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Breashears v. Dollar Tree Stores, Inc.

United States District Court, E.D. Louisiana

January 25, 2017


         SECTION "F"



         Before the Court is the plaintiff's motion to remand. For the following reasons, the motion is DENIED.


         This case arises out of a slip and fall accident at a Dollar Tree Store, located at 4115 S. Carrollton Avenue in New Orleans. According to the state court petition, on July 5, 2016, the plaintiff, Betty Breashears, fell over merchandise that was on the floor of an aisle inside the store. The plaintiff alleges she suffered serious injuries to her right leg, neck, and back. The injuries require one or more surgeries, in addition to other treatment. She also suffered past and future mental anguish and physical suffering, loss of enjoyment of life, and past and future expenses for medical care.

         On September 12, 2016, the plaintiff sued for damages in Civil District Court for the Parish of Orleans against Dollar Tree Store, Inc. and Wayland Charles, the supervising manager of the location where the plaintiff was injured. On November 30, 2016, the defendants removed the suit to federal court on the basis of diversity.[1] Although complete diversity is lacking because the plaintiff and Wayland Charles are both Louisiana citizens for the purposes of diversity jurisdiction, Dollar General asserts that the plaintiff improperly joined Charles because the plaintiff has no arguable or reasonable basis on which to state a cause of action against him.

         The plaintiff moves to remand, contending that she properly joined Charles as a defendant and that complete diversity does not exist, and thus this Court lacks jurisdiction. The sole issue before the Court is whether Charles was improperly joined.


         It is the removing party's burden to establish improper joinder, and the burden is a “heavy one.” Lundquist v. J&J Exterminating, Inc., No. 07-CV-1994, 2008 WL 1968339, at *2 (W.D. La. May 2, 2008) (quoting Smallwood v. Illinois Central R.R. Co., 385 F.3d 568, 574 (5th Cir. 2004) (en banc)). The Fifth Circuit recognizes two ways for the removing party to establish improper joinder: (1) “actual fraud in the pleading of jurisdictional facts;” or (2) an “inability of the plaintiff to establish a cause of action against the non-diverse party in state court.” Smallwood, 385 F.3d at 573 (en banc) (citing Travis v. Irby, 326 F.3d 644, 646-47 (5th Cir. 2003)). Here, there is no allegation of actual fraud. As such, “[t]he test for improper joinder where there is no allegation of actual fraud is whether the defendant has demonstrated that there is no possibility of recovery by the plaintiff against an in-state defendant.” Rodrigue v. Continental Ins. Co., No. 14-1797, 2014 WL 4999465, at *2 (E.D. La. Oct. 7, 2014) (citing Smallwood, 385 F.3d a 573).

         “In determining the validity of an allegation of improper joinder, the district court must construe factual allegations, resolve contested factual issues, and resolve ambiguities in the controlling state law in the plaintiff's favor.” Rodrigue, 2014 WL 4999465, at *2 (citing Burden v. Gen. Dynamics Corp., 60 F.3d 213, 216 (5th Cir. 1995)). The Fifth Circuit articulated two avenues for determining whether a plaintiff has a reasonable basis for recovery under state law. First, “[t]he court may conduct a Rule 12(b)(6)-type analysis, looking initially at the allegations of the complaint to determine whether the complaint states a claim under state law against the in-state defendant.” Smallwood, 385 F.3d at 573. “Ordinarily, if a plaintiff can survive a Rule 12(b)(6) challenge, there is no improper joinder.” Id. Second, if the plaintiff has stated a claim, and as a result, survives a Rule 12(b)(6) challenge, but “misstated or omitted discrete facts that would determine the propriety of joinder, ” the court may “pierce the pleadings and conduct a summary inquiry.” Id. “[A]lthough the type of inquiry into the evidence is similar to the summary judgment inquiry, the district court is not to apply a summary judgment standard but rather a standard closer to the Rule 12(b)(6) standard.” McKee v. Kansas City S. Ry. Co., 358 F.3d 329, 334 (5th Cir. 2004). “The district court must also take into account ‘the status of discovery' and consider what opportunity the plaintiff has had to develop its claims against the non-diverse defendant.” Id.


         The plaintiff alleges Mr. Charles was the store manager of the Dollar Tree on the date of her accident. Under Louisiana law, a store manager or employee cannot be held liable for an injury to a third party unless the manager or employee breached an independent, personal duty to the third party, which caused the third party's injury. In Canter v. Koehring, the Louisiana Supreme Court identified four criteria which must be satisfied before an employee can be found liable to a third party for his or her injury:

(1) The principal or employer owes a duty of care to the third person . . ., breach of which has caused the damage for ...

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