Ditcharo v. Wal-Mart Stores East, LP et al
Filing
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MEMORANDUM OPINION AND ORDER granting 4 Motion to Remand. This civil action is remanded to Circuit Court of Harrison Co., MS, 1st Judicial District, and that a certified copy of this Order of remand shall be immediately mailed by the Clerk to the clerk of the state court. Signed by District Judge Halil S. Ozerden on 11/13/15. (RLW)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
LAURA DITCHARO,
ADMINISTRATRIX OF THE ESTATE
OF MYRA LOIS ENTREKIN
V.
WAL-MART STORES EAST, LP, and
AMY GARDNER, SAFETY MANAGER
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PLAINTIFF
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§ CIVIL NO. 1:15-cv-312-HSO-JCG
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DEFENDANTS
MEMORANDUM OPINION AND ORDER
GRANTING [4] MOTION TO REMAND
BEFORE THE COURT is the Motion to Remand [4] filed by Plaintiff Laura
Ditcharo, Administratrix of the Estate of Myra Lois Entrekin. This Motion is now
fully briefed. Plaintiff seeks remand of this matter to state court. Having considered
Plaintiff’s Motion, the related pleadings, and relevant legal authorities, the Court is
of the opinion that Defendants have not carried their burden of establishing that
subject matter jurisdiction exists. Plaintiff’s Motion should be granted, and this
matter should be remanded to the Circuit Court of Harrison County, Mississippi,
First Judicial District.
I. BACKGROUND
A.
Factual Background
Myra Lois Entrekin entered a Wal-Mart retail store in Gulfport, Mississippi,
on June 10, 2013. Am. Compl. [1-2] at 3. According to Plaintiff Laura Ditcharo,
Administratrix of the Estate of Myra Lois Entrekin (“Plaintiff”), “Ms. Entrekin was
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attempting to retrieve a shopping cart from inside the store when a Wal-Mart
employee pushed a line of carts into the store with a motorized vehicle without
ensuring it was safe to do so.” Id.1 “The carts struck Ms. Entrekin causing her to
fall down injuring her back, leg, hip and ankle.” Id. Plaintiff alleges that the WalMart “employee again ran into Ms. Entrekin with the carts after she was lying on
the ground causing further injury.” Id.
B.
Procedural History
On April 20, 2015, Plaintiff filed a Complaint [1-5] in the Circuit Court of
Harrison County, Mississippi, First Judicial District, naming Wal-Mart Stores, Inc.,
as Defendant. Plaintiff filed an Amended Complaint [1-4] on April 30, 2015, adding
Wal-Mart employee “Amy Gardner, Safety Manager” as a Defendant. The Amended
Complaint advances negligence, gross negligence, and premises liability claims
against Defendants and cites the doctrine of res ipsa loquitur. Am. Compl. [1-4] at 38. The Amended Complaint seeks compensatory damages as well as punitive and
exemplary damages. Id. at 6-7. Neither the original nor Amended Complaint
contains an ad damnum clause specifying the amount of damages sought by
Plaintiff.
On June 25, 2015, the parties filed a Joint and Unopposed Motion to Amend
the Pleadings, asking that the state court substitute “Wal-Mart Stores East, LP” for
“Wal-Mart Stores, Inc.,” as the proper Defendant to the litigation. Joint Mot. [1-5] at
Ms. Entrekin is apparently now deceased; however, it does not appear that her
death was related to the incident at Wal-Mart.
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42-43. The state court entered an Agreed Order to Amend the Pleadings on June 29,
2015, and Wal-Mart Stores East, LP, was substituted as the named Defendant.
Agreed Order [1-5] at 45.
On July 17, 2015, Defendant Wal-Mart Stores East, LP, propounded its First
Set of Requests for Admissions to Plaintiff. Notice [1-5] at 48. Plaintiff served her
Answers to the Requests for Admissions on August 17, 2015. Notice [1-5] at 57.
Plaintiff admitted both that she was “seeking more than $75,000.00 in damages
exclusive of interest and costs,” and that she “will accept any damages awarded in
excess of $75,000.00 exclusive of interest and costs.” Pl.’s Answers [1-3] at 2.
Defendants removed the case to this Court on September 16, 2015, invoking
jurisdiction based upon diversity of citizenship pursuant to 28 U.S.C. § 1332. Notice
of Removal [1] at 1-3. Even though Defendant Amy Gardner and Plaintiff are both
Mississippi citizens for diversity purposes, Defendants maintain that “Amy Gardner
is improperly joined [and] should be dismissed” such that “diversity does exist
between Wal-Mart and the Plaintiff.” Id. at 3. According to Defendants, “Wal-Mart
is incorporated in the State of Delaware, with a principal place of business in the
State of Arkansas.” Id.
Plaintiff filed a Motion to Remand [4] on October 12, 2015, within 30 days of
the removal to federal court. See 28 U.S.C. § 1447(c). Plaintiff argues that Gardner
is not fraudulently joined as a Defendant such that diversity jurisdiction is lacking.
Pl.’s Mot. to Remand [4] at 5-10. Even if diversity jurisdiction exists, Plaintiff
asserts that there is a procedural defect in the removal, in that Defendants removed
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to the case more than 30 days after receiving a copy of the Complaint. Id. at 4-5
(citing 28 U.S.C. § 1446(b)).
Defendants filed a Response [6] to the Motion to Remand on October 23, 2015,
maintaining that Gardner has been improperly joined and should be dismissed.
Defendants also take the position that based upon Plaintiff’s initial pleading they
“could not, in good faith, remove this case to federal court due to Plaintiff’s
ambiguous prayer . . . .” Defs.’ Resp. [6] at 2. Instead, Defendants assert that they
were not in a position to remove this case until after they received Plaintiff’s
Answers to their First Set of Requests for Admissions on August 17, 2015, following
which they properly removed the case within 30 days of their receipt of this “other
paper” pursuant to 28 U.S.C. § 1446(b)(3). Id.
