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Cook v. Wal-Mart Stores Inc.

United States District Court, D. South Carolina, Columbia Division

January 10, 2018

Marian Cook, Plaintiff,
v.
Wal-Mart Stores, Inc., Wal-Mart Stores East, LP, Wal-Mart Associates, Inc., and Terrance Doe, Defendants.

          OPINION AND ORDER

          Donald C. Coggins, Jr. United States District Judge

         This matter comes before the Court upon Plaintiff's Motion to Remand. ECF No. 10.

         I. Procedural and Factual History

         This is a negligence action for injuries sustained by Plaintiff, a citizen of South Carolina, on September 2, 2016, as a result of a slip and fall at a Wal-Mart Supercenter in Richland County, South Carolina. ECF No. 1-1 at 9-12. The initial Complaint was filed in the Court of Common Pleas for the Fifth Judicial Circuit on March 31, 2017, and alleged claims against various Wal-Mart corporate entities and Defendant Terrance Doe, a manager at the Wal-Mart Supercenter. ECF No. 1-1 at 6-12.

         On May 26, 2017, Defendants Wal-Mart Stores, Inc., Wal-Mart Stores East, LP, and Wal-Mart Associates, Inc. (collectively, “Wal-Mart Defendants”)[1] filed a Notice of Removal and Answer. ECF Nos. 1, 4. The Wal-Mart Defendants contend that this Court has jurisdiction pursuant to 28 U.S.C. § 1332 because there is complete diversity of citizenship and the amount in controversy exceeds Seventy-Five Thousand Dollars ($75, 000.00). ECF No. 1 at 2. While the Wal-Mart Defendants acknowledge that Defendant Terrance Doe is alleged to be a citizen of the State of South Carolina, they argue that Defendant Doe is fraudulently joined and that “his citizenship cannot be used to defeat diversity.” ECF No. 1 at 2. Specifically, the Wal-Mart Defendants claim that there is no possibility that Plaintiff would be able to establish a case against Defendant Doe because he “was an assistant manager, not the store manager, of the subject store and did not maintain a level of control over the premises sufficient to render him liable for the Plaintiff's alleged incident.” ECF No. 1 at 3.

         On June 23, 2017, Plaintiff filed a Motion to Remand, arguing that the Wal-Mart Defendants “cannot show that Defendant Terrance Doe was fraudulently joined, and therefore this case does not meet the complete diversity requirement of 28 U.S.C. § 1332, and removal was improper.” ECF No. 10 at 1. Plaintiff contends that “[t]he South Carolina Supreme Court has held that a store manager can be held personally liable to customers injured on store premises where he has some control of the premises. ECF No. 10 at 4 (citing Richards v. Great Atl. & Pac. Tea Co., 83 S.E.2d 917 (S.C. 1954); Dunbar v. Charleston & W.C. Ry. Co., 44 S.E.2d 314 (S.C. 1947)). Plaintiff points to a number of factual allegations in his Complaint that address Defendant Doe's purported “duty to reasonably inspect, repair, replace, direct, regulate, govern, administer and oversee the safety of Wal-Mart Supercenter's premise[s].” ECF No. 10 at 6 (citing ECF No. 1-1 at 8). Additionally, Plaintiff references his allegations that Defendant Doe was “negligent in, inter alia: allowing a dangerous, unsafe and defective condition to remain on the premises; failing to have proper guides or warning signals to notify patrons of a hazardous condition; and failing to adequately train and supervise [his] employees or agents in matters related to safety.” ECF No. 10 at 6 (citing ECF No. 1-1 at 10).

         The Wal-Mart Defendants filed a response in opposition, claiming that “Defendant Terrance Doe was not a store manager with the subject Walmart store at the time of the alleged incident.” ECF No. 13 at 5. Instead, the Wal-Mart Defendants aver that Defendant Terrance Doe was an assistant manager who had limited authority over an area of the store when he was present for a work shift.” ECF No. 13 at 5. Therefore, according to the Wal-Mart Defendants, “Defendant Terrance Doe did not maintain the level of control required under South Carolina law to be bound by an affirmative duty to maintain safe premises within the entire store, ” and “to the extent that Plaintiff asserts the claim of negligent supervision against Defendant Terrance Doe instead of against only Walmart, it is clear that Plaintiff has no possibility of prevailing on any cause of action against him.” ECF No. 13 at 4-5.

         Plaintiff's reply to the response in opposition to the motion to remand asserts that the “Wal-Mart Defendants have not presented any affidavit testimony or other evidence of Defendant Terrance Doe's alleged limited authority.” ECF No. 14 at 2. Thus, Plaintiff asks the Court to accept his well-pled allegations as true and remand the case to State Court. ECF No. 14 at 3.

         Thereafter, the Wal-Mart Defendants filed an Amended Memorandum in Opposition to Plaintiff's Motion to Remand. ECF No. 15. This filing contains substantially the same argument as the Wal-Mart Defendants' prior Memorandum in Opposition, see ECF No. 13, but includes the affidavit of Randall Donofrio-the store manager at the Wal-Mart in question. ECF No. 15-1. The affidavit states that Defendant Doe[2] was a front-end assistant manager on the date of the incident, and, in that role, “managed a limited area of the store only during his assigned shift.” ECF No. 15-1 at 1. The affidavit further states that Defendant Doe was never a store manager. ECF No. 15-1 at 1.

         Plaintiff filed a Memorandum in Reply to Walmart's Amended Memorandum in Opposition to Plaintiff's Motion to Remand, in which he contends that the Walmart Defendants' affidavit is untimely and cannot be considered by the Court in evaluating the Motion to Remand. ECF No. 17.

         II. Legal Standard

         Federal courts are courts of limited jurisdiction and, as such, may only hear and decide cases when they have been given the authority to do so by the Constitution and by federal statute. In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (1998). The right to remove a case to federal court derives solely from 28 U.S.C. § 1441, which provides that “any 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.” However, “[a] civil action otherwise removable solely on the basis of [diversity] jurisdiction under [28 U.S.C. § 1332(a)] may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” 28 U.S.C. § 1441(b).

         The fraudulent joinder doctrine will permit a defendant to remove a case to federal court despite the presence of another non-diverse defendant. Mayes v. Rapoport, 198 F.3d 457, 461 (4th Cir. 1999). “To establish fraudulent joinder, the removing party must show either: (1) outright fraud in the plaintiff's pleading of jurisdictional facts, or (2) that there is no possibility that the plaintiff would be able to establish a cause of action against the in-state defendant in state court.” Toney v. LaSalle Bank Nat. Ass'n, 36 F.Supp.2d 657, 663 (D.S.C. 2014) (citing Benjamin v. Wal-Mart Stores, Inc., 413 F.Supp.2d 652, 654 (D.S.C. 2006)). “The second means for establishing fraudulent joinder is even more favorable to a plaintiff than the standard for ruling on a motion to dismiss under Fed.R.Civ.P. 12(b)(6). Id. (citing Hartley v. CSX Transp. Inc., 187 F.3d 422, 424 (4th Cir. 1999)). “A plaintiff does not have to show he will prevail against the defendant.” Id. “He must only show that he has a slight possibility of succeeding.” Id. (citing Hartley, 187 F.3d at 426). If the plaintiff can show this glimmer of hope, the defendant is properly joined.” Id. Indeed, “[b]ecause removal jurisdiction raises significant federalism concerns, [courts] must strictly construe removal jurisdiction.” Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994) (citation omitted). “If federal jurisdiction is doubtful, a remand is necessary.” Id.

         III. ...


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