Littleton v. Dollar General Corporation et al
Filing
17
ORDER granting 6 Motion to Remand to State Court; denying 7 Motion for Attorney Fees Signed by Honorable David C. Bramlette, III on 3/26/2013 (ECW)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
LATUNIA LITTLETON
PLAINTIFF
VS.
CIVIL ACTION NO. 5:12-cv-47(DCB)(MTP)
DOLLAR GENERAL CORPORATION;
ESTER WALKER; AMANDA WATSON;
SHANICE BEE; PERSONS UNKNOWN SUED
HEREIN AS JOHN DOES 1-10 WHO ARE
MANAGERS AND/OR EMPLOYEES OF DOLLAR
GENERAL CORPORATION; AND PERSONS
UNKNOWN SUED HEREIN AS JOHN DOES
11-15 WHO ATTACKED LATUNIA LITTLETON,
Individually and Collectively
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This cause is before the Court on the plaintiff Latunia
Littleton’s motion to remand (docket entry 6).
considered
the
motion
and
response,
the
Having carefully
memoranda
and
the
applicable law, and being fully advised in the premises, the Court
finds as follows:
The Complaint in this action was originally filed in the
Circuit Court of Claiborne County, Mississippi, and subsequently
removed to this Court by defendants Dollar General Corporation,
Amanda Watson and Shanice Bee.
In their notice of removal, the
defendants allege that “Ester Walker, Amanda Watson and Shanice Bee
have been fraudulently joined for the purpose of defeating this
Court’s jurisdiction.” Notice of Removal, ¶ 6. Walker, Watson and
Bee are resident citizens of the State of Mississippi.
Dollar
General is a Tennessee Corporation with its principal place of
business in Goodlettsville, Tennessee.
“When a plaintiff files in state court a civil action over
which the federal district courts would have original jurisdiction
based on diversity of citizenship, the defendant or defendants may
remove the action to federal court.”
Caterpillar Inc. v. Lewis,
519 U.S. 61, 68 (1996)( citing 28 U.S.C. § 1441(a)).
“To remove a
case based on diversity, the diverse defendant must demonstrate
that all of the prerequisites of diversity jurisdiction contained
in 28 U.S.C. § 1332 are satisfied.”
Smallwood v. Ill. Cent. R.R.
Co., 385 F.3d 568, 572 (5th Cir.2004).
“The
doctrine
of
improper
joinder
[formerly
known
as
fraudulent joinder] rests on these statutory underpinnings, which
entitle a defendant to remove to a federal forum unless an in-state
defendant has been properly joined.”
Id. at 573.
The Fifth
Circuit recognizes two ways to establish improper joinder: “(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.”
Irby, 326 F.3d 644, 646–47 (5th
Id. (quoting Travis v.
Cir. 2003)).
In this case, the second method applies because the defendants
do not dispute Littleton’s Mississippi citizenship.
See Travis,
326 F.3d at 647. “[T]he test for fraudulent joinder is whether the
defendant has demonstrated that there is no possibility of recovery
by the plaintiff against an in-state defendant, which stated
2
differently means that there is no reasonable basis for the
district court to predict that the plaintiff might be able to
recover against an in-state defendant.”
573.
Smallwood, 385 F.3d at
This test is to be employed “[a]fter all disputed questions
of fact and all ambiguities in the controlling state law are
resolved in favor of the nonremoving party.”
Great Plains Trust
Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir.
2002).
The Fifth Circuit has rejected the contention that “any
mere theoretical possibility of recovery ... suffices to preclude
removal,”
instead
requiring
“arguably
a
reasonable
predicting that state law would allow recovery.”
Nabisco,
Inc.,
defendants
bear
236
F.3d
a
282,
heavy
286
burden
of
n.4
(5th
proving
Cir.
basis
for
Badon v. RJR
2000).
improper
The
joinder.
Smallwood, 385 F.3d at 576.
