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Montou v. Dolgencorp, LLC

United States District Court, W.D. Louisiana, Lake Charles Division

December 5, 2014

RUBY MONTOU, Plaintiff,
DOLGENCORP, LLC, ET AL., Defendants.



Before the court is the Report and Recommendation [Doc. 17] and Memorandum Order [Doc. 16] of the Magistrate Judge, to which the plaintiff has filed an Objection [Doc. 18], and the defendants have filed a Reply [Doc. 20]. For the following reasons, the Report and Recommendation [Doc. 17] is AMENDED, IN PART, and AFFIRMED, as amended.


The court herein adopts the factual findings set forth by the Magistrate Judge.[1] Pertinent to this discussion is that the plaintiff was shopping at the Dollar General store in Oberlin, Louisiana, when she tripped over an empty pallet left on the floor by Bryan Leger, an employee for Coca-Cola.[2] On the day of the accident, Leger's responsibilities for Coca-Cola included delivering, stacking, and arranging Coca-Cola products.[3]

The plaintiff filed suit on September 16, 2013, in the 33rd Judicial District Court in and for Allen Parish, Louisiana.[4] Dolgencorp, LLC, removed the action to this court on November 11, 2013, on the basis of diversity of citizenship.[5] The plaintiff thereafter filed a motion to remand alleging, among other things, that Bryan Leger was properly joined, and therefore, the parties were not diverse.[6] On July 21, 2014, the Magistrate Judge denied the plaintiff's motion to remand and recommended that Bryan Leger be dismissed from the action, finding no reasonable basis for recovery against that defendant.[7]


I. Standard of Review

Magistrate Judges are statutorily empowered to "hear and determine" non-dispositive pretrial matters when designated to do so by the District Judge. See 28 U.S.C. ยง 636(b)(1)(A). The District Judge may "reconsider any pretrial matter" when "it has been shown that the magistrate's order is clearly erroneous or contrary to law." Id . See also Fed. R. Civ. Pro. 72(a). A finding may be said to be "clearly erroneous" when the reviewing court is "left with the definite and firm conviction that a mistake has been committed." United States v. Stevens, 487 F.3d 232, 240 (5th Cir.2007) (citation omitted).

In a remand motion, the removing party bears the burden of showing that federal jurisdiction exists. Jernigan v. Ashland Oil, Inc., 989 F.2d 812, 815 (5th Cir. 1993). If removal is based on the claim that non-diverse parties have been improperly joined, then the removing party must establish either "actual fraud in the pleading of jurisdictional facts" or "an inability of the plaintiff to establish a cause of action against the non-diverse party in state court." Smallwood v. Ill. Cent. R..R., 385 F.3d 568, 573 (5th Cir. 2004) (citing Travis v. Irby, 326 F.3d 644 (5th Cir. 2003)). All factual allegations are viewed in the light most favorable to the plaintiff, and contested issues of substantive fact are resolved in the plaintiff's favor. Guillory v. PPG Indus., Inc., 434 F.3d 303, 309 (5th Cir. 2005). There must be a reasonable, not merely theoretical, possibility of recovery for a plaintiff to succeed in defeating a claim of improper joinder. Ross v. CitiFinancial, Inc., 344 F.3d 458, 462 (5th Cir. 2003) (citations omitted).

II. Whether Bryan Leger Was Improperly Joined[8]

Article 2315 states "Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it." La. Civ. Code art. 2315. Article 2320 provides the basis for respondeat superior in Louisiana: "Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed." La. Civ. Code art. 2320. The article goes on to say that "responsibility only attaches, when the masters or employers... might have prevented the act which caused the damage, and have not done it." Id. (emphasis added). Strictly construed, these statutes provide that all employees are responsible for damages caused by their fault unless the victim is injured during the course of the employee's employment under circumstances in which the employer could have prevented the act and failed to do so.

Canter v. Koehring addresses the issue of when an employee is individually liable to a third person damaged solely by reason of the individual's breach of the employment-imposed duty. Canter v. Koerhing, 283 So.2d 716, 721 (La. 1973) (emphasis added). Canter does not provide the exclusive circumstances for finding an employee liable. Most of the cases citing to Canter as the basis for liability involve managers and other supervisors who did not commit the faulty acts that led to damages. See Henry v. O'Charley's Inc., 861 F.Supp.2d 767, 771 (W.D. La. 2012) (applying Canter when suit was brought against restaurant manager and there was no allegation that manager spilled anything on the floor); and Carino v. Wal-Mart Louisiana, LLC, Civ. A. 05-1978, 2006 WL 335784 *2-3 (W.D. La. Feb. 9, 2006) (suit against manager after customer bit by snake in gardening department with no allegation that manager placed snake in the plant). Because there is no allegation that Leger's fault is attributable to his role as a supervisor or manager, the Magistrate Judge was correct in finding Canter inapplicable.[9]

Therefore, any possibility of recovery against Leger would be grounded in a negligence action under Louisiana law. See, e.g., Crooks v. Nat'l Union Fire Ins. Co., 620 So.2d 421, 424-25 (La. Ct. App. 1993). A negligence action consists of a four-prong inquiry:

I. Was the conduct in question a substantial factor in bringing about the harm to the plaintiff, i.e., was it a ...

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