Battenfield v. Wal-Mart Stores Inc et al

Filing 45

MEMORANDUM RULING denying 19 Motion to Remand. Signed by Magistrate Judge Kathleen Kay on 3/8/13. (crt,Kennedy, T)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION

NECIA LYN BATTENFIELD

:

CIVIL ACTION NO. 2:11-cv-1537

VERSUS

:

JUDGE MINALDI

WAL-MART STORES, INC., ET AL.

:

MAGISTRATE JUDGE KAY

MEMORANDUM RULING

Before the court is the Motion to Remand by plaintiff, Necia Lyn Battenfield. Doc. 19.
The court heard oral arguments on the motion on April 26, 2012. For the reasons set forth
below, the motion is DENIED.
Background
On August 5, 2010, plaintiff was shopping at a Wal-Mart store in Lake Charles,
Louisiana. She alleges that she slipped on spilled cola while shopping in the infant department
of the store and sustained serious injuries. Doc. 1, Att. 2.
Plaintiff describes the alleged spill as large in size, covering a large area of the floor and
streaking down several aisles. She states that she overheard a Wal-Mart employee say that this
area of the store was unsupervised that day and had not recently been cleaned. Plaintiff also
states that she later learned that the manager of infant department was on vacation the day of the
alleged incident. Doc. 19, Att. 1, pp. 3–4.

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Plaintiff filed suit on August 5, 2011, in the 14th Judicial District Court in and for the
Parish of Calcasieu, State of Louisiana.

She named Wal-Mart, 1 as well as two Wal-Mart

employees, Krystal Jones and Charlene Trahan, as defendants. Doc. 1, Att. 2.
Krystal Jones was the shift manager on duty when the alleged incident occurred. Plaintiff
alleges that Jones is personally liable for the injuries she sustained because Jones was in charge
of the daily operations of the store. The specific allegations against Jones are as follows:
(1)

Failure to properly supervise employees to provide a safe environment,

(2)

Failing to inspect the premises,

(3)

Failing to warn the plaintiff of the unsafe condition when Jones knew or
should have known of the unsafe condition,

(4)

Failing to delegate the inspection and cleanup of the area,

(5)

Violating Wal-Mart’s policy of inspecting and cleaning the aisles,

(6)

Allowing the liquid to be in the aisle for at least thirty-four minutes,

(7)

Allowing spoliation of video evidence, and

(8)

Any other acts of negligence to be proven at trial.

Doc. 1, Att. 2, p. 6.
Plaintiff also names Charlene Trahan as a defendant and advances substantially similar
allegations of negligence against Trahan as she does against Jones. Doc. 1, Att. 2, pp. 2–3.
Plaintiff concedes, however, that she mistakenly named Trahan as a defendant, believing her to
be Charlene Marshall, the manager of the infant department that was on vacation the day of the
alleged accident. Plaintiff further concedes that Trahan should be dismissed from this suit. Doc.
19, Att. 1, p. 4.  

1

Plaintiff names Wal-Mart Louisiana, L.L.C. and Wal-Mart Stores, Inc. as defendants. However, for simplicity, the
court collectively refers to these defendants as “Wal-Mart.”

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Wal-Mart removed the case to this court on August 23, 2011. It alleges this court has
jurisdiction on the basis of diversity. Wal-Mart recognizes that there is an absence of complete
diversity between the parties as Jones is domiciled in Louisiana. It argues, however, that Jones
should not factor into this court’s jurisdictional analysis because she was improperly joined in
the case. Doc. 1.
Wal-Mart argues that the allegations of the petition which pertain to Jones speak
exclusively to her supervisory and/or administrative responsibilities. Moreover, they argue that
Louisiana law will not impose personal liability on Jones under such circumstances. If Louisiana
law would not impose liability against Jones, Wal-Mart contends, then dismissal of Jones is
warranted and her domicile should not be considered in determining whether diversity subject
matter jurisdiction exists.
Plaintiff filed a Motion to Remand on February 12, 2012, on the basis that there is an
absence of complete diversity.

Doc. 19.

