LaBorde et al v. Treadwell Restaurants of LA L L C

Filing 23

MEMORANDUM RULING re 15 MOTION to Remand filed by Rodney LaBorde, Lori Laborde and 12 MOTION to Amend/Correct 1 Complaint filed by Rodney LaBorde, Lori Laborde. Signed by Magistrate Judge Karen L Hayes on 4/9/13. (crt,Crawford, A)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
RODNEY LABORDE AND LORI
LABORDE

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CIVIL ACTION NO. 12-2328

VERSUS

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JUDGE ROBERT G. JAMES

TREADWELL RESTAURANTS OF
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MAG. JUDGE KAREN L. HAYES
LA, LLC, ET AL.
MEMORANDUM RULING
Before the undersigned magistrate judge, on reference from the District Court, are two
motions filed by plaintiffs Rodney Laborde and Lori Laborde: 1) a motion for leave of court to
file an amended complaint [doc. # 12]; and 2) a motion to remand [doc. # 15]. The motions are
opposed. For reasons assigned below, the motions are GRANTED.1
Background
On August 7, 2012, Rodney Laborde (hereinafter, sometimes referred to as “Laborde”)
and his wife, Lori Laborde, both Louisiana domiciliaries, filed the instant suit for damages in the
4th Judicial District Court, for the Parish of Ouachita, State of Louisiana, against defendants
Treadwell Restaurants of LA, LLC (“Treadwell”); an unknown manager of Treadwell; and
Treadwell’s liability insurer, Zurich American Insurance Company (“Zurich”). Plaintiffs allege
that on September 8, 2011, they went to the Treadwell-owned and operated Kentucky Fried

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As these motions are not excepted within 28 U.S.C. § 636(b)(1)(A), nor dispositive of
any claim on the merits within the meaning of Rule 72 of the Federal Rules of Civil Procedure, this
order is issued under the authority thereof, and in accordance with the standing order of this court.
Any appeal must be made to the district judge in accordance with Rule 72(a) and L.R. 74.1(W).

Chicken (“KFC”) restaurant at 1706 Martin Luther King Boulevard to purchase something to eat.
(Petition). After they paid for their meal, and while they were traversing the dining room toward
a table, Rodney Laborde slipped and fell to the wet floor. Id., ¶ 3.
Plaintiffs attributed the accident to the failure of Treadwell’s unknown manager, or one of
his subordinates, to place a sufficient number of signs to warn customers about the slippery and
dangerous conditions prevalent in the area where Laborde fell. Id., ¶ 4. Moreover, because
Treadwell’s manager was acting within the course and scope of his employment, plaintiffs
contend that Treadwell is solidarily liable with its manager for plaintiffs’ damages. Id., ¶ 5.
As a result of the fall, Laborde sustained severe bodily injuries to his shoulder, neck, right
arm, and other areas. Id., ¶ 7. Plaintiffs seek recovery against defendants for all of their resulting
and related damages, including Lori Laborde’s claim for loss of consortium. Id., ¶¶ 7-10.
On September 6, 2012, defendants, Treadwell and Zurich, timely removed the matter to
federal court on the apparent basis of diversity jurisdiction. See Notice of Removal. Upon
prompting by the court, removing defendants amended their notice of removal to allege complete
diversity of citizenship, and to establish that the amount in controversy exceeded the requisite
jurisdictional minimum. (Dec. 27, 2012, Order [doc. # 8] and Amended Notice of Removal [doc.
# 9]). In so doing, removing defendants reasserted that the citizenship of the unknown manager
defendant must be disregarded for purposes of diversity because he was sued under a fictitious
name. See 28 U.S.C. § 1441(b)(1).
The record reflects that by November 29, 2012, plaintiffs had discovered that Darrell
Jackson was the unknown restaurant manager whom they had sued fictitiously. See Rule 26(f)
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Case Management Report [doc. # 6]. Moreover, although plaintiffs stated their intention to seek
leave of court to substitute Darrell Jackson in lieu of the fictitiously named restaurant manager,
they did not file the instant motion for leave to amend until February 14, 2013. Plaintiffs
attributed the delay to their inability to depose Jackson until February 12, 2013. (M/Leave [doc. #
12]).
Because Jackson is non-diverse, his substitution will destroy the court’s diversity
jurisdiction and compel remand. 28 U.S.C. § 1447(e). Consequently, plaintiffs also filed a
motion to remand in the event that the court grants their motion for leave to amend. Removing
defendants oppose both motions. The matter is now before the court.
Law and Analysis
I.

