Lee et al v. Walmart Store #795 et al

Filing 34

ORDER denying 8 Motion to Remand to State Court. Signed by Honorable David C Norton on October 31, 2017.(span, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
MARIE E. LEE and JESSE LEE,

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Plaintiffs,
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vs.
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No. 1:17-cv-00507-DCN
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WALMART STORE #795, WALMART
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ORDER
STORES EAST, LP, and WALMART
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STORE MANAGER ELAINE DYCHES, )
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Defendants.
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This matter comes before the court on plaintiffs Marie E. Lee (“Marie Lee”) and
Jesse Lee’s (“Jesse Lee,” collectively “the Lees”) motion to remand. For the reasons set
forth below, the court denies the motion to remand.
I. BACKGROUND
The instant suit arises from a personal injury that occurred on July 7, 2014 as a
result of football helmets falling off a shelf onto the head and face of Marie Lee in
Walmart Store #795 located in Barnwell, South Carolina. Marie Lee alleges negligence
and gross negligence claims against defendants Walmart Store #795, Walmart Stores East
LP, and Walmart employee Elaine Dyches (“Dyches,” collectively “defendants”). Jesse
Lee also alleges a claim for loss of consortium against defendants.
The Lees filed the complaint in the Orangeburg County Court of Common Pleas
on December 28, 2016. Defendants filed a notice of removal on February 22, 2017. The
Lees filed this motion to remand on March 15, 2017, to which defendants filed a response
on March 30, 2017. The Lees replied on April 6, 2017. At the hearing for this motion on
May 30, 2017, the court instructed the parties to depose Dyches so the court could

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determine if she had enough control over the premises to remain a party in the action or if
she was fraudulently joined for the purpose of defeating diversity jurisdiction. 1 ECF No.
22. Dyches’s deposition was taken on June 27, 2017. ECF No. 33. For the foregoing
reasons, the court denies the motion for remand.
II. STANDARD
As the parties seeking to invoke the court’s jurisdiction, defendants have the
burden of proving jurisdiction upon a motion to remand. Dixon v. Coburg Dairy, Inc.,
369 F.3d 811, 816 (4th Cir. 2004) (citing Mulcahey v. Columbia Organic Chems. Co., 29
F.3d 148, 151 (4th Cir. 1994)). In deciding the motion, the federal court should construe
removal jurisdiction strictly in favor of state court jurisdiction. Id. “If federal jurisdiction
is doubtful, a remand is necessary.” Mulcahey, 29 F.3d at 151 (citations omitted).
III. DISCUSSION
The Lees move for the court to remand this case to the Orangeburg County of
Common Pleas, arguing that there is no diversity jurisdiction. Pls.’ Mot. 3. The Lees
contend that Dyches, a citizen of South Carolina, had sufficient control over the Walmart
store to keep her as a named defendant in this case, and that Dyches’s deposition supports
their argument. According to the Lees, since the Lees and Dyches are both citizens of
South Carolina, there is not complete diversity between the parties and thus there is no
basis for federal jurisdiction. 2 In response, defendants argue that Dyches, the only non-

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On June 22, 2017, the Lees filed a motion to amend, and attached a proposed
amended complaint naming additional individuals as Walmart store managers. This
order addresses only the motion to remand. The motion to alter or amend the complaint
remains pending.
2
The parties agree that there is no federal question jurisdiction here. Were the
court to determine that there is no diversity jurisdiction, there would be no other basis for
this case to remain in federal court.
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diverse defendant, is fraudulently joined. Defendants argue that Dyches was a grocery
department assistant manager at the time of the incident, and thus had no control over the
general merchandise department where Marie Lee was injured. Additionally, defendants
contend that Dyches was not working on the day of the incident and therefore not present
in the store. Defs.’ Mot. 4. Since, defendants argue, the Lees cannot levy a premises
liability action against Dyches as a matter of law, the court should find that Dyches was
fraudulently joined.
Because the parties do not dispute whether the amount in controversy exceeds
$75,000, the only issue before the court is whether there is complete diversity between
the parties. A civil case that is otherwise removable solely on the basis of diversity
jurisdiction “may not be removed if any of the parties in interest properly joined and
served as defendants is a citizen of the State in which such action is brought.” 28 U.S.C.
§ 1441(b)(2). Here, the complaint names “Walmart Store Manager Elaine Dyches” as a
defendant, and alleges that Dyches is a “citizen and resident of the County of Barnwell,
State of South Carolina.” Compl. ¶ 5. Defendants argue that the Lees fraudulently joined
Dyches for the sole purpose of defeating diversity jurisdiction. Def.’s Resp. 3. As
Dyches is the only non-diverse defendant named in the complaint, if Dyches were
removed there would be complete diversity.
To establish fraudulent joinder of a non-diverse defendant, the removing party
must establish either that “there is no possibility that the plaintiff would be able to
establish a cause of action against the in-state defendant in state court; or [t]hat there has
been outright fraud in the plaintiff’s pleading of jurisdictional facts.” Mayes v. Rapoport,
198 F.3d 457, 464 (4th Cir. 1999) (quoting Marshall v. Manville Sales Corp., 6 F.3d 229,

