Opinion
Case No. 0:22-cv-62350-KMM
2023-02-16
Shirle WATTS, Plaintiff, v. WAL-MART STORES EAST, LP, et al., Defendants.
Madeleine Quinn Mannello, Winston Law Firm, Davie, FL, for Plaintiff. Nicholas G. Neville, Coral Gables, FL, Christine Michelle Manzo, Liebler, Gonzalez & Portuondo, P.A., Miami, FL, for Defendants Wal-Mart Stores East, LP, Walmart, Inc. Christine Michelle Manzo, Liebler, Gonzalez & Portuondo, P.A., Miami, FL, for Defendant Gaetano Bartoli.
Madeleine Quinn Mannello, Winston Law Firm, Davie, FL, for Plaintiff. Nicholas G. Neville, Coral Gables, FL, Christine Michelle Manzo, Liebler, Gonzalez & Portuondo, P.A., Miami, FL, for Defendants Wal-Mart Stores East, LP, Walmart, Inc. Christine Michelle Manzo, Liebler, Gonzalez & Portuondo, P.A., Miami, FL, for Defendant Gaetano Bartoli. OMNIBUS ORDER K. MICHAEL MOORE, UNITED STATES DISTRICT JUDGE
THIS CAUSE came before the Court upon two Motions. First, on December 6, 2022, Defendant Gaetano Bartoli ("Bartoli") filed his Amended Motion Dismiss Count I of Plaintiff's Amended Complaint (ECF No. 5) ("MTD"), to which Plaintiff responded, (ECF No. 15) ("MTD Resp."), and Bartoli replied. (ECF No. 24). Next, on January 4, 2023, Plaintiff filed her Motion to Remand Case to State Court. (ECF No. 14) ("Mot. to Remand"). Defendant Wal-Mart Stores East, LP ("Wal-Mart Stores East") filed a timely response, (ECF No. 25) ("Remand Resp."), and Plaintiff filed a reply (ECF No. 28). The Motions are now ripe for review. For the reasons discussed herein, the Court DENIES Plaintiff's Motion and GRANTS Bartoli's Motion.
The following facts are taken from the Complaint ("Compl.") (ECF No. 1-1) and accepted as true for purposes of ruling on the Motion to Dismiss. MSP Recovery Claims, Series LLC v. Metro. Gen. Ins. Co., 40 F.4th 1295, 1302 (11th Cir. 2022).
On October 26, 2018, Plaintiff "tripped and fell on an expansion gap and concrete edging near the front door" to Defendant Wal-Mart Stores East's location at 3306 N University Drive, Sunrise, Florida. ("Compl.") (ECF No. 1-1) ¶¶ 6, 11. Defendant Gaetano Bartoli was the manager of the store at the time. Id. ¶ 9. In her Complaint, Plaintiff asserts one claim for negligence against Bartoli ("Count I") and a second claim for negligence against Defendant Wal-Mart Stores East ("Count III"). See id. ¶¶ 13-18, 28-36. Plaintiff filed her Complaint in the Circuit Court of the 17th Judicial Circuit in and for Broward County on November 1, 2022. See id. Defendant Wal-Mart Stores East removed this case on December 15, 2022. (ECF No. 1). In its Notice of Removal, Wal-Mart Stores East previewed its position that Defendant Bartoli "was fraudulently joined in an attempt to destroy otherwise valid diversity jurisdiction." Id. at 7.
Plaintiff also asserted one claim against exdefendant Walmart, Inc., id. ¶¶ 19-27, which has since been dismissed. See (ECF No. 23).
Now, Defendant Bartoli moves to dismiss the negligence count against him for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). See generally MTD. Contemporaneously, Plaintiff moves to remand the case to state court for lack of jurisdiction, arguing that Bartoli's presence as a defendant is both proper and defeats diversity. See generally Mot. to Remand. Because both Motions ultimately deal with the same question—whether Bartoli has been fraudulently joined in this action for purposes of defeating diversity jurisdiction—the Court assesses both under the standards pertaining to fraudulent joinder as set forth in Pacheco de Perez v. AT & T Co., 139 F.3d 1368 (11th Cir. 1998), and its progeny. See Section III n.5, infra.
