Opinion
CIVIL ACTION NO. 2:02CV211-D-B
March 11, 2002
OPINION DENYING MOTION TO REMAND
Presently, before the court is the Plaintiff's motion to remand this cause to the Circuit Court of Grenada County, Mississippi. Upon due consideration, the court finds the motion is not well taken and shall be denied.
A. Factual and Procedural History
On or about August 1, 2000, the Plaintiff, Onetia Watkins (Watkins), tripped and fell on a carpet strip while visiting the Shoney's restaurant in Grenada, Mississippi. As a result of her fall, Watkins sustained extensive injuries and incurred large medical bills. She filed suit in the Circuit Court of Grenada County, Mississippi, alleging that Shoney's Restaurant, Unit #2384 (Shoney's) and their manager, Kim Roberts (Roberts) were negligent. Specifically, she claims that Roberts negligently failed to maintain a safe premise for members of the invited public, negligently allowed an unsafe condition to continue to exist upon the premises, and negligently failed to take corrective action to repair the unsafe condition. Additionally, Watkins claims that Roberts failed to train and/or supervise Shoney's employees to insure the safety of the public and business invitees and that she failed to warn customers of the potential danger.
Roberts, on the other hand, argues that she should not be held personally liable for every customer's safety and that she was not on duty the day of the accident. She claims that she inspected the premises the day prior to the accident, but found no loose carpet stripping. Accordingly, she had no duty to warn of something that she had no knowledge of.
Shoney's timely removed this matter to this court on or about October 9, 2001. Watkins moved to remand on or about November 5, 2001. The issues before the court are; (1) whether or not Roberts was fraudulently joined; (2) whether the Doe Defendants' possible residency should be considered for diversity purposes; and (3) whether all necessary parties joined in on the removal.
B. Remand Standard
The Judiciary Act of 1789 provides that "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, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). Original federal diversity jurisdiction exists "where the matter in controversy exceeds the sum or value of $75,000.00, exclusive of interest and cost, and is between . . . citizens of different States." 28 U.S.C. § 1332(a); Sid Richardson Carbon Gasoline Co. v. Interenergy Res., Ltd., 99 F.3d 746, 751 (5th Cir. 1996). In this case, there is no dispute that the amount in controversy exceeds $75,000.00. Watkins, however, asserts that the court does not possess diversity jurisdiction because this action is not between citizens of different states, as is required by 28 U.S.C. § 1332.
Watkins and Roberts are indisputably resident citizens of Mississippi. This fact, however, will not destroy federal jurisdiction if Watkins fraudulently joined Roberts in order to defeat diversity. Rodriguez v. Sabatino, 120 F.3d 589, 591 (5th Cir. 1997). But, if the court finds that Roberts has not been fraudulently joined, then federal diversity jurisdiction is lacking, and the court must remand this matter to the Circuit Court of Grenada County, Mississippi.
The party alleging fraudulent joinder bears the burden of persuasion, and that burden is quite stringent. See Hart v. Bayer Corp., 199 F.3d 239, 246 (5th Cir. 2000) ("The burden of persuasion placed upon those who cry `fraudulent joinder' is indeed a heavy one."). In order to prove that a non diverse party has been fraudulently joined, the removing party must demonstrate either "outright fraud in the plaintiff's recitation of jurisdictional facts," or that there is "absolutely no possibility that the plaintiff will be able to establish a cause of action against the in-state defendant[s] in state court." Hart, 199 F.3d at 246.
Shoney's does not allege outright fraud, so the court must determine whether there is absolutely no possibility that Watkins will be able to establish a cause of action against Roberts. In making this evaluation, the court must evaluate all the factual allegations in Watkins' pleadings in the light most favorable to her. Plus, the court must examine relevant state law and resolve all uncertainties in favor of Watkins. Hart, 199 F.3d at 246. Further, the court does not focus on whether Watkins will prevail on the merits of her claims. Instead, the court determines whether there is a possibility that Watkins will be able to state a claim against Roberts. Rodriguez, 120 F.3d at 591.
