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Marbury v. Cracker Barrel Old Country Store, Inc.

United States District Court, M.D. Louisiana

September 6, 2019




         Please take notice that the attached Magistrate Judge's Report and Recommendation has been filed with the Clerk of the U.S. District Court.

         In accordance with 28 U.S.C. § 636(b)(1), you have 14 days after being served with the attached report to file written objections to the proposed findings of fact, conclusions of law, and recommendations set forth therein. Failure to file written objections to the proposed findings, conclusions and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.



         Before the Court is a Motion to Remand[1] filed by plaintiffs, Debra and Russell Marbury (“Plaintiffs”). The Motion is opposed by defendants, Cracker Barrel Old Country Store, Inc. (“Cracker Barrel”) and Safety National Casualty Company (“Safety National”).[2] Plaintiffs have filed a reply memorandum.[3] For the reasons set forth herein, it is recommended[4] that the Motion to Remand[5] be granted and that this suit be remanded to the 19th Judicial District Court, Parish of East Baton Rouge, State of Louisiana.

         I. Background

         Plaintiffs allege that Debra Marbury sustained injuries when she “slipped in a puddle of vomit” while on the premises of the Cracker Barrel Old Country Store located in Baton Rouge, Louisiana.[6] The operative petition names Cracker Barrel, Safety National, Allied World National Assurance Company (“Allied World”), and Megan Childers (“Childers”) as defendants.[7]

         On October 11, 2018, Cracker Barrel and Safety National (collectively, the “Removing Defendants”) filed a Notice of Removal asserting that this Court has federal subject matter jurisdiction pursuant to 28 U.S.C. § 1332.[8] Removing Defendants thereafter filed an Amended Notice of Removal to adequately allege the parties' citizenship.[9] Per the Amended Notice of Removal, Plaintiffs are citizens of Louisiana, Cracker Barrel is a citizen of Tennessee, and Safety National is a citizen of Missouri.[10] Although Removing Defendants allege that Childers is a Louisiana citizen, they contend that Childers was improperly joined.[11] Specifically, Removing Defendants assert:

Defendants plead improper joinder as to Childers, a Louisiana citizen, in that the allegations that she “was made aware of the vomit and left the condition unattended at the time [Debra Marbury] slipped and fell” are patently untrue and not based in fact. Pursuant to the Fifth Circuit's decision in Smallwood v. Ill. Cent. R.R. Co. Defendants will submit evidence in the form of an affidavit and/or deposition testimony of Childers and video which directly controvert the aforementioned “facts” Plaintiffs have alleged.[12]

On March 13, 2019, Plaintiffs filed the instant Motion to Remand, alleging that Childers is a properly joined, non-diverse defendant.[13] Plaintiffs assert that remand is appropriate because Removing Defendants “have not offered, and the record does not contain, any evidence sufficient to prove that plaintiffs have no possibility of recovery on their state law claims against Megan Childers….”[14] In opposition, Removing Defendants assert that “all of plaintiffs' allegations against Megan Childers are patently untrue and not based in fact”[15]and that video surveillance “unequivocally shows that there was exactly 69 seconds between the child patron vomiting on the floor and Ms. Marbury slipping and falling. The video is evidence that there was not enough time for any Cracker Barrel employee, let alone Megan Childers, who is not visible in the video to be put on notice of the dangerous condition and then ignore it as [Plaintiffs] have alleged.”[16] In the alternative, Removing Defendants request leave to “conduct limited discovery in the form of a deposition of Megan Childers to determine when she was notified of the vomit on the floor.”[17] Removing Defendants assert that “[t]his discovery would prove Megan Childers had clocked out from her shift when she was told of the plaintiff's accident.”[18]

         II. Law and Analysis A. Removal Standard

         A defendant may remove “any civil action brought in a State court of which the district courts of the United States have original jurisdiction.”[19] When original jurisdiction is based on diversity of citizenship, the cause of action must be between “citizens of different States” and the amount in controversy must exceed the “sum or value of $75, 000, exclusive of interest and costs.”[20] Subject matter jurisdiction must exist at the time of removal to federal court, based on the facts and allegations contained in the complaint.[21] In removed actions, diversity of citizenship must exist both at the time of filing in state court and at the time of removal to federal court.[22] The removal statute, 28 U.S.C. § 1441, is strictly construed and any doubt as to the propriety of removal should be resolved in favor of remand.[23] The removing party has the burden of proving federal diversity jurisdiction.[24] Remand is proper if at any time the court lacks subject matter jurisdiction.[25]