As previously discussed, plaintiff concedes that

dismissal of Trahan is warranted. However, she maintains that Jones was properly joined as a
defendant. Plaintiff argues that sufficient facts have been set forth such that this court could
reasonably predict that a jury could find Jones personally liable. Thus, she contends, Jones’s
domicile should be considered when determining whether this court has jurisdiction, and because
Jones is a non-diverse defendant, remand is proper. Doc. 19, Att. 1.
Law and Analysis
A. Subject Matter Jurisdiction:
District courts have original jurisdiction over all civil actions where the amount in
controversy exceeds $75,000, exclusive of interest and costs, and is between citizens of different
states. 28 U.S.C. § 1332(a)(1). Removing defendants must demonstrate by a preponderance of

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the evidence that the amount in controversy exceeds $75,000, exclusive of interest and costs.
Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 882 (5th Cir. 2000). There is no apparent dispute
between the parties as to whether the jurisdictional amount in controversy is satisfied. In any
event, it is facially obvious from Plaintiff’s original petition that the claim for damages satisfies
the requisite jurisdictional amount. See Lucket v. Delta Airlines, 171 F.3d 295, 298 (5th Cir.
1999). The diversity provisions of 28 U.S.C. § 1332(a)(1) requires complete diversity among the
parties. Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996).
Federal courts have jurisdiction even when the parties are not completely diverse if the
non-diverse defendant has been improperly joined. 28 U.S.C. § 1441(b)(2); Smallwood v. Ill.
Cent. R.R. Co., 385 F.3d 568, 572–73 (5th Cir. 2004). In such cases, the removing party must
show, inter alia, either: (1) actual fraud in the pleading of jurisdictional facts, or (2) the inability
of the plaintiff to establish a cause of action against the non-diverse party in state court. Travis v.
Irby, 326 F.3d 644, 647 (5th Cir. 2003) (citing Griggs v. State Farm Lloyds, 181 F.3d 694, 698
(5th Cir. 1999). Only the latter method is of concern in this instance.2
The proper test is “whether the defendant has demonstrated that there is no possibility of
recovery by the plaintiff against an in-state defendant, which stated differently means that there
is no reasonable basis for the district court to predict that the plaintiff might be able to recover
against an in-state defendant.” Smallwood, 385 F.3d at 573. Factual allegations are to be viewed
in the light most favorable to the plaintiff; however, “conclusory or generic allegations of
wrongdoing on the part of the non-diverse defendant are not sufficient to defeat a properly

2

Wal-Mart argues that several allegations of the petition constitute “actual fraud” as understood under the first
method of demonstrating improper joinder of a defendant. Doc. 27, pp. 8–9. However, this method of proving
improper joinder is limited to the pleading of “jurisdictional facts.” Travis, 326 F.3d at 647 (citation omitted).
While Wal-Mart believes that plaintiff misstated certain facts in the case, there is no indication that these are
necessarily “jurisdictional” in nature. As such, the undersigned will address these claims under the second method
of demonstrating improper joinder of a defendant by asking whether plaintiff has any possibility of recovery under
these theories.

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supported claim of fraudulent joinder.” Fry v. Am. Gen. Fin., Inc., 307 F.Supp.2d 836, 844 n.6
(S.D. Miss. 2004) (citing Badon v. RJR Nabisco, Inc., 224 F.3d 382, 392–39 (5th Cir. 2000)).
Plaintiffs must show more than a mere theoretical possibility of recovery. See Irby, 326 F.3d at
648 (citations omitted).
In conducting this analysis, courts should “pierce the pleadings” and consider “summary
judgment-type evidence such as affidavits and deposition testimony.” Cavallini v. State Farm
Mut. Auto. Ins. Co., 44 F.3d 256, 263 (5th Cir. 1995). However, the standard applied in
evaluation is “closer to the Rule 12(b)(6) standard,” McKee v. Kan. City S. Ry. Co., 358 F.3d
329, 333-34 (5th Cir. 2004), where plaintiffs are prohibited from “rest[ing] upon the mere
allegations or denial of [their] pleadings.” Beck v. Tex. State Bd. of Dental Exam’rs, 204 F.3d
629, 633 (5th Cir. 2000).
B. Applicable Substantive Law:
The parties agree that the applicable substantive law was articulated by the Supreme
Court of Louisiana in Canter v. Koehring Company, 283 So.2d 716 (1973), which elucidated the
criteria under which an officer, agent or employee may be liable to a third party. Individual
liability may be imposed if the following are satisfied:
1. The principal or employer owes a duty of care to the third person (which in
this sense includes a co-employee), breach of which has caused the damage
for which recovery is sought.
2. This duty is delegated by the principal or employer to the defendant.
3. The defendant officer, agent, or employee has breached this 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—whether such failure be due to 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

