Jones v. Waffle House, Inc. et al
Filing
9
ORDER granting 5 Motion to Remand to State Court. An Order of Remand shall follow. Signed by District Judge Carlton W. Reeves on 8/9/13. (co)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
MALCOLM JONES
PLAINTIFF
v.
CAUSE NO. 3:12-cv-862-CWR-LRA
WAFFLE HOUSE, INC., et al.
DEFENDANTS
ORDER
Before the Court is Plaintiff Malcolm Jones’s (“Jones”) Motion to Remand. Docket No.
5. A response opposing the motion was filed on January 30, 2013, Docket No. 7. The plaintiff,
however, has not filed any reply. For reasons explained below, the Court is able to rule based on
its review of the Complaint and the papers submitted. The motion is GRANTED.
I. Factual and Procedural History
Jones alleges that he was made a victim of gun violence when, during an unfortunate visit
to a Jackson, Mississippi, Waffle House, an assailant verbally assaulted him and then shot at him
multiple times. Docket No. 1-3, ¶ 11. According to Jones, he was taken to the hospital that same
day, March 27, 2011, where he was treated for three gunshot wounds. Id.
On October 2, 2012, Jones filed suit in state court, claiming that Defendant Waffle
House, Inc. (“Waffle House”) and its site manager, Defendant Reggie Jenkins (“Jenkins”), were
negligent “owners, operators and persons in charge of the Waffle House building” at the time of
the shooting. Docket No. 1-3, ¶¶ 8, 16. Through his Complaint, Jones sought an unspecified
amount of damages to compensate for his pain and suffering, medical expenses, disability and
impairment, lost wages, and other injuries. Docket No. 1-3, ¶ 43.
Waffle House removed this action on December 17, 2012, alleging that removal was
proper, and that this Court had diversity jurisdiction, under 28 U.S.C. § 1332, because Jenkins,
the only non-diverse defendant, was fraudulently joined, and because Jones sought damages in
excess of $75,000.00. Docket No. 1, ¶¶ 10-13. Jones denies these allegations and asks that this
case be remanded to state court.
II. Legal Standard
The diversity jurisdiction of federal district courts is limited to civil actions where the
parties are of diverse citizenship and “the matter in controversy exceeds the sum or value of
$75,000,” exclusive of interests and costs. 28 U.S.C. § 1332(a). Because this case is proceeding
in diversity, the applicable substantive law is that of the forum state, Mississippi. Capital City
Ins. Co. v. Hurst, 632 F.3d 898, 902 (5th Cir. 2011); Smith v. Goodyear Tire & Rubber Co., 495
F.3d 224, 228 (5th Cir. 2007). State law is determined by looking to the decisions of the state’s
highest court. St. Paul Fire and Marine Ins. Co. v. Convalescent Services, Inc., 193 F.3d 340,
342 (5th Cir. 1999).
Waffle House, as the removing party, bears the “heavy” burden of establishing improper
joinder. Travis v. Irby, 326 F.3d 644, 649 (5th Cir. 2003); Dandridge v. Tyson Foods, Inc., 823
F. Supp. 2d 447, 450 (S.D. Miss. 2011) (citation omitted). In order to meet this burden, Waffle
House must show, by clear and convincing evidence, “either: (1) actual fraud in the pleading of
jurisdictional facts or the citizenship status of [Jenkins], or (2) inability of the plaintiff to
establish a cause of action against [Jenkins] in state court.” Dandridge, 823 F. Supp. 2d at 45051. Doubts about the existence of federal jurisdiction must be resolved against a finding of
jurisdiction, and in favor of remand. Id. at 450 (citation omitted).
The defendants do not dispute that Jenkins is a Mississippi resident, therefore, the Court
focuses on the second prong of the fraudulent joinder inquiry. Id. at 451. In doing so, the Court
must determine whether the plaintiff:
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
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liability on the facts involved, then there is no fraudulent joinder. This possibility,
however, must be reasonable, not merely theoretical.
Travis, 326 F.3d at 648 (emphasis in original) (citation, quotation marks omitted).
The Court may determine whether Jenkins is properly joined using either of two
methods: Ordinarily, the Court conducts “a Rule 12(b)(6)-type analysis,” wherein the Court asks
whether the plaintiff has “plead[ed] enough facts to state a claim to relief that is plausible on its
face,” against the in-state defendant. Smith v. Petsmart Inc., 278 F. App’x 377, 379 (5th Cir. May
15, 2008) (unpublished); Dandridge, 823 F. Supp. 2d at 451. But in those 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.” Petsmart, 278 F. App’x at 379 (citation, ellipsis, quotation marks omitted).
Under that approach, “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.” Id. In both methods, ambiguities in
state law and factual disputes are resolved in favor of the plaintiff. Id.; Dandridge, 823 F. Supp.
2d at 451.
III. Law and Analysis
The Court, in determining whether Jenkins was properly joined, takes notice of an
existing ambiguity within Mississippi law. In Petsmart, a Mississippi couple sued both a resident
manager and an out-of-state defendant, alleging premises liability. 278 F. App’x at 378. The
defendants contended that the manager was improperly joined. Id. But on appeal, the district
court’s order finding improper joinder and denying a motion to remand was reversed. Id. The
Fifth Circuit explained:
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Mississippi law is unclear on the issue of whether a store manager, in addition to a
store owner, can be personally liable in premises liability cases. The Mississippi
Supreme Court has stated that ‘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.’ . . . [B]ecause we must
‘resolve all uncertainties [in the relevant state law] in favor of the non-moving
party,’ we assume that under Mississippi law a store manager may qualify as a
‘person in charge of premises.’ Assuming that a store manager may qualify as a
person in charge, the question before us is whether the [plaintiffs] established a
reasonable possibility of recovery against [the manager] based on the fact that she
was a person in charge of Petsmart’s premises. We believe that the Smiths’ claim
establishes a reasonable possibility of recovery.
