7,
2014) (citing Smallwood, 385 F.3d a 573).
“In determining the validity of an allegation of improper
joinder, the district court must construe factual allegations,
resolve contested factual issues, and resolve ambiguities in the
controlling state law in the plaintiff’s favor.” Rodrigue, 2014 WL
4999465, at *2 (citing Burden v. Gen. Dynamics Corp., 60 F.3d 213,
216 (5th Cir. 1995)). The Fifth Circuit articulated two avenues
for determining whether a plaintiff has a reasonable basis for
recovery under state law. First, “[t]he court may conduct 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 defendant.” Smallwood, 385
F.3d at 573. “Ordinarily, if a plaintiff can survive a Rule
12(b)(6) challenge, there is no improper joinder.” Id. Second, if
the plaintiff has stated a claim, and as a result, survives a Rule
12(b)(6) challenge, but “misstated or omitted discrete facts that
would determine the propriety of joinder,” the court may “pierce
the pleadings and conduct a summary inquiry.” Id. “[A]lthough the
3

type of inquiry into the evidence is similar to the summary
judgment inquiry, the district court is not to apply a summary
judgment standard but rather a standard closer to the Rule 12(b)(6)
standard.” McKee v. Kansas City S. Ry. Co., 358 F.3d 329, 334 (5th
Cir. 2004). “The district court must also take into account ‘the
status of discovery’ and consider what opportunity the plaintiff
has had to develop its claims against the non-diverse defendant.”
Id.
II.
The plaintiff alleges Mr. Charles was the store manager of
the Dollar Tree on the date of her accident. Under Louisiana law,
a store manager or employee cannot be held liable for an injury to
a

third

party

unless

the

manager

or

employee

breached

an

independent, personal duty to the third party, which caused the
third party’s injury. In Canter v. Koehring, the Louisiana Supreme
Court identified four criteria which must be satisfied before an
employee can be found liable to a third party for his or her
injury:
(1) 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) The duty is delegated by the principal or
employer to the defendant;
(3)
The defendant . . . has breached his duty
through personal (as contrasted with technical or
vicarious) fault. The breach occurs when the defendant
has failed to discharge the obligation with the degree
of care required by ordinary prudence under the same or
similar circumstances. . . .; and
4

(4) [P]ersonal liability cannot be imposed upon the
officer, agent, or employee simply because of his
general administrative responsibility for performance of
some function of employment. He must have a personal
duty towards the injured plaintiff, breach of which
specifically caused the plaintiff’s damages.
See Robinson v. Wal-Mart Stores, Inc., Civil Action No. 15-6871,
2016 WL 1572078, at *2-3 (E.D. La. Apr. 19, 2016) (citing Canter
v. Koehring, 283 So. 2d 716, 721 (La. 1973)).
The plaintiff argues Charles is personally liable for her
injuries.

She

defendants,

attributes

including

two

acts

Charles,

caused

of

negligence:

or

contributed

(1)

The

to

the

hazardous condition because merchandise was negligently stacked on
shelves; and (2) Charles breached a duty to keep the premises of
the establishment clean, safe and free from defects and hazards.
These are the only allegations against Charles in the plaintiff’s
state court petition. The plaintiff does not allege Charles owed
a personal, independent duty that Dollar Tree delegated to him.
See Robinson, 2016 WL 1572078, at *3. Such allegations do not give
rise to personal liability under Canter. See Canter, 283 So. 2d at
721.
Several

federal

district

courts

in

Louisiana

have

found

similar allegations insufficient to support personal liability on
the

part

of

a

store

manager

or

employee;

these

courts

have

concluded that the store managers were improperly joined to defeat
diversity. In Robinson v. Wal-Mart Stores, Inc., the plaintiff