Courts in this circuit resolve issues of alleged improper
joinder in one of two ways.
First, the 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.”
573.
Smallwood, 385 F.3d at
Ordinarily, this analysis will be determinative.
Id.
However, the court may, in its discretion, pierce the pleadings and
conduct a summary inquiry.”
Id.
The Fifth Circuit has cautioned
that:
a summary inquiry is appropriate only to identify the
presence of discrete and undisputed facts that would
3
preclude plaintiff’s recovery against the in-state
defendant. In this inquiry the motive or purpose of the
joinder of in-state defendants is not relevant ....
Attempting to proceed beyond this summary process carries
a heavy risk of moving the court beyond jurisdiction and
into a resolution of the merits, as distinguished from an
analysis of the court’s diversity jurisdiction by a
simple and quick exposure of the chances of the claim
against the in-state defendant alleged to be improperly
joined.
Indeed, the inability to make the requisite
decision in a summary manner itself points to an
inability of the removing party to carry its burden.
Id. at 573-74.
In this case, the plaintiffs’ Complaint alleges that on the
evening of March 11, 2011, the plaintiff went to the Dollar General
Store at 1012 Market Street, Port Gibson, Mississippi.
She
purchased items in the store, and was walking through the parking
lot to her car when she was assaulted and raped in the parking lot
by unknown assailants.
The Complaint further alleges, in part:
On or about March 11, 2011, in Port Gibson,
Mississippi, Defendants above-named, and each of them, so
carelessly and negligently owned, leased, possessed,
maintained, operated, supervised, controlled, guarded,
secured and constructed said premises in such a way as to
create a reasonably foreseeable risk of injury to the
patrons of the Dollar General Store, including Plaintiff.
Among other things, said Defendants, and each of them,
negligently and carelessly and in conscious disregard of
the rights and safety of Plaintiff, failed to secure the
premises, and failed to take adequate and sufficient
measures to prevent, control or deter harmful, injurious,
violent and/or dangerous acts by third persons towards
patrons on said premises.
As a direct and proximate
result of said negligence and carelessness, and in
particular by reason of the lack of adequate security,
control and/or deterrence, John Does 11-15 inclusive, and
each of them, were able to and did sexually assault and
otherwise physically assault and batter Plaintiff,
thereby inflicting serious and permanent damages.
4
Complaint, ¶ 14.
The Complaint alleges the following acts of
negligence:
(a) Failing to exercise ordinary or reasonable care in
hiring, training, supervising and maintaining their
employees,
servants,
agents,
officers
and
representatives;
(b) Failing to exercise ordinary or reasonable care in
providing a safe shopping environment;
(c) Failing to recognize, implement and adhere to
applicable rules and regulations pertaining to their
employees, servants, agents, officers;
(d) Failing to provide proper, adequate and sufficient
protection to Plaintiff;
(e) Failing
question;
to
properly
supervise
the
premises
in
(f) Failing to warn Plaintiff of the inherent dangers of
shopping there;
(g) Failing to respond in a timely and appropriate
manner, despite actual and/or constructive knowledge of
the sexual harassment and danger of sexual violence which
permeated DOLLAR GENERAL CORPORATION’s Port Gibson
premises;
(h) Failing to supervise employees so as to prevent
attacks such as Plaintiff suffered.
Complaint, ¶ 34.
Further, the Complaint alleges that defendants
Walker, Watson and Bee “personally knew about the unacceptably high
risk of assault at the Dollar General Store,” and failed to warn
the plaintiff of the danger, proximately causing her injuries.
Complaint, ¶¶ 44-48.
Dollar General, Watson and Bee removed the case to this Court
pursuant to 28 U.S.C. §§ 1332, 1441 and 1446 on grounds of
5
diversity of citizenship jurisdiction.
of Mississippi.
The plaintiff is a citizen
Dollar General is not considered a Mississippi
citizen for diversity of citizenship purposes.
