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Allen v. Walmart Stores, L.L.C.

United States Court of Appeals, Fifth Circuit

October 16, 2018

DELEESE ALLEN, Plaintiff-Appellant

          Appeal from the United States District Court for the Southern District of Texas

          Before STEWART, Chief Judge, and WIENER and HIGGINSON, Circuit Judges.


         On Wednesday, April 13, 2016, Karalee Alaine Williams ("Williams") was found dead in her car in the parking lot of Wal-Mart Store #2439. Her death resulted from inhaling a large quantity of aerosol dust remover. Williams's mother, Plaintiff-Appellant Deleese Allen ("Allen"), brought negligence claims in her individual capacity, against Defendants-Appellees (1) Wal-Mart Stores, LLC ("Wal-Mart")[1] and (2) three Wal-Mart employees, Gregory Mouton, Loretta Ann Brewer-Winter, and Shanda Marie Hutton (collectively the "Wal-Mart employees"). Allen also brought product liability claims against 3M Company ("3M") and IQ Products Company ("IQ"). The district court dismissed Allen's claims pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim on which relief could be granted. For the following reasons, we AFFIRM.


         Williams entered Wal-Mart Store #2439 on nine different occasions over the course of twenty-seven (27) hours, each time purchasing cans of dust remover. She allegedly purchased at least sixty (60) cans of dust remover over that period.

         During Williams's first visit on Sunday, April 10, 2016, she purchased a towel and cans of dust remover. On her second visit that day, she had soiled herself but proceeded to buy more cans of dust remover and told the checkout employee that she had had a seizure in the parking lot. On Williams's third visit the next morning, she entered the store naked from the waist down. Several Wal-Mart employees noticed her condition and communicated this to other employees. During that third visit, Wal-Mart employees gave Williams a towel and a "sundress." After receiving these items Williams purchased more cans of dust remover. During each of Williams's subsequent visits to Wal-Mart she allegedly bought more cans of dust remover. Early Tuesday morning, April 12, 2016, Williams died in the parking lot from the effects of inhaling dust remover, a process called "dusting," but her body was not discovered until the next day.

         Allen initially sought a temporary restraining order ("TRO") and a permanent injunction in the 11th District Court of Harris County, Texas. Allen sought the temporary restraining order for the purposes of "preserving evidence, and the taking of evidence before it becomes inaccessible to normal discovery." Wal-Mart removed the case to the United States District Court for the Southern District of Texas, Houston Division based on diversity jurisdiction pursuant to 28 U.S.C. § 1332. When Wal-Mart removed this case, it also filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). After Wal-Mart filed its motion to dismiss, Allen amended her complaint to add as defendants the Wal-Mart employees, IQ, and 3M. Allen also filed a motion to remand, asserting that "[s]everal Texas residents' negligence and negligence per se contributed to the death of [Williams], and diversity jurisdiction does not exist."

         In response to Allen's motion to remand, Wal-Mart moved to strike the joinder of the Wal-Mart employees, asserting that they had only been added to defeat diversity jurisdiction. Wal-Mart also moved to strike IQ because Allen had notice that IQ was not the manufacturer of the dust remover Williams had purchased. Additionally, Wal-Mart amended its motion to dismiss because Allen had amended her complaint. The Wal-Mart employees also filed a motion to dismiss in their answer to Allen's complaint.

         The district court denied Allen's motion to remand and granted Wal-Mart and the Wal-Mart employees' motions to dismiss as well as Wal-Mart's motion to strike joinder. The district court also denied Allen's request to amend her complaint through a motion to alter or amend judgment pursuant to Fed.R.Civ.P. 59(e) and a motion for relief from judgment or order pursuant to Fed.R.Civ.P. 60(b).

         Allen timely appealed the district court's order dismissing her complaint and denying reconsideration. In July 2017, Allen's appeal was dismissed for want of prosecution, but it was reinstated in September 2017. On appeal, Allen contends that the district court erred in (1) granting the Defendants-Appellees' motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), (2) denying Allen's motion to remand, and (3) denying Allen's request to amend her complaint.

         II. ANALYSIS

         1. Motion to Dismiss

         We review de novo the district court's order on a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6). In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007).

         "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Id. (quoting Twombly, 550 U.S. at 555). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. (quoting Twombly, 550 U.S. at 557). "Factual allegations must be enough to raise a right to relief above the speculative level[.]" Twombly, 550 U.S. at 555 (citing 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)).

