Jones v. Ringer et al

Filing 10

ORDER granting 6 Motion to Remand to State Court. Clerk's Notice: Attorneys are responsible for supplementing the State Record with all documents filed in Federal Court. Signed by the Honorable R Bryan Harwell on 11/6/17. (lsut, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
April Jones,

)
)
Plaintiff,
)
)
v.
)
)
Tim Ringer, individually and as
)
employee/agent of Wal-Mart Stores, )
Inc. d/b/a Wal-Mart Store #630; and )
Wal-Mart Stores, Inc.,
)
)
Defendants.
)
______________________________)

Civil Action No.: 4:17-cv-02182-RBH

ORDER

This matter is before the Court on Plaintiff April Jones’ motion to remand. See ECF No. 6. The
Court grants the motion for the reasons herein.1
Background
Plaintiff originally filed this action in state court, alleging she stepped on a rusty nail in WalMart and eventually lost part of her right leg due to multiple surgical amputations. See Complaint [ECF
No. 1-1]. Plaintiff is a South Carolina citizen, and she named Tim Ringer and Wal-Mart Stores, Inc.
as the two defendants (collectively, “Defendants”). Id. Ringer is a South Carolina citizen and a
manager of the Wal-Mart store in question, while Wal-Mart is a citizen of Delaware and Arkansas.2
Id.; Notice of Removal [ECF No. 1].
Defendants removed the action to this Court based on federal diversity jurisdiction, asserting

1

Pursuant to Local Civil Rule 7.08, the district court may decide motions without a hearing. The Court has
reviewed the parties’ filings and determined a hearing in this matter is unnecessary.

2

Defendants assert W al-Mart Stores East, L.P.— not W al-Mart Stores, Inc.— is the sole proper corporate
defendant. See ECF No. 1. at p. 2; ECF No. 9 at p. 1 n.1. However, because both these entities are citizens of
Delaware and Arkansas, see ECF No. 1. at pp. 2–3, the Court will simply use “W al-Mart” to refer to the corporate
defendant.

Plaintiff fraudulently joined Ringer to defeat diversity. See ECF No. 1. Plaintiff filed the instant
motion to remand, and Defendants filed a response in opposition. See ECF Nos. 6 & 9. Plaintiff did
not file a reply.
Legal Standards
The party seeking to remove a case to federal court has the burden of establishing federal
jurisdiction. Mulcahey v. Columbia Organic Chemicals Co., 29 F.3d 148, 151 (4th Cir. 1994). Thus,
Defendants bear the burden to establish federal jurisdiction is proper in this case. “Because removal
jurisdiction raises significant federalism concerns,” the Court “must strictly construe removal
jurisdiction. If federal jurisdiction is doubtful, a remand is necessary.” Id. (internal citation omitted).
Title 28 U.S.C. § 1332(a)(1) grants district courts original jurisdiction of any civil action for
which the matter in controversy exceeds $75,000 and is between or among citizens of different states.
This statute requires complete diversity of citizenship, meaning the plaintiff cannot be a citizen of the
same state as any defendant. Carden v. Arkoma Associates, 494 U.S. 185, 187 (1990). Thus, diversity
jurisdiction exists “so long as any two adverse parties are not co-citizens.” Caterpillar Inc. v. Lewis,
519 U.S. 61, 68 n.3 (1996). State court defendants may remove a civil action to federal district court
if the district court has original subject matter jurisdiction over the action. 28 U.S.C. § 1441(a). If the
district court determines at any time before entering final judgment that it lacks subject matter
jurisdiction over a removed action, it must remand the action to state court. 28 U.S.C. § 1447(c).
Although complete diversity is necessary for a federal court to exercise diversity jurisdiction,
the fraudulent joinder doctrine prohibits a plaintiff from automatically defeating diversity jurisdiction
by naming non-diverse defendants. Weidman v. Exxon Mobil Corp., 776 F.3d 214, 218 (4th Cir. 2015).
The fraudulent joinder doctrine enables a district court to “‘disregard, for jurisdictional purposes, the
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citizenship of certain nondiverse defendants, assume jurisdiction over a case, dismiss the nondiverse
defendants, and thereby retain jurisdiction.’” Johnson v. Am. Towers, LLC, 781 F.3d 693, 704 (4th Cir.
2015) (quoting Mayes v. Rapoport, 198 F.3d 457, 461 (4th Cir. 1999)).
‘Fraudulent joinder’ is a term of art, it does not reflect on the integrity
of [the] plaintiff or counsel, but is merely the rubric applied when a
court finds either that no cause of action is stated against the
nondiverse defendant, or in fact no cause of action exists. In other
words, a joinder is fraudulent if there [is] no real intention to get a
joint judgment, and . . . there [is] no colorable ground for so claiming.
AIDS Counseling & Testing Centers v. Grp. W Television, Inc., 903 F.2d 1000, 1003 (4th Cir. 1990)
(alterations and omission in original) (internal quotation marks omitted).
“The party alleging fraudulent joinder bears a heavy burden—it must show that the plaintiff
cannot establish a claim even after resolving all issues of law and fact in the plaintiff’s favor.” Hartley
v. CSX Transp., Inc., 187 F.3d 422, 424 (4th Cir. 1999). “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).” Id. The
Fourth Circuit has recognized two methods by which a defendant may show fraudulent joinder: (1) there
is “outright fraud in the plaintiff’s pleading of jurisdictional facts”; or (2) “there is no possibility that
the plaintiff would be able to establish a cause of action against the in-state defendant in state court.”
Johnson, 781 F.3d at 704. “To defeat an allegation of fraudulent joinder, the plaintiff need establish
‘only a slight possibility of a right to relief.’” Hughes v. Wells Fargo Bank, N.A., 617 F. App’x 261,
264 (4th Cir. 2015) (quoting Mayes, 198 F.3d at 464). In evaluating whether an attempted joinder is
fraudulent, a court is not bound by the allegations of the complaint but can “consider the entire record,
and determine the basis of joinder by any means available.” Mayes, 198 F.3d at 464.
Discussion

