Reid v. JO-ANN STORES, LLC
Filing
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MEMORANDUM OPINION AND ORDER DENYING 9 Opposed MOTION to Remand. Reid's claims against McDougal are DISMISSED WITHOUT PREJUDICE. All requests for attorneys' fees are DENIED. McDougal Sewing Center Inc terminated.(Signed by Judge Gray H Miller) Parties notified.(rkonieczny, 4)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
REBECCA REID,
Plaintiff,
v.
JO-ANN STORES, LLC and MCDOUGAL
SEWING CENTER, INC.,
Defendants.
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CIVIL ACTION H-17-2260
MEMORANDUM OPINION AND ORDER
Pending before the court is a motion to remand filed by plaintiff Rebecca Reid. Dkt. 9. After
considering the motion, response, related documents in the record, and the applicable law, the court
is of the opinion that the motion to remand should be DENIED.
I. BACKGROUND
This case stems from an incident occurring in a Jo-Ann store in Katy, Texas, on July 6, 2015.
Dkt. 1, Ex. C. Reid contends that she slipped and fell “due to a very wet and dangerous condition”
while walking down an aisle in the front center of the store. Id. She claims that the fall caused a
fully displaced patella fracture that has required multiple surgeries. Id.
On June 16, 2017, Reid filed premises liability and negligence claims against the company
that operated the store, defendant Jo-Ann Stores, LLC (“Jo-Ann”) and defendant McDougal Sewing
Center, Inc. (“McDougal”), which the complaint merely states “is a company operating in the great
state of Texas.” Id. Reid filed these claims in the 281st Judicial District Court of Harris County,
Texas. Dkt. 1.
Jo-Ann timely removed the case to this court. Id. Jo-Ann contends that this court has
jurisdiction under 28 U.S.C. § 1332. Id. It acknowledges that McDougal is not a diverse defendant,
but contends that McDougal was improperly joined for the sole purpose of destroying diversity. Id.
If McDougal is not a proper defendant, then complete diversity exists between the parties and federal
jurisdiction under § 1332 is proper.
On August 18, 2017, Reid filed a motion to remand. Dkt. 9. Reid contends that Jo-Ann and
McDougal are co-tenants of the property and that her petition states that both JoAnn and McDougal
had control of the property at the time Reid was injured. Id. Reid asks that the court remand the
case back to state court and award her attorneys’ fees and costs associated with the removal, which
Reid contends was not objectively reasonable. Id.
Jo-Ann responds that the complaint contains no specific facts relating to McDougal and that
Reid has no valid claim against McDougal, which sub-leased 1.2% of the total space of the premises
and had no control over the premises. Dkt. 11. Additionally, the area McDougal subleases is not
near the area where Reid fell. Id. Thus, Jo-Ann urges the court deny the motion to remand and
request for attorneys’ fees and instead award attorneys’ fees to Jo-Ann. Id.
The motion is now ripe for disposition.
II. LEGAL STANDARD
A defendant may remove a civil action to federal court if that court would have had original
jurisdiction over the case. 28 U.S.C. § 1441(a). The burden of proving federal jurisdiction rests on
the removing party. De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995). Jo-Ann contends
that the court has diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). For diversity jurisdiction,
the amount in controversy must exceed $75,000 and complete diversity must exist between all
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parties. 28 U.S.C. § 1332(a). Jo-Ann recognizes that McDougal is not a diverse defendant, but it
contends that McDougal is improperly joined. Dkt. 1.
The Fifth Circuit has “recognized 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.’ ” Smallwood v. Ill. Cent. R. Co., 385 F.3d 568, 573 (5th
Cir. 2004) (en banc) (quoting Travis v. Irby, 326 F.3d 644, 646–47 (5th Cir. 2003)). Jo-Ann does
not assert actual fraud, so the court considers only the second method. Therefore, to prevent remand,
Jo-Ann must demonstrate that “there is no reasonable basis for the district court to predict that the
plaintiff might be able to recover against the in-state defendant.” Id.
There are two ways for a court to predict whether a plaintiff might be able to recover against
an in-state defendant. First, the court can conduct a Rule 12(b)(6)-type inquiry by reviewing the
complaint to determine if it states a claim against the in-state defendant. Id. In making this
determination, the court applies the federal pleading standard. Int'l Energy Ventures Mgmt., L.L.C.
v. United Energy Grp., Ltd., 818 F.3d 193, 202 (5th Cir. 2016). 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.”