II. LEGAL STANDARD
An action filed in state court may be removed to federal court based upon diversity or federal question jurisdiction. 28 U.S.C. § 1441(a). A district court may have original jurisdiction where both "the matter in controversy exceeds the sum or value of $75,000" and the parties are "citizens of different States." 28 U.S.C. § 1332(a). "When a case is removed based on diversity jurisdiction . . . the case must be remanded to state court if there is not complete diversity between the parties, or if one of the defendants is a citizen of the state in which the suit is filed." Stillwell v. Allstate Ins. Co., 663 F.3d 1329, 1332 (11th Cir. 2011) (citations omitted). If, however, a nondiverse defendant is named solely to defeat federal diversity jurisdiction, the fraudulent joinder doctrine requires the district court to ignore the presence of the non-diverse defendant. Henderson v. Wash. Nat'l Ins. Co., 454 F.3d 1278, 1281 (11th Cir. 2006).
To establish fraudulent joinder, "the removing party has the burden of proving [by clear and convincing evidence] that either: (1) there is no possibility the plaintiff can establish a cause of action against the resident defendant; or (2) the plaintiff has fraudulently pled jurisdictional facts to bring the resident defendant into state court." Stillwell, 663 F.3d at 1332 (citing Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997)) (alteration in original). In determining fraudulent joinder, "federal courts are not to weigh the merits of a plaintiff's claim beyond determining whether it is an arguable one under state law." Id. at 1333 (internal quotation marks omitted).
"The burden of establishing fraudulent joinder is a heavy one. Where a plaintiff states even a colorable claim against the resident defendant, joinder is proper and the case should be remanded to state court." Pacheco de Perez v. AT & T Co., 139 F.3d 1368, 1380 (11th Cir. 1998) (citations omitted). The "plaintiff need not have a winning case against the allegedly fraudulent defendant; he need only have a possibility of stating a valid cause of action in order for the joinder to be legitimate." Stillwell, 663 F.3d at 1333. This standard differs from the standard applicable to a 12(b)(6) motion to dismiss. Id. "[A]ll that is required to defeat a fraudulent joinder claim is 'a possibility of stating a valid cause of action.' " Id. (citation omitted). In making this determination, courts must consider "the plaintiff's pleadings at the time of removal, supplemented by any affidavits and deposition transcripts submitted by the parties." Pacheco de Perez, 139 F.3d at 1380 (citing Crowe, 113 F.3d at 1538).
Additionally, "[t]o determine whether the case should be remanded, the district court must evaluate the factual allegations in the light most favorable to the plaintiff and must resolve any uncertainties about state substantive law in favor of the plaintiff." Id. at 1333. Any ambiguity or doubt about whether state law might impose liability on a resident defendant favors remand. Florence v. Crescent Res., LLC, 484 F.3d 1293, 1295 (11th Cir. 2007). Further, "if there is any possibility that the state law might impose liability on a resident defendant under the circumstances alleged in the complaint, the federal court cannot find that joinder of the resident defendant was fraudulent, and remand is necessary." Id. at 1299 (citations omitted).
"[A]ll doubts about jurisdiction should be resolved in favor of remand to state court." Univ. of S. Alabama v. Am. Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999) (citations omitted). Indeed, "[a] presumption in favor of remand is necessary because if a federal court reaches the merits of a pending motion in a removed case where subject matter jurisdiction may be lacking it deprives a state court of its right under the Constitution to resolve controversies in its own courts." Id.
III. DISCUSSION
In their filings, Defendants Bartoli and Wal-Mart Stores East argue that Bartoli should be dismissed from this action because he was fraudulently joined solely to defeat federal diversity jurisdiction. MTD at 1-2; Remand Resp. at 1. Specifically, Defendants contend Plaintiff has failed to allege that Bartoli, as the store manager of the Walmart in question, "breached a legal duty through personal fault, separate and apart from his general administrative responsibilities as store manager." See MTD at 7. In response, Plaintiff argues that Bartoli moves to dismiss on an inadmissible declaration, see (ECF No. 5-1), and that Plaintiff has sufficiently alleged facts indicating Bartoli's personal responsibility. MTD Resp. at 2-4.
Defendants do not argue that Plaintiff has fraudulently pled jurisdictional facts, nor does Bartoli dispute that he is a Florida citizen. See generally MTD; Remand Resp. Accordingly, the second prong of the fraudulent joinder test is not at issue and need not be addressed by the Court.
