Driver et al v. Wal-Mart Stores Inc et al

Filing 14

REPORT AND RECOMMENDATIONS re 8 MOTION to Remand, 8 MOTION for Attorney Fees, 11 MOTION for Attorney Fees and Costs RECOMMENDING that the motions (remand and attorney fees) 8 be DENIED. IT IS FURTHER RECOMMENDED that the motion for at torney fees 11 be GRANTED due to the obvious failure to properly investigate the allegations before filing suit. IT IS FURTHER RECOMMENDED that defendants Balthazar and Gremillion be DISMISSED as defendants. Objections to R&R due by 8/31/2009. Signed by Magistrate Judge James D Kirk on 08/11/09. (crt,Burge, J)

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA ALEXANDRIA DIVISION BRIDGET C. DRIVER, et al -vsWAL-MART LOUISIANA, LLC, et al. CIVIL ACTION NO. 09-786 JUDGE DRELL MAGISTRATE JUDGE KIRK

REPORT AND RECOMMENDATION Before the Court is plaintiffs' Motion to remand, Doc. # 8, referred to me by the district judge for Report and Recommendation. Plaintiff also seeks attorney fees. Likewise, defendant, Wal-Mart, also seeks attorney fees, doc. #11. FACTUAL BACKGROUND Plaintiff, Bridget C. Driver, alleges that she was a customer in the Alexandria, Louisiana Wal-Mart store on

December 17, 2007 when a box fell on her foot causing her injuries. Plaintiff filed suit in state court against Wal-Mart and against the sporting goods department manager, Joseph Balthazar, and the store manager, Michael Gremillion. Wal-Mart removed the case to this court and argues that the two managers were fraudulently joined. It also argues that the amount in dispute exceeds $75,000 based on medical records it attached to its petition for removal.

Plaintiff filed the instant motion to remand claiming that the removal was untimely, and that the two managers were properly joined. Defendant, Wal-Mart, argues that, because there is no reasonable possibility of recovery against the managers under Louisiana law, complete diversity exists and jurisdiction is proper in this court. DISCUSSION The applicable statute, 28 U.S. § 1332(a), gives federal district courts original "diversity" jurisdiction over suits between citizens of different states if the amount each plaintiff seeks exceeds $75,000. 28 U.S. § 1332(a);

Caterpillar v. Lewis, 519 U.S. 61, 62, 117 S.Ct. 467, 469 (1996). All plaintiffs must be diverse from all defendants Exxon Mobil

for the court to have diversity jurisdiction.

Corp. v. Allapattah Services, Inc., 125 S.Ct. 2611, 2635 (2005). from the Therefore, where one plaintiff and one defendant are same state, ordinarily federal courts have no

jurisdiction under § 1332.

However, any party may argue that

such a case is removable on the basis that complete diversity would exist if not for the fact that the non-diverse parties have been improperly joined in the suit. can be established by actual fraud in "Improper Joinder" the pleading of

jurisdictional facts, or an inability of a plaintiff to 2

establish a cause of action against a defendant in state court. McKee v. Kansas City Southern Railway Co., 358 F.3d

329, 333 (5th Cir. 2004); Travis v. Irby, 326 F.3d 644, 647 (5th Cir. 2003). Defendants allege that plaintiffs have no reasonable possibility of recovery against the individual defendants, the store manager, Mr. Gremillion and the sporting goods

department manager, Mr. Balthazar. a heavy one.

Their burden of proof is

See Ross v. Citifinancial, 344 F.3d 458, 463 Our inquiry is

(5th Cir. 2003); Travis, 326 F.3d at 648.

similar to that made when considering a Rule 12(b)(6) motion to dismiss for failure to state a claim. Smallwood v.

Illinois Central R.R. Co., 385 F.3d 568, 573 (5th Cir. 2004). To prove improper joinder, the defendants must put forth evidence that would negate a possibility of recovery against the non-diverse defendant(s). fact and ambiguities of Id. All disputed questions of be construed in the

law

must

plaintiff's favor. Travis, 326 F.3d at 648. Furthermore, the Fifth Circuit has cautioned against a finding of improper

joinder before the plaintiff has had sufficient time for discovery. Id. at 651 (ordering federal district court to remand case to state court after finding that plaintiff had a reasonable possibility of recovery under state law). 3 "Simply

pointing to the plaintiff's lack of evidence at this stage of the case is insufficient to show that there is no possibility for (the plaintiff) to establish (the defendant's) liability at trial." Id. Plaintiffs are citizens of Louisiana, while However, Mr. Lowery also

Wal-Mart is a foreign corporation.

resides in Louisiana. His presence in the suit would destroy the complete diversity required by federal law. The plaintiffs allege that the two managers "negligently placed and/or allowed a box . . .in an unsafe manner". They

also allege in several particulars in paragraph 9. general claims of fault such as "carelessly and negligently failing to exercise reasonable care . . ." and "failing to warn". In discerning whether a non-diverse defendant has been fraudulently joined, the court must determine whether the plaintiff has any possibility of recovering against the nondiverse defendant. Carriere v. Sears, Roebuck and Co., 893 F.2d 98, 100-101 (5th Cir.) 1990. Under Louisiana law, a store manager or other employee may not be held liable for an invitee's injury on store premises unless four distinct

criteria are satisfied.