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Plaintiff moves to remand this case to state court, arguing (1) there is not complete diversity
because she and Ringer are both South Carolina citizens and (2) Ringer is a proper defendant because
South Carolina recognizes joint and several liability. See ECF No. 6. Meanwhile, Defendants argue
Ringer—the store manager for Wal-Mart—has been fraudulently joined as a sham defendant to defeat
diversity jurisdiction. See ECF No. 9. Defendants argue Plaintiff has no possibility of establishing a
cause of action against Ringer.3 Id. at p. 3.
In her complaint, Plaintiff alleges that on June 26, 2015, she went grocery shopping in Wal-Mart
Store #630 in Florence, South Carolina and passed through an area containing pallets. Compl. at ¶¶ 6,
9–10. She began to feel pain in her right foot while hearing a scraping sound under her shoe, and upon
looking under her shoe, she saw a rusty nail had pierced through both the shoe and her foot. Id. at
¶¶ 10–11. Plaintiff reported the incident to Defendants and visited the hospital. Id. at ¶¶ 12, 15. She
had to have a hole cut in her foot to treat the wound, which led to multiple surgical amputations that
eventually resulted in the loss of her right leg up to just above her knee. Id. at ¶ 15. She alleges that
at the time of the incident, Ringer was acting as a manager of Wal-Mart Store #630 and was responsible
for cleaning, monitoring, and maintaining the store premises to ensure they were safe, clean, and not
dangerous for customers. Id. at ¶¶ 7–8. Plaintiff sues Defendants for negligence under a theory of
premises liability, alleging Defendants created the dangerous condition or knew (or should have known)
the floor area where her injuries occurred presented a danger to patrons of Wal-Mart. Id. at ¶ 14. In
particular, Plaintiff seeks to hold Ringer jointly liable for her injuries.
Defendants argue Ringer did not owe a duty to Plaintiff because he was merely a store manager

3

Defendants do not argue there was any “outright fraud” in Plaintiff’s pleading of jurisdictional facts. See
Johnson, 781 F.3d at 704.

