Opinion
Civ. A. No. 4:99cv40-D-B.
Filed Date: January 26, 2000.
OPINION
Before the court are the motions of the Plaintiff, Linda Jackson, to remand this cause to the Circuit Court of Washington County, Mississippi, and of the Defendants, Bo Kirby and Scarlett Whipps, to dismiss them from this cause of action pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Upon due consideration of the motions, the court finds that the Plaintiff's motion should be granted and the Defendants' motion should be granted in part and denied in part.
Factual and Procedural Background
This action was commenced on February 10, 1999, in the Circuit Court of Washington County, Mississippi, against Wal-Mart Stores, Inc., Bo Kirby (Kirby), and Scarlett Whipps (Whipps). On March 2, 1999, Defendants filed their petition for removal of the action to this court alleging that Kirby and Whipps had been fraudulently joined in the action for the sole purpose of defeating diversity jurisdiction. Defendants Kirby and Whipps subsequently filed a motion to dismiss the claims against them, to which the Plaintiff responded by filing a motion to remand.
Jackson alleges in her amended complaint that on February 3, 1996, she entered the Wal-Mart store in Greenville, Mississippi, and while shopping, slipped and fell in a puddle of water on the floor. The water appeared to be dripping from an area of the ceiling that had a missing piece of ceiling tile. Jackson contends that her injuries were caused by the Defendants' failure to maintain the premises in a safe condition and to warn the Plaintiff of a latent danger. Jackson's amended complaint states:
10. Defendants Kirby and Whipps as the manager and assistant manager of Wal-Mart at the time of plaintiff's injuries had the duty and responsibility to supervise the on duty employees and to inspect the premises and to discover and remove any dangerous condition or defect on the premises.
Complaint, Count V, ¶ 10.
Jackson contends that Kirby and Whipps were not fraudulently joined because as managers of the Greenville Wal-Mart, they breached their duty to keep the premises in a reasonably safe condition and to warn customers of the hazardous floor condition.
II. Conclusions of Law
A. Standard for Removal of Claims to Federal Court
The Judiciary Act of 1789 provides in pertinent part, "[A]ny 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 . . . 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 jurisdiction exists "where the matter in controversy exceeds the sum or value of $75,000.00, exclusive of interest and costs, and is between . . . citizens of different states. . . ." 28 U.S.C. § 1332(a). The phrase "citizens of different states" requires complete diversity. Sid Richardson Carbon Gasoline Co. v. Interenergy Resources, Ltd., 99 F.3d 746, 751 (5 th Cir. 1996). Therefore, should a plaintiff be a resident of Mississippi, no defendant can be a resident of Mississippi. In the present case, the Plaintiff and two Defendants are Mississippi residents. This fact, however, will not destroy diversity if the Mississippi residents were fraudulently joined in an attempt to defeat diversity. Rodriguez v. Sabatino, 120 F.3d 589, 591 (5 th Cir. 1997).
A party invoking the removal jurisdiction of the federal courts bears a heavy burden in establishing fraudulent joinder and must demonstrate it by clear and convincing evidence. Jernigan v. Ashland Oil, Inc., 989 F.2d 812, 815 (5 th Cir.), cert. denied, 510 U.S. 868, 114 S.Ct. 126 L.Ed.2d 150 (1993). Fraudulent joinder may be established by showing either outright fraud in the plaintiff's pleading of jurisdictional facts, or that there is no possibility that the plaintiff would be able to establish a cause of action against the non-diverse defendants in state court. Burden v. General Dynamics Corp., 60 F.3d 213, 216 (5 th Cir. 1995); Dodson v. Spiliada Maritime Corp., 951 F.2d 40, 42 (5 th Cir. 1992). If "there is no possibility that the state court would recognize a valid cause of action against the non-diverse defendants . . . then those defendants have been fraudulently joined." Burden, 60 F.3d at 217-18. See Laughlin v. Prudential Ins. Co., 882 F.2d 187, 190 (5 th Cir. 1989) ("The court may find fraudulent joinder only if it concludes that the plaintiff has no possibility of establishing a valid cause of action against the in-state defendant.").
There is no allegation in the instant case that Jackson has fraudulently pled jurisdictional facts. Thus, this action was properly removed to federal court only if Jackson would not be able to establish a claim against either Defendants Kirby or Whipps in a state court action. The Fifth Circuit has recognized that it is appropriate for a court to "pierce the pleadings" and review all evidence placed before it in determining whether fraudulent joinder has occurred. See Carriere v. Sears, Roebuck Co., 893 F.2d 98, 100 (5 th Cir. 1990); B., Inc., v. Miller Brewing Co., 663 F.2d 545, 549 (5 th Cir. 1981). Therefore, a plaintiff is not restricted to the facts in the state court pleadings, but may establish the facts of his claim against the non-diverse defendants by other evidence, including affidavits and deposition testimony. Carriere, 893 F.2d at 100. After resolving all disputed questions of fact and ambiguities of law in favor of the plaintiff, the court must determine whether any possibility of recovery has been asserted against the in-state defendants. Id.