Motion for Leave to Amend
A proposed amendment to substitute a named party for a fictitiously named party may be

considered under Rule 15. See Doleac ex rel. Doleac v. Michalson, 264 F.3d 470, 475 (5th Cir.
2001). Rule 15 provides that leave to amend shall be “freely [granted] when justice so requires.”
Fed.R.Civ.P. 15(a)(2). This rule is circumscribed, however, by 28 U.S.C. § 1447(e) which states
that “[i]f after removal the plaintiff seeks to join additional defendants whose joinder would
destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the
action to the State court.” 28 U.S.C. § 1447(e); Ascension Enters. v. Allied Signal, 969 F. Supp.
359, 360 (M.D. La. 1997) (Section “1447(e) trumps Rule 15(a).”). Furthermore, if permitted, the
substitution of a non-diverse, named defendant for a fictitiously named defendant will destroy
subject matter jurisdiction, and compel remand. Doleac, supra; 28 U.S.C. § 1447(e).
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Under these circumstances, courts are required to “scrutinize [the] amendment more
closely than an ordinary amendment.” Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir.
1987). Specifically, the court must balance the defendant’s interest in maintaining a federal
forum, with the competing interest of avoiding parallel lawsuits by considering the following
“Hensgens factors,”
[1] the extent to which the purpose of the amendment is to defeat federal
jurisdiction, [2] whether the plaintiff has been dilatory in asking for amendment,
[3] whether plaintiff will be significantly injured if amendment is not allowed, and
[4] any other factors bearing on the equities. The district court, with input from
the defendant, should then balance the equities and decide whether amendment
would be permitted. If it permits the amendment of the non-diverse defendant, it
must remand to the state court. If the amendment is not allowed, the federal court
maintains jurisdiction.
Wilson v. Bruks-Klockner, Inc., 602 F.3d 363, 367-368 (5th Cir. 2010) (citation omitted).
In the matter sub judice, neither side mentions or discusses the Hensgens factors in their
memoranda. Instead, the parties limit their discussion solely to whether plaintiffs have a
reasonable possibility of recovery against the restaurant manager, Jackson. Thus, the court will
address this issue first.
a)

Colorable Claim

A plaintiff will not be “significantly injured” by a court’s denial of leave to add a clearly
meritless claim. Wilson, 602 F.3d at 368. Thus, it is within a district court’s discretion to deny a
proposed amendment as futile, if there is no reasonable basis to predict that plaintiff will be able
to recover against the would-be, non-diverse defendant. Id. Indeed, leave to amend to join a
party “against whom recovery is not really possible and whose joinder would destroy subject
matter jurisdiction,” should never be granted. Cobb. v. Delta Exports, Inc., 186 F.3d 675, 678

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(5th Cir. 1999). The party opposing joinder has the opportunity to prevent joinder by arguing
that plaintiff has no “colorable claim” against the proposed defendant. Id. In so doing, the
district court may permit “limited discovery into ‘discrete and undisputed facts’ that had been
omitted from the complaint and that might preclude recovery against the in-state defendant . . .”
Wilson, 602 F.3d at 373 (citing Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 573-74 (5th
Cir.2004). In other words, the court may “pierce the pleadings,” as is sometimes done in an
improper joinder analysis.2
1)

Corporate Officer or Employee Liability

Louisiana law provides that in limited circumstances a corporate officer or employee
may be held individually liable for injuries to third persons. Ford v. Elsbury, 32 F.3d 931, 935
(5th Cir. 1994) (citing Canter v. Koehring Co., 283 So.2d 716 (La. 1973)). The liability may be
imposed on such individuals even if the duty breached arises solely from the employment
relationship. Ford, 32 F.2d at 936. Liability may be imposed on a manager under the following
conditions:
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 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

2

Albeit, the improper joinder doctrine, per se, does not apply to post-removal joinder(s).
Cobb, 186 F.3d at 677.
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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.
4.

