McCray et al v. Sailormen, Inc. et al

Filing 33

MEMORANDUM OPINION re 32 Order on Motion to Remand to State Court, Order on Motion for Discovery. Signed by District Judge Sharion Aycock on 1/8/2013. (sba)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF MISSISSIPPI
DELTA DIVISION
CONTESSA MCCRAY ET AL.
v.

PLAINTIFFS
CIVIL ACTION NO.: 2:12-CV-147

SAILORMEN, INC. ET AL.

DEFENDANTS
MEMORANDUM OPINION

This cause comes before the Court on the motion of Plaintiffs to remand this case to the
Circuit Court of Coahoma County, Mississippi [16]. The Court, having considering the memoranda
and submissions of the parties, along with other pertinent authorities, concludes that the motion
should be granted.
Factual and Procedural Background
Plaintiffs Contessa McCray and Bryant Hunter commenced this action in the Circuit Court
of Coahoma County, Mississippi on July 9, 2012. Plaintiffs allege they became extremely ill after
dining at the Popeye’s Chicken & Biscuit of Clarksdale, Mississippi on or about April 18, 2012.
The Complaint asserts numerous causes of action against multiple defendants, including Sailormen,
Inc. (a Florida corporation), AFC Enterprises, Inc. (a Minnesota corporation), Marcell Thomas, (a
resident of Mississippi), John Does 1-4, and XYZ Corporations 1-4. Relevant to the issues pending
before the Court, the Complaint alleges that Thomas was the manager and supervisor of the
restaurant on the day of the subject incident, and, inter alia, “direct[ed] other members of the
Popeye’s staff, including the cook(s), to cook the chicken prepared on the day of the subject incident
despite being notified that the chicken was of poor quality.” Defendants filed a notice of removal
on August 12, 2012, alleging that Thomas had been improperly joined.
Shortly thereafter, Thomas filed a Motion to Dismiss, asserting that he was not working on

the day of the incident. Plaintiffs responded that they had made a clerical error in their complaint,
and that the subject incident actually occurred on April 17, 2012. Plaintiffs sought and were granted
leave to file an Amended Complaint. Plaintiffs also filed a Motion to Remand [16], asserting that
Thomas was not improperly joined, and that this court lacks jurisdiction as complete diversity does
not exist.
Remand & Improper Joinder Standard1
The Judiciary Act of 1789 provides that “any civil action brought in a State court of which
the district courts of the United States have original jurisdiction, may be removed by the defendant
or the defendants, to the district court of the United States for the district and division embracing the
place where such action is pending.” 28 U.S.C. § 1441(a). Original federal diversity jurisdiction
exists “where the matter in controversy exceeds the sum or value of $75,000.00, exclusive of interest
and costs, and is between . . . citizens of different States.” 28 U.S.C. § 1332(a); Addo v. Globe Life
and Accident Ins. Co., 230 F.3d 759, 761 (5th Cir. 2000). For this Court to have subject matter
jurisdiction based on Section 1332, complete diversity must exist among the parties. 28 U.S.C. §
1332(a); Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1079 (5th Cir. 2008).
Once a motion to remand has been filed, the burden is on the removing party to establish
that federal jurisdiction exists. De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995). After
removal of a case, the plaintiff may move for remand, and “[if] it appears that the district court lacks
subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). The Fifth Circuit has