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232 (4th Cir. 1993)). “The burden on the defendant claiming fraudulent joinder is heavy:
the defendant must show that the plaintiff cannot establish a claim against the nondiverse defendant even after resolving all issues of fact and law in the plaintiff’s favor.”
Id. (quoting Marshall, 6 F.3d at 232-33). “This standard is even more favorable to the
plaintiff than the standard for ruling on a motion to dismiss under Fed. R. Civ. P.
12(b)(6).” Hartley v. CSX Transp., Inc., 187 F.3d 422, 424 (4th Cir. 1999) (citation
omitted).
Whether an individual has exercised such control of the premises so as to impose
a duty to reasonably inspect the premises, a court is to consider the individual’s “power
or authority to manage, direct, superintend, restrict, regulate, govern, administer, or
oversee the management of the property.” Benjamin v. Walmart Stores, Inc., 413 F.
Supp. 2d 652, 656 (D.S.C. 2006). In Benjamin, a customer who slipped and fell on loose
bird seed lying on the floor of a Walmart store in Hardeeville, SC brought a personal
injury action in state court against the store, department manager, and an unidentified
store employee. Id. at 656–57 (D.S.C. 2006). The Benjamin court held that the Walmart
department manager and store employee did not exercise sufficient control “to impose a
legal duty to inspect and maintain safe premises,” and indeed that “[o]ne does not have an
affirmative duty to maintain safe premises of a store merely by virtue of being an
employee absent some evidence of more substantial level of control of the business.” Id.
The Benjamin court further found that under South Carolina law, the department manager
and employee had no affirmative duty to act to prevent injuries suffered by a customer
absent a showing that the department manager exerted an “unusual” level of control over
the premises.

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In Cook v. Lowe’s Home Centers, Inc., 2006 WL 3098773, at *4 (D.S.C. Oct. 30,
2006), the court applied the rule set forth in Benjamin to remand a case where the
defendant was a store manager as opposed to a manager of one department, reasoning
that “by virtue of that position [the store manager] has a high level of control over the
store.” Similarly, in Mobley v. Wal-Mart Stores, Inc., 2010 WL 503101, at *5 (D.S.C.
Feb. 8, 2010) the court applied Benjamin in finding that a Walmart store manager in
Georgetown, South Carolina was a proper defendant in a case alleging negligence on the
part of defendants for failure to discover, warn against, or repair the uneven condition of
a parking lot surface.
When determining whether attempted joinder is fraudulent, the court “may
consider the entire record, and determine the basis of joinder by any means available.”
Mayes, 198 F.3d at 464 (internal citation and quotation omitted). As such, a review of
Dyches’s deposition is relevant to the court’s determination. The deposition reveals that
at the time of the incident, Dyches was employed as a grocery department assistant
manager. Here, like the department manager in Benjamin, it is clear that at the time of
the incident, Dyches was employed as the manager of the grocery department and not as
a store manager. Depo. 8:5–6; Depo. 11: 17–19. Dyches testifies that at the time of the
incident her responsibilities included “making sure modular [in the grocery department]
are completed, [and to] stock shelves and zone the areas and keep it safe for customers.”
Depo. 20:16–22:17. Unlike the store managers in Cook and Mobley that were found to
exert sufficient control over the premises to be properly named as a defendant, the
deposition confirms that Dyches was a department manager. According to Dyches’s
deposition, the sporting goods department, where the incident occurred, was four

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departments away “over in the right-hand corner at the back of the store” “at the opposite
side of the grocery department.” Depo. 22:20–25:16. Indeed, Dyches was not employed
as an assistant store manager until April 2016, almost two years after the incident
occurred. Depo. 7:21–8:2. Dyche’s deposition provides an explanation of the roles and
responsibilities of a department assistant manager as compared to a store manager.
22:20–25:16. This includes a difference in pay level, as department managers are paid
hourly while assistant store managers receive a salary. Depo 16:21–23. The deposition
also defines what a work order is, and Dyches clarifies that she never signed a work order
in the sporting goods department. Depo. 61:20–62:2. Finally, the deposition reveals that
Dyches was not even working at the time of the incident. Depo. 49:25–50:7.
The court finds that under the rule articulated in Benjamin, there is no possibility
that the Lees would be able to establish a cause of action against Dyches in state court.
Therefore, Dyches is not a proper party to this lawsuit.

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IV.

CONCLUSION

For the reasons set forth above, the court DENIES the motion to remand.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE

October 31, 2017
Charleston, South Carolina

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