United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
H. Miller United States District Judge.
before the court is a motion to remand filed by plaintiff
Sharon Mitchell. Dkt. 9. After considering the motion,
response, other relevant documents in the record, and the
applicable law, the court is of the opinion that the motion
to remand should be DENIED.
August 21, 2017, Mitchell filed suit against defendant Family
Dollar Stores of Texas, LLC (“Family Dollar”), in
the 113th Judicial District Court of Harris County, Texas.
Dkt. 1-1. Mitchell asserted a premises liability claim.
Id. Family Dollar was served on August 25, 2017, and
Family Dollar filed a general denial on September 18, 2017.
Id. On September 21, 2017, Family Dollar removed the
case to this court, claiming that the court has original
jurisdiction under 28 U.S.C. § 1332 and that the case
was appropriately removed in accordance with 28 U.S.C.
§§ 1441 and 1446. Dkt. 1.
October 20, 2017, Mitchell filed the pending motion to
remand. Dkt. 9. Mitchell attached a copy of an amended
original petition to her motion to remand. Dkt. 9-1. This
amended petition includes a new defendant named Rachel
Jefferson Miller, who is allegedly the manager of the store
where Mitchell's accident occurred. See Id.
Mitchell admits that there is diversity of citizenship
between her and Family Dollar, but she contends that the
newly added defendant is not diverse and that the court
should therefore remand the case to state court for lack of
jurisdiction. Dkt. 9.
response, Family Dollar argues that (1) the court should not
consider the citizenship of Miller because she was added
after removal; and (2) even if the court were to
consider Miller's citizenship, Miller was improperly
joined for the sole purpose of destroying diversity. Dkt. 12.
The court need not consider the first ground because the
court finds that joinder of Miller is improper.
defendant may remove a civil action to federal court if that
court would have had original jurisdiction over the case. 28
U.S.C. § 1441(a). Family Dollar argues that the court
had diversity jurisdiction at the time of removal. Dkt. 1.
For diversity jurisdiction, the amount in controversy must
exceed $75, 000 and complete diversity must exist between all
parties. Id. § 1332(a). The burden of proving
federal jurisdiction rests on the removing party. De
Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir.
1995). Family Dollar met this burden with regard to the
parties who were joined at the time of removal-Mitchell and
Family Dollar. Mitchell does not dispute this. Rather, she
contends that her subsequently joined party, Miller, destroys
Dollar asserts that to the extent Miller is a party to this
action, she was improperly joined. Dkt. 12. 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.'” Smallwood v. Ill. Cent. R. Co.,
385 F.3d 568, 573 (5th Cir. 2004) (en banc) (quoting
Travis v. Irby, 326 F.3d 644, 646-47 (5th Cir.
2003)). Here, Family Dollar asserts only the second basis for
improper joinder, which requires the court to determine
whether Mitchell has pled any viable claims against Miller.
See Dkt. 12; Smallwood, 385 F.3d at 573.
Therefore, Family Dollar has the heavy burden of establishing
that Mitchell has failed to meet the pleading standard on
every claim asserted against Miller. See Willy v. Coastal
Corp., 855 F.2d 1160, 1164 (5th Cir. 1998). The pleading
standard in federal court requires a plaintiff to plead
enough facts “to raise a right to relief above a
speculative level, ” and the supporting facts must be
plausible. Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555-56, 127 S.Ct. 1955 (2007).
first amended petition, Mitchell contends that Miller's
negligence or gross negligence proximately caused the
accident because Miller created a condition on the premises
that created an unreasonable risk of harm to visitors. Dkt.
9-1. Mitchell additionally contends that Miller knew or
should have known of the unsafe condition and failed to
remedy or correct the condition. Id. Mitchell also
asserts that Family Dollar is legally responsible to Mitchell
for Miller's negligent conduct under the doctrines of
respondeat superior and agency because Miller was an agent or
employee of Family Dollar and “was acting within the
course and scope of such agency or employment.”
Texas law, “[i]ndividual liability arises only when the
officer or agent owes an independent duty of reasonable care
to the injured party apart from the employer's
duty.” Tri v. J.T.T., 162 S.W.3d 552, 562
(Tex. 2005) (citations and quotations omitted). The Texas
Supreme Court extended this principal to premises liability
claims in Tri v. J.T.T., and “[a]fter
Tri, there is no reasonable possibility that a
plaintiff can bring a claim under Texas law against a store
manager for duties performed within the scope of the
employee's duties.” Solis v. Wal-Mart Stores
East, L.P., 617 F.Supp.2d 476, 481 (S.D. Tex. 2008)
Mitchell has not alleged that Miller breached any duty other
than her duties as an employee of Family Dollar. See
Dkt. 9-1. Because no independent duty is alleged, Mitchell
fails to state a plausible claim against Miller, and Miller
is therefore not a properly joined defendant. Cf. Lowery
v. Wal-Mart Stores Tex., LLC, No. 4:17-cv-0166, 2017 WL
999259, at *5 (S.D. Tex. Mar. 15, 2017) (Atlas, J.)
(“Because Lowery has failed to demonstrate the
existence of any independent duty on the part of Lopez, she
cannot establish a cause of action for premises liability or
gross negligence against Lopez individually.”).