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Griffin v. WalMart Stores Texas LLC

United States District Court, N.D. Texas, Dallas Division

May 25, 2018

POLLY FAYE GRIFFIN, Plaintiff,
v.
WALMART, INC., and JOHN DOE, Defendants.

          MEMORANDUM OPINION AND

         Before the Court is Plaintiff Polly Faye Griffin's motion to remand. Doc. 6. For the following reasons, the Court GRANTS the motion.

         I. BACKGROUND[1]This is a personal-injury case. On June 8, 2017, Defendant John Doe, an unknown deliveryman from Texas, allegedly caused boxes to fall on and injure Griffin while she was shopping at a Walmart in Seven Points, Texas. Doc. 1-B, Pl.'s Original Pet., 1-2. In January 2018, Griffin filed suit against Doe and Defendant Walmart, Inc. (a Delaware corporation with its principal place of business in Arkansas)[2] for negligence and premises liability in Texas state court. Id. at 1. Shortly thereafter, Griffin served Walmart, Inc. Doc. 1-D, Proof of Service. That February, nonparty Wal-mart Stores Texas, LLC (a Delaware LLC headquartered in Arkansas with members from Delaware and Arkansas, Doc. 1, Notice of Removal, 2-3), an entity distinct from Walmart Inc., removed the case to this Court on the basis of diversity jurisdiction. Id. at 1-3. Griffin filed a motion to remand, arguing that Wal-mart Stores Texas, LLC cannot remove this case because it is not a defendant-Griffin sued and served Walmart, Inc., not Wal-mart Stores Texas, LLC. Doc. 6, Pl.'s Mot. to Remand, 1-3; see also Pl.'s Reply, 1-3. Wal-mart Stores Texas, LLC asserts it had the authority to remove this case because it is the entity Griffin should have sued (the real party in interest) because the Walmart in Seven Points is operated by Wal-mart Stores Texas, LLC, not Walmart, Inc. Doc. 8, Defs.' Resp., 3-4. Griffin's motion to remand is ripe for resolution.

         II. LEGAL STANDARD

         “Federal courts are courts of limited jurisdiction.” Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). District courts “must presume that a suit lies outside this limited jurisdiction, and the burden of establishing federal jurisdiction rests on the party seeking the federal forum.” Id. 28 U.S.C. § 1441(a) allows a defendant to remove any civil action to federal court if that action falls within the district court's original jurisdiction. This case was removed on the basis of diversity jurisdiction under 28 U.S.C. § 1332. A district court has diversity jurisdiction over “all civil actions where the matter in controversy exceeds the sum or value of $75, 000 . . . and is between . . . citizens of different States.” 28 U.S.C. § 1332(a)(1). But to invoke the statute, the parties must be completely diverse, meaning “each plaintiff must be of a different citizenship than each defendant.” Lowe v. Ingalls Shipbuilding, A Div. of Litton Sys., Inc., 723 F.2d 1173, 1177 (5th Cir. 1984).

         III. ANALYSIS

         Griffin asks the Court to remand this case because Wal-mart Stores Texas, LLC did not have authority to remove this case as a nonparty. Doc. 6, Pl.'s Mot. to Remand, 1-3; see also Pl.'s Reply, 1-3. Wal-mart Stores Texas, LLC insists that its notice of removal was proper because the Walmart store in which Griffin allegedly was injured is operated by Wal-mart Stores Texas, LLC, not Walmart, Inc. Doc. 8, Defs.' Resp., 3-4. Griffin replies that whether she should have sued Wal-mart Stores Texas, LLC is irrelevant when determining what party has the authority to remove. Doc. 9, Pl.'s Reply, 2-3. Griffin never admits that she sued the wrong entity.

