Mitchell v. Family Dollar Stores of Texas, LLC
MEMORANDUM OPINION AND ORDER DENYING 9 MOTION to Remand. (Signed by Judge Gray H Miller) Parties notified.(rkonieczny, 4)
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
FAMILY DOLLAR STORES OF TEXAS, LLC,
November 28, 2017
David J. Bradley, Clerk
CIVIL ACTION H-17-2831
MEMORANDUM OPINION AND ORDER
Pending before the court is a motion to remand filed by plaintiff Sharon Mitchell. Dkt. 9.
After considering the motion, response, other relevant documents in the record, and the applicable
law, the court is of the opinion that the motion to remand should be DENIED.
On August 21, 2017, Mitchell filed suit against defendant Family Dollar Stores of Texas,
LLC (“Family Dollar”), in the 113th Judicial District Court of Harris County, Texas. Dkt. 1-1.
Mitchell asserted a premises liability claim. Id. Family Dollar was served on August 25, 2017, and
Family Dollar filed a general denial on September 18, 2017. Id. On September 21, 2017, Family
Dollar removed the case to this court, claiming that the court has original jurisdiction under 28
U.S.C. § 1332 and that the case was appropriately removed in accordance with 28 U.S.C. §§ 1441
and 1446. Dkt. 1.
On October 20, 2017, Mitchell filed the pending motion to remand. Dkt. 9. Mitchell
attached a copy of an amended original petition to her motion to remand.1 Dkt. 9-1. This amended
This amended petition has not been filed in the record as an amended petition; it is merely
an exhibit to the motion to remand. Dkts. 9, 9-1. However, for ease of reference, the court refers
to the document as the “amended petition.”
petition includes a new defendant named Rachel Jefferson Miller, who is allegedly the manager of
the store where Mitchell’s accident occurred. See id. Mitchell admits that there is diversity of
citizenship between her and Family Dollar, but she contends that the newly added defendant is not
diverse and that the court should therefore remand the case to state court for lack of jurisdiction.
In response, Family Dollar argues that (1) the court should not consider the citizenship of
Miller because she was added after removal; and (2) even if the court were to consider Miller’s
citizenship, Miller was improperly joined for the sole purpose of destroying diversity. Dkt. 12. The
court need not consider the first ground because the court finds that joinder of Miller is improper.
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). Family Dollar argues that the court had diversity
jurisdiction at the time of removal. Dkt. 1. For diversity jurisdiction, the amount in controversy
must exceed $75,000 and complete diversity must exist between all parties. Id. § 1332(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). Family Dollar met this burden with regard to the parties who were
joined at the time of removal—Mitchell and Family Dollar. Mitchell does not dispute this. Rather,
she contends that her subsequently joined party, Miller, destroys complete diversity.
Family Dollar asserts that to the extent Miller is a party to this action, she was improperly
joined. Dkt. 12. 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)). Here,
Family Dollar asserts only the second basis for improper joinder, which requires the court to
determine whether Mitchell has pled any viable claims against Miller. See Dkt. 12; Smallwood, 385
F.3d at 573. Therefore, Family Dollar has the heavy burden of establishing that Mitchell has failed
to meet the pleading standard on every claim asserted against Miller. See Willy v. Coastal Corp.,
855 F.2d 1160, 1164 (5th Cir. 1998). The pleading standard in federal court requires a plaintiff to
plead enough facts “to raise a right to relief above a speculative level,” and the supporting facts must
be plausible. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56, 127 S. Ct. 1955 (2007).
In the first amended petition, Mitchell contends that Miller’s negligence or gross negligence
proximately caused the accident because Miller created a condition on the premises that created an
unreasonable risk of harm to visitors. Dkt. 9-1. Mitchell additionally contends that Miller knew or
should have known of the unsafe condition and failed to remedy or correct the condition. Id.
Mitchell also asserts that Family Dollar is legally responsible to Mitchell for Miller’s negligent
conduct under the doctrines of respondeat superior and agency because Miller was an agent or
employee of Family Dollar and “was acting within the course and scope of such agency or
Under Texas law, “[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) (citations and quotations omitted). The Texas Supreme
Court extended this principal to premises liability claims in Tri v. J.T.T., and “[a]fter Tri, there is no
reasonable possibility that a plaintiff can bring a claim under Texas law against a store manager for
duties performed within the scope of the employee’s duties.” Solis v. Wal-Mart Stores East, L.P.,
617 F. Supp. 2d 476, 481 (S.D. Tex. 2008) (Hanen, J.).
Here, Mitchell has not alleged that Miller breached any duty other than her duties as an
employee of Family Dollar. See Dkt. 9-1. Because no independent duty is alleged, Mitchell fails
to state a plausible claim against Miller, and Miller is therefore not a properly joined defendant. Cf.
Lowery v. Wal-Mart Stores Tex., LLC, No. 4:17-cv-0166, 2017 WL 999259, at *5 (S.D. Tex. Mar.
15, 2017) (Atlas, J.) (“Because Lowery has failed to demonstrate the existence of any independent
duty on the part of Lopez, she cannot establish a cause of action for premises liability or gross
negligence against Lopez individually.”).
Mitchell’s motion to remand is DENIED because there is complete diversity between the
properly joined parties. To the extent Mitchell seeks to join Miller as a defendant by attaching an
amended petition to her motion to remand, the request for joinder is DENIED.
Signed at Houston, Texas on November 28, 2017.
Gray H. Miller
United States District Judge
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