Fugitt et al v. Walmart Stores Inc et al
Filing
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MEMORANDUM OPINION AND ORDER: Before the Court is Plaintiffs Donna and Billy Fugitt's Motion to Remand (Doc. 4 ). The Court DENIES Plaintiffs' Motion to Remand. (Ordered by Judge Jane J Boyle on 11/19/2015) (sss)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
DONNA FUGITT and BILLY FUGITT,
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Plaintiffs,
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v.
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WALMART STORES, INC., §
WALMART STORES, WALMART, §
WALMART SUPERCENTER # 467, §
and CHARLES CAMPBELL,
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Defendants.
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CIVIL ACTION NO. 3:15-CV-2145-B
MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiffs Donna and Billy Fugitt’s Motion to Remand (Doc. 4). For the
reasons that follow, the Court DENIES the Motion.
I.
BACKGROUND
This case originates in Plaintiff Donna Fugitt’s (“Donna”) slip-and-fall sustained at a
Walmart store located in Denton, Texas. Doc. 1, App. 15, Original Pet. ¶¶ 10–11. According to the
Original Petition, Donna slipped on a pool of water that had gathered from a from a nearby grocery
cart containing leaking bags of ice. Id. ¶ 12. Donna sustained two broken bones in the fall, and
asserts that “to this day, there has not been a complete healing and fusion.” Id. App. 16, Original Pet.
¶¶ 15–16. She sued Defendants Walmart Stores, Inc., Walmart Stores, Walmart, Walmart
Supercenter # 467 (the store at which the incident occurred), and Charles Campbell (the manager
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of the store), asserting claims for premises liability and strict liability. Id. App. 14, 16–17, Original
Pet. ¶¶ 3–7, 19–21.
Defendants removed this case from the 95th Judicial District Court of Dallas County, Texas,
where it was originally filed. Doc. 1, Notice of Removal ¶ 1. They invoke this Court’s diversity
jurisdiction as the basis for removal, and allege that Campbell—who is a Texas resident—has been
improperly joined. Id. ¶¶ 6–10. As a result, Defendants request that this Court disregard Campbell’s
citizenship and find that complete diversity exists between Plaintiffs and the remaining defendants.
Id. ¶ 10. Plaintiffs object to this contention, arguing that Campbell has been properly joined as a
defendant in this case by virtue of his position as manager of the store where the injury occurred.
Doc. 4, Pls.’ Mot. to Remand ¶¶ 1–12. They filed the instant Motion to Remand on July 24, 2015,
to which Defendants have responded. Doc. 4, Pls.’ Mot. to Remand; Doc. 5, Defs.’ Resp. The time
for filing a reply has lapsed, and so the Motion is now ready for review.
II.
LEGAL STANDARD
A.
Motions to Remand
Motions to remand are governed by 28 U.S.C. § 1447(c), which provides that “[i]f at any
time before final judgment it appears that the district court lacks subject matter jurisdiction, the case
shall be remanded.” 28 U.S.C. § 1447(c). When considering a motion to remand, “[t]he removing
party bears the burden of showing that federal jurisdiction exists and that removal was proper.”
Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002). Furthermore, “any
doubt about the propriety of removal must be resolved in favor of remand.” Gasch v. Hartford
Accident & Indem. Co., 491 F.3d 278, 281–82 (5th Cir. 2007).
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The federal removal statute, 28 U.S.C. § 1441(a), permits a defendant to remove any civil
action to federal court that falls within the original jurisdiction of the district courts. One such grant
of authority is found in 28 U.S.C. § 1332, which provides the district courts with original jurisdiction
over “all civil actions where the matter in controversy exceeds the sum or value of $75,000 . . . and
is between . . . citizens of different States.” 28 U.S.C. § 1332(a)(1). Removal is only proper in such
cases, however, if there is complete diversity of citizenship among the parties at the time the
complaint is filed and at the time of removal. Mas v. Perry, 489 F.2d 1396, 1398–99 (5th Cir. 1974).
Moreover, none of the parties properly joined and served as defendants may be citizens of the state
in which the action is brought. See 28 U.S.C. § 1441(b); Gasch, 491 F.3d at 281.
That being said, the Court may disregard an improperly joined non-diverse defendant when
analyzing complete diversity. Cuevas v. BAC Home Loans Servicing, LP, 648 F.3d 242, 249 (5th Cir.
2011) (citing McDonal v. Abbott Labs., 408 F.3d 177, 183 (5th Cir. 2005)). The burden to establish
improper joinder is on the removing party, and it is a heavy one. Cuevas, 648 F.3d at 249. The
removing party must establish either “(1) actual fraud in the pleading of jurisdictional facts, or (2)
the inability of the plaintiff to establish a cause of action against the non-diverse party in state court.”
Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 573 (5th Cir. 2004) (en banc). In this case,
Defendants do not assert that Plaintiffs engaged in fraud. Thus, to establish improper joinder,
Defendants must demonstrate that there is no possibility of recovery by Plaintiffs against Campbell.