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and not a store owner. ECF No. 9 at pp. 4–13. Defendants correctly acknowledge that the undersigned
and another judge in this district have determined store managers may owe such a duty—one case even
involving a Wal-Mart store manager. Id. at pp. 5–8, 13. These cases are: Griggs v. Dollar General
Corp., No. 4:15-cv-04600-RBH, 2016 WL 70017 (D.S.C. Jan. 6, 2016); Cook v. Lowe’s Home Centers,
Inc., No. 5:06-cv-02130-RBH, 2006 WL 3098773 (D.S.C. Oct. 30, 2006); and Mobley v. Wal-Mart
Stores, Inc., No. 2:09-cv-03019-DCN, 2010 WL 503101 (D.S.C. Feb. 8, 2010).4 Defendants also
correctly note Griggs, Cook, and Mobley rely in part on two decisions by the South Carolina Supreme
Court: Richards v. Great Atlantic & Pacific Tea Co., 226 S.C. 119, 83 S.E.2d 917 (1954); and Dunbar
v. Charleston & W. C. Ry. Co., 211 S.C. 209, 44 S.E.2d 314 (1947). ECF No. 9 at p. 5. Defendants
then argue “a closer look at these cases reveals” the South Carolina Supreme Court “never intended to
expand premises liability in the manner in which Plaintiff asks the Court to do so in the present action,
i.e., under a theory of ‘control.’” Id. In essence, Defendants argue Griggs, Cook, and Mobley
misinterpreted Richards and Dunbar to conclude store managers (and not just owners) can be sued
under a theory of premises liability, a result never actually intended by the state supreme court. See id.
at p. 8. The Court disagrees.
Without unnecessarily repeating the legal principles explained in Griggs, Cook, and Mobley,
the Court reiterates its prior determination that “a store manager can be held personally and jointly liable
with the store itself for an alleged act of negligence,” Griggs, 2016 WL 70017, at *4, under “the South
Carolina common law of joint and several liability, and the fact that a store manager by virtue of his
position has a high level of control over the store.” Cook, 2006 WL 3098773, at *4. Moreover, “[t]he
decisions of the Supreme Court of South Carolina make perfectly plain that in South Carolina a plaintiff

4

Plaintiff relies on Cook and Mobley in her motion to remand. See ECF No. 6 at pp. 6–7.

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suing a master and servant for injuries which he has sustained as a result of the negligence of the
servant, within the scope of his employment, may bring a suit against master and servant, and join them
as joint tortfeasors. It is useless to re-cite and re-discuss the long line of cases . . . .” Newton v. S.
Grocery Stores, 16 F. Supp. 164, 165–66 (E.D.S.C. 1936) (finding no fraudulent joinder where two
resident store managers were joined as defendants with the non-resident grocery store; and remanding
the case to state court).5 “Pursuant to this concept of joint and several liability, South Carolina law

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Again, Defendants contend the undersigned and Judge Norton (in Griggs, Cook, and Mobley) erroneously
construed Dunbar and Richards “to expand premises liability” and “permit plaintiffs to name a store manager as a
defendant,” claiming “the state supreme court never intended” such a result. ECF No. 9 at p. 5. Defendants further
rely on the principles of agency and vicarious liability to argue that “store managers . . . are agents of the store” and
should not face personal liability as such. See id. at pp. 10–13.
However, over a decade before Dunbar (a 1947 opinion) and Richards (a 1954 opinion), U.S. District Judge
John Lyles Glenn, Jr. had aptly observed in Newton (a 1936 order) that the South Carolina Supreme Court’s decisions
“make perfectly plain that” a plaintiff “may bring a suit against master and servant, and join them as joint tortfeasors.”
Newton, 16 F. Supp. at 165–66. In fact, as indicated above, Newton involved a fraudulent joinder issue where a
plaintiff sued a grocery store (a Delaware corporation) and two store managers (South Carolina residents) who were
“manager of the grocery store and . . . manager of the market operated in conjunction therewith” and “were the agents
of the defendant corporation, Southern Grocery Stores, Inc., in active charge, control and direction thereof.” Id.
at 165 (emphasis added). Judge Glenn found no fraudulent joinder and remanded the case to state court, stating:
The fact that the negligence alleged against the defendant master may arise entirely
out of the negligence of the servants who are also joined as defendants, and the fact
that the liability of the master may depend entirely upon the application of
respondeat superior, do not prevent the suit from being, under the laws of South
Carolina governing the pleadings, a suit for recovery against master and servant
alike on the theory of joint tort, and justifying, so far as pleadings are concerned,
a recovery against them both in one action. . . .
W e think that on its face the complaint alleges sufficiently that the injuries
complained of were the result of joint and concurrent negligence on the part of the
master and the two servants joined as defendants. . . . [H]owever, . . . the court
must look at the allegations of the complaint, the allegations of the petition for
removal, the affidavits filed on the hearing, and, if the parties present testimony, this
too must be considered, in deciding whether or not the joinder of the resident
defendant in such a case is a pure sham and fraud, or whether or not there is in the
factual situation, as reasonably pictured by the court, any reasonable basis for
joining the resident defendants as defendants along with the nonresident master. . . .
So here we come to the crux of the instant motion, and must rest our
decision on the question of whether or not the two resident defendants here, Joye
and Johnson, or either one of them, owed, under the allegations of the complaint,
reasonably understood and read in the light of the other pleadings presented, any