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care in discovering and avoiding such risk of harm which has resulted from
the breach of the duty.
4. With 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
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. at 721. Thus, the question in this case is whether there is a reasonable basis for the court to
predict that plaintiff might be able to recover from Jones consistent with the requirements
articulated by the Canter court. In making this determination, the court will conduct a summary
judgment type review to determine whether plaintiff is likely to sustain a cause of action against
her under any of the theories of liability previously articulated.
C. The Case Against Jones:
Plaintiff’s allegations against Jones can be grouped into several categories. Several
allegations pertain to Jones’s general responsibilities as a Wal-Mart employee, while others
focus on her particular responsibilities as a manager. Plaintiff also makes two allegations that do
not fit neatly into either the general or specific category—Jones permitted the spoliation of
evidence, and Jones violated Wal-Mart policy regarding inspection and cleaning. Additionally,
plaintiff outlines in brief several scenarios in which a jury could infer negligence on the part of
Jones. These arguments will be considered in turn.
1. General Responsibilities:
The plaintiff alleges that Jones failed to inspect the premises, failed to warn the plaintiff
of the condition, and allowed the spill to remain on the floor. These allegations are logically
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connected insofar as they pertain to her general role as employee and do not focus on her
particular role as a manager. There is no indication whatsoever that Jones knew or should have
known of the existence of the spill such that she could have been personally obligated to warn
the plaintiff or to personally oversee any clean-up efforts.

See e.g. Thomas v. Wal-Mart

Louisiana, LLC, CIV.A. 11-367, 2011 WL 3418322, *2–*3 (W.D. La. Aug. 3, 2011) (finding a
possibility of recovery against a manager only because she had knowledge of a hazard and failed
to remedy it). While Jones has been delegated some degree of care by Wal-Mart, there is no
indication that they have delegated to her the task of micro-managing the store.
2. Managerial Responsibilities:
Two of the allegations focus on Jones’s employment as a shift manager—the failure to
supervise employees and the failure to delegate. These allegations unquestionably seek to hold
Jones responsible for her failure to perform general administrative responsibilities.
Upon further investigation, it becomes clear that plaintiff does not really seek to hold
Jones liable on the theory that she failed to supervise the subordinates in the infant department.
The real problem, plaintiff contends, is that Jones failed to delegate to subordinates the task of
monitoring the infant department while the usual supervisor of that department, Charlene
Marshall, was on vacation. Plaintiff argues that Wal-Mart has delegated vast authority to Jones
in her position as shift manager. She submits that the deposition testimony demonstrates that
Jones is responsible for the entirety of the store. Doc. 19, Att. 1, pp. 12–16.
Assuming that Louisiana law recognizes a cause of action for failure to delegate with due
care, plaintiff has no possibility of recovery under this theory. Such a cause of action necessary
implies that Jones has been delegated the responsibility to make decisions regarding further

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delegation, which she has not. The deposition testimony makes several things clear.3

When a

department manager is off-duty or on vacation, the appropriate zone merchandising supervisor or
assistant manager is responsible for ensuring that the responsibilities of the department manager
are re-delegated to another employee, depending on the circumstances. Moreover, Jones’s
ability to make staffing decisions is significantly limited by the administrative decisions made by
others above her pay grade. While the evidence may ultimately indicate that Wal-Mart suffers
from a lack of adequate staffing and/or from a sub-standard chain of command that facilitates
accidents on their premises, there is no indication that Jones was delegated responsibility for
these failures to the extent they exist.
In any event, plaintiff has no possibility of recovering from Jones on the theory that she
failed to delegate. Canter contemplates that responsible delegation may relieve an employee of
personal liability; however, at no point does the Canter court suggest that the opposite is also
true—that the failure to delegate alone may serve as a basis to impose personal liability. The
employee must have owed “a personal duty to the plaintiff.”

And as the fourth Canter

requirement makes clear, an employee cannot be held liable “simply because of his general
administrative responsibility for performance of some function of the employment.” 283 So. 2d
at 721. The duty to delegate tasks to subordinate employees is a quintessential administrative
task, and as such, the failure to delegate standing alone cannot serve as a basis for imposing
liability.
Plaintiff directs the court to Walker v. Schwegmann Giant Supermarkets, Inc., 95-1934, p.
6 (La. App. 4 Cir. 3/14/96), 671 So.2d 983, 987, wherein the court held plaintiff’s “factual
allegations support[ed] a cause of action against” the supermarket manager. However, Walker is

3

Doc. 19, Att. 4; Doc. 27, Att. 3 (deposition of Craig Fontenot); Doc. 19, Att. 2; Doc. 27, Att. 4 (deposition of
Krystal Jones); Doc. 19, Att. 6; Doc. 27, Att. 2 (deposition of Charlene Marshall).

