United States District Court, S.D. Texas, Corpus Christi Division
ORDER DENYING MOTION TO REMAND
GONZALES RAMOS UNITED STATES DISTRICT JUDGE.
a slip-and-fall personal injury case that was originally
filed in the 343rd Judicial District Court of Aransas County,
Texas. D.E. 1-2, 1-3. Defendant Family Dollar Stores of
Texas, LLC timely removed the case to this Court on the basis
of diversity jurisdiction, 28 U.S.C. § 1332, alleging
that Defendant Linda Wright, the store manager, was
improperly joined. D.E. 1. Before the Court is
Plaintiff's Motion to Remand, reciting that Defendant
Wright is properly joined and is a non-diverse Defendant,
defeating diversity jurisdiction. D.E. 9. For the reasons
stated below, the motion to remand is DENIED.
Standard of Review
party seeking removal bears a heavy burden of proving that
the joinder of the in-state party was improper.”
Smallwood v. Illinois Cent. R.R. Co., 385 F.3d 568,
574 (5th Cir. 2004) (en banc). The removing party proves
improper joinder by demonstrating: (1) actual fraud in the
pleading of jurisdictional facts; or (2) the inability of the
plaintiff to establish a cause of action against the
non-diverse defendant in state court. See Crockett v.
R.J. Reynolds Tobacco Co., 436 F.3d 529, 532 (5th Cir.
2006) (citing Travis v. Irby, 326 F.3d 644, 646-47
(5th Cir. 2003)); see also Boone v. Citigroup, Inc.,
416 F.3d 382, 388 (5th Cir.2005). Only the second method is
at issue here.
Court resolves this matter by evaluating “all of the
factual allegations in the light most favorable to the
plaintiff, resolving all contested issues of substantive fact
in favor of the plaintiff.” Guillory v. PPG Indus.,
Inc., 434 F.3d 303, 308 (5th Cir. 2005) (citing B.,
Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir.
1981)); see also Boone, 416 F.3d at 388;
Smallwood, 385 F.3d at 573. In determining whether a
viable claim has been made against a non-diverse defendant,
the state pleading is evaluated pursuant to state substantive
law. Paxton v. Weaver, 553 F.2d 936, 940 (5th Cir.
1977). The Court does “not determine whether the
plaintiff will actually or even probably prevail on the
merits of [his or her state law] claim, but look[s] only for
a possibility that the plaintiff might do so.”
Guillory, 434 F.3d at 308.
if the plaintiff can survive the pleading evaluation, there
is no improper joinder. See Smallwood, 385 F.3d at
573. If Defendants fail to establish improper joinder, then
there is not complete diversity of citizenship among the
parties, and the Court must remand the action for lack of
subject-matter jurisdiction. See 28 U.S.C.
§§ 1332, 1447(c).
Viability of the Claim as Pled Against Non-Diverse
issue is the claim against Linda Wright, an individual
citizen of Texas who served as the store manager of the
Family Dollar Store at the time of the incident. She is named
because of her status as an employee and store manager. There
are no allegations suggesting that she had any personal
involvement in the facts surrounding the Plaintiff's
injury or any duty to Plaintiff separate and apart from her
employment and role as manager in control of the store at the
time of the events of the lawsuit. Plaintiff has not supplied
this Court with anything more than the speculative
possibility that Linda Wright was personally involved in the
events made the basis of this lawsuit-because she was the
store manager. Such allegations do not satisfy the pleading
requirements of Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662
(2009) or Texas law for establishing a cause of action.
Texas, individual liability against an employee arises only
when the employee owes an independent duty of reasonable care
to the injured party apart from the employer's duty of
care. Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex.
1996); Bourne v. Wal-Mart Stores, Inc., 582
F.Supp.2d 828 (E.D. Tex. 2008). The Texas Supreme Court has
extended the holding in Leitch to premises liability
cases. Tri v. J.T.T., 162 S.W.3d 552, 562 (Tex.
2005). Because Plaintiff has not alleged facts to implicate a
breach of duty by the store employee separate and apart from
that owed by the store, Linda Wright was improperly joined.
Her non-diverse Texas citizenship does not destroy diversity.
reasons set out above, the Court finds that Linda Wright is
improperly joined. The properly joined parties are diverse.
The necessary amount in controversy is not disputed. Thus the
Court DISMISSES the claims alleged ...