Short v. RaceTrac Petroleum, Inc. et al
ORDER and REASONS - IT IS FURTHER ORDERED that the Magistrate Judge's ruling (Rec. Doc. 17) regarding the Plaintiff's motion for leave to amend is AFFIRMED and that Plaintiff's motion to remand (Rec. Doc. 28) is GRANTED. IT IS FINALLY ORDERED that this matter is REMANDED to the 22nd Judicial District Court for the Parish of St. Tammany, as stated within document. Signed by Chief Judge Kurt D. Engelhardt on 12/6/2017.(cbs) (Additional attachment(s) added on 12/6/2017: # 1 Remand Letter) (cbs).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CRAIG R. SHORT
RACETRAC PETROLEUM, INC., Individually and
d/b/a RACETRAC, et al.
SECTION "N" (2)
ORDER AND REASONS
In this action, Plaintiff, Craig R. Short, contends that he suffered bodily injuries
when he allegedly slipped and fell in an area of the parking lot at Defendant RaceTrac Petroleum,
Inc.'s Highway 190, Covington, Louisiana (Store No. 673) location that "appeared to be recently
painted and wet from the rain." See Rec. Doc. 1-1 at ¶¶ II-III. Asserting diversity of citizenship
subject matter jurisdiction, RaceTrac previously removed this action from Louisiana state court.
Now before the Court are Defendant "RaceTrac Petroleum, Inc.'s Motion to Review
Order of Magistrate Judge" (Rec. Doc. 24) and Plaintiff Craig Short's "Motion to Remand for Lack
of Federal Court Jurisdiction" (Rec. Doc. 28). The motions dispute the propriety of Magistrate
Judge Wilkinson's Order and Reasons (Rec. Doc. 17) allowing Plaintiff to file his "First
Supplemental and Amending Complaint" (Rec. Doc. 18), which substitutes the names of RaceTrac
store manager and co-manager, Samantha Pritchett McMillan and Janiqua Jackson, respectively, in
the place of the "John Doe" individual defendant named in his state court petition.
RaceTrac opposes Plaintiff's addition of Ms. McMillan and Ms. Jackson as
defendants because they are citizens of Louisiana for purposes of diversity of citizenship subject
matter jurisdiction. Thus, if permitted, their joinder as defendants destroys the Court's diversity
jurisdiction and requires remand, pursuant to 28 U.S.C. §1447(e). See, e.g., Doleac ex rel. Doleac
v. Michalson, 264 F.3d 470, 477-77 (5th Cir. 2001) (internal citations and quotations
omitted)("§1441(a) applies only to John Doe defendants as such, not to subsequently named parties
identifying one of those fictitious defendants" whereas "§ 1447(e) applies also to the identification
of fictitious defendants after removal"). In support of its motion seeking de novo review of the
Magistrate Judge's amendment ruling,1 Defendant RaceTrac contends that Ms. McMillan and Ms.
Jackson, the store manager and co-manager, respectively, are improperly joined such that Plaintiff's
proposed amendment to add the two as defendants must be rejected as futile, their citizenship
disregarded, and §1447(e) remand denied.
Regarding the amendment of pleadings, “Rule 15(a) [of the Federal Rules of Civil
Procedure] requires a trial court to grant leave to amend freely, and the language of this rule evinces
a bias in favor of granting leave to amend.” Jones v. Robinson Prop. Grp., LP, 427 F.3d 987, 994
(5th Cir. 2005). Leave to amend is in no way automatic, but the district court must possess a
“substantial reason” to deny a party's request for leave to amend. Id.. In deciding whether to grant
leave to file an amended pleading, the district court may consider such factors as undue delay, bad
faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party, and futility of amendment.
Marucci Sports, L.L.C. v. Nat'l Collegiate Athletic Ass'n, 751 F.3d 368, 378 (5th Cir. 2014).
Race-Trac seeks de novo review because of the remand directed upon amendment
by §1447(e). See Davidson v. Georgia-Pacific, LLC, 819 F.3d 758, 764-65 (5th Cir. 2016) (motion
to remand is dispositive matter for which magistrate judge should enter a recommendation to the
district court that is subject to the district court's de novo review).
"'[F]utility' in this context . . . mean[s] that the amended complaint would fail to state a claim upon
which relief could be granted." Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863, 873 (5th Cir.
2000). Futility is determined by “the same standard of legal sufficiency as applies under Rule
12(b)(6).” Marucci Sports, 751 F.3d at 378 (quoting Stripling, 234 F.3d at 873)).
In this instance, RaceTrac maintains that, under the facts and circumstances alleged
by Plaintiff, no colorable claim for personal tort liability exists under Louisiana law against the two
individual defendants. Having carefully considered the law, the parties' submissions, and the record
in this matter, IT IS ORDERED that RaceTrac's motion to review (Rec. Doc. 24) is DENIED to
the extent that it asks the Court to reject Magistrate Judge Wilkinson's ruling allowing Plaintiff's
Although discovery may reveal, as urged by RaceTrac, that Ms. McMillan and Ms.
Jackson lacked the requisite personal responsibility for and/or knowledge of the parking lot paint's
condition, such that their duties were only those of general administrative responsibility for which
personal liability does not apply,2 neither is necessarily precluded by the allegations of Plaintiff's
petition and First Amended and Supplemental Complaint. Additionally, although RaceTrac's motion
to review is accompanied by declarations from Ms. McMillan and Ms. Jackson denying any
involvement with the painting of the parking lot, any knowledge of who painted the lot, when it was
done or the type of paint used, or that any hazardous conditions existed at the time Plaintiff fell, the
See generally Kemp v. CTL Distrib., Inc., 440 Fed. Appx. 240, 245-46 (2017);
Bradley v. Wal-Mart Stores, Inc., Civil Action No. 16-3249, 2016 WL 3180644 (E.D. La. June 8,
2017)(Morgan, J.); Garrett v. AEP River Opers., LLC, Civil Action No. 15-5562, 2016 WL 945056
(E.D. La. Mar. 14, 2016)(Vance, J.); Gros v. Warren Properties, Civil Action No. 12-2184, 2012
WL 5906724 (E.D. La. Nov. 26, 2012) (Barbier, J.); Thomas v. Wal-Mart Stores, Inc., Civil Action
No. 11-2365, 2012 WL1019822 (E.D. La. Mar. 26, 2012) (Engelhardt, J.); see also Canter v.
Koehring, Co., 283 So.2d 716, 721-23 (La. 1973).
declarations were not previously provided to the Magistrate Judge, or Plaintiff for consideration, in
the first instance, with Plaintiff's motion seeking leave to amend. See Rec. Docs. 24-2 and 24-3.
Accordingly, the Court finds such questions more appropriately addressed, after pertinent discovery,
by means of summary judgment motion, rather than at this pleading juncture.
Given the foregoing, IT IS FURTHER ORDERED that the Magistrate Judge's
ruling (Rec. Doc. 17) regarding the Plaintiff's motion for leave to amend is AFFIRMED and that
Plaintiff's motion to remand (Rec. Doc. 28) is GRANTED. IT IS FINALLY ORDERED that this
matter is REMANDED to the 22nd Judicial District Court for the Parish of St. Tammany.
New Orleans, Louisiana, this 6th day of December 2017.
KURT D. ENGELHARDT
United States District Judge
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