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Triplett v. DG Louisiana, LLC

United States District Court, E.D. Louisiana

October 18, 2019


         SECTION: M (3)

          ORDER & REASONS


         Before the Court is a motion to remand this matter to the Civil District Court, Parish of Orleans, State of Louisiana (“CDC”), filed by plaintiff Jeanette Triplett, [1] to which defendant DG Louisiana, LLC (“Dollar General”) responds in opposition.[2] Having considered the parties' memoranda, the record, and the applicable law, the Court concludes that the motion should be denied because Triplett does not have a cognizable claim against the non-diverse defendant, Tia Smalls.

         I. BACKGROUND

         This case involves personal injuries allegedly caused by a falling store shelf. On June 23, 2018, Triplett was shopping at a Dollar General store in Harvey, Louisiana.[3] Smalls was the store manager.[4] Triplett alleges that while she was shopping a store shelf holding merchandise fell on top of her.[5] Triplett claims that she sustained injuries to her head, face, arm, neck, shoulders, and back as a result of the incident.[6]

         On October 5, 2018, Triplett filed the instant action in state court against Dolgencorp, LLC (“Dolgencorp”), Lapalco TEC DG, LLC (“Lapalco”), and Smalls, seeking damages for the injuries she allegedly sustained as a result of the June 23, 2018 incident.[7] On April 15, 2019, Triplett filed a first supplemental and amended petition of damages in CDC to substitute Dollar General in place of the “incorrectly styled” defendant, Dolgencorp.[8] Triplett alleged that her injuries were caused by “the condition of the building” which “rendered the premises defective, ruinous, and hazardous to business invitees” such as her.[9] Triplett further alleged that Dollar General, Smalls, and Lapalco (1) were negligent under Louisiana Civil Code article 2315; (2) are strictly liable for the care, custody, and control of the Harvey store; (3) are liable for the damages caused “by the ruin of the subject building” per article 2322 and article 660 of the Louisiana Civil Code; (4) are vicariously liable for the negligence of their employees, agents, and/or subcontractors under respondeat superior; and (5) are liable for breaching their duty of care to Triplett.[10]

         On June 28, 2019, the state court held a hearing on a motion for summary judgment filed by Lapalco.[11] The court granted the motion for summary judgment, dismissing Triplett's claims against Lapalco with prejudice.[12]

         Having received in the interim Triplett's discovery responses indicating there is more than $75, 000.00 in controversy, Dollar General removed this action to this Court alleging diversity subject-matter jurisdiction under 28 U.S.C. § 1332.[13] Dollar General asserts that complete diversity exists between the properly joined parties, because it is a citizen of Tennessee and Triplett is a citizen of Louisiana.[14] Dollar General contends that, although Smalls is a citizen of Louisiana, her citizenship should not be considered for the purpose of determining diversity subject-matter jurisdiction because Triplett has no basis for recovery against Smalls.[15] Thus, according to Dollar General, Triplett improperly joined Smalls to defeat federal diversity subject-matter jurisdiction.[16]


         On August 23, 2019, Triplett filed the instant motion to remand arguing that Smalls is properly joined, and as a result, this Court lacks diversity subject-matter jurisdiction.[17] Triplett insists she stated a claim against Smalls for negligence by alleging that Smalls owed a duty of care to Triplett which she breached.[18]

         Dollar General opposes the motion arguing that Smalls is improperly joined in that Triplett has not properly stated a claim for negligence against Smalls. In particular, Dollar General argues that Triplett has not made “any specific allegations that Tia Smalls had a personal duty toward [her], the breach of which specifically caused [her] damages, ” and that Triplett “seeks to impose personal liability on Smalls because of her general administrative responsibility.”[19] Dollar General points out that Triplett “has not alleged that Tia Smalls herself improperly stocked or set up the store shelf that fell.”[20] Dollar General argues that, as a result, Smalls is improperly joined.

         In opposing the motion, Dollar General submits excerpts from Smalls' deposition, in which she testified that the shelves were already in place when she became manager, she did not know when the shelves were put in place, and she was not aware of any prior incidents involving the shelves falling or coming out of place.[21] Smalls also testified that she was not present in the store when the incident occurred, and her “entire involvement” with the incident consisted of two telephone conversations with an on-duty store employee who inquired about the incident report form, and that the next morning Smalls reported for her shift and ensured the shelf was securely in place.[22]

         III. LAW & ANALYSIS

         A. Remand Standard

         A defendant may remove from state court to the proper United States district court “any civil action brought in a State court of which the district courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a). “[I]f the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.” Id. § 1446 (b)(3). Because federal courts have limited jurisdiction, the removal statute is strictly construed, and any ambiguities are construed against removal and in favor of remand. Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002). The party seeking removal has the burden of establishing that federal jurisdiction exists and that removal was proper. Id.

         B. Improper Joinder

         Pursuant to § 1332, a federal court may exercise diversity subject-matter jurisdiction “over a civil action between citizens of different States if the amount in controversy exceeds $75, 000.” Flagg v. Stryker Corp., 819 F.3d 132, 135 (5th Cir. 2016). There must be complete diversity between the parties, meaning that no plaintiff may be a “citizen of the same State as any defendant.” Id. at 136.

