from the United States District Court for the Southern
District of Texas
STEWART, Chief Judge, and WIENER and HIGGINSON, Circuit
E. STEWART, CHIEF JUDGE.
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") 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.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
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.
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.
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."
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
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).
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
Motion to Dismiss
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).
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)).
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)).
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.
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).
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.
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.
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.
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.
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 §
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 ...