To establish a tort claim against an officer or agent of a corporation under Florida law, a plaintiff must prove that "that the officer or agent owed a duty to the complaining party, and that the duty was breached through personal (as opposed to technical or vicarious) fault." White v. Wal-Mart Stores, Inc., 918 So. 2d 357, 358 (Fla. Dist. Ct. App. 2005); see also White-Wilson Med. Ctr. v. Dayta Consultants, Inc., 486 So. 2d 659, 661 (Fla. Dist. Ct. App. 1986) ("A corporate officer or agent must be alleged to have acted tortiously in his individual capacity in order to be individually liable."). "Florida courts have held that a corporate officer may be held individually liable for personal injuries caused to third parties provided several factors are present." McPherson v. Wells Fargo Bank, N.A., No. 1:13-CV-20545-KMM, 2013 WL 12059608, at *2 (S.D. Fla. Apr. 10, 2013). These factors are:
(1) the corporation owes a duty of care to the third party, the breach of which has caused the damage for which recovery is sought; (2) the duty is delegated by the principal or employer to the defendant officer; (3) the defendant officer has breached this duty through personal—as opposed to technical or vicarious—fault; and (4) with regard to the personal fault, personal liability cannot be imposed upon the officer simply because of his or her general administrative responsibility for performance of some function of his or her employment. The officer must have a personal duty towards the injured third party, breach of which specifically has caused this party's damages.Id. (citing McElveen v. Peeler, 544 So.2d 270, 272 (Fla. Dist. Ct. App. 1989)).
Here, Plaintiff wholly fails to allege facts indicating that Bartoli breached a legal duty "through personal (as opposed to technical or vicarious) fault." White, 918 So. 2d at 358. As Bartoli correctly points out, Plaintiff does not allege "that Bartoli (1) witnessed the incident, (2) personally participated in the events leading up to the incident, (3) created the hazardous condition that caused Plaintiff's incident, (4) has knowledge of any employee or customer involving in creating the hazardous condition that caused Plaintiff's incident, (5) observed the hazardous condition before Plaintiff's incident, (6) was in the area at the time of the incident or (7) that Bartoli participated in the investigation of Plaintiff's incident." MTD at 7. In fact, the Complaint does not even specifically allege that Bartoli was present at the store that day. See generally Compl. And, to be sure, while Plaintiff uses variations of the phrase "personal liability" several times throughout Count I, she fails to state personal actions or omissions on Bartoli's part which gave rise to Plaintiff's injury. Rather, Count I's allegations of negligence against Bartoli suggest a theory of vicarious liability akin to a claim brought against an employer—Plaintiff even argues Bartoli is liable for almost the exact same reasons that she argues Wal-Mart Stores East is liable. Compare Compl. ¶¶ 13-17 (Count I), with Compl. ¶¶ 19-23 (Count III) (alleging the same elements of negligence liability, in the same order, with almost the exact same language and averments). Yet Bartoli was only the manager of Walmart store in question at the time of the incident, id. ¶ 5, and a manager does not incur individual liability merely because of their title or "official character." McPherson, 2013 WL 12059608, at *2.
See, e.g., Compl. ¶ 14 (Bartoli "was directly responsible for maintaining and operating the store where the subject accident occurred and therefore is personally liable to Plaintiff"); id. ¶ 15 (Bartoli "was directly responsible for executing [Walmart's] policies of store management and was personally involved in [its] tortious conduct"); id. ¶ 17 (Bartoli "knew, or in the exercise of reasonable care should have known, of such dangerous and defective condition and failed to take the appropriate steps to prevent Plaintiff's injuries.").
Thus, to establish a valid claim against Bartoli under state law, Plaintiff must allege facts that satisfy the four-prong analysis in McElveen v. Peeler. 544 So. 2d 270, 272 (Fla. Dist. Ct. App. 1989). After considering her Complaint along with Bartoli's declaration—as the Court must at this stage—the Court determines that Plaintiff has failed to do so here. See, e.g., Pacheco de Perez, 139 F.3d at 1380 (citing Crowe, 113 F.3d at 1538) ("The determination of whether a resident defendant has been fraudulently joined must be based upon the plaintiff's pleadings at the time of removal, supplemented by any affidavits and deposition transcripts submitted by the parties."); see also generally Compl.; (ECF No. 5-1) ("Bartoli Decl.").