Id. at 380 (emphasis in original) (citations omitted). Because the governing law was ambiguous,
that ambiguity militated in the plaintiffs’ favor. The case was decided without piercing the
pleadings.
Using the lens outlined above, the Court must examine Jones’s Complaint to determine
whether he has stated a plausible claim for relief against Jenkins under Mississippi law. The
Complaint alleges that Jenkins was a site manager; that he had responsibility for “overseeing the
safety and security” of Waffle House visitors; that he managed the Waffle House common areas
“at all pertinent times”; that he was under a duty to reasonably protect Waffle House invitees
from foreseeable harm and danger; that, before the shooting on March 27, 2011, he was aware
that the conditions at the Waffle house were unsafe and inadequate, but attempted no remedy or
repair; that he knew that fights occurred inside the store and directed the security guard to stay
outside in the parking lot; that, “at all pertinent times,” he was a person in charge of the Waffle
House with control and authority to make management decisions “material to the personal safety
and security of Jones”; and that, he knew that the security measures being provided were
unreasonable and inadequate. Docket No. 1-3, ¶¶ 8, 10 13, 14, 15, 16, 24, 33. And it contains
further allegations, specifically directed at Jenkins, which outline the plaintiff’s theory of
negligence. Id. ¶¶ 22-35. Cf. Doss v. NPC Int’l, Inc., No. 4:10-cv-17, 2010 WL 1759153, at *2
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(N.D. Miss. Apr. 29, 2010) (denying a motion to remand where the “Plaintiffs’ Complaint d[id]
not contain any allegations specifically directed at [the non-diverse defendant]”).
These facts are sufficient to make out a claim against Jenkins under the particularities of
Mississippi law. The allegations posed against Jenkins raise the same legal ambiguity that was
decisive in Petsmart. Resolving the ambiguity in the non-movant’s favor, the Court must assume
that a site manager, like Jenkins, would qualify as a “person in charge of premises” under
Mississippi law. See, e.g., Jones v. Westwick Apartments, No. 3:11-cv-125, 2011 WL 8198563,
at *3 (S.D. Miss. June 7, 2011) (collecting cases). Accordingly, Jenkins has not shown that he is
improperly joined because Jones’s Complaint establishes a reasonable possibility of recovery
under Mississippi law. See Littleton v. Dollar General Corp., No. 5:12-cv-47, 2013 WL
1305505, at *5 (S.D. Miss. Mar. 26, 2013) (“Because the defendants have not shown that the
plaintiff would not be entitled to any relief against [the store manager] under any set of facts or
any possible theory that she could prove consistent with the allegations in her Complaint, the
plaintiff’s motion to remand shall be granted.”). Therefore, this Court lacks subject matter
jurisdiction over Jones’s claims.
The Court reaches this conclusion without piercing the pleadings, as Jenkins urges it to
do. Jenkins asserts that he cannot be held liable because he was not “on duty” at the time of the
shooting. Docket No. 7, at 2. He claims that his affidavit provides sufficient evidence supporting
his assertion. Id. at 3. But even if the Court found that the Complaint “misstated or omitted
discrete facts that would determine the propriety of joinder” and that outside evidence would
clarify, Petsmart, 278 F. App’x at 379, the evidence that Jenkins relies on would not change the
outcome.
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Undisputedly, Jenkins was a resident “site manger” of the Waffle House at the time of the
shooting. Docket No. 1-3, ¶ 8 (emphasis added). And contrary to Waffle House’s representation
that Jenkins was “not on duty,” see Docket No. 7, at 2 (emphasis in original), Jenkins’s affidavits
do not make that affirmation. Rather, in the affidavits Jenkins plainly states that he was “not
present” at the time of the shooting. Docket Nos. 7-1, ¶ 2; 7-2, ¶ 8. The mere assertion of nonpresence, however, does not exempt Jenkins from liability as a site manager.
As the Court has previously explained, “whether the premises manager is present or not
at the time of the subject incident . . . is not the linchpin to establishing liability.” Jones, 2011
WL 8198563, at *3. The title of site manager specifically suggests authority over the property
where the Waffle House was located. In this capacity, Jenkins’s responsibilities could include an
ongoing duty to maintain the safety of the premises, even if he was not directly responsible for
contracting security workers or guards.1 “The mere fact that the manager may not have been on
the premises at the time of the incident does not shut the door to a claim of liability against
[him].” Id.; see also Littleton, 2013 WL 1305505, at *3-4 (finding that a store manager’s absence
during plaintiff’s assault did not render the manager’s joinder improper).
IV. Conclusion
For these reasons, Jones’s motion to remand is well-taken and is GRANTED. An Order
of Remand shall follow.
SO ORDERED, this 9th day of August, 2013.
s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE
1
The analysis might be different if Jenkins were simply a shift manager, whose responsibilities could
necessarily be bounded by time. But unlike a shift manager, there is no reason to believe that a site manager’s
responsibilities are diminished simply because he was not present on the property at a particular point in time.
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