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

Filing 20

MEMORANDUM ORDER. IT IS ORDERED that the Mitchells' 8 Motion for Leave to file a Supplemental and Amending Complaint is granted. Because the amendment destroys this Court's diversity jurisdiction, IT IS FURTHER ORDERED that the Clerk Rema nd this lawsuit to pursuant to 28 U.S.C. §1447(e). This Order shall be STAYED for fourteen days from the date of issuance. Any appeal to the District Judge must be filed within fourteen days from the date of this Order. Signed by Magistrate Judge Patrick J Hanna on 2/4/2016. (crt,Alexander, E)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
JAMES MITCHELL, ET AL.

:

CIVIL NO. 6:15-2506

VS.

:

JUDGE DOHERTY

WAL-MART STORES, INC., ET
: MAGISTRATE JUDGE
AL
HANNA
MEMORANDUM ORDER
Currently before the Court is the Motion for Leave to File a First
Supplemental and Amending Complaint filed by plaintiffs, James and Katie
Mitchell, individually and on behalf of their minor daughter, Candace Mitchell
(“the Mitchells”). [rec. doc. 8]. By this Motion, the Mitchells seek leave to file
an amended complaint naming Chris Arceneaux ("Arceneaux"), a Wal-Mart
maintenance associate, as a defendant. The defendants, Wal-Mart Louisiana, LLC
and Wal-Mart Stores, Inc. (“Walmart”) have filed opposition and supplemental
opposition, to which the Mitchells have filed a Reply. [rec. docs. 10, 13 and 14].
A hearing on the Motion was held before the undersigned Magistrate Judge on
January 26, 2016, and the Motion was taken under advisement.
BACKGROUND
The Mitchells filed suit in the 15th Judicial District Court against Wal-Mart
and a John Doe Wal-Mart employee on June 2, 2015, seeking damages for