         "In analyzing the complaint, we will accept all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff." Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999) (citing Doe v. Hillsboro Indep. Sch. Dist., 81 F.3d 1395, 1401 (5th Cir. 1996)). However, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice [to state a claim upon which relief can be granted]." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). Additionally, "[d]ismissal is proper if the complaint lacks an allegation regarding a required element necessary to obtain relief[.]" Rios v. City of Del Rio, Tex., 444 F.3d 417, 421 (5th Cir. 2006) (quoting Campbell v. City of San Antonio, 43 F.3d 973, 975 (5th Cir. 1995)).

         Allen claims that the Defendants-Appellees acted negligently in continuing to sell Williams dust remover despite her impaired state. Allen alleges that the Defendants-Appellees are liable under a theory of negligence per se for violating Texas Health & Safety Code Chapter 485, and under the Texas theory of general negligence. Allen also alleges that the Defendants-Appellees breached a duty when they took affirmative steps to assist Williams.

         Allen also alleges that Wal-Mart is independently liable for negligent entrustment pursuant to Restatement (Second) of Torts § 390 and that Wal-Mart breached a duty to Williams under a theory of premises liability. Allen further avers that Wal-Mart owed Williams a duty in the products liability context, invoking Texas Civil Practice & Remedies Code § 82.003(6) (2009).

         "The common law doctrine of negligence consists of three elements: 1) a legal duty owed by one person to another; 2) a breach of that duty; and 3) damages proximately resulting from the breach." Greater Hous. Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990) (citing El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex. 1987), superseded by statute, Tex. Alco. Bev. Code § 2.02, as recognized in Graff v. Beard, 858 S.W.2d 918, 919 (Tex. 1993)). "The plaintiff must establish both the existence and the violation of a duty owed to the plaintiff by the defendant to establish liability in tort." Id. (citing El Chico, 732 S.W.2d at 311). "Moreover, the existence of duty is a question of law for the court to decide from the facts surrounding the occurrence in question." Id. (citing Otis Eng'g Corp. v. Clark, 668 S.W.2d 307, 312 (Tex. 1983)).

         "Negligence per se is a common-law doctrine that allows courts to rely on a penal statute to define a reasonably prudent person's standard of care." Reeder v. Daniel, 61 S.W.3d 359, 361-62 (Tex. 2001) (citing Carter v. William Sommerville & Son, Inc., 584 S.W.2d 274, 278 (Tex. 1979)).

         a. Premises Liability

         According to Allen, premises liability provides the strongest basis for holding that Wal-Mart owed Williams a duty to cease selling her dust remover in light of her diminished capacity. Allen's assertion is based on the Supreme Court of Texas's holding in Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762 (Tex. 2010). In Del Lago, the Supreme Court of Texas found that a bar had a duty to protect a patron given the bar's "actual and direct knowledge that a violent brawl was imminent[.]" 307 S.W.3d at 769. However, in Del Lago, the Supreme Court of Texas explicitly stated that "[w]e do not announce a general rule today. We hold only, on these facts, . . . a duty arose on [the Defendant's] part to use reasonable care to protect the invitees from imminent assaultive conduct." Id. at 770.

         Williams was an invitee of Wal-Mart, so Wal-Mart owed her a duty to "use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition about which the property owner knew or should have known." Id. at 767. However, Allen did not plead that there were any issues with the conditions of the premises. Allen seeks to extend the holding of Del Lago to fit the facts of this case, but Del Lago is inapplicable here.

         As we elaborate below, Wal-Mart did not owe Williams a duty under Texas Health & Safety Code § 485.031 to protect her from abusing the dust remover. See LaFleur v. Astrodome-Astrohall Stadium Corp., 751 S.W.2d 563, 564 (Tex. App.-Houston [1st Dist.] 1998) ("As a general rule, a defendant has no duty to prevent the criminal acts of a third party who does not act under the defendant's supervision or control."). Neither was it illegal for Wal-Mart to sell Williams dust remover, because she was an adult. See Tex. Health & Safety Code ยง 485.032 (2001) ("A person commits an offense if the person knowingly delivers an abusable volatile chemical to a person who is younger than 18 years of age."). Because Allen did not plead that there were any issues with the conditions of the premises, and because, as we elaborate below, Wal-Mart did not owe Williams any duty of ...

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