pendent duty on the part of the assistant manager, Texas law precludes a finding against Berryhill in her individual capacity. See McKinney, 2006 WL 2947324, at *3 (concluding that a store manager was improperly joined because the plaintiff 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 alleged an independent cause of action against the store manager, the plaintiff also alleged that the store manager was acting in the course and scope of his employment, and thus there was no possibility of recovery); Palmer v. Wal-Mart Stores, Inc., 65 F.Supp.2d 564, 567 (S.D.Tex. 1999) (denying plaintiffs motion to remand, and noting that the plaintiff made no allegations that the store manager owed "her any independent duty or duty of reasonable care, apart from that which his employer owed any store patron"); see generally Bueno v. Cott Beverages, No. SA-04-CA-24-XR, 2004 WL 1124927, at *4 (W.D.Tex. Mar. 15, 2004) (finding that when the plaintiff filed suit against his employer and a manager of the company, because the plaintiff alleged that the manager was acting within the scope of his employment, Leitch precluded recovery against the manager in his individual capacity). Accordingly, the court concludes that because there is no possibility that Bourne can recover against Berryhill in her individual capacity, Berryhill was improperly joined.
As a result of such negligent maintenance, Rico died of respiratory failure. Lincare cites three district court cases that denied motions to remand based on Leitch. Allen v. Home Depot U.S.A., Inc., 2004 WL 2270001, at *3 (W.D. Tex. Oct. 6, 2004); Bueno v. Cott Beverages, Inc., 2004 WL 1124927, at *4 (W.D. Tex. Mar. 15, 2004); Palmer v. Wal-Mart Stores, Inc., 65 F.Supp.2d 564, 567 (S.D. Tex. 1999). All three cases involved a customer-invitee plaintiff suing a business manager who had no direct relations with the plaintiff. See Allen, 2004 WL 2270001, at *1; Bueno, 2004 WL 1124927, at *1; Palmer, 65 F.Supp.2d at 565-66.
Therefore, because of the unlikelihood that Plaintiff can successfully hold Meeks and McCormick individually liable for negligence, the Court finds that any prejudice Plaintiff would suffer from having her motion for leave to join them as defendants denied is minimal. See Bueno v. Cott Beverages, Inc., 2004 WL 1124927, at *3 (W.D. Tex. March 15, 2004) (applying Leitch and finding that plaintiff failed to allege that individual manager of company for whom he was performing welding work owed an independent duty of care to him apart from duty owed by manager's company). The Court is proceeding upon the assumption that Meeks and McCormick are corporate agents of some corporate entity and were not working at the site in their individual capacities.