         Section 1441(b)(2) permits a defendant to “remove a case from state court to federal court on the basis of diversity jurisdiction so long as none ‘of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.'” Wolf v. Deutsche Bank Nat'l Tr. Co. for Am. Home Mortg. Inv. Tr. 2007-1, 745 Fed.Appx. 205, 207 (5th Cir. 2018) (quoting 28 U.S.C. § 1441(b)(2); citing Alviar v. Lillard, 854 F.3d 286, 289 (5th Cir. 2017)). However, the lack of complete diversity will not render an action non-removable if a party has been improperly joined. Id. Instead, if a “plaintiff improperly joins a non-diverse defendant, ... the court may disregard the citizenship of that defendant, dismiss the non-diverse defendant from the case, and exercise subject matter jurisdiction over the remaining diverse defendant.” Flagg, 819 F.3d at 136. The defendant can demonstrate improper joinder by showing either: “‘(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.'”[23] Mumfrey v. CVS Pharmacy, Inc., 719 F.3d 392, 401 (5th Cir. 2013) (quoting McKee v. Kan. City S. Ry. Co., 358 F.3d 329, 333 (5th Cir. 2004)). The improper joinder doctrine is a “‘narrow exception' to the rule of complete diversity, and the burden of persuasion on a party claiming improper joinder is a ‘heavy one.'” Campbell v. Stone Ins., Inc., 509 F.3d 665, 669 (5th Cir. 2007) (citing McDonal v. Abbott Labs., 408 F.3d 177, 183 (5th Cir. 2005)).

         “Under the second prong (inability to establish a cause of action), the court must determine whether ‘there is arguably a reasonable basis for predicting that state law might impose liability.'” Id. (quoting Ross v. Citifin., Inc., 344 F.3d 458, 462 (5th Cir. 2003)). “This means that there must be a reasonable possibility of recovery, not merely a theoretical one.” Ross, 344 F.3d at 462 (emphasis in original).

         In Smallwood v. Illinois Central Railroad Co., 385 F.3d 568 (5th Cir. 2004), the Fifth Circuit explained the procedure used by courts to determine whether a plaintiff improperly joined a non-diverse defendant. A court first looks “at the allegations of the complaint to determine whether the complaint states a claim under state law against the in-state defendant, ” and “[o]rdinarily, if a plaintiff can survive a Rule 12(b)(6) challenge, there is no improper joinder.” Id. at 573. However, if “a plaintiff has stated a claim, but has misstated or omitted discrete facts that would determine the propriety of joinder … the district court may, in its discretion, pierce the pleadings and conduct a summary inquiry.” Id. The Fifth Circuit “caution[ed] that a 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.” Id. at 573-74. In conducting such an inquiry, the district court may “consider summary judgment-type evidence in the record, but must also take into account all unchallenged factual allegations, including those alleged in the complaint, in the light most favorable to the plaintiff.” Travis v. Irby, 326 F.3d 644, 649 (5th Cir. 2003) (citations omitted). Further, “[a]ny contested issues of fact and any ambiguities of state law must be resolved in [the plaintiff's] favor.” Id. (citation omitted).

         Triplett argues that Smalls “may be held personally liable” to Triplett if Dollar Tree delegated to Smalls “any of the duties listed” by Triplett, and “[Smalls] breached that duty, thereby causing [Triplett's] damages.”[24] Triplett asserts that several of Small's duties, “including hiring and training new employees, stocking and resetting store shelves, and conducting daily store walks” were delegated to Smalls by Dollar General, and “clearly fall within the scope of the breaches” alleged by Triplett.”[25] Therefore, according to Triplett, if Smalls “breached any of those duties through her own personal fault, she may be held personally liable for Plaintiff's resulting damages.”[26]

         Dollar General, on the other hand, asserts that Triplett “has not alleged or shown that Tia Smalls had a personal duty toward Plaintiff, the breach of which specifically caused Plaintiff's damages.”[27] According to Dollar General, Triplett has neither shown nor alleged that Smalls “herself set up the allegedly defective shelves, or that she knew the shelves were defective and failed to correct them.”[28] Dollar General points out that there is no allegation or evidence to show that Smalls “improperly stocked the shelves, ” arguing that Triplett “seeks to impose personal liability on Ms. Smalls because of her general administrative responsibility.”[29]

         Dollar General further points out that Triplett's complaint “assert[s] identical allegations of negligence against Tia Smalls as were asserted against” Dollar General, Dolgencorp, and Lapalco.[30] Thus, according to Dollar General, because Triplett does not make any specific allegations that Smalls in fact breached a duty through personal fault, she cannot be held personally liable.[31]

         Indeed, Triplett's only allegations of Smalls's negligence appear in a blanket list directed indiscriminately towards Smalls, Dollar General, Dolgencorp, and Lapalco.[32] According to Triplett, all defendants are alleged to have breached their duty of care to Triplett by:

A. Failing to properly maintain their property;
B. Failing to maintain the building and adjacent area in a ...

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