Butler v. Wal-Mart Stores, Inc. et al
Filing
18
MEMORANDUM OPINION re 17 Order on Motion to Remand to State Court. Signed by Glen H. Davidson on 10/10/13. (jtm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
PLAINTIFF
AUSTRALIA BUTLER
CIVIL ACTION NO. 3: 13-CV-00051-GHD-SAA
v.
WAL-MART STORES, INC. and
KEN HERRING
DEFENDANTS
MEMORANDUM OPINION GRANTING PLAINTIFF'S MOTION TO REMAND
Presently before this Court is Plaintiffs motion to remand the case to state court [12].
Upon due consideration, the Court is of the opinion that the motion should be granted due to lack
of diversity jurisdiction.
A. Factual and Procedural Background
On November 21, 2012, Plaintiff Australia Butler ("Plaintiff') filed a complaint in the
Circuit Court of Lafayette County, Mississippi, against Defendant Wal-Mart Stores, Inc. ("WalMart") to recover for injuries she sustained as result of a slip-and-fall incident in a Wal-Mart
store. Plaintiff alleges that while she was shopping she inadvertently stepped in a liquid spilled
on the floor and slipped and fell onto the hard tile floor, sustaining torn breast tissue and loss of
consciousness.
She further alleges that since the alleged incident she has suffered constant
debilitating headaches and has incurred significant medical expenses, and that despite knowledge
of the foregoing, Wal-Mart has consistently refused to take any corrective actions in this matter.
She asserts causes of action for premises liability and negligence, and seeks compensatory
1
damages in an unspecified amount with attorney's fees, costs, and pre~ and post-judgment
interest.
On December 20, 2012, Plaintiff filed an amended complaint [4] wherein she adds the
subject Wal-Mart store's then-manager, Ken Herring ("Herring"), as a Defendant. On December
26, 2012, Wal-Mart filed an answer [5] to the initial complaint.
Subsequently, Wal-Mart
removed this case to this Court on the basis of diversity jurisdiction and filed an answer to the
amended complaint [8]. Plaintiff then filed the present motion to remand [12] the case to state
court, Wal-Mart filed a response, and Plaintiff filed a reply. The motion to remand [12] is now
ripe for review.
B. Standard ofReview
The removal statute provides in pertinent part:
Except as otherwise expressly provided by Act of Congress, 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). A case may be remanded upon a motion filed within thirty days after the
filing of the notice of removal on any defect except subject matter jurisdiction, which can be
raised at any time by any party or sua sponte by the court. See Wachovia Bank, NA. v. PICC
Prop. & Cas. Co. Ltd., 328 F. App'x 946, 947 (5th Cir. 2009). "If at any time before final
judgment it appears that the district court lacks subject matter jurisdiction, the case shall be
remanded." 28 U.S.C. § 1447(c). Any "doubts regarding whether removal jurisdiction is proper
should be resolved against federal jurisdiction." Acuna v. Brown & Root Inc., 200 F.3d 335, 339
(5th Cir. 2000).
2
C. Discussion
Federal diversity jurisdiction requires complete diversity between all plaintiffs and all
defendants and an amount in controversy that exceeds $75,000.00. See 28 U.S.C. § 1332(a).
Plaintiff contends that removal is improper and remand is warranted because (I) Wal-Mart's
notice of removal was procedurally defective; (2) the jurisdictional amount in controversy is not
satisfied; and (3) complete diversity of citizenship does not exist between Plaintiff and
Defendants. Plaintiff also seeks costs and attorney's fees incurred in filing the present motion to
remand. The Court addresses each ground for remand in tum.
(I) Removal Procedure
First, Plaintiff contends that Wal-Mart's notice of removal is procedurally deficient
because Herring did not join in the notice. Wal-Mart argues that its notice of removal was not
procedurally defective because Herring submitted an affidavit in support of the notice of
removal, the Fifth Circuit does not require formal joinder, and Herring was never served with
process.
The statute governing removal procedure provides in pertinent part:
A defendant or defendants desiring to remove any civil action from
a State court shall file in the district court of the United States for
the district and division within which such action is pending a
notice of removal signed pursuant to Rule II of the Federal Rules
of Civil Procedure and containing a short and plain statement of
the grounds for removal, together with a copy of all process,
pleadings, and orders served upon such defendant or defendants in
such action.
28 U.S.C.A. § I 446(a). "This requires that all served defendants join in the removal petition
prior to the expiration of the removal period." Ortiz v. Young, 431 F. App'x 306, 207 (5th Cir.
