Evans v. K-V A-T Food Stores, Inc.
Filing
13
MEMORANDUM OPINION AND ORDER denying plaintiff's 5 MOTION to remand; directing that Donald Sansom is dismissed from this action. Signed by Judge John T. Copenhaver, Jr. on 4/16/2013. (cc: attys) (taq)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
IDA EVANS,
Plaintiff,
v.
Civil Action No. 2:12-cv-6167
K-VA-T Food Stores, Inc.
and doing business as Food City and
DONALD SAMSON in his capacity as
manager and supervisor of
K-VA-T Stores, Inc. dba Food City,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending is the motion by plaintiff Ida Evans to
remand, filed October 12, 2012.
For the reasons below, the
court finds that Evans improperly joined the nondiverse
defendant Donald Sansom (misspelled in the complaint as “Donald
Samson”), and the court denies the motion.
I. Background
Evans commenced this action in the Circuit Court of
Mingo County, West Virginia on January 13, 2012.
resident of Mingo County, West Virginia.
She is a
Compl. ¶ 1.
The
defendant K-VA-T Food Stores, Inc. (“Food City”), who does
business as Food City, is a foreign corporation with a principal
place of business in Pikeville, Kentucky.
Id. ¶ 2.
Donald
Sansom is a resident of Mingo County, West Virginia and a
manager and supervisor of Food City at its South Williamson,
Kentucky store.
Id. ¶ 3.
In an affidavit, Sansom clarifies
that he is the assistant manager.
Not. Removal Ex. D, at 1.
The facts, as set forth in the complaint, are as
follows.
On or about January 25, 2011, Evans presented a
prescription for a gastrointestinal cocktail mixture to the
pharmacy of Food City in South Williamson, Kentucky.
¶ 4.
Compl.
Rhonda Pinion, a Food City pharmacy technician, added 30
milliliters of Donnatal into the mixture when the prescription
required only 5 milliliters.
Id. ¶ 6; Mot. Remand 3.
As a
result of the excess Donnatal, Evans suffered a drug overdose.
Compl. ¶ 6.
She suffered “permanent injuries to various parts
of her body,” “past and present medical expenses,” and “pain and
aggravation, and inconvenience.”
Id. ¶ 8.
Evans‟ complaint alleges that Food City “by and
through its agents and employees negligently and carelessly”
filled the prescription.
Id. ¶ 5.
It further alleges that
Sansom, “as a manager and supervisor at Food City, was negligent
and careless in his duty to supervise and oversee the agents of
the Defendant, Food City.”
Compl. ¶ 7.
On September 4, 2012, the defendants obtained written
discovery responses from Evans concerning her grounds for
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allegations of negligence against Sansom.
Consistent with her
complaint, Evans responded that Sansom “negligently allowed the
improperly filled prescription to be distributed to the
Plaintiff.”
Not. Removal ¶ 10.
On September 18, 2012, the
parties deposed pharmacist Lisa Bowens.
Under questioning by
Evans‟ counsel, Bowens gave the following testimony concerning
the relationship between the Food City store management and the
professional pharmacy:
Q. Do the employees of the pharmacy, do they report to
any of the store managers?
A. I guess we all kind of do. They mostly report to
me, but they can report to Susan too or Donald or
whoever‟s there.
Q. Okay.
Susan, what‟s Susan‟s last name?
A. Maynard.
Q. Susan Maynard.
And Donald Samson?
A. Uh-huh.
Q. Do you report to Donald Samson?
A. I mostly report to Susan.
Q. Okay.
What‟s Susan‟s title?
A. She‟s the store manager.
Q. And Donald, he‟s the assistant manager?
A. As far as I know, yeah.
Q. Okay. What types of things would you report to
Susan?
A. I mean usually if I need -- like when I had to
replace Rhonda I had to talk to her in order to get
another employee, if somebody goes over on their
hours I have to talk to her about their hours, I
mean mostly the business end of the pharmacy.
