Hall v. Walters et al

Filing 15

MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 07/09/13. (kyou, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION

BARBARA HALL,

Plaintiff,

Civil Action No. 3:13–CV–210

v.

GLENN WALTERS, et al,

Defendants.

MEMORANDUM OPINION

THIS MATTER is before the Court on a Motion to Dismiss filed by Defendant Glenn
Walters (ECF No. 4) and a Motion to Remand filed by Plaintiff Barbara Hall (ECF No. 7). On
July 8, 2013, the Court heard oral argument on both Motions. For the reasons stated below,
the Court GRANTS the Motion to Remand and DENIES the Motion to Dismiss AS MOOT.
I.

BACKGROUND1
On April 3, 2013, Defendants The Kroger Co., Kroger Supermarket, Kroger Group,

Inc., Kroger Group Cooperative, Inc. (collectively “Kroger”) and Defendant Glenn Walters
(“Walters”)(together “Defendants”) removed the above‐captioned matter from the Circuit
Court for the City of Richmond, Virginia to this Court. Plaintiff Barbara Hall (“Hall”) alleges
that around 4:00 p.m. on or about July 19, 2011, she was severely and permanently injured
at a Kroger Supermarket in Hanover County, Virginia after slipping and falling on a green
bean that was on the floor.

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For the purposes of the Motion to Dismiss, the Court assumes all of Plaintiff’s well‐
pleaded allegations to be true, and views all facts in the light most favorable to her. T.G.
Slater & Son v. Donald P. & Patricia A. Brennan, LLC, 385 F.3d 836, 841 (4th Cir. 2004)(citing
Mylan Labs, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)). See Fed. R. Civ. P. 12(b)(6).
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In Count One, Hall alleges that Walters, a manager of the store, was working with
the green beans and negligently caused and/or allowed a green bean to be on the floor
prior to Hall’s fall. Hall further alleges that Walters negligently failed to warn her of the
danger caused by the presence of the green bean on the floor. In Count Two, Hall also
asserts claims of negligence and negligent failure to warn against Kroger due to the alleged
actions of its agents, servants, and employees. With respect to both counts, Hall asserts that
she has suffered severe and permanent injuries, “will continue to suffer in the future great
pain of body and mind,” and has incurred and will incur in future large medical expenses,
loss of income and earnings, and other damages related to this accident. (Compl. ¶ 4.) Hall
has sued for a sum of $250,000 in damages.
The parties dispute whether this matter is properly before this Court. Upon removal
to this Court, Defendants represented that while Kroger is incorporated in Ohio and has its
principal place of business in Ohio, both Hall and Walters are domiciled in Virginia. (Notice
of Removal ¶¶ 1‐4.) Walters filed a Motion to Dismiss on April 23, 2013 arguing that he
should be dismissed as a defendant because he was fraudulently joined in order to defeat
diversity jurisdiction since, without his presence, there would be complete diversity
between Plaintiff and all defendants. On April 26, 2013, Hall filed a Motion to Remand
arguing that this Court lacks subject matter jurisdiction because Walters is not fraudulently
joined, and thus, there is no complete diversity giving rise to diversity jurisdiction. Both
matters have been fully briefed and are ripe for review.
II.

STANDARD OF REVIEW
“Federal courts are courts of limited jurisdiction . . . [and] possess only that power

authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
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375, 377 (1994). Federal district courts have original jurisdiction over civil actions that
arise under the Constitution, laws, or treaties of the United States pursuant to 28 U.S.C. §
1331, or where the amount in controversy exceeds $75,000 and the matter is between
citizens of different states pursuant to 28 U.S.C. § 1332. Federal diversity jurisdiction only
exists under § 1332 where there is complete diversity, that is, “when no party shares
common citizenship with any party on the other side.” Mayes v. Rapport, 198 F.3d 457, 461
(4th Cir. 1999)(internal citations omitted). A defendant may remove a case from state to
federal court if the federal court has original jurisdiction over the matter, but if a case is
removable based solely on diversity jurisdiction, the case may not be removed if any of the
defendants is a citizen of the state where the action was brought. 28 U.S.C. § 1441(a), (b).
The party seeking removal has the burden of establishing federal jurisdiction,
Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994). Because
removal of a case from state court “raises significant federalism concerns,” removal
jurisdiction must be strictly construed, and “[i]f federal jurisdiction is doubtful, a remand is
necessary.” Id. at 151. If at any time before final judgment it appears the district court lacks
jurisdiction, the court must remand the case. 28 U.S.C. § 1447(c).
One exception to the requirement of complete diversity where federal jurisdiction is
premised upon § 1332 is when a defendant has been fraudulently joined. Under the
fraudulent joinder doctrine, a federal court may assume jurisdiction over a case where
there is not complete diversity and dismiss the in‐state defendants if it finds that the
nondiverse defendants were fraudulently joined in order to destroy the court’s federal
diversity jurisdiction. Mayes, 198 F.3d at 461. When a party removes to federal court on the
ground of fraudulent joinder, the removing party must establish either that “there is no
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possibility that the plaintiff would be able to establish a cause of action against the in‐state
defendant in state court" or that "there has been outright fraud in the plaintiff's pleading of
jurisdictional facts.” Marshall v. Manville Sales Corp., 6 F.3d 229, 232 (4th Cir.
1993)(internal citations omitted)(emphasis in original). The burden is heavy on a
removing party who claims fraudulent joinder to show that “the plaintiff cannot establish a
claim against the nondiverse defendant even after resolving all issues of fact and law in the
plaintiff's favor.” Id. at 232‐33 (citing Poulos v. NAAS Foods, Inc., 959 F.2d 69, 73 (7th Cir.
1992)). “A claim need not ultimately succeed to defeat removal; only a possibility of a right
to relief need be asserted.” Id. at 233 (internal citations omitted).
“In order to determine whether an attempted joinder is fraudulent, the court is not
bound by the allegations of the pleadings, but may instead ‘consider the entire record, and
determine the basis of joinder by any means available.’” AIDS Counseling & Testing Ctrs. v.
Grp. W Television, Inc., 903 F.2d 1000, 1004 (4th Cir. 1990)(internal citations omitted). The
Court may consider affidavits and deposition transcripts, and “[i]n this respect, the
‘proceeding appropriate for resolving a claim of fraudulent joinder is similar to that used
for ruling on a motion for summary judgment under Fed. R. Civ. P., Rule 56(b).’” Beaudoin v.
Sites, 886 F. Supp. 1300, 1302 (E.D. Va. 1995)(internal citations omitted). “The court must
rule in favor of the plaintiff if there is ‘any reasonable possibility that a state court would
rule against the non‐diverse defendant.’” Id. (citing Poulos, 959 F.2d at 73.
III.

DISCUSSION
Walters’ Motion to Dismiss and Hall’s Motion to Remand concern the same essential

question: whether this Court has jurisdiction over Hall’s personal injury claim. Walters
argues that there is no possibility that Hall would be able to establish an action against him
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in state court, and therefore, that he was fraudulently joined in order to defeat diversity
jurisdiction. Walters maintains that, under Virginia law, when a plaintiff sues an employee
of a company in tort, the employee may be personally liable for his misfeasance, meaning
affirmative acts done improperly, but not for his nonfeasance, meaning his failure to do
some act that ought to have been done. Walters acknowledges that he was the co‐manager
of the store at the time of the incident and was working on the relevant date (Decl. of Glenn
Walters ¶¶ 1, 3.) Walters represents that he occasionally works in the produce section, but
that he did not work with or near green beans during at least the one hour immediately
preceding the alleged incident. (Id. at ¶¶ 2‐3.) Walters asserts that he did not cause or allow
the green bean to be on the floor and did not have any actual or constructive notice of its
presence. Accordingly, Walters argues that Hall cannot prevail in state court because, at
most, she alleges only that Walters is responsible for an act of nonfeasance in failing to
warn of the green bean’s presence. Further, Walters argues that he should be dismissed as
a defendant because even if he is found liable, Hall stands to collect any damages awarded
from the better‐resourced Kroger, Walters’ employer at the time of the incident. 2
In contrast, Hall maintains that remand is necessary because Walters was not
fraudulently joined and the Court otherwise lacks subject matter jurisdiction. Hall argues
that the Complaint clearly alleges affirmative acts of negligence by asserting that Walters:
“negligently caused . . . certain dangerous, hazardous and unsafe conditions in, on and
2 “There is, of course, sound authority for the view that non‐diverse parties whose presence

