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Reid v. Jo-Ann Stores, LLC

United States District Court, S.D. Texas, Houston Division

December 20, 2017

Rebecca Reid, Plaintiff,
Jo-Ann Stores, LLC and McDougal Sewing Center, Inc., Defendants.


          Gray H. Miller United States District Judge.

         Pending before the court is a motion to remand filed by plaintiff Rebecca Reid. Dkt. 9. After considering the motion, response, related documents in the record, and the applicable law, the court is of the opinion that the motion to remand should be DENIED.

         I. Background

         This case stems from an incident occurring in a Jo-Ann store in Katy, Texas, on July 6, 2015. Dkt. 1, Ex. C. Reid contends that she slipped and fell “due to a very wet and dangerous condition” while walking down an aisle in the front center of the store. Id. She claims that the fall caused a fully displaced patella fracture that has required multiple surgeries. Id.

         On June 16, 2017, Reid filed premises liability and negligence claims against the company that operated the store, defendant Jo-Ann Stores, LLC (“Jo-Ann”) and defendant McDougal Sewing Center, Inc. (“McDougal”), which the complaint merely states “is a company operating in the great state of Texas.” Id. Reid filed these claims in the 281st Judicial District Court of Harris County, Texas. Dkt. 1.

         Jo-Ann timely removed the case to this court. Id. Jo-Ann contends that this court has jurisdiction under 28 U.S.C. § 1332. Id. It acknowledges that McDougal is not a diverse defendant, but contends that McDougal was improperly joined for the sole purpose of destroying diversity. Id. If McDougal is not a proper defendant, then complete diversity exists between the parties and federal jurisdiction under § 1332 is proper.

         On August 18, 2017, Reid filed a motion to remand. Dkt. 9. Reid contends that Jo-Ann and McDougal are co-tenants of the property and that her petition states that both JoAnn and McDougal had control of the property at the time Reid was injured. Id. Reid asks that the court remand the case back to state court and award her attorneys' fees and costs associated with the removal, which Reid contends was not objectively reasonable. Id.

         Jo-Ann responds that the complaint contains no specific facts relating to McDougal and that Reid has no valid claim against McDougal, which sub-leased 1.2% of the total space of the premises and had no control over the premises. Dkt. 11. Additionally, the area McDougal subleases is not near the area where Reid fell. Id. Thus, Jo-Ann urges the court deny the motion to remand and request for attorneys' fees and instead award attorneys' fees to Jo-Ann. Id.

         The motion is now ripe for disposition.

         II. Legal Standard

         A 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). The burden of proving federal jurisdiction rests on the removing party. De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995). Jo-Ann contends that the court has diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). For diversity jurisdiction, the amount in controversy must exceed $75, 000 and complete diversity must exist between all parties. 28 U.S.C. § 1332(a). Jo-Ann recognizes that McDougal is not a diverse defendant, but it contends that McDougal is improperly joined. Dkt. 1.

         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)). Jo-Ann does not assert actual fraud, so the court considers only the second method. Therefore, to prevent remand, Jo-Ann must demonstrate that “there is no reasonable basis for the district court to predict that the plaintiff might be able to recover against the in-state defendant.” Id.

         There are two ways for a court to predict whether a plaintiff might be able to recover against an in-state defendant. First, the court can conduct a Rule 12(b)(6)-type inquiry by reviewing the complaint to determine if it states a claim against the in-state defendant. Id. In making this determination, the court applies the federal pleading standard. Int'l Energy Ventures Mgmt., L.L.C. v. United Energy Grp., Ltd., 818 F.3d 193, 202 (5th Cir. 2016). To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Gines v. D.R. Horton, Inc., 699 F.3d 812, 816 (5th Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955 (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.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937 (2009). “[A] plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. If the court finds that the claim has been insufficiently pled, the court should dismiss the improperly joined defendant without prejudice for lack of jurisdiction. Lopez v. United Prop. & Cas. Ins. Co., No. 3:16-CV-0089, 2016 WL 3671115, at *5 (S.D. Tex. July 11, 2016) (Hanks, J.) (explaining that dismissal without prejudice is appropriate because the court lacks subject matter jurisdiction over the claim against the non-diverse defendant and, therefore, cannot render a decision on the merits).

         Second, a defendant could demonstrate that the plaintiff has “misstated or omitted discrete facts that would determine the propriety of joinder.” Smallwood, 385 F.3d at 573-74. In that case, the court can “pierce the pleadings” in a summary inquiry to “identify the presence of discrete and undisputed facts [in the ...

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