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Q. Okay. So the store side of Food City is
responsible for payroll and human resource types of
-A. Right.
Q. Okay. You alone do not have the ability or
authority to hire an individual?
A. I don‟t, no.
Bowens Dep. 19-20.
The defendants‟ counsel asked Bowens a
single follow-up question:
Q. Does the management at Food City, either the manager or
the assistant manager, have any responsibility for the
management of the professional pharmacy aspect?
A. No, no, none at all, no.
Id. at 24-25.
In light of this testimony, and having ascertained
that Sansom was an assistant manager and that the actual manager
at the time of the incident was Susan Maynard, a Kentucky
resident, the defendants became convinced that Evans had
fraudulently joined Sansom to destroy diversity.
On October 2,
2012, the defendants removed the case to federal court,
asserting fraudulent joinder and invoking the court‟s diversity
jurisdiction.
See 28 U.S.C. § 1332(a)(1).
On October 12, 2012,
Evans moved to remand on the ground that the defendants failed
to establish fraudulent joinder.
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II. The Governing Standard
“Except as federal law may otherwise provide, when a
defendant removes a state civil action to federal district
court, federal removal jurisdiction exists if the action is one
„of which the district courts of the United States have original
jurisdiction.‟”
In re Blackwater Sec. Consulting, LLC, 460 F.3d
576, 583 (4th Cir. 2006) (quoting 28 U.S.C. § 1441(a)).
Federal
district courts possess original jurisdiction over all actions
“where the matter in controversy exceeds the sum or value of
$75,000, exclusive of interest and costs, and is between
citizens of different States.”
The doctrine of fraudulent joinder permits a district
court to “disregard, for jurisdictional purposes, the
citizenship of certain nondiverse defendants, assume
jurisdiction over a case, dismiss the nondiverse defendants, and
thereby retain jurisdiction.”
461 (4th Cir. 1999).
Mayes v. Rapoport, 198 F.3d 457,
Our court of appeals lays a “heavy burden”
upon a defendant claiming fraudulent joinder:
In order to establish that a nondiverse defendant has
been fraudulently joined, the removing party must
establish either: [t]hat there is no possibility that
the plaintiff would be able to establish a cause of
action against the in-state defendant in state court;
or [t]hat there has been outright fraud in the
plaintiff‟s pleading of jurisdictional facts.
Id. at 464 (emphasis in original) (quoting Marshall v. Manville
Sales Corp., 6 F.3d 229, 232 (4th Cir. 1993)).
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The applicable
standard “is even more favorable to the plaintiff than the
standard for ruling on a motion to dismiss.”
Hartley v. CSX
Transp., Inc., 187 F.3d 422, 424 (4th Cir. 1999).
Indeed, “„the
defendant must show that the plaintiff cannot establish a claim
against the nondiverse defendant even after resolving all issues
of fact and law in the plaintiffs favor.‟”
Mayes, 198 F.3d at
464 (quoting Marshall, 6 F.3d at 232–33).
As Hartley illustrates, fraudulent joinder claims are
subject to a rather black-and-white analysis in this circuit.
Any shades of gray are resolved in favor of remand.
Hartley, 187 F.3d at 425.
See
At bottom, a plaintiff need only
demonstrate a “glimmer of hope” in order to have his claims
remanded:
[A] jurisdictional inquiry is not the appropriate
stage of litigation to resolve . . . uncertain
questions of law and fact. . . . Jurisdictional rules
direct judicial traffic. They function to steer
litigation to the proper forum with a minimum of
preliminary fuss. The best way to advance this
objective is to accept the parties joined on the face
of the complaint unless joinder is clearly improper.
To permit extensive litigation of the merits of a case
while determining jurisdiction thwarts the purpose of
jurisdictional rules. . . .