personal injuries allegedly sustained by Candace Mitchell on June 22, 2014 in
Wal-Mart store # 531when she was struck in the face by a metal clothes rack
which was allegedly positioned in close proximity to the aisle and/or extending
into the aisle, causing her to fall backwards and strike her head on the floor. At
the time of the alleged accident, Candace Mitchell was shopping with her
grandmother, Judy Schexnayder ("Schexnayder"), who is the manager of the New
Iberia Wal-Mart. [rec. doc. 14-2]. The Mitchells alleged that Wal-Mart and WalMart employee John Doe were responsible for the accident and alleged resulting
injuries based on principles of negligence and respondeat superior for positioning
the clothes rack in proximity to the aisle, "failing to warn . . . that the metal rack
was in such close proximity to and/or extending into the aisle creating an
unreasonably dangerous condition", failing to post signs about this condition, and
"failing to discover and/or correct the unreasonably dangerous condition." [rec.
doc. 1-1, ¶ 3-6]. The Mitchells expressly alleged that they intended to amend the
petition to name the John Doe employee "directly responsible for creating the
unreasonable dangerous condition" when Wal-Mart disclosed his identity. [Id. at ¶
4].
On October 9, 2015 Wal-Mart removed this action alleging diversity
jurisdiction as the basis for removal. [rec. doc. 1]. Prior to removal, on July 29,
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2015, Wal-Mart provided the Mitchells with a surveillance video of the accident
and several post-accident photographs. [rec. doc. 10-1]. After removal, on October
20, 2015, Wal-Mart submitted supplemental responses to the Mitchells' discovery
disclosing the names of employees who were on duty at the time of the alleged
accident, including Arceneaux. [rec. doc. 10-3]. The instant Motion was filed on
November 5, 2015.
It is undisputed that Arceneaux and the Mitchells are Louisiana
domiciliaries. Thus, amendment of Arceneaux as an additional defendant, will
destroy diversity and divest this Court of subject matter jurisdiction. Without
subject matter jurisdiction, 28 U.S.C. § 1447(e) mandates that the case be
remanded to Louisiana state court.
In opposition to the proposed amendment, Wal-Mart alleges that plaintiffs
should not be permitted to amend their Petition because the Mitchells have no
reasonable basis for recovery in tort against Arceneaux given that the rack was
placed on the sales floor in accordance with an "Apparel Execution Guide", a floor
plan generated from the Wal-Mart home office, and no evidence allegedly
demonstrates that the rack was improperly positioned, either too close to the aisle
or protruding into the aisle, thereby alerting Arceneaux of an unreasonably
dangerous condition. In support, Wal-Mart tenders its discovery responses, which
include the store surveillance video and post-accident photographs, as well as the
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affidavit of alleged manager of store #531, Wilmer Hill ("Hill"), who attests that
he reviewed the store video and post-accident photographs to conclude that the
metal clothes rack was "properly positioned" on the sales floor in accordance with
Wal-Mart's "Apparel Execution Guide."
In response, the Mitchells submit the affidavit of Judy Schexnayder
("Schexnayder"), who was shopping with Candace Mitchell at the time of the
accident and who is the manager of the New Iberia Wal-Mart. Schexnayder attests
that on the day of the accident she observed the metal clothes rack protruding into
the aisle, with an insufficient amount of clothing hanging toward the interior of the
rack, thereby exposing the outer portions of the rack, all in violation of Wal-Mart
store policy. She further attests that as a maintenance associate, it was
Arceneaux's responsibility to observe, warn and/or remedy the hazard created by
the clothes rack. Moreover, Schexnayder alleges that she observed assistant store
manager Schuyler Broussard move the clothes rack from where it had been
positioned after Candace Mitchell's accident and the post-accident photographs of
the rack are therefore not accurate representations of the position of the rack at the
time of the accident. She additionally states that Hill was not present on the date
of Candace Mitchell's accident and that he was not the manager of store #531 on
that date.
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LAW AND ANALYSIS
Typically, amendments to pleadings are governed by Federal Rule of Civil
Procedure 15(a). That rule provides in pertinent part that leave to amend "shall be
freely given when justice so requires." FRCP 15(a). However, in removed cases,
pursuant to 28 U.S.C. §1447(e), a district court has discretion to either grant or
deny an amendment of a complaint when subject matter jurisdiction is based on
diversity and the plaintiff seeks to amend the complaint by adding a non-diverse
party. 28 U.S.C. §1447(e); Schindler v. Charles Schwab & Co., Inc., 2005 WL
1155862, *2 (E.D. La. 2005) citing §1447(e) and Ascension Enterprises, Inc. v.
Allied Signal, Inc., 969 F.Supp. 359, 360 (M.D. La. 1997); See also Doleac ex rel.
Doleac v. Michalson, 264 F.3d 470, 476 (5th Cir. 2001) (indicating that § 1447(e)
applies also to the identification of fictitious defendants after removal).
Thus, when faced with an amended pleading naming a non-diverse
defendant in a removed case, federal courts should scrutinize that amendment
more closely than an ordinary amendment. Hensgens v. Deere & Co., 833 F.2d
1179, 1182 (5th Cir. 1987).1 In such cases, resolving the question of whether to
1

Although Hensgens was decided before Congress passed 28 U.S.C. § 1447(e), the Fifth Circuit
has cited Hensgens with approval subsequent to the passage of §1447(e). See Tillman v. CSX
Transportation, Inc., 929 F.2d 1023, 1029 (5th Cir. 1991). Moreover, district courts in the Fifth Circuit
have consistently held that the Hensgens approach is still good law. See Schindler, 2005 WL 1155862 at
*2 fn.3 (and cases cited therein). Further, the parties cite Hensgens as controlling the analysis of the
resolution of this Motion.