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permits store managers to be sued in tort for injuries to the store’s invitees.” Owens v. Dolgencorp,
Inc., No. 5:08-cv-00467-MBS, 2008 WL 11348726, at *2 (D.S.C. Oct. 22, 2008). The Court further
notes a Wal-Mart store manager has specifically been found not to be a sham defendant. See Mobley,
2010 WL 503101, at *5. Of course, the facts unique to each case will govern whether a particular store
manager can actually be held liable. See Benjamin v. Wal-Mart Stores, Inc., 413 F. Supp. 2d 652, 657
(D.S.C. 2006) (“[M]erely being a manager or employee does not evidence a sufficient level of
control.”).
Thus, the last task for the Court is to determine whether there is any possibility that Plaintiff can
establish a cause of action against Ringer in state court. If so, this case must be remanded.
When a single injury occurs as the proximate result of separate and independent acts of the
negligence of two or more parties, these tortfeasors are subject to joint and several liability. Collins v.
Bisson Moving & Storage, Inc., 332 S.C. 290, 306, 504 S.E.2d 347, 356 (Ct. App. 1998) (citing Rourk

duties to the plaintiff which are alleged to have been violated and resulted, along
with the negligence of the master, in the injury of the plaintiff. As was so well
stated by one of the great judges of the South Carolina Supreme Court, the servant
does not escape liability for his own negligence by reason of the fact that his master
(generally more responsive to a judgment) can also be held liable by reason of the
doctrine of respondeat superior for the damages sustained by the plaintiff. The
Southern Grocery Stores, though chartered in Delaware, has its main southern office
in Atlanta, Ga. All it has in Bennettsville is a store, and the two resident defendants
here are charged with the operation of this store. Southern Grocery Stores, Inc., is,
of course, liable for their conduct, within the scope of their employment, to any one
injured by reason of the negligence of these two men alleged to be in charge of the
major departments of this store. Are they also liable, personally and individually,
for damages sustained by the plaintiff as a result of their negligence while about
their master’s business? W e think so. A man does not escape from his individual
duty to treat with proper care the persons with whom he needs must come in contact
in order to carry on the business for a master, and for carrying on of which business
he, the servant, receives compensation which he deems to be commensurate with
the service that he renders.
Id. at 166–67. In sum, the decisions in Griggs, Cook, and Mobley simply adhere to the longstanding law of South
Carolina governing joint tortfeasors; they did not create any new law.

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v. Selvey, 252 S.C. 25, 27–28, 164 S.E.2d 909, 910 (1968)). Plaintiff has the right to name whom she
sues; and in this case, she has properly named Ringer as one of the parties that is, potentially, jointly
responsible for her injuries.6
To establish a negligence claim against Ringer, Plaintiff must show he owed her a legal duty,
breached that duty, and proximately caused damages to her as a result of that breach. See Lord v. D &
J Enterprises, Inc., 407 S.C. 544, 558, 757 S.E.2d 695, 702 (2014). Whether the law recognizes a
particular duty is a matter of law to be decided by the Court. Doe ex rel. Doe v. Wal-Mart Stores, Inc.,
393 S.C. 240, 246, 711 S.E.2d 908, 911 (2011). Although the common law ordinarily imposes no duty
to act, an affirmative legal duty may arise from statute, contract, relationship, property interest, or other
special circumstance. Cowburn v. Leventis, 366 S.C. 20, 46, 619 S.E.2d 437, 451 (Ct. App. 2005).
In South Carolina, a merchant owes customers a duty of ordinary care to maintain parts of the
store ordinarily used by customers in a reasonably safe condition, and the merchant is liable for any
injury resulting from a breach of this duty. Richardson v. Piggly Wiggly Cent., Inc., 404 S.C. 231, 234,
743 S.E.2d 858, 859–60 (Ct. App. 2013). “Although a merchant is not an insurer of the safety of his
customers, he owes a duty to keep aisles and passageways in a reasonably safe condition.” Wintersteen
v. Food Lion, Inc., 344 S.C. 32, 36, 542 S.E.2d 728, 730 (2001) (internal citation omitted).
A person who operates a commercial establishment but is neither an owner nor a lessee may
nonetheless have a duty to exercise reasonable care to remedy an allegedly dangerous condition.