We cannot predict with certainty how a state court and
state jury would resolve the legal issues and weigh
the factual evidence in this case. [Plaintiff‟s]
claims may not succeed ultimately, but ultimate
success is not required to defeat removal. Rather,
there need be only a slight possibility of a right to
relief. Once the court identifies this glimmer of
hope for the plaintiff, the jurisdictional inquiry
ends.
Id. at 425–26 (citations omitted).
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In determining “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.”
198 F.3d at 464 (internal quotations omitted).
Mayes,
The district
court may consider affidavits and deposition transcripts
submitted by the parties.
1538 (11th Cir. 1997).1
See Crowe v. Coleman, 113 F.3d 1536,
The court may reject post-removal
filings “when or to the extent that they present new causes of
action or theories not raised in the controlling petition filed
in state court.”
Griggs v. State Farm Lloyds, 181 F.3d 694, 700
(5th Cir. 1999) (citation omitted).
III. Discussion
Evans appears not to dispute that the amount in
controversy eclipses the $75,000 jurisdictional threshold.
The
defendants attached interrogatory responses to their notice of
removal in which Evans claims $11,999.40 in medical expenses
arising from the accident and $150,000.00 in special damages.
Not. Removal, Ex. B at 4.
Since the defendants do not allege any fraud in the
pleading, the only question for fraudulent joinder purposes is
whether Evans has any possibility of recovery in state court
1
Our court of appeals has cited Crowe in support of this
approach, albeit in an unpublished opinion. See Boss v. Nissan
N. Am., Inc., 228 F. App‟x 331, 336 (4th Cir. 2007).
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against the nondiverse defendant, Donald Sansom.
The complaint
asserts one claim against Sansom: that “as a manager and
supervisor at Food City” he “was negligent and careless in his
duty to supervise and oversee the agents of the Defendant, Food
City, all of which was the direct and proximate cause of the
damages to the Plaintiff.”
Compl. ¶ 7.
The defendants contend that Evans‟ negligence claim
against Sansom is untenable because, as Lisa Bowens testified,
the assistant store manager has no supervisory or oversight
responsibility over the professional pharmacy.
¶ 17.
Not. Removal
They attach an affidavit in which Sansom confirms that he
“never had the responsibility or duty to supervise or oversee
the professional activities of any Food City pharmacist or the
Food City pharmacy.”
Id. Ex. D, ¶¶ 3-5.
Since Sansom has no
oversight responsibilities over the pharmacy, the defendants
assert that he owed no duty to Evans related to her prescription
and could not have been negligent.
Id. ¶ 19.
The defendants
contend that “the only possible reason” that Evans would have
sued the assistant store manager instead of the store manager is
that, as a resident of Kentucky, the store manager would not
“serve Plaintiff‟s purpose of defeating diversity.”
Id. ¶ 17.
In seeking remand, Evans emphasizes Bowens‟ testimony
that pharmacy employees report to the store manager or assistant
manager.
Mot. Remand 3.
Evans also refers to deposition
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testimony in which Rhonda Pinion admitted that she had been
criminally prosecuted for altering a prescription label.
Dep. 9-10.
Pinion
Pinion testified that the prosecution resulted in
her Pharmacy Technician Certification being revoked.
Id.
Evans
argues that this criminal history suggests Sansom‟s negligence
“regarding his involvement in hiring Rhonda Pinion and assigning
her to perform the duties” that caused the injury.
Remand 3.
Mot.
Evans, however, provides no evidence that indicates
Sansom had any involvement in Rhonda Pinion‟s hiring.
Evans
states, in her motion, only that it is her “position that
[hiring] decisions would be made by the store management which
clearly includes the Defendant, Donald Samson.”
Id.
In response, the defendants provide an additional
affidavit in which Sansom states that he has “never participated
in any way in the hiring or firing of pharmacy technicians
within the professional pharmacy.”
¶ 6.
Opp‟n Mot. Remand Ex. A,
He adds that he “has no input in or responsibility for,
the hiring of any pharmacist or the pharmacy technicians . . . ,
including Rhonda Pinion.”