2011) (citing Gillis v. Louisiana, 294 F.3d 755, 759 (5th Cir. 2002) (emphasis added). Nothing
3
in the record supports that Herring was served with the summons and complaint prior to the time
the notice of removal was filed. Thus, the fact that Herring did not join in the notice for removal
does not render the notice procedurally defective, and Plaintiff s motion for remand is denied on
this ground.
(2) Amount in Controversy
Second, Plaintiff contends that removal is improper because Wal-Mart has not shown that
the jurisdictional amount is satisfied. A district court enjoys diversity jurisdiction over "civil
actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of
interest and costs[.]" 28 U.S.c. § 1332(a). The amount in controversy is determined at the time
of removal. Gebbia v. Waf-Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000). If a defendant
establishes "by a preponderance of the evidence that the amount in controversy is greater than
the jurisdictional amount," a plaintiff may defeat removal only by establishing to a legal
certainty that his or her recovery will not exceed the statutory threshold. In re 1994 Exxon Chem.
Fire, 558 F.3d at 387 (quotation marks and citation omitted).
Courts generally begin the amount-in-controversy analysis by "look[ingJ only to the face
of the complaint and ask[ingJ whether the amount in controversy exceeds" the jurisdictional
threshold. Ervin v. Sprint Commc 'ns Co. LP, 364 F. App'x 114, 117 (5th Cir. 2010) (quoting
s. Ws.
Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 492 (5th Cir. 1996». In the case sub judice, the
complaint's ad damnum clause provides that Plaintiff seeks actual and compensatory damages,
but does not specify the amount of damages sought. When, as in the case sub judice, a complaint
does not allege a specific amount of damages, "the party invoking federal jurisdiction must prove
by a preponderance of the evidence that the amount in controversy exceeds the jurisdictional
amount"; in this analysis, the court may rely on "summary judgment-type" evidence to determine
4
the amount in controversy. See Garcia v. Koch Oil Co. o/Tex., Inc., 351 F.3d 636, 638-39 (5th
Cir. 2003); St. Paul Reinsurance Co., Ltd v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998)
(citations omitted); De Aguilar v. Boeing Co., 11 F.3d 55, 57-58 (5th Cir. 1993).
Plaintiff contends that because she does not ask for a specific amount of damages in her
complaint and because she does not expressly state in her responses to Wal-Mart's requests for
admission that she is seeking an amount of damages in excess of the jurisdictional amount, the
amount in controversy requirement has not been met. Wal-Mart argues that Plaintiff repeatedly
denies that the value of her claim is less than the jurisdictional amount in her responses to Wal
Mart's requests for admission. Indeed, in Plaintiffs responses to the requests for admission
which were submitted prior to the notice of removal and are attached to Wal-Mart's response to
the motion to remand-Plaintiff denies that the value of her claims does not exceed the
jurisdictional threshold, denies that she would not accept any sum greater than the jurisdictional
threshold even if awarded by a jury, denies that she would never seek to amend her complaint to
seek an amount above the jurisdictional threshold, and denies that she would never seek a verdict
greater than the jurisdictional threshold. Wal-Mart also points to the fact that Plaintiff has not
submitted a sworn, unrebutted affidavit indicating that the requisite amount in controversy is not
present. See White v. FCI USA, Inc., 319 F.3d 672, 676 (5th Cir. 2003) (citing De Aguilar v.
Boeing Co., 11 F.3d 55, 57 (5th Cir. 1993) (failure to contest removal with sworn, unrebutted
affidavit indicating that jurisdictional amount is not met was factor favoring removal).
The
Court fmds that Defendants have shown by a preponderance of the evidence that the amount in
controversy exceeds the jurisdictional amount, and Plaintiff s motion to remand is denied on this
ground.
5
(3) Complete Diversity of Citizenship
Finally, Plaintiff contends that removal is not appropriate because there is lack of
complete diversity of citizenship among the parties. It is undisputed that complete diversity
exists between Plaintiff, a citizen of Mississippi, and Wal-Mart, a citizen of Delaware and
Arkansas. However, Plaintiff contends that Herring's presence as a Defendant destroys complete
diversity, as both Plaintiff and Herring are citizens of Mississippi. Thus, Plaintiff maintains that
removal jurisdiction is improper.
Wal-Mart argues that Herring was improperly joined in order to destroy diversity
jurisdiction and thus that Herring's citizenship should be disregarded in the diversity jurisdiction
determination.
Wal-Mart argues in support that there is no possibility that Plaintiff might
establish a viable cause of action against Herring, as Plaintiff only asserts causes of action for
premises liability and negligence, neither of which can be brought against Herring. Wal-Mart
further argues that the complaint contains nothing more than conc1usory allegations against
Herring based on Herring's purported role as store manager of the subject Wal-Mart store. WalMart argues that Plaintiff does not allege, nor could she show, that Herring directly contributed
to her alleged injuries, as Herring has stated in an affidavit that he was not working or otherwise
on duty at the time of Plaintiffs alleged fall. Thus, Wal-Mart argues that removal is proper.