C. Discussion
1. Fraudulent Joinder of Roberts
Watkins argues that Roberts should be held liable under Waller v. Dixieland Food Stores, Inc., 492 So.2d 283 (Miss. 1986). In Waller, the plaintiff, who slipped on an unknown pink liquid in the aisle of a grocery store, named the manager of the store as a defendant. The trial court granted a judgment notwithstanding the verdict for all defendants on the basis that there was no evidence of how long the substance had been on the floor, how it got there, or whether the defendants knew it was there. Waller, 492 So.2d at 285. The Mississippi Supreme Court, in affirming the trial court stated that:
In Mississippi, an owner, occupant, or person in charge of a premises owes to an invitee or business visitor a duty to exercise ordinary care to keep the premises in a reasonably safe condition or to warn the invitee of dangerous conditions, not readily apparent which the owner or occupier knows of or should know of in the exercise of reasonable care.
Waller, 492 So.2d at 285 (citing Wilson v. Allday, 487 So.2d 793 (Miss. 1986); Down v. Corder, 377 So.2d 603 (Miss. 1979); J.C. Penney, Co. v. Sumrall, 318 So.2d 829 (Miss. 1975)).
Watkins uses this language to argue that an owner and a manager can both be held individually liable. The court does not agree. No cases have been found in which the Mississippi Supreme Court has held that a store manager is personally liable for injuries that a customer suffers while in a store and this court does not conclude that a manager is personally responsible for every customer's safety.
It is well settled that where a defendant acts as an agent for a known principal, the defendant incurs no liability for the principal's breach of duty. See Hart, 199 F.3d at 247 (citing Moore v. Interstate Fire Insurance Co., 717 F. Supp. 1193 (S.D.Miss. 1989); Schoonover v. West American Insurance Co., 665 F. Supp. 511 (S.D.Miss. 1987)). Under Mississippi law, an agent for a disclosed principal can be held personally liable for her own tortious acts committed within the scope of her employment, and a tort claim can be maintained against that agent so long as the foundation of the agent's liability is her own individual wrongdoing. Hart, 199 F.3d at 247 (citing Wheeler v. Frito-Lay, Inc., 743 F. Supp. 483, 487 (S.D.Miss. 1990) (holding that plaintiff had stated a possible claim against employee-driver for negligent driving within the scope of employment)); Turner v. Wilson, 620 So.2d 545, 548 (Miss. 1993). The agent is subject to personal liability when she "directly participates in or authorizes the commission of a tort." Hart, 199 F.3d at 247 (quoting Mississippi Printing Co., Inc. v. Maris, West Baker, Inc., 492 So.2d 977, 978 (Miss. 1986)). In other words, the agent must have had more than simply a "peripheral involvement" in the alleged tort. Mozingo v. Correct Mfg. Corp., 752 F.2d 168, 174 (5th Cir. 1985).
Based on this court's review of the pleadings, it concludes that Watkins has failed to demonstrate that there is a possibility that she could establish a cause of action against Roberts. This court agrees with Judge Barbour's opinion in Griffin v. Dolgen Corp., 143 F. Supp.2d 670 (S.D.Miss. 2001). Recognizing the joinder of the manager as a forum shopping maneuver, Judge Barbour stated:
In the approximately fifteen years that have passed [since Waller v. Dixieland Food Stores, Inc.], the Mississippi Supreme Court has never ruled or even intimated that this holding creates liability for a store manager. Second, to saddle a store manager with personal liability in a case such as this, where there is no evidence that the slippery substance on the floor is attributable to an act of the manager, would essentially make the store manager the personal guarantor of each customer's safety. The Court is of the opinion that liability, if any, more properly belongs to the store owner who is in a better position through protections such as insurance to bear the cost of such suits.
Griffin, 143 F. Supp.2d at 672.
Roberts cannot be held liable for failing to warn customers of something she knew nothing about. She did not directly, indirectly or personally participate in the incident described by Watkins. She was not even on duty, or on the premises, on the day in question. Moreover, this court does not believe that Roberts was personally responsible for making design changes at the restaurant such as removing carpet. Further, she could not have control over fellow employees when she was not on the premises. Watkins makes no persuasive argument and offers no evidence which would tend to suggest that Roberts' involvement was anything other than merely peripheral.