II. DISCUSSION
A.
Removal Standard
28 U.S.C. § 1441 provides for the removal of civil actions brought in a state
court of which the district courts have original jurisdiction. 28 U.S.C. § 1441(a)
(2012). “A federal district court may exercise original jurisdiction over any civil
action that either satisfies diversity requirements or that arises under the federal
constitution, statutes, or treaties . . . .” Energy Mgmt. Servs., LLC v. City of
Alexandria, 739 F.3d 255, 258-59 (5th Cir. 2014) (citing 28 U.S.C. §§ 1331, 1332,
1369). “Thus, under § 1441, removal is proper only when the court has original
jurisdiction over at least one asserted claim under either federal question or
diversity jurisdiction.” Id. at 259 (citation omitted).
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Removal of cases from state court implicates significant federalism concerns.
Gutierrez v. Flores, 543 F.3d 248, 251 (5th Cir. 2008). “Federalism concerns animate
the rule requiring strict construction of removal statutes.” Beiser v. Weyler, 284 F.3d
665, 674 (5th Cir. 2002). “The removing party bears the burden of showing that
federal jurisdiction exists and that removal was proper.” Manguno v. Prudential
Property and Cas. Insurance. Co., 276 F.3d 720, 723 (5th Cir. 2002) (citing De
Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995)).
“For diversity jurisdiction, the party asserting jurisdiction must ‘distinctly and
affirmatively allege’ the citizenship of the parties.” Howery v. Allstate Ins. Co., 243
F.3d 912, 919 (5th Cir. 2001) (quoting Stafford v. Mobil Oil Corp., 945 F.2d 803, 804
(5th Cir. 1991)). The removing party therefore “bears the burden of establishing
diversity; if it fails to meet that burden, [a court] cannot presume the existence of
federal jurisdiction.” Id.
“Under the improper-joinder doctrine, a court should disregard the citizenship
of non-diverse defendants where ‘there is no reasonable basis for predicting that the
plaintiff might establish liability . . . against the in-state defendants.’” Flagg v.
Stryker Corp., 801 F.3d 456, 458 (5th Cir. 2015) (quoting Badon v. R J R Nabisco,
Inc., 224 F.3d 382, 390 (5th Cir. 2000)). “The defendants, as the removing parties,
have the burden of proving that [the plaintiff] has not established a state court cause
of action against [the non-diverse defendant].” Int’l Energy Ventures Mgmt., LLC v.
United Energy Group, Ltd., 800 F.3d 143, 148-49 (5th Cir. 2015) (citation omitted).
The improper joinder doctrine constitutes a “narrow exception” to the complete
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diversity rule, Vaillancourt v. PNC Bank, Nat. Ass’n, 771 F.3d 843, 847 (5th Cir.
2014), and “the burden of demonstrating improper joinder is a heavy one,” African
Methodist Episcopal Church v. Lucien, 756 F.3d 788, 793 (5th Cir. 2014) (quotation
omitted).
B.
Whether There Is Complete Diversity of Citizenship
Plaintiff has asserted a procedural defect in the removal and that complete
diversity of citizenship is lacking. In their Response, Defendants maintain that
removal was timely and, with respect to the question of diversity, focus on the
purported improper joinder of Defendant Amy Gardner. However, even assuming
that Defendants timely removed this case in accordance with 28 U.S.C. § 1446 and
that Defendants have met their heavy burden of demonstrating the improper joinder
of Gardner, the Court finds that remand is nevertheless required.
The record in this case does not “‘distinctly and affirmatively allege’ the
citizenship of the parties.” Howery, 243 F.3d at 919 (quoting Stafford, 945 F.2d at
804). Defendant Wal-Mart Stores East, LP, is apparently a limited partnership. Its
citizenship for diversity purposes is therefore “based upon the citizenship of each of
its partners.” Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1080 (5th Cir. 2008)
(citing Carden v. Arkoma Assocs., 494 U.S. 185, 195-96 (1990)). The record before
the Court does not disclose the identity or citizenship of any partners of Wal-Mart
Stores East, LP, or otherwise elaborate on this question. The Notice of Removal only
purports to disclose Wal-Mart Stores East, LP’s state of incorporation and principal
place of business. Notice of Removal [1] at 3. This is not sufficient to “distinctly and
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affirmatively allege” the citizenship of a limited partnership for diversity purposes.
See Harvey, 542 F.3d at 1080; Howery, 243 F.3d at 919.
When a removing party fails to satisfy its initial burden of establishing
complete diversity of citizenship, the Court “cannot presume the existence of federal
jurisdiction.” Howery, 243 F.3d at 919. Under such circumstances, remand is
required. For this reason, the Court need not resolve whether there was some other
procedural defect in removal or whether Defendant Amy Gardner was fraudulently
joined.
III. CONCLUSION
Because Defendants have not carried their initial burden of demonstrating
that complete diversity of citizenship exists, Plaintiff’s Motion to Remand must be
granted.
IT IS, THEREFORE, ORDERED AND ADJUDGED, that Plaintiff’s
Motion to Remand [4] is GRANTED.
IT IS, FURTHER, ORDERED AND ADJUDGED, that this civil action is
remanded to the Circuit Court of Harrison County, Mississippi, First Judicial
District, and that a certified copy of this Order of remand shall be immediately
mailed by the Clerk to the clerk of the state court pursuant to 28 U.S.C. § 1447(c).
SO ORDERED AND ADJUDGED, this the 13th day of November, 2015.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
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