Cortez v. Krispy Kreme Doughnut Corporation et al

Filing 31

MEMORANDUM OPINION. Signed by District Judge M. Hannah Lauck on 10/13/2015. (jsmi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

RUFINO CRUZ CORTEZ,

Plaintiff,

y

Civil Action No. 3:15cv258

KRISFY KREME DOUGHNUT CORPORATION
and

ELIZABETH COLEMAN, Manager,
Defendants.

MEMORANDUM OPINION

This matter comes before the Court on Plaintiff Rufmo Cruz Cortez's Motion to

Remand. (ECF No. 10.) Cortez contends that the lack ofsubject matter jurisdiction, specifically

diversity jurisdiction, in this case warrants remand to state court: Plaintiff Cortez and Defendant

Elizabeth Coleman share Virginia citizenship, such that complete diversity does not exist.^(Mot.
Remand f 2, ECF No. 10.) Defendants Krispy Kreme Doughnut Corporation ("KKDC") and
Elizabeth Coleman (collectively, "Defendants") responded, and Cortez replied. (ECF Nos. 14,

18.) The materials before the Court adequately present the facts and legal contentions, and oral
argument would not aid the decisional process. This matter isnow ripe for disposition.
For the reasons stated below, the Court DENIES the Motion to Remand and DISMISSES

Coleman as fraudulently joined. No possibility exists that Cortez could recover against Coleman
in state court based onthe allegations against Coleman in the Complaint. Therefore, upon

' Cortez identified additional reasons to support remand, but those other arguments are
moot based on the Plaintiffs withdrawal of his motionfor sanctions. (ECF No. 24.)

dismissal ofColeman, complete diversity exists between the remaining parties, and this Court
exercises subject matter jurisdiction pursuant to 28 U.S.C. § 1332.
I. Standard of Review

A.

Removal Jurisdiction

Title 28, United States Code § 1441(a)^ permits a defendant to remove a civil action to a
federal district court if the plaintiff could have originally brought the action infederal court. 28

U.S.C. § 1441(a). Section 1446 delineates the procedure for removal, including the requirement
that the defendant file a notice of removal in the district court and the state court. See generally

28 U.S.C. § 1446(a), (d). The state court loses jurisdiction upon the removal of anaction to
federal court. 28 U.S.C. § 1446(d) C'[T]he State court shall proceed no further unless and until
the case is remanded.").

"The party seeking removal bears the initial burden of establishing federal jurisdiction."
Abraham v. Cracker Barrel Old CountryStore, Inc., Civil Action No. 3:1Icvl82-HEH, 2011

WL 1790168, at *1 (E.D. Va. May 9, 2011) (citing Mulcahey v. Columbia Organic Chem. Co.,
29 F.3d 148,151 (4thCir. 1994)). No presumption favoring the existence of federal subject

matter jurisdiction exists because federal courts have limited, not general, jurisdiction. Id. (citing
Pinkley Inc. v. City ofFrederick, 191 F.3d 394, 399(4thCir. 1999)). Courts must construe

^The amount in controversy exceeds $75,000 and the parties are diverse. 28 U.S.C.
§ 1332(a).

^Section 1441(a) provides in pertinent part:
[A]ny civil action brought in a State court of which the district courts of the
United States have original jurisdiction, maybe removed by the defendant or the
defendants, to the district court of the United Statesfor the district and division
embracing the place where such action is pending,
28 U.S.C. § 1441(a).

removal jurisdiction strictly. Id. (citing Mulcahey, 29 F.3d at 151.) "Iffederal jurisdiction is
doubtful, a remand is necessary." Id. (quoting Mulcahey, 29 F.3d at 151.)

Federal diversity jurisdiction requires complete diversity ofcitizenship. Id. at *2 (citing
Garden v. Arkoma Assocs.^ 494 U.S. 185, 187 (1990)); see also 28 U.S.C. § 1332(a)(1). [T]he

'citizenship ofeach plaintiff [must be] diverse from the citizenship of each defendant."'
Abraham, 2011 WL 1790168, at *2. (quoting Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996)
(second alteration in original)).
B.

