Berry v. SeaWorld Parks & Entertainment, LLC et al
Filing
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OPINION & ORDER denying 5 Motion to Remand. A copy of this order was sent to all counsel of record on 3/11/15. Signed by Magistrate Judge Tommy E. Miller and filed on 3/11/15. (tbro)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Newport News Division
APRIL G. BERRY,
Plaintiff,
v.
ACTION NO. 4:14cv152
SEAWORLD PARKS & ENTERTAINMENT LLC
d/b/a Busch Gardens Williamsburg, and
JOHN DOE EMPLOYEE,
Defendants.
OPINION & ORDER
This matter is before the Court on Plaintiff’s motion to remand this premises liability and
negligence case to state court. ECF No. 5. No party requested oral argument, and following a
review of the filings, the Court finds oral argument would not aid in the decisional process. Fed.
R. Civ. P. 78(b); E.D. Va. Loc. Civ. R. 7(J). Therefore, the motion is ripe for review. For the
reasons stated herein, the Plaintiff’s motion to remand is DENIED.
I. Factual and Procedural History
On or about October 26, 2012, Plaintiff was visiting Busch Gardens Williamsburg during
their Howl-O-Scream event. Compl. ¶¶ 6-9. Plaintiff and her companion were entering the Fear
Fair Maze in the Fiesta Italia section of Busch Gardens Williamsburg at approximately 7:00 p.m.
Compl. ¶¶ 6, 8. “[A]s the Plaintiff and her companion were approaching the second tent entrance
in the dark and smoke, Plaintiff fell off an unprotected and invisible drop off on the right side of the
walkway right next to Defendant John Doe’s monitoring position.” Compl. ¶ 9. “John Doe was
inattentive and failed to warn, guide, prevent, or in any way keep Plaintiff Berry and two other
invitees from falling over that edge.” Compl. ¶ 10. As a result of the fall, Plaintiff sustained
injuries. Compl. ¶ 14.
Plaintiff brought suit against Defendant SeaWorld Parks and Entertainment LLC
(“SeaWorld”) and John Doe Employee in the Circuit Court for the County of James City on or
about October 22, 2014, and served Defendant SeaWorld on October 23, 2014. Notice of
Removal 1-2, ECF No. 1; Summons ECF No. 1-1. SeaWorld filed an Answer in circuit court on
November 12, 2014. Answer, ECF No. 1-2. On November 17, 2014, SeaWorld timely filed a
Notice of Removal pursuant to 28 U.S.C. §§ 1441 and 1446. ECF No. 1. Plaintiff filed an
objection to the removal and motion to remand, and SeaWorld filed an opposition. ECF Nos. 5, 6.
II. Standard of Review
“Except as otherwise expressly provided by Act of Congress, any civil action brought in a
State court of which the district courts of the United States have original jurisdiction, may be
removed by the defendant or the defendants.” 28 U.S.C. § 1441(a). The party seeking removal
bears the burden of establishing federal jurisdiction. Mulcahey v. Columbia Organic Chem. Co.,
29 F.3d 148, 151 (4th Cir. 1994). District courts must construe the removal statute strictly against
removal because removing a case from state court implicates “significant federalism concerns.”
Mulcahey, 29 F.3d at 151 (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-109
(1941)).
SeaWorld asserts this Court has diversity jurisdiction over the case pursuant to 28 U.S.C.
§ 1332(a). Diversity jurisdiction exists if “the matter in controversy exceeds the sum or value of
$75,000, exclusive of interest and costs, and is between . . . citizens of different states.” 28 U.S.C.
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§ 1332. Courts have interpreted 28 U.S.C. § 1332 to require complete diversity, thus “the
citizenship of each plaintiff [must be] diverse from the citizenship of each defendant.”
Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996).
Where removal is based on diversity
jurisdiction, Section 1441 provides “the citizenship of defendants sued under fictitious names shall
be disregarded.” 28 U.S.C. § 1441(b)(1).
III. Motion to Remand
Defendant SeaWorld removed the case, asserting the Court has diversity jurisdiction
because the amount in controversy exceeds $75,000 and the dispute is between citizens of different
states. Notice of Removal. In support of removal, Defendant argues that John Doe Employee is
ignored for purposes of removal, and that he was fraudulently joined because the Complaint fails
to allege any affirmative acts of negligence by John Doe that could render him individually liable
to Plaintiff. Notice of Removal 2-3.
The Court does have diversity jurisdiction over this matter. Plaintiff, a resident of the
County of Henrico, Virginia, is seeking damages in the amount of $500,000 plus costs and interest.
Compl., ECF No. 1-1. According to the Notice of Removal, SeaWorld Parks & Entertainment
LLC is a limited liability company organized under Delaware law, with its principal place of
business in Orlando, Florida. Notice of Removal ¶ 7. Further, SeaWorld Parks & Entertainment
Inc., the sole member of SeaWorld Parks & Entertainment LLC, is a Delaware corporation with its
principal place of business in Orlando, Florida. Notice of Removal ¶ 8. Plaintiff does not
dispute that Defendant SeaWorld is an out of state corporation. Pl.’s Mot. to Remand 1. John
Doe Employee is sued under a fictitious name, and his citizenship is disregarded at this stage of the
proceedings. 28 U.S.C. 1441(b)(1).