With regard to the personal (as contrasted with the 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 malperformance and
has nevertheless failed to cure the risk of harm.
Ford v. Elsbury, 32 F.3d 931, 936 (5th Cir. 1994) (citing, Canter, 283 So.2d at 721).
It is manifest that, “[a] merchant owes a duty to persons who use his premises to exercise
reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This
duty includes a reasonable effort to keep the premises free of any hazardous conditions which
reasonably might give rise to damage.” La. R.S. 9:2800.6(A). Generally, “the owner or operator
of a facility has the duty of exercising reasonable care for the safety of persons on his premises
and the duty of not exposing such persons to unreasonable risks of injury or harm.” Mundy v.
Department of Health and Human Resources, 620 So.2d 811, 813-814 (La.1993) (citations
omitted). Furthermore, “[t]he owner or custodian is required to discover any unreasonably
dangerous conditions on the premises and correct the condition or warn potential victims of its
existence.” Hutchison v. Knights of Columbus, Council No. 5747, 847 So.2d 665 (La. App. 4th
Cir. 5/7/2003), affirmed, 866 So.2d 228 (La. 2004). Id. An employee can be held individually
liable by a third person for breach of a duty that arises out of the employment or agency
relationship between the employee and her employer. Canter, 283 So.2d at 722-723.

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2)

Evidence & Analysis

As recounted above, plaintiffs alleged in their original complaint that the KFC manager,
i.e. Jackson, or one of his subordinates, failed to place enough warning signs in the restaurant,
including the dining area where Laborde fell. (Petition, ¶ 4). In their proposed amended
complaint, plaintiffs add a paragraph alleging that Jackson breached his managerial responsibility
to maintain the cleanliness and safety of the customer area. (Prop. Amend. Compl., ¶ 4(a)).
Defendants contend that the foregoing allegations simply assert violations of Jackson’s
general managerial responsibilities, and fail to set forth the breach of any independent duty owed
by Jackson to plaintiffs. (Opp. Memo., pg. 6). In support of their argument, defendants cite to
Jackson’s deposition wherein he testified that it was the duty of the front counter cashier to
maintain the cleanliness and safety of the customer area. (Jackson Depo., pgs. 8-9; Def. Opp.
Memo., Exh. A).
However, Jackson further testified that during his tenure at the restaurant, it has been the
restaurant’s practice to keep three wet floor signs on permanent display throughout the
establishment. (Jackson Depo., pgs. 11-13; Pl. Reply, Exh. P).3 Jackson explained that one of

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Jackson also testified that there was a wet floor sign near where Laborde fell, and that
he observed nothing on the floor where Laborde purportedly slipped. (Jackson Depo., pgs. 1314). Although plaintiffs contest these facts in their petition, they did not support their allegations
with competent summary judgment evidence. Nevertheless, because the foregoing testimony by
Jackson, if credited, arguably would preclude plaintiffs’ claims against all defendants alike, the
court cannot rely upon them as a basis to find that plaintiffs have no colorable claim against
Jackson. See Smallwood, supra. Furthermore, in Wilson, the Fifth Circuit expressed its
disapproval with the district court’s alternative holding denying leave to amend because of
plaintiffs’ failure to present evidence under circumstances, where 1) the non-diverse defendant
was not yet a party to the case, and 2) the district court had not permitted discovery on the issue
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his duties was to ensure that cashiers went out to check on customers. Id., pgs. 7-8. Toward this
end, it was Jackson’s responsibility, as the manager on duty, to effect a “figure eight route,”
every 30 minutes. Id., pgs. 14-15. This procedure required Jackson to go “outside” to the dining
room to check on customers to confirm that everything was going well; to exit the restaurant and
ensure that the parking lot remained clear; and to check the restrooms to see whether they were
properly stocked. Id.
In other words, Jackson’s employer required him to walk around the restaurant and the
parking lot every 30 minutes to ensure that all was well. Pursuant to this duty, Jackson arguably
should have discerned whether there was an unsafe condition that the cashier had overlooked or
negligently created.4 As the Fifth Circuit observed, “[a] supervisor's knowledge of the dangers
present ‘could give rise to the personal duty contemplated in Canter.’” Id. (citing Hayden v.
Phillips Petroleum Co., 788 F. Supp. 285, 287 (E. D. La.1992); compare Guillory v. PPG
Industries, Inc., 434 F.3d 303, 312 (5th Cir. 2005) (non-diverse defendants were not aware of the
alleged unreasonably dangerous condition).5 In short, removing defendants have not established
that plaintiffs have no “colorable claim” against the non-diverse defendant.