Canter v. Koehring Co., 283 So.2d

716, 721 (La. 1973); Ford v. Elsbury, 32 F.3d 931, 936 (5th Cir. 1994). First, the employer must owe a duty of care to

the third person, the breach of which has caused the damage 4

for which recovery is sought. Second, this duty is delegated

Canter, 283 So.2d at 721. by the employer to the

employee. through

Id. Third, the employee has breached this duty fault, Id. the as contrasted with technical or

personal

vicarious fault. imposed upon

Fourth, personal liability cannot be employee because of his general

administrative responsibility for performance of some function of employment. Id. He must have a personal duty to the

plaintiff, and the breach of that duty must have caused the plaintiff's damages. Id. Also, if the defendant's

responsibility was delegated with due care to a subordinate, he is not liable unless he knew or should have known of the non-performance subordinate. or mal-performance of the duty by the

Id.

In order to state a cause of action against Wal-Mart's managers, then, it must be shown that Wal-Mart delegated its duty to them and that they personally breached that duty. Wal-Mart, 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. R.S. 9:2800.6.

5

Here

plaintiff

is

alleging

that

the

two

managers

personally placed the box in the aisle in a neglgent manner. However, defendants have attached the affidavits of the two individual defendants to dispute those allegations. Mr.

Gremillion attests that he was not even the store manager at the time of the accident.1 Further, Mr. Balthazar's afidavit shows that he was not the sporting goods manager att he time of the accident and did not place the boxes. These affidavits have not been controverted by the plaintiffs. This case is similar to Brady v. Wal-Mart Stores, 907 F.Supp. 958, 960 (M.D. La. 1995), in which a store manager was sued for failing to prevent a stack of boxes from falling on an invitee's head. The court noted that, although plaintiff accused the manager of being responsible for stacking the boxes improperly, there was no accusation that the manager himself stacked the boxes, and the plaintiff could not reveal who personally caused the accident. Id. Holding that it was

improper to hold a manager liability for breaches of his general administrative duties as store manager, the court agreed he had been improperly joined. Id. at 961.

A plaintiff's attorney has a duty to investigate his client's claims prior to filing suit. FRCP 11 (b). 6

1

This court has repeatedly recognized these principles. See, for example, district judge Drell's opinion in Carter v. Wal-Mart, 04-0072 on the docket of this court. As in Brady, this is a classic case of attempting to place liability upon a store manager "simply because of his general administrative responsibility for performance of some function of employment." Canter at 721. There is no such

theory of recovery under Louisiana law. Therefore, plaintiff's claims against Balthazar and Gremillion fall short as a matter of law; thus, they have been improperly joined and their presence in the suit should be disregarded for the purposes of determining jurisdiction, that is, whether complete diversity of the parties exists. Both should be dismissed as a

defendant. Next, plaintiff argues that the defendant's removal was untimely. Suit was filed in state court on December 3, 2008 and Wal-Mart was served on December 19, 2008. The removal was not filed until May 13, 2009. However, in the meantime, defendant had propounded interrogatories and requests for admissions to the plaintiffs regarding the amount in dispute. The amount in dispute was not apparent from the face of the complaint (See paragraph 12.). In plaintiffs' answers to the admissions they expressly admitted that the amount in dispute 7

as to Bridget Driver's claim exceeded $75,000. Defendant shows those answers were served on April 24th 2009. In addition, plaintiff's deposition was taken on April 23rd in which, for the first time, defendant asserts it learned that plaintiff's injuries exceeded the jurisdictional limits. The petition for removal was, therefore, timely filed within 30 days of the date on which defendants first learned that the plaintiffs damages may exceed the jurisdictional limits. The removal was timely filed and the only properly joined parties are completely diverse. Therefore, the motion to remand should be denied. CONCLUSION IT IS RECOMMENDED that the motion to remand, including the motion for attorney fees doc. #8, be DENIED. IT IS FURTHER RECOMMENDED that defendant's motion for attorney fees, doc. #11, be GRANTED the THAT due to the obvious before failure filing and to suit. properly IT IS be

investigate RECOMMENDED

allegations defendants

Balthazar

Gremillion

dismissed as defendants. OBJECTIONS Under the provisions of 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b), the parties have ten (10) business days 8

from

service

of

this

Report

and

Recommendation

to

file

specific, written objections with the clerk of court. A party may respond to another party's objections within ten (10) days after being served with a copy thereof. A courtesy copy of

any objection or response or request for extension of time shall be furnished to the district judge at the time of filing. Timely objections will be considered by the district

judge before he makes his final ruling. FAILURE TO FILE WRITTEN OBJECTIONS TO THE PROPOSED

FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS CONTAINED IN THIS REPORT WITHIN TEN (10) BUSINESS DAYS FROM THE DATE OF ITS SERVICE SHALL BAR AN AGGRIEVED PARTY, EXCEPT UPON GROUNDS OF PLAIN ERROR, FROM ATTACKING ON APPEAL THE UN-OBJECTED-TO PROPOSED FACTUAL FINDINGS AND LEGAL CONCLUSIONS ACCEPTED BY THE DISTRICT JUDGE. THUS DONE AND SIGNED in chambers, in Alexandria,

Louisiana, on this the 11th day of August, 2009.

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