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Plaintiff argues the case should be remanded to state court because John Doe’s identity is
known to SeaWorld and easily discovered, and because there was no fraudulent joinder. Pl.’s
Mot. to Remand 2. According to Plaintiff, John Doe is an employee of Busch Gardens who was
observed before, during, and after the fall by two eyewitnesses, who called for medical assistance
following the fall, and who remained until Plaintiff was transported. Id. Although Plaintiff
asserts John Doe’s identity is readily discoverable, she has not amended her Complaint, or
supplemented her pleadings with any discovery that would support this assertion or indicate that
John Doe is a resident of Virginia. Accordingly, this Court has jurisdiction over this matter based
on diversity of citizenship and Plaintiff’s motion to remand is DENIED.
SeaWorld further argues that even if John Doe is a resident of Virginia, he was fraudulently
joined in an effort to defeat diversity jurisdiction because the Complaint does not allege any
affirmative acts of negligence by John Doe. Notice of Removal 2-3. SeaWorld, the removing
party, bears the burden of proving fraudulent joinder. Marshall v. Manville Sales Corp., 6 F.3d
229, 232 (4th Cir. 1993); Beaudoin v. Sites, 886 F. Supp. 1300, 1302 (E.D. Va. 1995). SeaWorld
must prove either that there is “no possibility” Plaintiff could establish a cause of action against
John Doe in state court or that “there has been outright fraud in the plaintiff’s pleading of
jurisdictional facts.” Marshall, 6 F.3d at 232 (citing B., Inc. v. Miller Brewing Co., 663 F.2d 545,
549 (5th Cir. 1981)). SeaWorld, in relying on the first of these options, bears the heavy burden of
showing Plaintiff cannot establish a claim against John Doe “even after resolving all issues of fact
and law in the plaintiff’s favor.” Marshall, 6 F.3d at 232-33. When deciding the issue of
fraudulent joinder, “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.’” Beaudoin,
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886 F. Supp. at 1302 (citing AIDS Counseling & Testing Centers v. Group W Television, Inc., 903
F.2d 1000, 1004 (4th Cir. 1990). “[T]he defendants may submit affidavits and deposition
transcripts; and . . . the plaintiff may submit affidavits and deposition transcripts along with the
factual allegations contained in the verified complaint.” Beaudoin, 886 F. Supp. at 1302 (citing B.,
Inc., 663 F.2d at 549).
The question becomes whether Plaintiff can establish a negligence claim against John Doe.
“Under 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 employee of the owner or operator, he or she is guilty of an
omission.” Beaudoin, 886 F. Supp. at 1303 (citing Miller v. Quarles, 410 S.E.2d 639, 641 (Va.
1991)); see also Harris v. Morrison, Inc., 32 Va. Cir. 298, 298-99 (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).”). With
respect to John Doe, the Complaint provides:
(1) He was an agent and servant of SeaWorld “charged with the duty of monitoring
the entrance to the Fear Fair Maze in the Fiesta Italia section of Busch Gardens
Williamsburg during its Howl-O-Scream event for safety, security, orderly entry, and to
preclude invitees from the known hazard.” Compl. ¶ 8.
(2) “Plaintiff fell off an unprotected and invisible drop off on the right side of the
walkway right next to Defendant John Doe’s monitoring position.” Compl. ¶ 9.
(3) “John Doe was inattentive and failed to warn, guide, prevent, or in any way
keep Plaintiff Berry and two other invitees from falling over that edge. John Doe[] clearly
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knew his purpose and actively chose to disregard his duty and allow Plaintiff and two
others into a known hazard.” Compl. ¶ 10.
(4) In conjunction with SeaWorld, John Doe “knew or should have known that the
vertical walkway edges on the walkways in the area the invitees passed and would be
forced to walk along queue for the mazes in the dark, with smoke machines further
obscuring visions, were extremely hazardous and they negligently failed to rope them off,
place warning signs, or have employees warn of dangerous spots.” Compl. ¶ 12.
The Complaint, the only record before the Court, does not allege John Doe performed an
affirmative act of negligence. SeaWorld’s argument of fraudulent joinder may apply to this
Complaint should discovery reveal John Doe is a Virginia resident. At this stage of the litigation,
however, there should be discovery with which to supplement the record. Accordingly, the Court
will defer ruling on fraudulent joinder as a ruling is not necessary to resolve Plaintiff’s motion to
remand.
The Clerk shall mail a copy of this Order to all counsel of record.
________________/s/___________________
Tommy E. Miller
United States Magistrate Judge
Norfolk, Virginia
March 11, 2015
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