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permit an amendment which will destroy the subject matter jurisdiction of this
court, justice requires that the district court balance the diverse defendant's interest
in retaining the federal forum with the competing interests. Id.
The Fifth Circuit has concluded that balancing those interests would not be
served by a “rigid distinction of whether the proposed added party is an
indispensable or permissive party” pursuant to the Federal Rules of Civil
Procedure. Id.; See also Schindler, 2005 WL 1155862 at *2 (citation omitted).
Instead, in Hensgens the Fifth Circuit set forth four factors that district courts
should consider when deciding whether to allow post-removal amendment and
joinder of non-diverse defendants: (1) the extent to which the purpose of the
amendment is to defeat federal jurisdiction; (2) whether 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. Id. at
1182; Tillman v. CSX Transportation, Inc., 929 F.2d 1023, fn. 11 (5th Cir. 1991).
The district court should then balance the equities and decide whether amendment
Finally, “[t]he fraudulent joinder doctrine does not apply to joinders that occur after an action is
removed.” Penny Realty Inc. v. Southwest Capitol Services, Inc., 2008 WL 2169437, at fn. 3 (W.D. La.
2008) quoting Cobb v. Delta Exports, Inc., 186 F.3d 675, 677 (5th Cir. 1999); Laborde v. Traedwell
Restaurants of Louisiana, LLC, 2013 WL 1452024, *2 (W.D. La. 2013) citing Cobb, 186 F.3d at 677.
Although the plaintiffs named "John Doe" in their original petition, fictitious “John Doe” parties are not
real parties in interest and their presence in the lawsuit is ignored and does not destroy a diverse
defendant's right to remove the case to federal court. Federal Courts therefore do not determine whether
a “John Doe” is fraudulently joined. Maxwell v. IASIS Glenwood Regional Medical Center, 2015 WL
2452431, *2 (W.D. La. 2015).

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should be permitted. Id. If amendment of a non-diverse defendant is permitted,
the case must be remanded to the state court; if amendment is not allowed, the
federal court maintains jurisdiction. Id.; see also 28 U.S.C. §1447(e).
With respect to the first Hensgens factor, in analyzing whether the purpose
of amendment is to destroy diversity, courts consider “whether the proposed
amendment presents a valid cause of action.” Parish Disposal Industries, LLC v.
BFI Waste Services, LLC, 2014 WL 2207870,*5 (W.D. La. 2014) citing Mallery v.
Becker, 2014 WL 60327 at *2 (W.D. La. 2014) citing Tillman, 929 F.2d at 1029
and Kling Realty Co., Inc. v. Texaco, 2007 WL 4553611 (W.D. La. 2007). If the
amendment presents a valid claim, “it is unlikely that the primary purpose of [the
amendment] is to destroy diversity jurisdiction.” Id. citing Schindler, 2005 WL
1155862 at *3 (E.D. La. 2005) (internal citations omitted); Penny Realty Inc. v.
Southwest Capitol Services, Inc., 2008 WL 2169437, *2 (W.D. La. 2008).
Under Louisiana law, a cause of action exists under Civil Code article 2315
for negligence against a person responsible for causing injuries to another. “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);
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Mundy v. Department of Health and Human Resources, 620 So.2d 811, 813–814
(La. 1993) (citations omitted). Furthermore, a merchant "is required to discover
any unreasonably dangerous conditions on the premises and correct the condition
or warn potential victims of its existence.” Laborde v. Traedwell Restaurants of
Louisiana, LLC, 2013 WL 1452024, *3 (W.D. La. 2013) quoting Hutchison v.
Knights of Columbus, Council No. 5747, 847 So.2d 665, 668 (La. App. 4th Cir.
2003), affirmed, 866 So.2d 228 (La. 2004) (citation omitted).
Generally, “an agent, officer or employee of a corporation may owe a duty
to a third person which duty is a result of his employment relationship.” Walker v.
Schwegmann Giant Supermarkets, Inc., 671 So.2d 983, 986 (La. App. 4th Cir.
1996) citing Holmes v. Great Atlantic & Pacific Tea Co., 587 So.2d 750, 752 (La.
App. 4th Cir. 1991), writ denied, 592 So.2d 412 (La. 1992) citing Canter v.
Koehring Co., 283 So.2d 716 (La.1973). “That is, duties imposed on him by his
employer, the breach of which causes injury to a third person, supports a cause of
action against the employee.” Id.
In this case, the allegations in the petition and proposed amended petition as
well as the evidence presented by the Mitchells in support of this Motion, if
proven at trial, would be sufficient to hold Arceneaux personally liable to the
Mitchells. The Mitchells allege personal failures to perform specific duties
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allegedly imposed on him by Wal-Mart, the breach of which allegedly caused or
contributed to Candace Mitchell's accident and alleged resulting injuries. While
Arceneaux may not have been responsible for the general location of the clothes
rack on the sales floor as argued by Wal-Mart, the Mitchells allege that he was
responsible for failing to observe, warn and/or remedy the hazard created by an
alleged improperly positioned clothes rack which allegedly extended or protruded
into the aisle. It is reasonable to assume that Arceneaux, a maintenance associate,
would be required by Wal-Mart to observe, warn and/or remedy any hazard he
encountered on or near the aisles. Moreover, the Mitchells have presented
evidence which supports a finding that Arceneaux was, in fact, responsible for
observing, warning and/or remedying the hazard allegedly created by the clothes
rack. [See rec. doc. 14-2, affidavit of Judy Schexnayder2]. The Court finds that