         B. Standard for Improper Joinder

         If Childers, a Louisiana citizen, is properly joined, her presence in this action precludes removal and the Motion to Remand should be granted.[26] “The party seeking removal bears a heavy burden of proving that the joinder of the in-state party was improper.”[27] “‘[A]ny contested issues of fact and any ambiguities of state law must be resolved' in favor of remand, ”[28] and “[a]ny doubts regarding whether removal jurisdiction is proper should be resolved against federal jurisdiction.”[29]

         The Fifth Circuit has “recognized two ways to establish improper joinder: ‘(1) actual fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action against the non-diverse party in state court.'”[30] As to the second method, the test “is whether the defendant has demonstrated that there is no possibility of recovery by the plaintiff against an in-state defendant, which stated differently means that there is no reasonable basis for the district court to predict that the plaintiff might be able to recover against an in-state defendant.”[31] The Removing Defendants do not assert that there has been fraud in the pleading of jurisdictional facts related to Childers, so the question before the Court is whether Plaintiffs have a reasonable basis of recovery against Childers under state law.[32]

         A court may resolve this issue in one of two ways. “The court may conduct a Rule 12(b)(6) analysis, looking at the allegations of the complaint to determine whether the complaint states a claim under state law against the in-state defendant. Ordinarily, if a plaintiff can survive a Rule 12(b)(6) challenge, there is no improper joinder. That said, there are cases, hopefully few in number, in which a plaintiff has stated a claim, but has misstated or omitted discrete facts that would determine the propriety of joinder. In such cases, the district court may, in its discretion, pierce the pleadings and conduct a summary inquiry.”[33] The Fifth Circuit has cautioned that such summary inquiry “is appropriate only to identify the presence of discrete and undisputed facts that would preclude plaintiff's recovery against the in-state defendant.”[34]

         C. Defendants Have Not Met Their Heavy Burden of Proving Childers Was Improperly Joined

         “When a case is removed to federal court on the basis of diversity jurisdiction, the Erie doctrine requires federal courts to apply substantive state law when adjudicating state law claims.”[35] “Under Louisiana law, a court may hold a corporate officer or employee individually liable for injuries to third persons under certain circumstances.”[36] “This ‘liability may be imposed on such individuals even if the duty breached arises solely from the employment relationship.'”[37] “If the elements for imposing individual liability on the corporate employee are met, it does not matter than the corporation might also be liable.”[38] Conversely, when considering the sufficiency of allegations purporting to state a claim for an individual employee's personal liability, “[t]he Court is only concerned…[with] whether a viable claim may be made against [the defendant employee] personally and not whether [the employer] may be held vicariously liable for the action of its employees.”[39] As explained by the Fifth Circuit, “[v]icarious liability is not a revolving door. In certain situations, an employer may be held liable for the negligent acts of its employees…but Canter does not attach liability to a managerial employee absent breach of a duty personally owed by the employee to third parties.”[40]

         “Under Louisiana law, an employee is personally liable if (1) the employer owes a duty of care to a third person; (2) the employer delegated that duty to a defendant-employee; (3) and the defendant-employee breached the duty through his own fault and lack of ordinary care.”[41] “However, a defendant-employee's ‘general administrative responsibility' is insufficient to impose personal liability.”[42] “In order for a corporate officer to be held liable for purported personal fault or negligence which arises out of a breach of duty, that person must have some personal contact with and responsibility towards the injured employee.”[43]

         Plaintiffs allege that Childers “was a manager or an employee of the store at issue in this lawsuit at the time of the Petitioner's fall, ” “was made aware of the vomit, and left the condition unattended at the time when Petitioner slipped and fell, ” and “[a]s part of her duty as a manager or employee on duty, …was responsible [for] correcting unsafe and hazardous conditions and warning patrons of the dangerous condition.”[44] “A supervisor's knowledge of the dangers present ‘could give rise to the personal duty contemplated in Canter.'”[45] “This Court has previously held that, ‘Under Louisiana law, an employee's personal involvement in causing the alleged injury or the employee's knowledge of the dangers present could give rise to the personal duty contemplated by Canter.'”[46]

         Plaintiffs specifically assert that Childers “was made aware” of the allegedly dangerous condition, was responsible for correcting that condition, and left the condition unattended.[47] These are sufficient allegations to establish a possibility of recovery against an employee under Canter, [48] and Carter v. Wal-Mart Stores, Inc., upon which Removing Defendants rely to assert that removal was proper, is distinguishable.[49]