         The Court agrees with Griffin that Wal-mart Stores Texas, LLC did not have the authority to remove this case because it is not a defendant and never has been. 28 U.S.C. § 1441(a) gives the power to remove only to defendants: “[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a)(emphasis added). The Fifth Circuit confirmed this when it held that “[a] non-party, even one that claims to be a real party in interest, lacks the authority to institute removal proceedings.” De Jongh v. State Farm Lloyds, 555 Fed.Appx. 435, 437 (5th Cir. 2014) (per curiam) (citing Salazar v. Allstate Tex. Lloyd's, Inc., 455 F.3d 571, 575 (5th Cir. 2006)). There, the Fifth Circuit found that State Farm, the self-proclaimed party in interest, could not remove because it was not a defendant; De Jongh did not name or serve State Farm, and State Farm did not move to intervene. Id. Similarly, Walmart, Inc., not Wal-mart Stores Texas, LLC, was named in the complaint and served. Doc. 1-D, Proof of Service. And Wal-mart Stores Texas, LLC has not sought to intervene. Wal-mart Stores Texas, LLC's attempt to correct Griffin's alleged mistake[3] in its responsive briefing, see, e.g., Doc. 8, Def.'s Resp., 1 (COMES NOW, WAL-MART, INC., (correct name Wal-Mart Stores Texas, LLC)), does not give Wal-mart Stores Texas, LLC the ability to remove. De Jongh, 555 Fed.Appx. 437-38 (explaining that an alleged party of interest cannot make itself a defendant by stating that naming the defendant was “a misnomer and that it is the correct defendant”). After all, plaintiffs are the masters of their complaints and can choose to sue any entities they wish “[r]ightly or wrongly.” Martinez v. El Paso Corp., No. EP-11-CV-143-KC, 2011 WL 3606813, at *2 (W.D. Tex. Aug. 16, 2011).

         Wal-mart Stores Texas, LLC is not a defendant, and it cannot make itself one by filing a notice of removal and asserting it is the real party in interest; whether Wal-mart Stores Texas, LLC is the real party in interest, or in other words, the entity Griffin should have sued, is irrelevant when deciding whether it had the authority to remove. Instead, deciding whether a party has the power to remove a case to federal court under § 1441(a) and De Jongh depends on whether that party is a defendant. So the Court must remand because Wal-mart Stores Texas, LLC is not a defendant and therefore did not have the authority to file the notice of removal. De Jongh, 555 Fed.Appx. at 437-39.

         Districts courts from the Middle and Eastern Districts of Louisiana[4] have reached the opposite conclusion where, as here, [5] the parties would be diverse even when considering the citizenship of the removing nonparty in interest.[6] They bypass De Jongh's broad language (“A non-party, even one that claims to be a real party in interest, lacks the authority to institute removal proceedings, ” 555 Fed.Appx. at 437) because in their view “De Jongh addresses the specific circumstance of a court unilaterally allowing the substitution of a diverse defendant in place of a non-diverse one.” Richard, 2017 WL 8944429, at *2.[7] So according to those courts, De Jongh's holding only applies when a diverse removing nonparty manufactures diversity jurisdiction by substituting itself, the real party of interest, for the non-diverse defendant.

         The Court respectfully disagrees with these cases because they conflict with the plain language of § 1441(a) and the Fifth Circuit's application thereof in De Jongh. Section 1441(a) gives the power to remove to defendants only. And De Jongh's language (“A non-party, even one that claims to be a real party in interest, lacks the authority to institute removal proceedings, ” 555 Fed.Appx. at 437) applies as broadly as it sounds because it is based on § 1441(a)'s plain language, which states that only defendants can remove. Indeed, the Fifth Circuit's decision to remand in De Jongh stood solely on the fact that the removing party was not a defendant.

Here, State Farm never became a party in this action. Jongh did not name State Farm as a defendant in her original petition; although it asserted in its answer and notice of removal that Jongh incorrectly named Lloyds as a defendant, State Farm did not move to intervene or otherwise request that the district court substitute it as the proper party in interest. Consequently, it lacked the authority to remove this action to federal court.

555 Fed.Appx. at 437; see also Id. at 438 (“State Farm never properly became a defendant and therefore lacked the authority to remove this action to federal court.”). Absent from De Jongh is any discussion about how permitting the diverse party of interest to remove would result in diversity-jurisdiction manufacturing even though State Farm (the removing party in De Jongh) would have created diversity. Compare, Id. at 436 (“State Farm was a citizen of Illinois, Florida, and Pennsylvania”), with Id. at 439 (“ [T]he district court lacked subject matter jurisdiction because each of the proper parties in this action-Jongh, Lloyds, and Johnson-are Texas residents.”). So under § 1441(a) and De Jongh, the analysis stops when a court has determined the removing party is not a defendant; if it is not, it cannot remove even if its citizenship is not being used to manufacture diversity jurisdiction.

         IV. CONCLUSION

         For the reasons stated, the Court GRANTS Griffin's motion to remand, Doc. 6, and ...


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