Id. Under this prong, “the court must determine whether ‘there is arguably a reasonable basis for
predicting that state law might impose liability.’” Campbell v. Stone Ins., Inc., 509 F.3d 665, 669 (5th
Cir. 2007) (quoting Ross v. Citifinancial, Inc. 344 F.3d 458, 462 (5th Cir. 2003)). “This means that
there must be a reasonable possibility of recovery, not merely a theoretical one.” Ross, 344 F.3d at 462.
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There are two ways to determine whether there is a reasonable possibility of recovery. The
first is to conduct a “Rule 12(b)(6)-type analysis,” looking to the face of the complaint to assess
whether it states a claim against the non-diverse defendant. Id. The other way is to “pierce the
pleadings” and conduct a Rule 56-type analysis. Id. The latter approach, however, is only appropriate
where the summary judgment evidence reveals that the plaintiff has withheld facts relevant to the
propriety of joinder. Id. Because that is not the case here, the Court proceeds with a Rule 12(b)(6)type analysis of Plaintiffs’ Original Petition.
In conducting this Rule 12(b)(6)-type analysis of a complaint originally filed in Texas state
court, this Court applies state court pleading standards. Oldham v. Nationwide Ins. Co. of Am., No.
14-CV-0575, 2014 WL 3855238, at *4 (N.D. Tex. Aug. 5, 2014). Traditionally, Texas courts have
applied a more liberal pleading standard than the federal one, upholding a petition as long as it
provides “fair notice of the claim involved.” Tex. R. Civ. P. 45(b). In March 2013, however, the
Texas Supreme Court adopted Rule 91a of the Texas Rules of Civil Procedure, which provides in
pertinent part:
[A] party may move to dismiss a cause of action on the grounds that it has no basis
in law or fact. A cause of action has no basis in the law if the allegations, taken as
true, together with inferences reasonably drawn from them, do not entitle the
claimant to the relief sought. A cause of action has no basis in fact if no reasonable
person could believe the facts pleaded.
Tex. R. Civ. P. 91a. Though not identical to the Rule 12(b)(6) standard, the Texas Courts of
Appeals have interpreted Rule 91a as essentially calling for a Rule 12(b)(6)-type analysis and have
relied on the Rule 12(b)(6) case law in applying Rule 91a. See Wooley v. Schaffer, 447 S.W.3d 71, 76
(Tex. App.—Houston [14th Dist.] 2014, pet. denied); GoDaddy.com, LLC v. Toups, 429 S.W.3d
752, 754 (Tex. App.—Beaumont 2014, pet. denied). Accordingly, this Court will do the same.
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B.
Rule 12(b)(6) Standard
Rule 12(b)(6) authorizes a court to dismiss a plaintiff’s complaint for “failure to state a claim
upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In considering a Rule 12(b)(6) motion
to dismiss, “[t]he court accepts all well-pleaded facts as true, viewing them in the light most favorable
to the plaintiff.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)(quoting Martin
K. Eby Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)). Furthermore, the
court will “not look beyond the face of the pleadings to determine whether relief should be granted
based on the alleged facts.” Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999), cert. denied, 530
U.S. 1229 (2000).
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead “enough facts to state
a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. “The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Id. When well-pleaded facts fail to achieve this plausibility standard, “the complaint has
alleged—but it has not shown—that the pleader is entitled to relief.” Id. at 679 (internal quotation
marks and alterations omitted).
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III.
ANALYSIS
The dispositive issue for this Motion is whether Texas law would hold a store manager, as
such, individually liable on a premises liability claim. Plaintiffs contend that it would, citing Valdes
v. Wal-Mart Stores, Inc., 158 F.3d 584, 1998 WL 648571 (5th Cir. 1998) (unpublished). Doc. 4, Pls.’
Mot. to Remand ¶¶ 2–7. In Valdes, the Fifth Circuit relied on a Texas Court of Civil Appeals case
from 1952 to decide that there was a reasonable possibility that a store manager would be liable
under Texas law for a dangerous condition on the premises (in that case, an armed rapist). Valdes,
1998 WL 648571, at *4–5 (citing S.H. Kress & Co. v. Selph, 250 S.W.2d 883 (Tex. Civ.
App.—Beaumont 1952, writ ref’d n.r.e.)). Defendants, on the other hand, argue that Valdes and
Selph are no longer good law, and that Campbell cannot be held individually liable in this case. Doc.
5, Defs.’ Resp. 5–9.
“[I]ndividual liability arises only when the officer or agent owes an independent duty of
reasonable care to the injured party apart from the employer's duty.” Tri v. J.T.T., 162 S.W.3d 552,
562 (Tex. 2005) (quoting Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex. 1996)). An example of such
an independent duty is an agent’s “duty of reasonable care to the general public” when operating a
vehicle in the course of his employment. Leitch, 935 S.W.2d at 117. When an agent simply carries
out a duty that the employer owes, however, he cannot be individually liable for breaching that duty.
See id. at 118. This is because “[c]orporations can . . . only act through individuals.” Tri, 162 S.W.3d
at 562. Therefore, Plaintiffs can only recover from Campbell if he owed them a duty independent of
the duty owed to them by Walmart.