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The Fifth Circuit has adopted the term “improper joinder,” rather than “fraudulent
joinder,” and has stated that while there is no substantive difference between the two terms, the
phraseology “improper joinder” is preferred. McDonal v. Abbott Laboratories, 408 F.3d 177,
180 (5th Cir. 2005).
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held that the removal statutes are to be construed “strictly against removal and for remand.” Eastus
v. Blue Bell Creameries, L.P., 97 F.3d 100, 106 (5th Cir. 1996); Shamrock Oil & Gas Corp. v.
Sheets, 313 U.S. 100, 108-109, 61 S. Ct. 868, 85 L. Ed. 1214 (1941). Furthermore, “[a]ny
ambiguities are construed against removal.” Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d
720, 723 (5th Cir. 2002) (citing Acuna v. Brown & Root, Inc., 200 F.3d 335, 339 (5th Cir. 2000)).
The doctrine of improper joinder provides a narrow exception to the rule of complete
diversity. McDonal, 408 F.3d at 183. A removing party may show improper joinder of a nondiverse defendant, allowing dismissal of that party and the exercise of federal subject matter
jurisdiction pursuant to Title 28 U.S.C. § 1332(a) in either one or two instances: (1) actual fraud in
the pleading of jurisdictional facts; or (2) inability of the plaintiff to establish a cause of action
against the non-diverse party in state court. Smallwood v. Illinois Cent. R.R. Co., 385 F.3d 568, 573
(citing Travis v. Irby, 326 F.3d 644, 646-47 (5th Cir. 2003)).
The Defendants do not dispute that Thomas is a resident of Mississippi. See Smith v.
Petsmart, Inc., 278 F. App’x 377, 379 (5th Cir. 2008) (analyzing claims of plaintiff under second
prong as no allegation that plaintiff fraudulently represented defendants’ residence was asserted).
Therefore, under the second method of demonstrating improper joinder,
[t]he court determines whether that party has any possibility of recovery against the
party whose joinder is questioned. If there is arguably a reasonable basis for
predicting that the state law might impose liability on the facts involved, then there
is no [improper] joinder. This possibility, however, must be reasonable, not merely
theoretical.
Travis, 326 F.3d at 648 (quoting Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313

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F.3d 305, 312 (5th Cir. 2002)) (emphasis in original) (quotations omitted).2 Nonetheless, the
“burden of demonstrating [improper] joinder is a heavy one.” McDonal, 407 F.3d at 183.
The district court may analyze the issue of recovery against the non-diverse defendant in one
of two ways. First, “[t]he court may conduct a Rule 12(b)(6)-type analysis, looking initially at the
allegations of the complaint to determine whether the complaint states a claim under state law
against the in-state defendant.” Smallwood, 385 F.3d at 573. “Ordinarily, if a plaintiff can survive
a Rule 12(b)(6) challenge, there is no improper joinder.” Id.
However, in cases where the “plaintiff has stated a claim, but has misstated or omitted
discrete facts that would determine the propriety of joinder . . . the district court may, in its
discretion, pierce the pleadings and conduct a summary inquiry.” Id. Examples include where “the
in-state doctor defendant did not treat the plaintiff patient, the in-state pharmacist defendant did not
fill a prescription for the plaintiff patient, a party’s residence was not as alleged, or any other fact
that can easily be disproved if not true.” Id. at 574 n.12. The Fifth Circuit has cautioned that these
types of cases should be “few in number,” and that a “summary inquiry is appropriate only to
identify the presence of discrete and undisputed facts that preclude plaintiff’s recovery against the
in-state defendant.” Id. at 573-74. In making this type of inquiry, the court may “consider summary
judgment-type evidence in the record, but must also take into account all unchallenged factual
allegations, including those alleged in the complaint, in the light most favorable to the plaintiff.”
Travis, 326 F.3d at 648-49. All disputed issues of fact and any ambiguities of state law must be
resolved in the plaintiff’s favor. Id. at 649.
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Prior to Smallwood, Fifth Circuit opinions stated what seemed to be differing standards
for this inquiry. In Smallwood, however, an en banc panel of the Fifth Circuit recognized the
Travis formulation as the proper one. See Smallwood, 385 F.3d at 573.
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Discussion & Analysis
As stated above, the Amended Complaint alleges:
The Defendant, Marcell Thomas, was negligent in her failure to exercise a proper
degree of care in the following respects:
...
d. the total disregard and lack of reasonable care in directing other members of the
Popeye’s staff, including the cook(s), to season the chicken prepared on the day of
the subject incident despite being notified that the chicken was of poor quality and
unfit for human consumption;
e. the total disregard and lack of reasonable care in directing other members of the
Popeye’s staff, including the cook(s), to cook the chicken prepared on the day of
the subject incident despite being notified that the chicken was of poor quality and
unfit for human consumption;
Under Mississippi law, an agent for a disclosed principal can be held personally liable for
his own tortious acts committed within the scope of his employment, and a tort claim can be
maintained against that agent. Hart v. Bayer Corp., 199 F.3d 239, 247 (5th Cir. 2000). The agent is
subject to personal liability when he “directly participates in or authorizes the commission of a tort.”
Hart, 199 F.3d at 247 (quoting Miss. Printing Co., Inc. v. Maris, West & Baker, Inc., 492 So. 2d 977,
978 (Miss. 1986)); see also Conyers v. Life Ins. Co., 269 F. Supp. 2d 735, 737 (N.D. Miss. 2003);
Reed v. Am. Gen. Life & Accident Ins. Co., 192 F. Supp. 2d 641, 645 (N.D. Miss. 2002).
Under a 12(b)(6) analysis, the Plaintiffs have stated a claim against Thomas. Plaintiffs allege
that Thomas was directly responsible for and personally participated in the allegedly negligent
preparation of the chicken at issue. Under the facts presented, this Court cannot say that Plaintiffs
have no reasonable possibility of recovery against the non-diverse defendant.