The Fraudulent Joinder Doctrine

The fraudulent joinder doctrine operates as an exception to the complete diversity

requirement, permitting a district court to disregard, for jurisdictional purposes, the citizenship of
certain nondiverse defendants, assume jurisdiction overa case, and dismiss the nondiverse

defendants, thereby retaining jurisdiction. Id. (citing Mayes v. Rapoport, 198 F,3d 457,461 (4th

Cir. 1999)). "To show fraudulent joinder, the removing party must demonstrate either 'outright
fraud inthe plaintiffs pleading ofjurisdictional facts' orthat 'there is no possibility that the

plaintiffwould be able to establish a cause ofaction against the in-state defendant in state
court.'" Hartleyv. CSXTransp., Inc., 187 F.3d 422, 424 (4th Cir. 1999) (alteration in original)
(quoting Marshall v. Manville Sales Corp., 6 F.3d 229, 232 (4th Cir. 1993)). "The party alleging
fraudulent joinder bears a heavy burden - it must show that the plaintiff cannot establish a claim
even after resolving all issues of lawandfact in the plaintiffs favor." Id. "This standard is even
more favorable to the plaintiffthan the standard for ruling on a motion to dismiss under [Federal
Rule of Civil Procedure] 12(b)(6)." Id. The Court is not bound by the allegations in the

pleadings, butcan consider the entire record. Mayes, 198 F.3d at 464.

C.

Remand

Title 28, United States Code § 1447(c) governs the remand to state court ofremoved
actions, and provides in relevant part:

A motion to remand the case on the basis of any defect other than lack of subject

matter jurisdiction must be made within 30 days after the filing ofthe notice of
removal under section 1446(a). If at any time before final judgment it appears
that the district court lacks subject matter jurisdiction, the case shall be remanded.

28 U.S.C. § 1447(c), The 30-day deadline in § 1447(c) does not apply when a party seeks
remand based on a lack of subject matter jurisdiction, as is the case here. Id.
II. Factual and Procedural Background
A.

Factual Background

This personal injury negligence action, and its companion case Rosa Cruz v. Krispy

Kreme Doughnut Corp., No, 3:15cv257 (E.D. Va. filed Apr. 24,2015) ("Crwz"), arise from an

April 3, 2012 accident at aKrispy Kreme store located at 4910 West Broad Street in Henrico
County, Virginia ("the Store"). On that date, Krispy Kreme contracted with two companies, not

parties to this action, for Cruz and Cortez to paint the Store exterior. Cortez painted the exterior
of the Store while Cruz held the ladder Cortez stood on. "The ladder on which ... Cortez was

standing upon [sic] while painting, was located approximately 20 feet from the 6 lane traffic on
West Broad Street in front of [the Store]." (Compl.^I 8.) "The ladder stood in the path of the

drive-thru lane and adjacent to the entrance to [the Store] fi-om West Broad Street." {Id.)
While Cruz and Cortez worked at the Store on April 3, 2012, "a car veered off West

Broad Street, crossing lanes oftraffic and crossing the parking area to the fi-ont of [the Store],

proceeding to strike ... Cruz while she was holding the ladder, and causing the ladder to eject
Cortez as he was thrown from the top of the ladder 14feet onto the drive-thru asphalt lane

below." {Id. H10.) Cruz and Cortez suffered injuries and "were both taken by ambulance to the

Medical College ofVirginia for treatment." {Id. 111.) Cortez's injuries include: fracture ofthe
left wrist involving distal radius, concussion syndrome, loss ofconsciousness, sprain ofthe left
and right wrists, and blunt trauma to the abdomen.

The Complaint asserts that the Defendants negligently maintained the Store premises,

including failing to: (1) limit access to the parking lot and Store entrance while Cruz and Cortez
worked; (2) place barriers, signs, and other indications to preclude anyone from entering the
Store while Cruz had her back to the street; (3) foresee that serious injury might result from

allowing Cruz and Cortez to work in the front ofthe Store and next to amajor street without

signage indicating the presence ofworkers; and, (4) block offthe entrance to the Store while
Cruz and Cortez worked. Cortez seeks $500,000 in compensatory damages for the injuries he
suffered as a result of Defendants' negligence.
B.

Procedural History

On April 24,2015, Defendants removed this personal injury negligence action from the
Circuit Court for the City ofRichmond to this Court, (ECF No. 1.) Since removal, Cortez has

placed numerous motions before this Court, but, ultimately, has withdrawn all except this Motion
to Remand, {See ECF No. 24.)

