Gonzalez v. Wal-Mart Stores Texas, LP et al
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)
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 § § § § §
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,
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
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
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
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
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?