Id.
The defendants argue that Evans
“cherry picked” comments from Bowens‟ deposition in asserting
Sansom‟s involvement with the pharmacy.
Opp‟n Mot. Remand 2.
The court finds Sansom‟s joinder to be improper.
Evans has no hope of recovery from Sansom for negligent
supervision.
“In order to establish a prima facie case of
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negligence in West Virginia, it must be shown that the defendant
has been guilty of some act or omission in violation of a duty
owed to the plaintiff.
without a duty broken.”
No action for negligence will lie
Syl. Pt. 1, Parsley v. Gen. Motors
Acceptance Corp., 167 W. Va. 866, 866, 280 S.E.2d 703, 704
(1981).
It is uncontroverted that the Food City store
management, including Sansom as the assistant manager, had no
responsibility for the execution or management of the pharmacy‟s
professional activities.
Absent such a role, Sansom could not
have owed or broken any duty to Evans with respect to her
improperly filled prescription.
Evans‟ additional assertion, first made in her motion
to remand, that Sansom negligently hired Pinion is similarly
unavailing.
The complaint sets forth neither a claim for
negligent hiring nor allegations regarding any authority Sansom
had over personnel decisions.
As it was not presented in the
operative state court filing, the court need not consider the
negligent hiring claim.
See Griggs, 181 F.3d at 700.
The court nevertheless observes that, even treating
Evan‟s negligent hiring claim as properly asserted, she has
failed to demonstrate any possibility of relief.
There is
simply no allegation in the complaint or any evidence indicating
that Sansom had authority over hiring decisions, let alone for
the specific decision to hire Rhonda Pinion.
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Bowens‟ deposition
testimony, on which Evans relies, attributes hiring authority
only to manager Susan Maynard.
Evans‟ suggestion in her
briefing that Sansom would have also been involved in the hiring
of Rhonda Pinion is pure conjecture and is refuted by Sansom‟s
affidavit.
Evans filed no reply to contest the affidavit or to
offer contrary evidence.
No issue of fact remains as to Sansom‟s lack of
involvement in Rhonda Pinion‟s hiring.
See Legg v. Wyeth, 428
F.3d 1317, 1323 (11th Cir. 2005) (“[T]here must be some question
of fact before the district court can resolve that fact in the
plaintiff‟s favor.
In this case, for example, the Plaintiffs
did not dispute [the nondiverse defendant‟s] sworn statement
that he never promoted or sold the drug Redux.
With no response
from the Plaintiffs, there was no question of fact for the court
to resolve. . . .
When the Defendants‟ affidavits are
undisputed by the Plaintiffs, the court cannot then resolve the
facts in the Plaintiffs‟ favor based solely on the unsupported
allegations in the Plaintiffs‟ complaint.”); Badon v. R J R
Nabisco Inc., 224 F.3d 382, 394 (5th Cir. 2000) (analogizing
fraudulent joinder with summary judgment and stating that the
court does not “in the absence of any proof, assume that the
nonmoving party could or would prove the necessary facts.”
(quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994))).
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The court concludes that Evans has no possibility of
relief against the nondiverse defendant Sansom.
Inasmuch as
Evans‟ claims exceed the amount in controversy requirement, the
court concludes that diversity jurisdiction lies.
The court having found that Evans improperly joined
Sansom, Sansom‟s dismissal from this action is appropriate.
See
Fed. R. Civ. P. 21 (“On motion or on its own, the court may at
any time, on just terms, add or drop a party.”); Mayes, 198 F.3d
at 461.
IV.
Based upon the foregoing discussion, it is,
accordingly, ORDERED that Evans‟ motion to remand be, and it
hereby is, denied.
It is further ORDERED that Donald Sansom be, and he
hereby is, dismissed from this action.
The Clerk is directed to forward copies of this
written opinion and order to all counsel of record.
ENTER:
April 16, 2013
John T. Copenhaver, Jr.
United States District Judge
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