"[T]he doctrine that ignores a lack of complete diversity where the plaintiff joins a
nondiverse defendant to avoid federal jurisdiction" is known as "improper joinder" in the Fifth
Circuit.
Mumfrey v. CVS Pharmacy, Inc., 719 F.3d 392, 401 n.14 (5th Cir. 2013) (citing
Smallwoodv. Ill. Cent. R.R. Co., 385 F.3d 568,571 n.1 (5th Cir. 2004) (en banc)). "[Improper]
joinder can be established in two ways: (I) 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
6
court." Id. at 401 (quoting McKee v. Kansas City S. Ry. Co., 358 F.3d 329, 333 (5th Cir. 2004)
(in turn quoting Travis v. Irby, 326 F.3d 644, 647 (5th Cir. 2003»). Because Wal-Mart does not
contend that the pleadings contain actual fraud, only the second prong is before this Court.
"[T]he test for [improper] joinder is whether the defendant has demonstrated that there is
no possibility of recovery by the plaintiff against an in-state defendant, [restated,] there is no
reasonable basis for the district court to predict that the plaintiff might be able to recover against
an in-state defendant." Mumfrey, 719 F.3d at 401 (quoting In re 1994 Exxon Chem. Fire, 558
F.3d 378, 385 (5th Cir. 2009) (some alteration in original) (in turn quoting Smallwood, 385 F.3d
at 573». First, the Court must determine whether Plaintiffs amended complaint states a claim
against Herring, as, "[0 ]rdinarily, if a plaintiff can survive a Rule 12(b)(6) challenge, there is no
improper joinder." See id. (citing Smallwood, 385 FJd at 573). However, even if Plaintiff has
stated a claim against Herring, if she has "misstated or omitted discrete facts that would
determine the propriety ofjoinder ... the [Court] may, in its discretion, pierce the pleadings and
conduct a summary inquiry." See id. (citing Smallwood, 385 F.3d at 573) (internal citation
omitted). "The purpose of the [summary] inquiry is limited to identifying 'the presence of
discrete and undisputed facts that would preclude plaintiff s recovery against the in-state
defendant.'''
Id. (citing Smallwood, 385 FJd at 573-74) (emphasis added).
If the Court
conducts a summary inquiry, it 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." See Travis, 326 F.3d at 648-49
(emphasis added). All disputed issues of fact and any ambiguities of state law must be resolved
in the Plaintiffs favor. See id. at 649. Wal-Mart, as the removing party, bears the heavy burden
7
of demonstrating that there is no possibility of recovery against Herring. See id (citing B., Inc.
v. Miller Brewing Co., 663 F.2d 545,549 (5th Cir. 1981)).
In Smith v. Petsmart, Inc., 278 F. App'x 377 (5th Cir. 2008) (per curiam), a similar case
to the case sub judice, the Fifth Circuit held that a store manager was not improperly joined
because Mississippi law was unclear as to whether a store manager could be personally liable in
a premises liability case. See id at 380. In Smith, one of the plaintiffs was carrying a bag of dog
food, retrieved another bag, and while carrying both bags of dog food and heading toward the
checkout counter, tripped over the prongs of a parked and unattended forklift in the middle of the
store aisle and fractured her ankle. Id at 378. The plaintiffs, both citizens of Mississippi, filed
suit against Petsmart, a citizen of Delaware and Arizona, and the store manager, who was a
citizen of Mississippi. Id Defendants removed the case to federal court on diversity grounds
contending that the store manager was improperly joined, and plaintiffs filed a motion to remand
contending that removal was proper. Id at 378-79. Included before the district court in its
removal analysis was the store manager's affidavit, wherein she stated she was only a front end
manager, was the only manager on duty in the store on the night of the incident in question, did
not in any way cause the forklift to be in the aisle or have knowledge that the forklift was in the
aisle, and did not have the authority to supervise or instruct the forklift operator with respect to
operations of the machine. Id at 381.
The district court found that the store manager was
improperly joined and dismissed the store manager as a party on that basis. Id at 379.
