United States District Court, S.D. Texas, Galveston Division
GUADALUPE LOPEZ-MONROY Plaintiff.
WAL-MART STORES TEXAS, LLC and CHRISTOPHER MACIOCHA Defendants.
MEMORANDUM AND RECOMMENDATION
M. EDISON UNITED STATES MAGISTRATE JUDGE
before the Court is Plaintiffs Opposed Motion to Remand
("Motion to Remand"). See Dkt. 18. This
motion was referred to this Court by United States District
Judge George C. Hanks, Jr. See Dkt. 20. After
careful consideration of the Motion to Remand, the response,
and applicable law, the Court RECOMMENDS
that the Motion to Remand be GRANTED.
August 14, 2018, Plaintiff Guadalupe Lopez-Monroy
("Lopez-Monroy") originally filed this negligence
and premises liability suit in the 56th Judicial District
Court in Galveston County, Texas against Wal-Mart Stores
Texas, LLC ("Wal-Mart") for injuries she allegedly
sustained from tripping over a forklift's arms in a
Wal-Mart store. Lopez-Monroy is a Texas resident; Wal-Mart is
a Delaware limited liability company. The original petition
sought $50, 000 in damages. Following limited discovery,
Lopez-Monroy identified Wal-Mart employee Christopher
Maciocha ("Maciocha") as the forktift operator. On
January 8, 2019, Lopez-Monroy filed her First Amended
Petition ("Amended Petition"), adding Maciocha, a
Texas resident, as a defendant and seeking damages of more
than $200, 000 but not more than $1, 000, 000.
February 7, 2019, Wal-Mart timely removed the case to the
United States District Court for the Southern District of
Texas (Galveston Division) on the basis of diversity
jurisdiction. Wal-Mart alleges that diversity jurisdiction
exists because the amount in controversy exceeds $75, 000 and
complete diversity of citizenship exists among all parties
because Lopez-Monroy improperly joined Maciocha.
Amended Petition, Lopez-Monroy alleges the following facts:
On May 27, 2018, Lopez-Monroy was shopping at Wal-Mart store
#504 in Galveston County. That day, Maciocha, a Wal-Mart
employee, was tasked with relocating pallets in the gardening
center. Maciocha used a forklift provided by Wal-Mart to
relocate the pallets and parked the forklift to retrieve
another pallet. As Lopez-Monroy entered the store, she
tripped and fell over the forklift's arms, sustaining
injuries. She contends that Maciocha parked the forklift in
front of the patron ingress and egress section of the
gardening center and left the forklift unattended.
Lopez-Monroy asserts four separate causes of action against
Wal-Mart and Maciocha: negligence, premises liability, gross
negligence, and respondeat superior.
17, 2019, Lopez-Monroy filed her Motion to Remand, arguing
that the "Court should remand this case to Texas state
court because Plaintiff Lopez-Monroy and Defendant Maciocha
are both citizens of Texas who are adverse parties to each
other. . . .
complete diversity under 28 U.S.C. § 1332 is destroyed
and the Court no longer has
to remand are governed by 28 U.S.C. § 1447(c), which
provides that "[i]f at any time before final judgment it
appears that the district court lacks subject matter
jurisdiction, the case shall be remanded." "[A]ny
doubt about the propriety of removal must be resolved in
favor of remand." Gasch v. Hartford Ace. &
Indem. Co., 491 F.3d 278, 281-82 (5th Cir. 2007)
may remove any civil action from state court to a federal
district court that has original jurisdiction. See
28 U.S.C. § 1441(a). A district court may exercise
removal jurisdiction over two types of cases: those that
present a federal question and those in which there is
diversity of citizenship. See 28 U.S.C. §§
1331 & 1332. Under diversity jurisdiction, district
courts have original jurisdiction over all civil actions that
are between citizens of different states and involve an
amount in controversy in excess of $75, 000, exclusive of
interest and costs. See 28 U.S.C. § 1332(a).
Removal is only proper in such a case, however, if there is
"complete diversity." Flagg v. Stryker
Corp., 819 F.3d 132, 136 (5th Cir. 2016). That means
"if any plaintiff is a citizen of the same State as any
defendant, then diversity jurisdiction does not exist."
Id. (citation omitted).
improper joinder doctrine provides a narrow exception to the
rule that parties must be completely diverse for federal
courts to exercise subject matter jurisdiction. See
McDonal v. Abbott Labs., 408 F.3d 177, 183 (5th Cir.
2005). "If a party has been improperly joined, ... the
lack of complete diversity will not prevent a defendant from
removing a case to federal court." Wolf v. Deutsche
Bank Natl Tr. Co. for Am. Home Mortg. Inv. Tr. 2007-1,
745 Fed.Appx. 205, 207 (5th Cir. 2018). When 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 (collecting
cases). See also Allen v. Walmart Stores, L.L.C.,
907 F.3d 170, 183 (5th Cir. 2018) ("If a party is
improperly joined, a court may disregard the party's
citizenship for purposes of determining subject matter
jurisdiction.") (citation omitted).
demonstrate improper joinder, the removing defendant must
demonstrate 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." Smallwood v. III. Cent. R. Co.,
385 F.3d 568, 573 (5th Cir. 2004) (internal quotation marks
and citation omitted). Actual fraud has not been asserted
here. At issue, therefore, is the second situation. "To
establish improper joinder under the second prong, the
defendant must demonstrate that there is no possibility of
recovery against the in-state or non-diverse defendant."
Alvrar v. Lrllard, 854 F.3d 286, 289 (5th Cir. 2017)
(internal quotation marks and citation omitted).
determine whether a defendant is improperly joined under the
second prong, the district "court may conduct a Rule
12(b)(6)-type analysis, looking initially at the allegations
of the complaint to determine whether the complaint states a
claim under state law against the in-state defendant."
Smallwood, 385 F.3d at 573 (citation omitted).
See also Int'l Energy Ventures Mgmt., LLC v. United
Energy Grp., Ltd.,818 F.3d 193, 208 (5th Cir. 2016)
("Our precedent is clear: A federal court must apply the
federal pleading standard" in deciding the improper
joinder issue). "Ordinarily, if a plaintiff can survive
a Rule 12(b)(6) challenge, there is no improper
joinder." Smallwood, 385 F.3d at 573. To pass
muster under Rule 12(b)(6), "a plaintiff must plead
enough facts to state a claim for relief that is plausible on
its face. 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." Thompson v. City of Waco,764 F.3d 500, 503 (5th Cir. 2014) ...