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Defendants also request that the Court “pierce the pleadings” in determining whether
Plaintiffs have a reasonable basis for recovery against Thomas in state court. Defendants rely on
an affidavit from Thomas which admits that she was working on April 17, 2012, but avers that “I
had no conversation with any Popeye’s cook or other Popeye’s employee or customer regarding the
quality of any chicken being cooked on April 17, 2012” and “I have no knowledge that any food
cooked or served at the Popeye’s restaraunt in Clarksdale, Mississippi, on or about April 17, 2012,
was not fit for human consumption.” Defendants have also filed a Motion for Discovery Related
to Remand [23], and seek to depose Ricky Hampton (a Popeye’s employee who allegedly told
Plaintiffs’ counsel about Thomas’ alleged involvement with the chicken)3 and Thomas.
In their reply, Plaintiffs, while denying that the Court should go beyond the pleadings in its
improper joinder analysis, have attached an affidavit from Soloman Gray Jr., a former employee of
the Clarksdale Popeye’s, who avers that on April 17, 2012, he personally observed Thomas order
Hampton to cook and serve chicken that was “green in color” after being advised that the chicken
was not fit for human consumption. Defendants respond with an affidavit from Juliet Bianca, a
Sailormen, Inc. employee, along with work records purporting to show that Soloman Gray was
terminated on April 10, 2012, and was not working on April 17, 2012.
The Court finds “it unnecessary and unwise to pierce the pleadings and wade into the fact
issues presented by the parties.” Phillips v. First Tower Loan, Inc., 2012 WL 5873360, *5 (Nov.
20, 2012). “[A] summary inquiry is appropriate only to identify the presence of discrete and
undisputed facts that would preclude plaintiff’s recovery against the in-state defendant.”

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Plaintiffs’ counsel states that Hampton, who was interviewed prior to filing the instant
suit, provided the initial basis for Plaintiffs allegations against Thomas.
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Smallwood, 385 F.3d at 573-74. Otherwise, “the court risks wading beyond the issue of jurisdiction
and into the merits of a plaintiff’s claims.” Phillips, 2012 WL 5873360 at *5. Defendants would
have the Court move beyond a narrow jurisdictional inquiry and delve directly into the merits of the
Plaintiffs’ claims against Thomas. The Court, in its discretion, declines to pierce the pleadings and
finds that Defendants have failed to carry their “heavy burden” of demonstrating no reasonable
possibility of recovery against the non-diverse defendant. Accordingly, Plaintiffs’ Motion to
Remand is GRANTED and the clerk of the Court is directed to remand this action to the Circuit
Court of Coahoma County, Mississippi. Defendants’ Motion for Discovery Related to Remand is
DENIED. A separate order will issue in accordance with this opinion.
SO ORDERED on this, the 8th day of January, 2013.
/s/ Sharion Aycock
UNITED STATES DISTRICT JUDGE

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