Gonzalez v. Wal-Mart Stores Texas, LP et al

Filing 11

ORDER GRANTING 2 Motion to Dismiss (terminated party Al Slavin.) and DENYING 7 Motion to Remand to State Court. Signed by Judge Xavier Rodriguez. (ga)

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In the United States District Court for the Western District of Texas K A T H Y V. GONZALEZ v. W A L -M A R T STORES SA-10-CV-120-XR ORDER O n this day came on to be considered Defendant Al Slavin's motion to d ism iss (docket no. 2) and Plaintiff's motion to remand (docket no. 7). B a c k g ro u n d P l a in t iff originally filed this case in the 37 th Judicial District of Bexar C o u n t y , Texas. Plaintiff alleges that on July 10, 2008, she slipped and fell at a W a l-M a r t located at 1515 North Loop 1604 East, San Antonio, Texas. She a lle g e s that as a result she has suffered injuries to her left knee, left shoulder, a n d neck, and has required cervical spine surgery. She alleges that Wal-Mart a n d its store manager, Al Slavin, were negligent in various respects. Defendants timely filed a notice of removal to this court, alleging diversity o f citizenship. Defendant Slavin has filed a motion to dismiss, arguing that he w a s fraudulently or improperly joined and that he cannot be held independently l ia b le for Plaintiff's injuries. rem an d. Plaintiff has responded by filing a motion to A n a ly s is I m p r o p e r joinder may be established by either "(1) actual fraud in the p l e a d in g of jurisdictional facts, or (2) inability of the plaintiff to establish a cause o f 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) (citation omitted). In this c a s e , there is no claim that the plaintiff fraudulently pleaded jurisdictional facts; a c c o r d in g ly , only the second type of improper joinder is at issue. T o determine whether the non-diverse defendant, Al Slavin, was im p r o p e r ly joined, the Court must determine "whether the defendant has d e m o n s t r a t e d that there is no possibility of recovery by the plaintiff against [S la v in ], which stated differently means that there is no reasonable basis for the d is tr ic t court to predict that the plaintiff might be able to recover against [him]." S m a l lw o o d , 385 F.3d at 573. "Put another way, `there must be a reasonable p o s s ib ilit y of recovery, not merely a theoretical one.'" Menendez v. Wal-Mart S to r e s, Inc., 2010 WL 445470 at *5 (5th Cir. 2010). "The burden of persuasion o n a party asserting improper joinder is a `heavy one.'" Id. "I n analyzing whether a plaintiff has demonstrated a reasonable p o s s ib ilit y of recovery, the district court may `conduct a Rule 12(b)(6)-type a n a ly s is , looking initially at the allegations of the complaint to determine w h e t h e r the complaint states a claim under state law against the in-state d e fe n d a n t ,' or `the district court may, in its discretion, pierce the pleadings and c o n d u c t a summary inquiry.' Smallwood, 385 F.3d at 573. In doing so, however, 2 t h e court `must also take into account all unchallenged factual allegations, i n c lu d in g those alleged in the complaint, in the light most favorable to the p la in t if f.' Travis v. Irby, 326 F.3d 644, 649 (5th Cir. 2003). Any ambiguities in s t a t e law or contested fact issues must be resolved in favor of the plaintiff.' `[T ]h e focus of the inquiry must be on the joinder, not the merits of the plaintiff's c a s e . '" Menendez , 2010 WL 445470 at *5. I n Plaintiff's Original Petition, Plaintiff alleges that Slavin and Wal-Mart w e r e negligent in failing to warn Plaintiff of a dangerous substance on the floor, f a ilin g to maintain the premises in a safe condition, permitting a substance to r e m a in on the floor, failing to inspect the premises to discover the dangerous c o n d it io n , failing to remove the substance from the floor, failing to place warning s ig n s , creating a hazardous condition, failing to properly train employees r e g a r d in g the proper manner for preventing the accumulation of water on the flo o r , failing to implement proper policies regarding the prevention of the a c c u m u la t io n of water on the floor, and failing to enforce proper policies. P la in t iff alleges in her Petition that Slavin was a store manager and e m p lo y e e of Wal-Mart and was acting within the course and scope of his e m p lo y m e n t and that accordingly Slavin's negligence should be imputed to WalM art. D e fe n d a n t s argue, based primarily on Leitch v. Hornsby, 935 S.W.2d 114, (T e x . 