In a similar opinion denying remand, this court held that a day manager was not liable in a slip and fall case. Dugger v. Shoney's, Inc., 4:01CV140-D-D, 2001 WL 1530346 (N.D.Miss. Sept. 18, 2001). In Dugger the Plaintiff slipped on an unknown substance while in a Shoney's restaurant and claimed that the day manager was generally responsible for the day to day operations of the restaurant and the safety of the customers. This court found that there were no factual allegations that the Defendant "directly, personally, or actively participated in the alleged negligence . . ." Dugger, 2001 WL 1530346 at *2. This case is not dissimilar to the one at hand. Both involved joinder of restaurant managers where the defendants argue that the mere fact that a person holds the title of manager and undertakes the duties thereof, makes them personally liable. The court, again, does not agree. Accordingly, the court finds that Roberts was fraudulently joined and diversity jurisdiction exists.
2. Diversity of John Does 1-6
Watkins argues next that the citizenship of John Doe Defendants 1-6 should be considered for purposes of diversity. In her complaint, Watkins states that Doe Defendants 1-3 removed the carpeting and the defective carpet stripping from the premises and destroyed it. She also states that Doe Defendants 4-6 conspired to deny and did deny her compensation for her medical bills. Watkins believes that these unnamed Defendants are Mississippi residents "due to the nature of their conduct and the close proximity to Shoney's Unit #2384 in Grenada, Mississippi," therefore, diversity does not exist. The court does not agree.
According to 28 U.S.C. § 1441(a) "[f]or purposes of removal under this chapter, the citizenship of defendants sued under fictitious names shall be disregarded." Watkins cites no Mississippi District Court or Fifth Circuit decisions where a court has refused to follow the unequivocal legislative mandate that fictitious defendants shall be disregarded for the purpose of removal. Accordingly, this court finds this argument to be without merit and shall be denied.
3. Joinder of All Defendants in Removal
Finally, Watkins argues that the Defendant RSKCo. did not join in the removal as required by statute. On September 21, 2001, a copy of the filed complaint was submitted to Brad Hathaway, counsel for the Defendants, Shoney's Inc., Shoney's Restaurant, Unit #2384, Kim Roberts and RSKCo. However, on September 26, 2001, Hathaway notified Watkins' counsel that he would not be representing RSKCo. in this action, despite his previous representation. On October 4, 2001, Shoney's Inc., Shoney's Restaurant, Unit #2384, and Kim Roberts removed this action to this court. RSKCo. did not join in the removal petition. They were not served with process until February 4, 2002, and joined in the notice of removal on February 27, 2002.
Watkins argues that under Reece v. Wal-Mart Stores, 98 F.3d 839 (5th Cir. 1996), the thirty-day period for removal began to run "when the defendant receives a copy of the initial pleading through any means, not just service of process." Reece, 98 F.3d at 841. However, Reece is no longer the standard for this issue. It was abrogated by Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999). Murphy Brothers now allows the defendant thirty days from the time he or she is formally served to remove an action. Murphy Brothers, Inc., 526 U.S. at 354, 119 S.Ct. at 1328.
Further, according to Pullman Co., et al. v. Jenkins, et al., 305 U.S. 534, 59 S.Ct. 347, 83 L.Ed. 334 (1939), where there is a non-separable controversy with respect to several non-resident defendants, one of them may remove the cause, although the other defendants have not been served with process and have not appeared. Pullman, 305 U.S. at 540-41, 59 S.Ct. at 350-51 (citations omitted). The court finds this exception applies. As RSKCo. was not served until after the notice of removal, the court finds that all necessary parties joined in on the removal to this court. Accordingly, Watkins' argument is without merit.
D. Conclusion
The court finds that Roberts was fraudulently joined and that no possible claim lies against her. Further, the court will not consider the possible residencies of Doe Defendants 1-6 for diversity jurisdiction purposes. Finally, all necessary parties joined into the removal. Accordingly, Watkins' motion to remand is denied.
A separate order in accordance with this opinion shall issue this day.
ORDER DENYING MOTION TO REMAND
Pursuant to an opinion issued this day, it is hereby ORDERED that the Plaintiff's motion to remand this cause to the Circuit Court of Grenada County, Mississippi, (docket entry #8) is DENIED.