         Once a plaintiff has stated a claim against a non-diverse defendant, the Removing Defendants “must come forward with evidence to negate a possibility of liability against the non-diverse defendant.”[50] Removing Defendants assert that Plaintiffs' allegation that Childers knew of the hazardous condition is “patently untrue and not based in fact” and that video evidence “directly controvert[s] the aforementioned ‘facts' Plaintiffs have alleged.”[51] Specifically, Removing Defendants argue that video evidence shows that there was not enough time between the child vomiting and Ms. Marbury's fall for Childers to have been put on notice of the condition, and that while “Plaintiffs claim that the video shows a Cracker Barrel employee at the hostess stand who sees the child vomit and ignores it to take other patrons to be seated, ” “the video actually shows that the child discretely vomits, and that the hostess does not see it because she is attending to patrons and there is merchandise and the child's adult escort blocking her view.”[52]

         The Fifth Circuit has explained that, “[a]lthough a court may pierce the pleadings and consider summary-judgment type evidence, the standard for finding improper joinder is not the summary judgment standard in which an absence in the plaintiff's proof alone can be fatal.”[53] The Fifth Circuit in Davidson explained that:

The examples of improper joinder based on “discrete and undisputed facts” outside the pleadings that Smallwood provides are consistent with this language requiring a defendant to “preclude” the possibility of recovery: evidence showing that “the in-state doctor defendant did not treat the plaintiff, ” that “the in-state pharmacist defendant did not fill a prescription for the plaintiff patient, ” that “a party's residence was not as alleged, or any other fact that easily can be disproved if not true.”[54]

         Although the district court may consider discrete and undisputed facts, the Fifth Circuit has “frequently cautioned the district courts against pretrying a case to determine removal jurisdiction....”[55] Interpretation of the video evidence raises a factual issue that is inappropriate for resolution at this stage of these proceedings.[56] What the video does or does not show, and whether there was sufficient time between the creation of the condition and Ms. Marbury's fall are contested factual issues, the resolution of which would require this Court to improperly “pretry” this case to determine removal jurisdiction.[57] The Fifth Circuit has made clear that, “‘any contested issues of facts and any ambiguities of state law must be resolved' in favor of remand.”[58]

         D. Removing Defendants' Alternative Request for Discovery Should Be Denied

         Removing Defendants make the alternative request that they be allowed to “conduct limited discovery in the form of a deposition of Megan Childers to determine when she was notified of the vomit on the floor.”[59] The Fifth Circuit has emphasized that when considering the propriety of a party's joinder, “any piercing of the pleadings should not entail substantial hearings” and that “[d]iscovery by the parties should not be allowed except on a tight judicial tether, sharply tailored to the question at hand, and only after a showing of its necessity.”[60] As cautioned in Smallwood, “the inability to make the requisite decision in a summary manner itself points to an inability of the removing party to carry its burden.”[61]

         Plaintiffs have alleged that Childers “was made aware of the vomit, and left the condition unattended at the time” of Ms. Marbury's accident.[62] In support of remand, Plaintiffs explain that they “were told at the scene that a manager was told about the vomit”[63] and that “[t]he ‘puking patron's' father told the plaintiff he informed a manager of the puke.”[64] The Removing Defendants do not allege that someone other than Childers was the manager at the scene of the accident to whom Plaintiffs refer.[65] Instead, Removing Defendants argue that if they are allowed to depose Childers, “[t]his discovery would prove Megan Childers had clocked out from her shift when she was told of the plaintiff's accident.”[66]

         Removing Defendants do not provide any support (such as an affidavit) that Childers had “clocked out” prior to being told of Ms. Marbury's fall. Regardless, this statement does not directly contradict Plaintiffs' allegation that Childers “was made aware of the vomit and left the condition unattended.”[67] All factual allegations on an improper joinder claim are to be resolved in favor of the plaintiff.[68] What Childers knew and when is a clearly disputed fact issue that, resolved in Plaintiffs' favor, requires remand. Even taking both parties' factual assertions as true, however, it is possible that Childers was told of the condition, clocked out, and then was told that the accident occurred. Accordingly, Removing Defendants have not established that their requested discovery is necessary to determine an undisputed fact that would preclude the possibility of Plaintiffs' recovery against Childers.[69] As cautioned by the Fifth Circuit, “[a]ttempting to proceed beyond [the limited pierce-the-pleadings summary inquiry] carries a heavy risk of moving the court beyond jurisdiction and into a resolution of the merits, as distinguished from an analysis of the court's diversity jurisdiction by a simple and quick exposure of the chances of the claim against the in-state defendant alleged to be improperly joined.”[70] Accordingly, it is recommended that Removing Defendants' alternative request to depose Childers be denied.

         III. Conclusion

         Plaintiffs' allegations against Childers survive a Rule 12(b)(6) analysis, and because Removing Defendants have not met their heavy burden of showing there is no possibility of recovery against Childers, Childers is a properly joined, non-diverse defendant. Fact issues as to what Childers was told and when are not ...

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