2

During oral argument, defense counsel questioned the competency of the affidavits submitted by
the Mitchells as it appeared that the signature of the notary had been affixed by stamp, rather than by
hand written signature. The Court instructed plaintiffs' counsel to determine if the affidavits had indeed
been stamped. In response to the Court's inquiry, the notary, Cle Simon, submitted a letter dated January
26, 2016, in which Simon states that his signature had been affixed on the affidavits by him using his
custom signature stamp, in the presence of each affiant, after he placed each affiant under oath, and after
witnessing each affiant sign her affidavit. Simon further provided the Court with legal authority which
authorizes the use of a custom signature stamp in lieu of a hand written signature – Black's Law
Dictionary Fifth Edition (providing that a "signature may be written by hand, printed, stamped,
typewritten, engraved, photographed, or cut from one instrument and attached to another . . . it being
immaterial with what kind of instrument a signature is made."); Rainey v. Entergy Gulf States, Inc., 35
So.3d 215, 225-226 (La. 2010) (affirming that "[i]n the absence of a statute prescribing the method of
affixing a signature, it may be written by hand, printed, stamped, typewritten, engraved, or by various
other means."); UCC § 3-401 ("a signature may be made (i) manually or by means of a device or
machine. . . ). Pursuant to this authority, it appears that the Court may consider the plaintiffs' affidavits.
The ruling on this Motion is the same, however, even if the affidavits are not considered.

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Louisiana law therefore provides a cause of action against Arceneaux.
Wal-Mart suggests that this Court determine the merits of the plaintiffs'
lawsuit against both it and Arceneaux on the basis of its poor quality store
surveillance video in which the clothes rack is partially obscured by a hanging
banner, and post-accident photographs, to find that the clothes rack did not
protrude into the aisle and hence, there was no unreasonably dangerous condition.
To the extent that these items may be considered in the context of this Motion3, at
this juncture, this Court is not asked to determine the merits of the Mitchells' cause
of action, but rather, the Court's task is solely to evaluate whether the Mitchells
have a valid "colorable" claim against Arceneaux, which under the facts and
evidence presented, the Court finds they do. See Laborde, 2013 WL 1452024 at
*4-5. Indeed, under similar facts, the Mitchells have demonstrated that Judge
Doherty, to whom this case is assigned, has reached the same conclusion, albeit in
an unpublished decision. [rec. doc. 14-1, Raphael Campbell, Jr., et al v. Lowe's
Home Centers, Inc., No. 6:98-cv-2051, rec. doc. 33 (W.D. La. 5/5/1999)].
Courts also look to “whether the plaintiff[ ] knew or should have known the

