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Lopez-Monroy v. Wal-Mart Stores Texas, LLC

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

July 23, 2019




         Pending 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.


         On 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.

         On 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.

         In her 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.

         On May 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. . . .

         Thus, complete diversity under 28 U.S.C. § 1332 is destroyed and the Court no longer has subjectmatterjurisdiction."Dkt.l8at4.


         Motions 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) (citation omitted).

         A party 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).

         The 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).

         To 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).

         To 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) ...

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