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In Leitch, the Texas Supreme Court held that “[t]he duty to provide a safe workplace was a
nondelegable duty imposed on, and belonging solely to,” the employer. 935 S.W.2d at 118. The Fifth
Circuit noted in Valdes that “the principles of Leitch might well undermine Selph,” as “[i]t is unclear
why [a manager] personally would not owe a duty to . . . a[n] . . . employee, but would owe such a
duty to . . . [a] customer.” 1998 WL 648571, at *5 n.6. Ultimately, though, the court declined to
extend Leitch because it doubted that the case would apply beyond the employer-employee
relationship. Id. The Texas Supreme Court refuted that concern in Tri, where it applied the rationale
of Leitch to a case involving invitees like Plaintiffs. 162 S.W.3d at 562–63. Moreover, that court also
stated recently that “generally, an employer has the same premises-liability duty to its employees as
other landowners have to invitees on their premises,” further equating the two relationships. Austin
v. Kroger Tex., L.P., 465 S.W.3d 193, 201–02 (Tex. 2015). The Court is thus persuaded that the duty
to keep business premises safe is one owed by the employer, rather than its employees.1
Plaintiffs urge a narrower reading of Tri, arguing that, because the Texas Supreme Court
resolved the case on procedural grounds, its discussion of Leitch is effectively dicta. Doc. 4, Pls.’ Mot.
to Remand ¶¶ 10–12. Although Plaintiffs are correct on the first point—the Texas Supreme Court
upheld the trial court’s decision in Tri because the appellants failed to file a record on appeal—their
interpretation of the Leitch discussion misses the mark. Tri, 162 S.W.3d at 563. The vital fact is not
how the court ultimately resolved the appeal, but rather that it considered Leitch relevant to the
analysis at all. In Valdes, the Fifth Circuit found the distinction between the employer-employee
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Other federal courts to consider the issue after Tri have reached the same conclusion. See, e.g., Solis
v. Wal-Mart Stores E., L.P., 617 F. Supp. 2d 476, 480–81 (S.D. Tex. 2008); Bourne v. Wal-Mart Stores, Inc.,
582 F. Supp. 2d 828, 837–38 (E.D. Tex. 2008).
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relationship and the landowner-invitee relationship to be dispositive regarding Leitch’s applicability
to a premises liability claim. Valdes, 1998 WL 648571, at *5 n.6. It is therefore significant that Tri
bridged that gap, citing Leitch as the standard for “when individual liability will be imposed and when
it will not” in a case involving invitees. Tri, 162 S.W.3d at 562. The Court cannot consider Tri’s
reliance on Leitch meaningless when Leitch’s application to the very issue under consideration had
been openly questioned.
All this is not to say that a manager like Campbell can never owe a duty to patrons to keep
the premises safe—indeed, it is well-understood that “a corporate agent is personally liable for his
own fraudulent or tortious acts.” Miller v. Keyser, 90 S.W.3d 712, 717 (Tex. 2002). Thus, for
example, when an employee “creates a dangerous situation, a duty is imposed upon him to do
something about it to prevent injury to others if it reasonably appears or should appear to him that
others in the exercise of their lawful rights may be injured by the dangerous situation he created.”
San Benito Bank & Trust Co. v. Landair Travels, 31 S.W.3d 312, 319 (Tex. App.—Corpus Christi
2000, no pet.). But Plaintiffs have not alleged that Campbell personally created the dangerous
condition, and nothing in the Original Petition establishes that Campbell owed them an independent
duty. The only allegations relating to Campbell are assertions made against all defendants, such as
“Defendants owned and controlled the premises and/or managed and operated the store where
Donna Fugitt was injured,” “Defendants failed to reduce or eliminate th[e] unreasonably dangerous
condition,” and “Defendants failed to exercise ordinary care to make the condition reasonably safe
or to adequately warn Plaintiff of the unreasonably dangerous conditions.” Doc. 1, App. 16–17,
Original Pet. ¶¶ 19–20. Such undifferentiated allegations are insufficient to support a finding that
Campbell individually owed Plaintiffs a duty of care. Bourne, 582 F. Supp. 2d at 838.
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The Court is persuaded that Campbell did not owe Plaintiffs an independent duty of care,
either by virtue of his position as manager or as a result of his own actions. Accordingly, Defendants
have met their heavy burden to show that there is no “reasonable basis for predicting that state law
might impose liability” on him. Campbell, 509 F.3d at 669. Campbell has thus been improperly joined,
and his citizenship may be disregarded. Cuevas, 648 F.3d at 249. Complete diversity exists between
Plaintiffs and the other defendants, meaning that the case was properly removed. See 28 U.S.C. §
1332(a)(1). Remand is therefore unwarranted.
IV.
CONCLUSION
Based on the foregoing, the Court DENIES Plaintiffs’ Motion to Remand.
SO ORDERED.
SIGNED: November 19, 2015.
_________________________________
JANE J. BOYLE
UNITED STATES DISTRICT JUDGE
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