is not essential under Rule 19 may be dropped to achieve diversity between the plaintiffs
and the defendants.” Caperton v. Beatrice Pocahontas Coal Co., 585 F.2d 683, 691‐92 (4th
Cir. 1978). However, whether to dismiss a nominal, non‐diverse party in order to achieve
diversity is within the discretion of the district court. See id. at 691. While it appears likely
that Walters’ presence as a defendant is not essential since Plaintiff has also sued Kroger,
the Court will in its discretion refrain from dismissing Walters in order to create diversity.
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about the aforesaid Kroger Supermarket. Specifically, the defendant, Glenn Walters, caused
. . . a green bean to be on the floor of the Kroger Supermarket while working with the green
beans prior to the plaintiff’s fall.” (Compl. ¶ 4.) Hall cites Walters’ acknowledgment that he
sometimes works with green beans and other produce (see Mem. Supp. Mot. Remand. Ex.
C), and his purported admission after she initially reported the fall to him that he “had just
been working with the green beans,” (see Decl. Barbara Hall ¶ 6) as support for her claim
that there is at least a slight possibility that she can establish a cause of action against
Walters. To the extent that some of Hall’s allegations could be construed to be allegations of
nonfeasance or omissions, Hall argues that alternative pleading is permitted under the
Federal Rules of Civil Procedure. Because Hall maintains that Walters was not fraudulently
joined, she asserts that this Court must remand this matter to state court.
There is a lack of complete diversity in this matter, and because Walters has failed to
establish that he was fraudulently joined, this Court lacks subject matter jurisdiction. In
Virginia, an employee who injures a third person is liable to that person only if he or she
owes the third person a personal duty, which depends on whether the employee’s alleged
act is one of misfeasance or nonfeasance. See Harris v. Morrison, Inc., 32 Va. Cir. 298, 298
(1993). “An employee may be liable for his own misfeasance (i.e., performance of an
affirmative act done improperly), but not for his own nonfeasance (i.e., omission to do
some act which ought to be performed).” Id. at 298‐99 (finding no possibility that plaintiff
could recover from the manager of a cafeteria where she slipped and fell because plaintiff
merely alleged nonfeasance). Thus, “[u]nder Virginia law, an employee of the owner or
operator of the premises in an action based on standard premises liability theories may be
held liable only for affirmative acts of negligence, not merely because, in the status of
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employee of the owner or operator, he or she is guilty of an omission.” Beaudoin, 886
F.Supp. at 1303 (internal citations omitted). Accordingly, there is no possibility that Hall
can prevail against Walters in state court for negligence if Hall alleges only that Walters is
liable for failing to take some action that should have been taken.
In this case, Hall asserts two theories of negligence by alleging that Walters “caused
and/or allowed a green bean to be on the floor of the Kroger Supermarket while working
with the green beans prior to the plaintiff’s fall,” and that Walters “negligently failed to
warn [Hall] of the dangerous, hazardous and unsafe conditions . . . caused by the green
bean on the floor.” (Compl. ¶ 4.) While the latter claim alleges nonfeasance in Walters’
purported failure to warn Hall that the green bean was on the floor, the former claim
alleges misfeasance in that Walters affirmatively caused the green bean to be on the floor
while he was working with this section of produce.
Both state and federal courts have found that, under Virginia law, a plaintiff who
alleges only an employee’s failure to detect, remove, or warn of a danger has failed to state
a claim of misfeasance for which the employee may be personally liable. By example, there
was no possibility of recovery for the plaintiff in Harris v. Morrison, Inc. against the