On May 29,2015, Cortez filed his Motion to Remand. (ECF No. 10.) Defendants
responded, and Cortez replied. (ECF Nos. 14, 18.)
III. Analysis

In this case, no possibility exists that Cortez would be able to establish a cause ofaction
in state court, under Virginia law,"^ against Coleman. Hartley^ 187 F.3d at 424, Defendants

^A court exercising diversity jurisdiction applies the substantive law ofthe forum state.
Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78-79 (1938),

satisfy the heavy burden required to establish fraudulent joinder, even after resolving all issues of
law and fact in Cortez's favor. Id.

"Under Virginia law, an employee ofthe owner oroperator ofthe premises inanaction
based onstandard premises liability theories may be held liable only for affirmative acts of

negligence, not merely because, in the status ofemployee ofthe owner or operator, he or she is
guilty ofan omission." Berry v. SeaWorld Parks &Entm't LLC, No. 4:14cvl52, 2015 WL
1119942, at *3 (E.D. Va, Mar. 11, 2015) (quoting Beaudoin v. Sites, 886 F. Supp. 1300,1303

(E.D. Va. 1993); Harris v. Morrison, Inc., 32 Va. Cir. 298, 298-99 (1993) ("An employee may
be liable for his [or her] own misfeasance (i.e., performance of an affirmative actdone

improperly), but not for his [or her] own nonfeasance (i.e., omission to do some act which ought
to be performed).").^
"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 ofa danger has failed to state a claim of
misfeasance for which the employee may be personally liable." Hall v. Walters, No. 3:13cv210,
2013 WL 3458256, at *4 (E.D. Va. July 9, 2013). However, an allegation thata store employee

actually caused the dangerous condition asserts a claim of misfeasance sufficient for the

possibility ofliability. Id, (granting motion to remand and finding that allegation that store

employee actually caused a dangerous condition - a green bean to be on the floor while working
^InBerry, the defendant removed the plaintiffs negligence action arising from a slip and
fall at Busch Gardens in Williamsburg, Berry, 2015 WL 1119942, at *1. The plaintiff "fell off

an unprotected and invisible drop offon the right side ofthe walkway right next to" the
monitoring position ofa John Doe defendant. Id. The plaintiff alleged the John Doe defendant
"was inattentive and failed to warn, guide, prevent, or in any way keep" the plaintifffrom falling

over the edge. Id. The Court noted the Complaint "does not allege John Doe performed any
affirmative act ofnegligence," Id. at *3. While indicating that the defendant s argument of
fraudulent joinder may apply to this Complaint should discovery reveal John Doe is aVirginia
resident," the Berry court ultimately deferred ruling on the specific issue of fraudulent joinder to
permit discovery of John Doe's citizenship. Id. at *3.

in theproduce area- asserted a claim of misfeasance for which recovery in state courtwas at
least possible).

Unlike the allegations of affirmative action in Hall, Cortez alleges onlythat Coleman
failed to act. The Complaint does not allege Coleman affirmatively acted to create a dangerous
condition in any way. Indeed, the Complaint does not even allege that Coleman was present at

the Store at the time of the accident.^ Because the Complaint alleges Coleman failed to act, and

does not allege any affirmative acts, no possibility exists that Cortez could establish a cause of
action against Coleman in state court. Berry, 2015 WL 1119942, at *3; Beaudoin, 886 F, Supp.
at 1303; Harris, 32 Va. Cir. at 298-99. Coleman is thus fraudulently joined. The Court

disregards her citizenship for diversity purposes, dismisses herfrom thecase, and retains
jurisdiction over the remaining diverse parties, Cortez and KKDC,
IV« Conclusion

Forthe foregoing reasons, the Court DENIES Plaintiffs Motion to Remand. (ECF
No. 10.)

An appropriate Order shall issue.

M.

United Stailps^strict Judge
Richmond, Virginia

Date: I0'I3'JS

^The Complaint alleges Coleman "was the manager of [the Store] on April 3, 2012.'
(Compl, H4.) No allegations exist that Coleman was present atthe Store in her capacity as
manager on April 3, 2012 and at the time of the accident.