In the evaluation of a claim of fraudulent joinder, the court need not reach a conclusion as to whether the plaintiff will actually or even probably prevail on the merits of the claim. Rather, the court determines if there exists a possibility that the plaintiff has stated a claim against the non-diverse defendants. Burden, 60 F.3d at 216. "Where the plaintiff's complaint is devoid of any factual allegations suggesting a basis for recovery against a particular defendant, there can be no ground for concluding that a claim has been stated." Doe v. Cloverleaf Mall, 829 F. Supp. 866, 870 (S.D.Miss. 1993). Applying this standard, the court must now determine whether Jackson has stated a claim, recognized under the laws of Mississippi, against Defendants Kirby or Whipps.
B. Possibility of Recovery Against Kirby or Whipps
As noted above, Jackson brought this action for injuries sustained when she allegedly slipped and fell in a puddle of water on the floor of Wal-Mart in Greenville, Mississippi. The complaint alleges that Kirby, as manager, and Whipps, as assistant manager, responsible for supervising on-duty employees, were negligent in 1) failing to maintain the store in a reasonably safe condition, 2) failing to supervise the on-duty employees, 3) failing to inspect the premises and remove a dangerous condition, and 4) failing to warn customers of a dangerous condition. Kirby and Whipps contend that they cannot be personally liable unless their acts or omissions are independent of their employer's duty owed to the general public to maintain a reasonably safe premises; in essence, they cannot be vicariously liable for their employer's negligence. The Defendants further contend that the complaint does not allege any negligent act or omission on the part of Kirby or Whipps that created or caused the alleged dangerous condition.
It appears well settled, however:
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 v. Dixieland Food Stores, Inc., 492 So.2d 283, 285 (Miss. 1986) (slip and fall case) (emphasis added). The Mississippi Supreme Court has recognized a negligence cause of action against a store manager, as well as a store owner, for failing to keep the premises reasonably safe or to warn of a dangerous condition. J.C. Penney Co. v. Sumrall, 318 So.2d 829, 831-32 (Miss. 1975); Howell v. Ernest Yeager Sons, Inc., 215 So.2d 702 (Miss. 1968) (recognizing potential liability on the part of the store owner and manager); Sears, Roebuck Co. v. Burke, 44 So.2d 448, 451 (Miss. 1950) (store owner and manager liable for customer's injuries sustained when a package fell against her). In addition, the court in Moore v. Winn-Dixie Stores, Inc., 173 So.2d 603, 606 (Miss. 1965), instructed that "the settled rule in this State requires the operator of premises to exercise reasonable diligence to keep such premises in a reasonably safe condition for the use of an invitee. . . ." (citation omitted) (emphasis added).
Kirby stated in his affidavit that, as the store manager for Wal-Mart, he was responsible for the overall operation of the store for Wal-Mart Stores, Inc., including supervising and directing the actions of subordinate employees in his charge. Whipps, however, stated in her affidavit and in her deposition that she was not the assistant manager of Wal-Mart, rather her position at the time of the incident was that of UPC clerk, primarily responsible for finalizing orders and ensuring that equipment operated properly. Whipps further stated that on the day of the Plaintiff's fall she was not present at the store and first learned of the incident several days later. In light of these facts, the court finds that Kirby's supervisory responsibility does give rise to a potentially viable state law claim of negligence for failing to maintain reasonably safe premises and warning of latent dangers. Whipps, however, was not present at the store and did not have supervisory authority or responsibility over other employees of the Greenville Wal-Mart. Whipps, therefore lacked the supervisory responsibility necessary to establish a claim of negligence.
Since there is a possibility of personal tortious liability on the part of Kirby, his non-diverse citizenship precludes removal. Therefore, the Plaintiff's motion to remand shall be granted on the grounds of incomplete diversity of citizenship pursuant to 28 U.S.C. § 1447(c), and the Defendants' motion to dismiss shall be granted as to Whipps and denied as to Kirby.
A separate order in accordance with this opinion shall issue this day.
ORDER
Pursuant to an opinion issued this day, it is hereby ORDERED that:
Plaintiff's motion to remand is GRANTED;
Defendants' motion to dismiss is GRANTED IN PART and DENIED IN PART;
Defendant Scarlett Whipps is DISMISSED WITH PREJUDICE from this cause of action; and this cause is hereby REMANDED to the Circuit Court of Washington County, Mississippi.
SO ORDERED, this the ______ day of January 2000.
GLEN H. DAVIDSON United States District Judge