3

At oral argument, plaintiffs' counsel argued that the video and photographs were not selfauthenticating, and in the absence of an affidavit authenticating these items, they could not be
considered. The Court need not address this issue as the ruling on this Motion is the same
whether these items are, or are not, considered.
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identity of the non-diverse defendant when the state court complaint was filed.”
Penny Realty Inc, 2008 WL 2169437, *2 citing Schindler, 2005 WL 1155862 at
*3. A showing that the addition of a non-diverse defendant was contemplated
prior to removal, suggests the purpose of the amendment is not to destroy
diversity. Penny Realty, 2008 WL 2169437 at *2 citing Schindler, 2005 WL
1155862 at *3. In this case, the plaintiffs clearly contemplated naming
Arceneaux as a defendant in this action as soon as his identity was discovered.
Indeed, the plaintiffs are not seeking to add Arceneaux as a new defendant, but
instead, are seeking to substitute Arceneaux, for the fictitious, unknown John Doe
defendant, who was included in the original petition for damages. This weighs in
favor of allowing the amendment. See Laborde, 2013 WL 1452024 at *4 citing
Ellender v. Rite Aid Pharmacy, 2008 WL 4200716, *2 (W.D. La. 2008).
For the reasons set forth above, the first Hensgens factor weighs in favor of
permitting amendment.
Wal-Mart does not contest the Mitchells diligence in seeking to amend their
petition to add Arceneaux. Indeed, the motio for leave to amend their petition was
brought approximately only two weeks after discovering Arceneaux's identity.
The second Hensgens factor, whether plaintiff has been dilatory in asking for
amendment, also weighs in favor of permitting amendment.
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The third Hensgens factor, whether the plaintiffs would be significantly
injured by denying amendment, weighs slightly in favor of denying amendment.
Although the Court has found that the Mitchells have a cause of action against
Arceneaux, the reality is that Wal-Mart, if found liable under the doctrine of
respondeat superior, would bear financial responsibility as Arceneaux's employer.
The Mitchells therefore could fully recover from Wal-Mart for any negligence of
its employee, Arceneaux. Regardless of who will actually bear financial
responsibility should the defendants be found liable, this Court finds that the
Mitchells should not be denied the opportunity to bring suit against a potentially
liable party. Denial of leave to amend would deny the Mitchells that opportunity.
While courts differ on whether leave to amend should be granted under these
circumstances, the Mitchells have demonstrated that under similar facts, Judge
Doherty, like the undersigned, has held that leave should be granted. [rec. doc. 141, Raphael Campbell, Jr., et al v. Lowe's Home Centers, Inc., No. 6:98-cv-2051,
rec. doc. 33 (W.D. La. 5/5/1999)].
Finally, there are other equitable factors bearing on this Court’s decision,
most notably, the lack of legal prejudice which may be suffered by Wal-Mart
should amendment be permitted. While it is true that Wal-Mart will suffer some
prejudice because it will lose access to a federal forum, the issues presented in this
12

case are entirely a matter of Louisiana state law, which the Louisiana state court is
more than capable and competent to determine. Furthermore, there has been no
substantive Motions filed in this case, nor has there been a substantial amount of
discovery, and the discovery already conducted in this suit, will not be wasted;
instead, it may simply be used in the state court proceeding after remand.
Moreover, should Wal-Mart prevail on a substantive Motion resulting in dismissal
of Arceneaux, they may be able to again remove the action to this federal court.
For these reasons, the fourth Hensgens factor, other factors bearing on the equities,
also weighs in favor of permitting amendment. Finally, if leave to amend were
denied, and the Mitchells wished to pursue their claim against Arceneaux, 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.
CONCLUSION
For the above reasons, under the facts presented herein, the Court finds that
the equities tilt the balance of factors toward permitting the Mitchells to amend
their petition to add Arceneaux. Although the Court acknowledges that this may
cause Wal-Mart some prejudice, the Court is nevertheless convinced that the better
course is to have all potentially liable parties before the same court. Further,
“[t]he fact that one factor might weigh in favor of denying the amendment is not
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dispositive of this Court's inquiry because the remaining factors weigh in favor of
permitting the amendment.” Schindler, 2005 WL 1155862 at *4. Accordingly;
IT IS ORDERED that the Mitchells’ Motion for Leave to file a
Supplemental and Amending Complaint [rec. doc. 8] is granted. Accordingly, the
Clerk shall file the plaintiffs’ Supplemental and Amending Complaint into the
record.
Because the amendment destroys this Court’s diversity jurisdiction, IT IS
FURTHER ORDERED that the Clerk Remand this lawsuit to pursuant to 28
U.S.C. §1447(e).
This Order shall be STAYED for fourteen days from the date of issuance.
Any appeal to the District Judge must be filed within fourteen days from the date
of this Order. If an appeal is taken to the District Judge, the Order shall remain
stayed until the appeal is decided. If no timely appeal is filed, the Clerk shall
remand the action forthwith.

Signed this 4th day of February, 2016, at Lafayette, Louisiana.

________________________________
PATRICK J. HANNA
UNITED STATES MAGISTRATE JUDGE

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