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distinguishable insofar as that court was confronted with an exception of no cause of action
under the Louisiana Code of Civil Procedure. Id. at p. 3; 671 So.2d at 986. Such an exception is
the rough equivalent of a Rule 12(b)(6) motion to dismiss. Conner v. Kraemer-Shows Oilfield
Services, LLC, 2012 WL 2839452, at *5 (W.D. La. July 9, 2012). In both cases the court accepts
the allegations of the petition as true and tests their legal sufficiency in terms of whether the law
may afford relief. Id. While this court’s inquiry is like a Rule 12(b)(6) analysis, it is expressly
different insofar as this court undertakes to pierce the pleadings and consider summary judgment
type evidence.
Plaintiff also points to the case of Nine v. Harper, 371 So.2d 320, 323 (La. Ct. App. 4
Cir. 1979), wherein the court found a question of material fact existed as to whether several
defendant executive officers used due care in delegating tasks on a construction site. Only two
courts have ever cited to this decision in over thirty years. See Ford v. Elsbury, 32 F.3d 931, 936
n.6 (5th Cir. 1994); Dieter v. Hand, 33 N.W.2d 772, 775 (Neb. 1983). This court is reluctant to
conclude that Nine decision accurately reflects the current state of Louisiana law considering the
overwhelming number of cases finding no personal liability on the part of employees acting in a
supervisory capacity.
3. Spoliation of Evidence:
Plaintiff alleges that Jones allowed spoliation of video evidence. However, plaintiff has
no possibility of recovering on this claim.
In order to make a prima facie case of spoliation, a plaintiff must demonstrate that the
defendant intentionally or negligently destroyed evidence in order to deprive the plaintiff of its
use. See e.g. Arnold v. Brookshire Grocery Co., 2009-44, p. 2 (La. App. 3 Cir. 5/6/09), 10 So.3d
1279, 1280. Plaintiff has not alleged any facts that indicate that Jones knew or should have

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known that evidence had been spoliated or was in the process of being spoliated. Similarly,
plaintiff has not alleged that Jones personally spoliated evidence.
4. Violations of Wal-Mart Policy:
Plaintiff alleges that Jones violated Wal-Mart policy regarding spills and inspection.
However, plaintiff has no possibility of recovering on this claim.
There is no evidence, through deposition testimony or otherwise, identified any particular
Wal-Mart policy that Jones violated, much less any evidence that the violation of that policy was
causally related to plaintiff’s alleged injuries. Moreover, the third Canter requirement requires
the defendant to owe a “personal duty.” While Jones owes the duty to Wal-Mart to abide by its
corporate policies as an employee, plaintiff fails to demonstrate a legal basis for finding that
Jones also owes this duty to the shopping public.
5. Inferences of Negligence:
In her brief to the court, plaintiff hypothesizes that a jury could infer negligence on the
part of Jones in a number of respects. Plaintiff could not recover under any of these theories, and
as such, they do not support remand of the case.
Plaintiff submits that Jones could have affected a policy banning customers from
consuming beverages on the shopping floor. This argument is unpersuasive insofar as plaintiff
has not put forward any evidence that Jones has been given that authority. Moreover, such
authority is inconsistent with the rest of her job description which concerns day-to-day
operations, not corporate policy.
Plaintiff also argues that there is an issue of proper staffing, oversight, and training
because the janitorial staff discovers spills and sometimes must tend to multiple spills at the
same time. This argument is unavailing for a number of reasons. As an initial observation, it is

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quite understandable, if not expected, that the janitorial staff would discover and tend to janitorial
needs. Moreover, there is no indication that Jones established the policy with respect to spills,
and the rationale is the same as the delegation argument. To the extent that the policy is
ineffective as written, any accident attributable to the policy is not within the responsibility
delegated to Jones. There is no allegation, much less evidence, that Jones wrote the policy. And
finally, to the extent that the policy is ineffective in practice, there is no indication that Jones has
been delegated the authority to effectuate changes such as increasing the size of the janitorial
staff, adjusting the chain of command to better monitor the janitorial staff, changing the job
description of janitors, etc.
Conclusion
The court concludes that plaintiff improperly joined Krystal Jones as a defendant in this
matter. The undersigned will issue a concurrent Report and Recommendation suggesting that
Jones be dismissed from the case.
The court further concludes that it has subject matter jurisdiction on the basis of diversity
as the parties are completely diverse in citizenship and the amount in controversy exceeds the
$75,000 requirement. Thus, the Motion to Remand is DENIED.
Plaintiff’s request for and attorneys’ fees and costs is similarly DENIED.
THUS DONE this 8th day of March, 2013.

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