Watson and Bee are
citizens of the State of Mississippi, as is Walker, a defendant who
has not been served with process.
The removing defendants assert
that Walker, Watson and Bee have been fraudulently joined, while
the plaintiff, in a timely filed motion to remand, asserts that
joinder of Walker, Watson and Bee is proper.
Because the presence of any one properly joined Mississippi
defendant
will
defeat
diversity
jurisdiction,
the
address the joinder of the store manager, Ester Walker.
Court
will
The Court
notes that the fact that Walker has not yet been served does not
mean Walker has been improperly joined.
Mutual
Cas.
Co.,
2002
WL
31012606,
See Jones v. Lumberman’s
*2
(Sept.
9,
2002)(“The
existence vel non of subject matter jurisdiction simply cannot, as
a practical matter, fade in and out depending upon the temporal
situation
of
a
party’s
inability
to
serve
a
particular
defendant.”); Jamison v. Kerr-McGee Corp., 151 F.Supp.2d 742, 746
(S.D. Miss. 2001) (“Whenever federal jurisdiction in a removal case
depends upon complete diversity, the existence of diversity is
determined from the fact of citizenship of the parties named and
not from the fact of service.”).
In their Notice of Removal, the removing defendants allege
that “Walker, Watson and Bee did not own or occupy the premises
6
where the incident alleged by the Plaintiff occurred, thus they
have no duty or obligation to the Plaintiff under Mississippi law
concerning the premises.”
Notice of Removal, ¶ 7 (citing Jones v.
James Reeves Contrs., 701 So.2d 774, 782 (Miss. 1997)(agents of the
owner or occupier cannot be liable)).
However, in Smith v.
Petsmart, Inc., 278 Fed.Appx. 377 (5th Cir. 2008), the Fifth Circuit
found that “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.”
Id. at 380.
In Mayfield v. The Hairbender, 903 So.2d 733 (2005), the
Mississippi Supreme Court 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 and suitable condition or warning [the]
invitee of dangerous conditions not readily apparent which [the]
owner knows or should have known of in the exercise of reasonable
care.”
Id. at 735-36.
In Petsmart, the plaintiff suing the store
owner and store manager contended that the manager was a “person in
charge”
and
therefore
owed
premises-liability
duties
to
the
plaintiff.
The Fifth Circuit noted that “[t]wo district courts
that
considered
have
this
question
have
come
to
differing
conclusions.” Petsmart, 278 Fed.Appx. at 380. The appellate court
then concluded that “because we must resolve all uncertainties in
the relevant state law in favor of the non-moving party, we assume
7
that under Mississippi law a store manager may qualify as a ‘person
in charge of premises.’”
Id. (citations omitted).
Whether a plaintiff states a cognizable claim against a
defendant is determined by reference to the allegations in the
plaintiff’s original pleading.
Smallwood v. Illinois Central
Railroad Company, 385 F.3d 568, 573 (5th Cir. 2004).
In her
Complaint, Littleton alleges specific acts of negligence against
the manager, including failure to provide a safe premises, failure
to provide adequate protection, failure to supervise, and failure
to warn of inherent dangers.
In response to the plaintiff’s motion to remand, the removing
defendants present an affidavit of Ester Walker, who states that
she was not present at the store when the events alleged in the
complaint took place.
Walker Affidavit, ¶¶ 4-5 (“On March 11,
2011, I worked at this Port Gibson Dollar General Store, but I
completed my work at the store prior to 6 p.m. that day.
I was not
present at this Port Gibson Dollar General store at the time
Latunia Littleton was at the store on March 11, 2011, nor was I
present when the alleged assault [occurred].”).
This does not,
however, render Walker’s joinder improper.
In general, a premises manager owes store patrons a duty to
take adequate and reasonable precautions or measures to protect
them from foreseeable harm and danger.
alleges
that
Walker
“failed
to
8
take
In this case, Littleton
adequate
and
sufficient
measures to prevent, control or deter harmful, injurious, violent
and/or dangerous acts by third persons towards patrons on said
premises.”