Gines v. D.R. Horton, Inc., 699 F.3d 812, 816 (5th Cir. 2012) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570, 127 S. Ct. 1955 (2007)). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937 (2009).
“[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle [ment] to relief’ requires more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555. If the court finds that the claim has been insufficiently pled, the court
should dismiss the improperly joined defendant without prejudice for lack of jurisdiction. Lopez v.
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United Prop. & Cas. Ins. Co., No. 3:16-CV-0089, 2016 WL 3671115, at *5 (S.D. Tex. July 11,
2016) (Hanks, J.) (explaining that dismissal without prejudice is appropriate because the court lacks
subject matter jurisdiction over the claim against the non-diverse defendant and, therefore, cannot
render a decision on the merits).
Second, a defendant could demonstrate that the plaintiff has “misstated or omitted discrete
facts that would determine the propriety of joinder.” Smallwood, 385 F.3d at 573–74. In that case,
the court can “pierce the pleadings” in a summary inquiry to “identify the presence of discrete and
undisputed facts [in the entire record] that would preclude plaintiff’s recovery against the in-state
defendant.” Id.
III. ANALYSIS
Jo-Ann asserts that McDougal is improperly joined under both a Rule 12(b)(6)-type analysis
and a summary inquiry. Dkt. 11. The court agrees.
A.
Rule 12(b)(6)
The court must determine whether Reid has stated a claim against McDougal under the
federal pleading standard. The state-court petition states that Jo-Ann is the owner and operator of
the premises in question. Dkt. 1, Ex. C. She alleges that McDougal is “a company operating in the
great state of Texas.” Id. She then refers to the “Defendants” generally throughout the petition,
alleging that the “Defendants” had control over the premises, owed a duty to her as an invitee, and
were negligent. Id. There is no indication as to what McDougal, as opposed to the “Defendants”
collectively, did. The court finds that this is insufficient to allege a plausible claim against
McDougal.
B.
Summary Inquiry
Moreover, Jo-Ann has demonstrated that by asserting her pleadings against the “Defendants”
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generally rather than stating what she alleges McDougal did, Reid has omitted discrete facts that
would preclude judgment against McDougal. If one were to read only the petition, one may wonder
why McDougal is even included in the petition. There are no specific allegations against McDougal
other than is being a company that operates in Texas. See Dkt. 1, Ex. C. Jo-Ann provides evidence
that helps the court understand why Reid included McDougal in her complaint. The affidavit
indicates that McDougal leases 400 square feet in the middle of the store in which Reid was
allegedly injured; this 400 square feet comprises 1.2 percent of the total space in the store. Dkt. 12,
Ex. 1. While this information helps clarify why McDougal is even in the picture, piercing the
pleadings a bit further reveals that it should not be. Reid’s petition does not provide any information
about McDougal even having space—albeit small—in the same store and certainly leaves out the
fact that McDougal’s area is in the middle, as opposed to the front center (where Reid allegedly fell).
See Dkt. 1, Ex. C. Additionally, while the complaint alleges generally that “Defendants had such
control over the premises in question and Defendants owed certain duties to Plaintiff,” Jo-Ann’s
evidence indicates McDougal should not be included in that statement as “McDougal has no
responsibilities or right to control any other area in the store.” Dkt. 1, Ex. C; Dkt. 12, Ex. 1. In fact,
the manager in charge on the day of the incident states that she personally saw the location where
Reid says she slipped and fell and it is not near the area where McDougal operates. Dkt. 12, Ex. 1.
The manager asserts that on the day in question, “Jo-Ann and its employees had exclusive control
over the inspection and maintenance of the floor where Ms. Reid allegedly slipped and fell.” Id.
Clearly, if Reid had included the fact that McDougal was only responsible for a small portion of the
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store that was not near where she fell in her petition, it would have been evident from the petition
that Reid has no claim for premises liability against McDougal.1
IV. CONCLUSION
Jo-Ann has demonstrated that “there is no reasonable basis for the district court to predict
that the plaintiff might be able to recover against the in-state defendant.” Smallwood, 385 F.3d at
573. Reid’s motion to remand (Dkt. 9) is DENIED. Reid’s claims against McDougal are
DISMISSED WITHOUT PREJUDICE. All requests for attorneys’ fees are DENIED.
Signed at Houston, Texas on December 20, 2017.
___________________________________
Gray H. Miller
United States District Judge
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The court notes that Reid did not file a reply to Jo-Ann’s response even though she had
ample opportunity to do so. Jo-Ann’s response and evidence was filed over three months ago.
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