On appeal, the Fifth Circuit looked to Mississippi Supreme Court cases on premises
liability and found that under Mississippi law "the owner, occupant, or person in charge of
premises owes to an invitee or business visitor a duty of exercising reasonable or ordinary care to
keep the premises in reasonably safe and suitable condition or of warning [the] invitee of
8
dangerous conditions not readily apparent which [the] owner knows or should know of in the
exercise of reasonable care." See id at 380 (quoting Mayfield v. The Hairbender, 903 So. 2d
733, 735-36 (Miss. 2005) (en banc) (in tum quoting Wilson v. Allday, 487 So. 2d 793, 795-96
(Miss. 1986» (quotations omitted). The Fifth Circuit held that based on the assumption under
Mississippi law that a store
m~ager
may be held liable for negligence as a person in charge of
the premises, the plaintiffs did not need to submit evidence other than their allegations in the
complaint to sustain a reasonable possibility of recovery against the store manager. Id at 381
82. The Fifth Circuit concluded that because there are uncertainties in Mississippi law as to
whether a store manager is a person in charge of premises, the district court should have resolved
this issue in favor of the non-removing party and assumed that under Mississippi law a store
manager may qualify as a "person in charge of premises," and thus, that the district court should
have found that the plaintiffs had established a reasonable probability of recovery against the
nondiverse store manager. See id at 380-82 (citing Cavallini v. State Farm Mut. Auto Ins., 44
F.3d 256,259 (5th Cir. 1995».
In the case sub judice, Plaintiff alleges in her amended complaint with respect to Herring
that (1) "[o]n the date of the incident, [Wal-Mart and Herring] invited [Plaintiff! into [the subject
Wal-Mart store] as a potential customer, [but] rather than providing [Plaintiff! a safe place to
shop, an act that the Defendant would profit from, the Defendant provided a forum that was
unreasonably dangerous," Pl.'s Am. Compl. [4]
~
2; (2) that day, Plaintiff, her mother, and her
sister visited the subject Wal-Mart store, "a store under the management of [Herring], in order to
purchase snacks for the corning weekend," id
~
12; (3) the liquid upon which Plaintiff slipped
and fell "had been tracked up and down the aisle by other customers, showing that the liquid had
been present on the floor for some time prior to [Plaintiffs] unfortunate encounter with it and as
9
such was known or should have reasonably been known by the Defendants, including manager
[Herring]," id. ~ 20; (4) Defendants are liable under a theory of premises liability because they
knew or reasonably should have known that the substance caused a dangerous condition to exist
at the subject Wal-Mart store and failed to warn Plaintiff, a business invitee, of the dangerous
condition, id. ~ 31; (5) the negligent acts and omissions of Defendants proximately caused
Plaintiffs injuries, id. ~ 32; and (5) Defendants are liable under a theory of negligence because
they created or reasonably should have known of the dangerous condition and failed to warn
Plaintiff of it, and this failure was a proximate cause of Plaintiff s injuries, id.
~
36.
The Court
finds that based on Smith v. Petsmart, Inc. and the Mississippi Supreme Court rulings on which it
is based, Plaintiff s amended complaint states claims against Herring that he was negligent for
failing to properly maintain the subject Wal-Mart store, failing to provide safe premises for
customers, and failing to warn of the slipping hazards that were present in the store.
In next turning to the summary-type evidence before the Court, the Court finds that WalMart has submitted the affidavit of Herring, who admits that he was the manager of the subject
Wal-Mart store at the time of the alleged incident; however, Herring also maintains that he was
not working or on duty at the time of the alleged incident and had no involvement with the
alleged incident. See Herring Aff. [14-1]
~~
5-6. Plaintiff does not challenge this fact, but
instead maintains that whether Herring was actually present in the subject Wal-Mart store during
the alleged incident is not dispositive on the issue. The Court finds the Plaintiff s argument to be
well taken. Under Mississippi law, a store manager's presence does not appear to be required to
sustain a cause of action for premises liability and/or negligence against him or her. See Gray ex
reI. Rudd v. Beverly Enters. Miss., Inc., 390 F.3d 400, 410 (5th Cir. 2004) ("Plaintiffs cannot
demonstrate hands-on contact by the defendants, but such activity does not seem required to
10
impose personal liability under Mississippi law.
One may easily be a direct participant in
tortious conduct by merely authorizing or negligently failing to remedy misconduct by one's
subordinates."). Accordingly, the Court finds that Defendants have failed to meet their heavy
burden to justify removal on improper joinder grounds.
Therefore, the joinder of Herring
destroys complete diversity, and remand is proper on this ground.
D. Conclusion
In sum, Plaintiff s motion to remand to state court [12] is GRANTED based on lack of
complete diversity of citizenship, and the case shall be REMANDED to the Circuit Court of
Lafayette County, Mississippi. Plaintiffs request for costs and attorney's fees incurred in filing
the present motion to remand is not well taken and is thus DENIED.
An order in accordance with this opinion shall issue this day.
g
THIS, the
It? day of October, 2013.
SENIOR JUDGE
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?