Complaint, ¶ 14.
She further alleges that the sexual
assault against her was a direct and proximate result of Walker’s
negligent failure to provide adequate security, control and/or
deterrence on the premises.
Id.
The plaintiff alleges that the
condition of the parking lot was “notoriously dangerous,” and that
the defendants knew of the condition.
Id. at ¶¶ 19-20.
The
plaintiff has also produced evidence of other criminal activity in
the Dollar General parking lot.
Docket Entry 15, Exhibits A-C.
In Moore v. Patel, 2009 WL 1421300 (S.D. Miss. May 19, 2009),
the plaintiff (on behalf of the wrongful death beneficiaries of the
deceased who was shot and killed on hotel premises) claimed that
the defendants “knew or should have known that the premises they
owned
and
operated
consequently
the
was
located
premises
were
in
not
a
high
crime
reasonably
area,
safe
for
and
all
patrons.” Id. at *2. The plaintiff also alleged that “despite the
unsafe conditions and inadequacies, Defendants failed to address
the unsafe conditions and inadequacies.” Id. The court found that
the factual allegations were sufficient to show that the plaintiff
might be able to recover against the in-state defendant property
manager.
Id.
Further,
relying
on
Petsmart’s
finding
that
“Mississippi law is unclear on the issue of whether a store
manager, in addition to a store owner, can be personally liable in
9
premises
liability
cases,”
the
court
stated
that
“[b]ecause
Mississippi has not resolved this issue, the Court finds that
arguably, there exists ‘a reasonable basis for predicting that the
state law might impose liability on the facts involved.’”
Id.
(quoting Travis , 326 F.3d at 648)( additional citations omitted).
In Jones v. Westwick Apartments, LLC, 2011 WL 8198563 (S.D.
Miss. June 7, 2011), the plaintiff, who was shot on the defendant’s
premises,
named
the
premises
citizen) as a defendant.
manager
(a
Mississippi
resident
The removing defendants claimed that the
manager could not be a “person in charge” because he was absent
from the premises when the incident occurred.
The court found:
... [The Defendants] argue that Mississippi law requires
that an individual must be present on the premises when
the subject incident occurs, before a “person in charge”
label is conferred and any liability attaches. In doing
so, Defendants provide no authority nor any Mississippi
cases that would constrain the finding of liability to
only those situations where a premises manager is present
on the premises. To the contrary, the Court finds courts
have determined that Mississippi law attaches liability
to property managers and includes them within the class
of “person in charge” so long as there is a degree of
involvement by the managing individual in the form of
direct
participation,
consent,
acquiescence,
authorization, direction or at the least, a failure to
prevent a tortious act that the manager knows or
reasonably should know was occurring.
Id. at *3 (emphasis in original)(citations omitted).
Like the
court in Moore, the court in Jones acknowledged “an ambiguity in
Mississippi case law concerning whether a premises manager can be
held personally liable,” and stated that it was “not inclined to
resolve such ambiguity against the plaintiff.”
10
Id. at *4.
The
court therefore granted the plaintiff’s motion to remand.
Id.
Following Petsmart, Moore and Jones, this Court finds that
there is a reasonable basis for predicting that Mississippi law
might impose liability against defendant Walker on the facts of
this
case.
Because
the
defendants
have
not
shown
that
the
plaintiff would not be entitled to any relief against Walker 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.
The Court further finds that
this case does not qualify for an award of attorney’s fees to the
plaintiff.
Accordingly,
IT IS HEREBY ORDERED that the Latunia Littleton’s motion to
remand (docket entry 6) is GRANTED, and a separate order remanding
this case to the Circuit Court of Claiborne County shall follow;
FURTHER ORDERED that the plaintiff’s motion for attorney’s
fees (docket entry 7) is DENIED.
SO ORDERED, this the 26th day of March, 2013.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
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