of liability. Wilson, 602 F.3d at 373, n45.
4

In addition, defendants have not established that Jackson delegated with due care the
primary responsibility for ensuring the cleanliness and safety of the dining room area to the
cashier.
5

It is of no moment that the employer might be vicariously liable for the actions of its
employee. Ford, supra.
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b)

Hensgens Considerations

Turning now to the Hensgens factors, unaided by argument from either side, the
undersigned initially observes that district courts have mulled various considerations to
determine whether the purpose of a given amendment was to defeat federal jurisdiction. For
example, courts will ask “whether the plaintiff[] knew or should have known the identity of the
non-diverse defendant when the state court complaint was filed.” Schindler v. Charles Schwab
& Co., Inc., C. A. No. 05-0082, 2005 WL 1155862 (E.D. La. May 12, 2005). In addition, if “a
plaintiff states a valid claim against a defendant, it is unlikely that the primary purpose of
bringing those defendants into a litigation is to destroy diversity jurisdiction.” Id.
As discussed above, plaintiffs have a viable cause of action against the proposed
defendant. Importantly, plaintiffs are not seeking to add a new defendant. Instead, plaintiffs are
seeking to substitute a named defendant, Darrell Jackson, for a fictitious, unknown defendant,
who was included in the original petition for damages. See Ellender v. Rite Aid Pharmacy, C. A.
No. 08-0722, 2008 WL 4200716 (W.D. La. Sept. 8, 2008).
As to the timeliness of the proposed substitution, the court observes that while plaintiffs
waited more than two months after uncovering Jackson’s identity before filing the instant
motion, they appropriately deferred substitution (at least in this case) because of their need to
discern evidence, via deposition, that Jackson owed a duty and responsibility for the conditions
that caused Laborde’s accident. Moreover, plaintiffs filed their motion just two days after
Jackson’s deposition.
As to prejudice, the court notes that plaintiffs likely will not suffer any ultimate financial
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prejudice if leave to amend were denied. Indeed, Treadwell admitted that its manager, i.e.,
Jackson, was acting within the course and scope of his employment at the time of the accident.
(Answer, ¶ 5). Thus, Treadwell is liable for Jackson’s negligence. La. Civ. Code Art. 2320. On
the other hand, it is conceivable that plaintiffs could suffer some prejudice in discovery and case
preparation if Jackson were to remain a non-party. See Ellender, supra. In addition, if leave to
amend were denied, and plaintiffs wished to pursue their claim against Jackson, they would have
to bear the burden of maintaining parallel lawsuits arising out of the same set of facts in both
state and federal courts. Thus, this third factor also weighs in favor of remand.
Finally, the other considerations “bearing on the equities” weigh in favor of remand. The
possibility of parallel lawsuits threatens judicial resources as well as the time and resources of the
witnesses in the case. Moreover, there would be a danger that the courts could reach inconsistent
results. Although the court realizes that removing defendants have an interest in retaining their
chosen federal forum, this interest alone does not justify the requested denial of leave to amend.
For the foregoing reasons,
IT IS ORDERED that plaintiffs’ motion for leave to amend [doc. # 12] is hereby
GRANTED.
II.

Motion to Remand
The substitution of a non-diverse, named party for his fictitious alias destroys the court’s

subject matter jurisdiction. Doleac, supra. Once substitution of a diversity-destroying defendant
is permitted, remand to state court is not merely discretionary, it is mandatory. Id.; 28 U.S.C. §
1447(e). Accordingly,

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IT IS ORDERED that plaintiffs’ motion to remand [doc. # 15] is hereby GRANTED.
THUS DONE AND SIGNED in chambers, at Monroe, Louisiana, this 9th day of April
2013.

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