1996), that there is no reasonable possibility of holding Slavin liable for p la in tiff's injuries. In Leitch, the Texas Supreme Court explained the 3 c ir c u m s ta n c e s in which individual liability will be imposed on a corporate officer o r agent acting in the scope of employment: "[I]ndividual liability arises only w h e n the officer or agent owes an independent duty of reasonable care to the in ju r e d party apart from the employer's duty." Id. at 117. T h is Court concludes that as a Wal-Mart employee, Slavin did not owe a c ustom e r , such as Plaintiff Gonzalez, a duty of reasonable care independent from t h e duty Wal-Mart owed. Plaintiff's state court petition refutes any argument t h a t Slavin owed Gonzalez an independent duty of care because the actions S la v in allegedly took were in the course and scope of his employment. See G ip s o n v. Wal-Mart Stores, Inc., 2008 WL 4844206 (S.D. Tex. 2008); Bourne v. W a l-M a r t Stores, Inc., 582 F. Supp.2d 828 (E.D. Tex. 2008); McKinney v. Home D e p o t, USA, Inc., No. 4:06-cv-327-A, 2006 WL 2947324, at *2 (N.D.Tex. Oct.13, 2 0 0 6 ) (concluding that a store manager was improperly joined because the p la in tiff failed to allege that he owed an independent duty to the plaintiff); Allen v . Home Depot U.S.A., Inc., No. SA-04-0CA703XR, 2004 WL 2270001, at *3 (W .D . Tex. Oct.6, 2004) (noting that despite the plaintiff's assertion that she a lle g e d an independent cause of action against the store manager, the plaintiff a ls o alleged that the store manager was acting in the course and scope of his e m p loy m e n t, and thus there was no possibility of recovery). Plaintiffs argue that the Fifth Circuit has explicitly found that there is a r e a s o n a b le possibility of recovery against store managers in premise liability c a s e s under Texas law. In Valdes v. Wal-Mart Stores, Inc., the plaintiff sued 4 W a l-M a r t and a Wal-Mart store manager in Texas state court after she was k i d n a p e d in a Wal-Mart parking lot and raped. The plaintiff brought a premises lia b ilit y action against the two defendants, alleging that Wal-Mart and its m a n a g e r failed to provide adequate security in the parking lot and thus n e g lig e n t ly caused her injuries. Defendants removed the case to federal court, a lle g in g diversity jurisdiction, and argued that the store manager's citizenship s h o u ld be ignored because he had been improperly joined. The district court a g r e e d , denied plaintiff's motion to remand the case, and dismissed the W a l - M a r t store manager. On appeal, the Fifth Circuit reversed the district c o u r t 's denial of plaintiff's motion to remand, finding that an "allegation that [ th e defendant], by virtue of his position as store manager, had a duty to m a in t a in the premises in a condition that would not pose an unreasonable risk o f harm to business invitees is sufficient to demonstrate a reasonable possibility t h a t a Texas court would recognize this duty." Valdes v. Wal-Mart Stores, Inc., 1 5 8 F.3d 584, *5 (5th Cir. 1998). S in c e Valdes, however, the Texas Supreme Court in Tri v. J.T.T., 162 S .W .3 d 552 (Tex. 2005), has stated in a premises liability case that individual e m p lo y e e s are not liable for negligence when they do not "breach any separate d u ty " to a plaintiff. Id. at 562-63; see also Solis v. Wal-Mart Stores East, L.P., 6 1 7 F. Supp.2d 476, 481 (S.D. Tex. 2008). Plaintiff, citing Leyendecker & Associates, Inc. v. Wechter, 683 S.W.2d 369 (T e x . 1984), argues that a corporation's employee is personally liable for tortious 5 a c t s which he directs or participates in during his employment. That is very tr u e in cases where an employee slanders a plaintiff, such as was the case in W e c h te r . However, in this case, Plaintiff does not plead that Slavin personally d ir e c t e d or participated in any of the alleged negligent acts of which she c o m p la in s . Conclusion D e f e n d a n t Al Slavin's motion to dismiss (docket no. 2) is GRANTED. P la in tiff 's motion to remand (docket no. 7) is DENIED. It is so ORDERED. S I G N E D this 31st day of March, 2010. _________________________________ X A V IE R RODRIGUEZ U N I T E D STATES DISTRICT JUDGE 6

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