manager of the cafeteria where she slipped and fell because the plaintiff did not allege that
the manager personally caused the accident or committed any affirmative act contributing
to the accident. See Harris, 32 Va. Cir. at 299. See also Logan v. Boddie‐Noell Enters., 834
F.Supp.2d 484, 489 (W.D. Va. 2011)(plaintiff failed to state a negligence claim against a
restaurant manager after plaintiff slipped on a watery substance because the manager did
not spill the substance or track it in from outside and her alleged conduct in failing to clean
the floors or post a warning sign constituted mere omissions).
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Similarly, a plaintiff’s claims against unknown employees of a restaurant where he
allegedly bit into a hot dog containing a “hard, unnatural foreign object” were dismissed in
Saunders v. Boddie‐Noell Enters. because the plaintiff alleged only that these employees
failed to shield the hot dog from electrical work being done in the restaurant at the time
and failed to properly inspect, detect, and remove the object before preparing and serving
the hot dog. Saunders v. Boddie‐Noell Enters., No. 7:08cv110, 2008 U.S. Dist. LEXIS 48715, at
*5 (W.D. Va. June 25, 2008). Although the employees took an affirmative act in preparing
and serving the hot dog, the Western District of Virginia found that there was no possibility
that the employees could be held liable under Virginia law because it was their alleged
nonfeasance in failing to detect and remove the object from the hot dog that caused the
injury rather than any misfeasance in the act of preparing and serving the hot dog (for
instance, if they had affirmatively placed the object into the hot dog before cooking it). Id. at
*6; see also Logan, 834 F.Supp.2d at 490 n.4 (citing Saunders). Because the plaintiff only
alleged nonfeasance, the court found that these defendants were fraudulently joined in
order to defeat diversity jurisdiction and dismissed the defendants. Id.
In contrast, Hall alleges not only that Walters failed to warn of the presence of the
green bean on the floor, but that Walters actually caused the green bean to be on the floor
while he was working with the green beans that day, thereby causing Hall’s injury. Unlike
the aforementioned cases, Hall’s allegation that Walters caused the green bean to land on
the floor while working with the produce asserts a claim of misfeasance, namely that
Walters affirmatively performed some act improperly. See Harris v. Webster, No.
3:08CV397, 2008 U.S. Dist. LEXIS 72271, at * 9‐11(E.D. Va. Sept. 23, 2008)(plaintiff asserted
an affirmative act of negligence by a grocery store manager when she alleged that the
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manager told an employee not to clean up a laundry detergent spill because the store was
busy). Accordingly, even if this claim does not ultimately succeed upon summary judgment
or at trial, it is apparent that Hall has sufficiently alleged a claim at this stage for which
recovery in state court is at least possible. Further, Walters does not attempt to argue that
there is any outright fraud in Hall’s pleading of the jurisdictional facts. For these reasons,
Walters has failed to establish fraudulent joinder. See Marshall, 6 F.3d at 233 (“A claim need
not ultimately succeed to defeat removal; only a possibility of a right to relief need be
asserted”)(internal citations omitted). Accordingly, the Court hereby GRANTS Hall’s Motion
to Remand, remanding this case to the Circuit Court for the City of Richmond, and DENIES
Walters’ Motion to Dismiss AS MOOT.
IV.

CONCLUSION
For the above reasons, the Court GRANTS Plaintiff’s Motion to Remand and DENIES

Defendant’s Motion to Dismiss AS MOOT.
Let the Clerk send a copy of this Memorandum Opinion to all counsel of record.
An appropriate order shall issue.

____________________/s/_________________
James R. Spencer
United States District Judge

ENTERED this 9th day of July 2013.

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