5

sued a Wal-Mart store and its general manager after the plaintiff
slipped and fell in the store. 2016 WL 1572078, at *1. The
defendants removed the suit to federal court on the basis of
improper joiner. Id. The court concluded that the manager was
improperly joined because the plaintiff failed to allege that the
manager owed a personal, independent duty to store patrons that
Wal-Mart delegated to him, rather than technical or administrative
fault. Id. at *3. Therefore, the court denied the plaintiff’s
motion to remand. Id.
Similarly, in Rushing v. Wal-Mart, Inc., a plaintiff sued
Wal-Mart and the store manager for personal injuries sustained
when two cases of drinks fell on her head as she attempted to
remove a case from the shelf. No. 15-269, 2015 WL 1565064, at *1
(E.D. La. Apr. 8, 2015). The plaintiff alleged that the manager
was liable for negligence because the manager failed to exercise
vigilance, failed to supervise his employees, failed to properly
stock the shelves, and failed to inspect the shelves to remove
dangerous conditions. Id. at *3. The court found the allegations
to be a “classic case of attempting to place liability upon an
employee

‘simply

because

of

his

general

administrative

responsibility for performance of some function of employment.’”
Id. at *4 (quoting Carter v. Wal-Mart Stores, Inc., No. 04-0072,
2005 WL 1831092, at *3 (W.D. La. July 28, 2005)). The court
reasoned the allegations were insufficient to trigger personal
6

liability because the plaintiff did not allege that the manager
knew of, or actively contributed to, any alleged unsafe conditions.
Rushing, 2015 WL 1565064, at *4.
In contrast, in Lounsbury v. Winn-Dixie Louisiana, Inc., the
plaintiff was looking at products when a store employee walked up
behind the plaintiff and squatted at his feet. No. 95-2544, 1995
WL 626211, at *1 (E.D. La. Oct. 20, 1995). As the plaintiff made
his selection, he tripped and fell backwards over the squatting
employee. Id. The plaintiff alleged the employee “breached his
duty to him by obstructing his passage and negligently tripping
him.” Id. at *2. The court held the plaintiff stated a proper claim
against the employee because the alleged negligence did not arise
out of a “general administrative responsibility;” it arose from a
personal duty owed to the plaintiff. Id.
III.
The plaintiff’s allegations are more analogous with those in
Robinson and Rushing than in Lounsbury. The plaintiff has not
alleged that Charles owed her a personal, independent duty that
was breached and caused her to be injured. 2 The plaintiff has not

2

Construed broadly, the plaintiff’s single reference to a personal
duty owed to her is found in the motion to remand, not in the
petition. The plaintiff states in her motion that, “Mr. Charles
was standing next to plaintiff’s daughters and the paramedics as
her condition was assessed on the floor of the Dollar Tree. Mr.
Charles was at the scene of the accident.” This is a mere
recitation of events; at most, this statement supports that Charles
was the manager working at the Dollar Tree on the day of the
7

alleged that Dollar Tree delegated duties it owes to third-party
patrons, under Louisiana law, to Charles. 3 Instead, the plaintiff
generically

alleges

that

Charles

failed

to

maintain

a

safe

premises, failed to properly assemble items on the shelves, and
failed to supervise the placement of goods on shelves. These
arguments do not assert or claim a personal duty to ensure the
plaintiff’s safety.
Accordingly, the plaintiff’s petition states no allegations
that Dollar Tree delegated any of its duties to Charles to protect
the safety of patrons or allegations giving rise to Charles’
liability

under

Louisiana

law.

This

is

“a

classic

case

of

attempting to place liability upon an employee ‘simply because of
his general administrative responsibility for performance of some
function of employment.’” Rushing, 2015 WL 1565064, at *4; see
also Giles v. Wal-Mart Louisiana, LLC, Civil Action No: 16-2413,
2016 WL 2825778, at *4 (E.D. La. May 13, 2016). Because the
plaintiff cannot recover against Charles under Louisiana law,
Charles has been improperly joined and this Court has diversity
jurisdiction.

plaintiff’s accident. Including this statement in the motion to
remand does not give rise to a personal duty that Charles owed to
the plaintiff.
3 Dollar Tree, as a merchant, owes its patrons a duty to exercise
reasonable care to keep its floors in a reasonably safe condition,
ensuring that the premises are free of hazardous conditions, which
might reasonably cause damage. LA. REV. STAT. § 9:2800.6.
8

IT IS ORDERED that the plaintiff’s motion to remand is DENIED.
IT IS FURTHER ORDERED that Wayland Charles is DISMISSED from
this lawsuit.

New Orleans, Louisiana, January 25, 2017

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

9