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See generally Richards, 226 S.C. at 126–27, 83 S.E.2d at 920–21 (“W hen a plaintiff joins two or more
alleged wrongdoers as parties defendant in one action, such joinder in itself necessarily implies that he has elected
to treat his injury as a joint tort, and to recover upon the theory of joint liability. Such election to sue upon the theory
of joint liability logically involves the relinquishment of the right in that action to raise a ‘separable controversy’ with
any one defendant and to recover against one or more separately upon the theory of several liability in any sense other
than that the plaintiff in such joint action is not bound to recover against all, but may recover[] against one or more
and not against others.” (emphasis removed)).

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Benjamin, 413 F. Supp. 2d at 655 (citing Dunbar, 44 S.E.2d at 317). Liability in such a situation
depends upon control of the premises, not necessarily ownership. See Miller v. City of Camden, 329
S.C. 310, 314, 494 S.E.2d 813, 815 (1997); Nesbitt v. Lewis, 335 S.C. 441, 446, 517 S.E.2d 11, 14 (Ct.
App. 1999). When evaluating whether a person has sufficient control—and thus a duty to inspect the
premises for dangerous conditions—a court should consider the person’s power or authority to manage,
direct, superintend, restrict, regulate, govern, administer, or oversee the management of the property.
Benjamin, 413 F. Supp. 2d at 655–56 (citing C.J.S. Negligence § 388).
Here, Plaintiff alleges Ringer was “acting as a manager of Wal-Mart Store #630,” and that “[a]s
manager, Defendant Ringer’s responsibilities and duties include, but are not limited to, cleaning,
monitoring, and maintaining the premises of Wal-Mart Store #630 to ensure that it is safe, clean, and
not dangerous for customers, patrons, and invitees.” Compl. at ¶¶ 7–8. Plaintiff further alleges that
“due to the negligence of Defendants”—who include Ringer—she stepped on a rusty nail while she was
in an area where pallets were located and suffered severe injuries eventually leading to the amputation
of half her right leg. Id. at ¶¶ 10–11, 13, 15. She also alleges that “Defendants”—who include
Ringer—“either knew or should have known that the floor area where Plaintiff’s injuries were initiated
presented a danger to patrons of Defendant’s store, or that Defendant created the dangerous condition.”
Id. at ¶ 14. These allegations indicate Ringer, by virtue of his position as a manager, had a sufficient
degree of control over the Wal-Mart store such that he had a duty to reasonably inspect the area where
the pallets and rusty nail were located.
Besides the allegations indicating Ringer owed a duty to Wal-Mart customers such as Plaintiff,
the complaint also contains allegations that Ringer breached his duty and proximately caused Plaintiff’s
injuries as a result of the breach. See id. at ¶¶ 16–18. Specifically, Plaintiff’s allegations suggest she
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would not have stepped on the rusty nail but for Ringer’s failure to inspect the area where it was located.
Accordingly, the Court finds there is a possibility that Plaintiff can establish a negligence claim against
Ringer in state court.7
Having “resolv[ed] all issues of law and fact in [P]laintiff’s favor,” Hartley, 187 F.3d at 424,
the Court finds Defendants cannot meet the heavy burden of showing Plaintiff has no possibility of
maintaining a negligence claim against Ringer. In so finding, the Court is mindful that the fraudulent
joinder standard is more favorable to Plaintiff than the Rule 12(b)(6) standard. The Court is also
mindful that any doubt as to jurisdiction should be resolved in favor of remand, which is necessary in
this case. Regarding Plaintiff’s motion for remand, the Court notes the only basis for removal was
diversity jurisdiction. The proper naming of Ringer as a defendant has destroyed complete diversity
of citizenship. Because the Court lacks jurisdiction over Plaintiff’s claims, the Court must grant her
motion and remand this case to state court.
Conclusion
For the foregoing reasons, the Court GRANTS Plaintiff’s motion to remand [ECF No. 6] and
REMANDS this case to the Court of Common Pleas for Florence County, South Carolina, for further
proceedings. The Court DIRECTS the Clerk to mail a certified copy of this Order to the clerk of the
Florence County Court of Common Pleas.
IT IS SO ORDERED.
Florence, South Carolina
November 6, 2017

s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge

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Of course, the Court makes no finding as to Ringer’s liability and expresses no opinion on the merits of
Plaintiff’s claims.

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