Plaintiff contests the admissibility of Bartoli's declaration under Federal Rules of Civil Procedure 12(b)(6) and 12(d), and Defendant responds by arguing that the document is admissible under Horsley v. Feldt, 304 F.3d 1125 (11th Cir. 2002). Both Parties' arguments miss the mark. Because the Parties' Motions present the same issue at bottom (i.e., an assessment of whether Plaintiff's failure to allege Bartoli's negligence arises to the level of fraudulent joinder), the Court assesses the admissibility of the declaration under the standard set forth in Pacheco de Perez v. AT & T Co., 139 F.3d 1368 (11th Cir. 1998), which permits the consideration of affidavits in making a fraudulent joinder determination. See id. at 1380; see also De Varona v. Disc. Auto Parts, LLC, 860 F. Supp. 2d 1344, 1346 (S.D. Fla. 2012); McPherson, 2013 WL 12059608, at *2.
Plaintiff fails to meet the third and fourth factors of the McElveen test. In particular, Plaintiff has not shown that Bartoli personally breached a duty, "as opposed to doing so technically or vicariously." McPherson, 2013 WL 12059608, at *3. According to Bartoli's declaration, he did not have knowledge of the allegedly dangerous condition prior to the incident at issue, was not in the area of that incident at or prior to the time of the injury, and he did not participate in the incident's investigation. Bartoli Decl. ¶¶ 13-16. Further, Bartoli avers he "d[id] not personally create procedures for the purpose of training employees" pertaining to the incident. Id. ¶ 18. Bartoli further claims he has no personal knowledge of the incident and was not even aware it had occurred until he was served with the Complaint. Id. ¶¶ 7-12, 19. Thus, because the Complaint merely alleges that Bartoli was responsible for Plaintiff's injuries through "general administrative responsibility" (as opposed to the existence of any "personal duty towards the injured third party"), and Bartoli's declaration confirms the same, the Court concludes that Plaintiff fails to state a claim for negligence in Count I of her Complaint. See McElveen, 544 So.2d at 272.
Moreover, for purposes of assessing fraudulent joinder and remand, the Court finds that Plaintiff's Count I allegations fail to allege even a possible state law cause of action against Bartoli. Stillwell, 663 F.3d at 1333. In her filings, Plaintiff merely argues iterations of the theory that Bartoli was "directly responsible for carrying out certain responsibilities and failed to do so," see MTD Resp. at 2-4, a legal notion which the Court has already dispensed with. See, e.g., McPherson, 2013 WL 12059608, at *2 ("[P]ersonal liability cannot be imposed upon the officer simply because of his or her general administrative responsibility for performance of some function of his or her employment."). The Complaint is otherwise devoid of any colorable allegations from which the Court could infer that Bartoli is personally liable for Plaintiff's injuries, and Plaintiff states no alternative theory of liability for Bartoli's liability. See generally Compl. For these reasons, the Court finds by clear and convincing evidence that there is no possibility that Plaintiff can establish a cause of action against Bartoli under state law. McPherson, 2013 WL 12059608, at *3 ("[Defendant] has been fraudulently joined because there is no reasonable basis for a state law claim against [her]."). Accordingly, Bartoli must be dismissed as a party from this action. His citizenship will not be considered in the Court's diversity analysis, and there is therefore complete diversity between the parties.
IV. CONCLUSION
UPON CONSIDERATION of the Motions, the pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that Defendant Gaetano Bartoli's Motion to Dismiss Count I of Plaintiff's Amended Complaint (ECF No. 5) is GRANTED, and Plaintiff Shirle Watts' Motion to Remand Case to State Court (ECF No. 14) is DENIED. Count I of Plaintiff's Complaint (ECF No. 1-1) is DISMISSED WITH PREJUDICE. The Clerk of Court is INSTRUCTED to TERMINATE Gaetano Bartoli as a party to this case. Plaintiff shall file an amended complaint consistent with this Order on or before February 24, 2023.
Plaintiff is further ORDERED TO SHOW CAUSE on or before March 1, 2023 as to why her conduct—specifically, fraudulently joining Gaetano Bartoli as a defendant and maintaining a frivolous claim against him in this case—has not violated Federal Rule of Civil Procedure 11(b). Defendant Wal-Mart Stores East may file a response within three (3) days of Plaintiff's response. Failure to comply with this Order may result in sanctions.
DONE AND ORDERED in Chambers at Miami, Florida, this 16th day of February, 2023.