United States District Court, D. South Carolina, Charleston Division
C. NORTON, UNITED STATES DISTRICT JUDGE
matter comes before the court on Jean Paetzold's
(“Paetzold”) motion to remand, ECF No. 7. For the
reasons set forth below, the court grants the motion.
action arises out of an incident occurring on or near the
premises of the Walgreens store in Ladson, South
Carolina. ECF No. 7-2 ¶ 1. As Paetzold was
turning from the sidewalk into the Walgreens parking lot on
her electric scooter, she was hit by the car of a Walgreens
patron exiting the parking lot. Id. ¶ 1-2.
Paetzold alleges that she was hit because the driver could
not see the stop sign on the premises, as the sign was nearly
totally obscured by overgrown shrubbery. Id. ¶
1. Paetzold also contends that this overgrown shrubbery
prevented the driver from seeing her approaching scooter.
Michael A. Johnson (“Johnson”) holds the title of
“store manager” at the Walgreens store in issue.
ECF No. 8 at 2. His affidavit claims that he does not have a
substantial level of control over the business of Walgreen,
Co. (“Walgreen”), and that he is not involved in
decisions regarding the aesthetics or scope of maintenance of
the premises. ECF No. 8-1. Paetzold alleges that defendants
Walgreen and Johnson (collectively, “defendants”)
failed to maintain a safe premises, thereby proximately
causing her injuries. ECF No. 7-2 ¶¶ 16-28.
Paetzold originally filed this action on August 29, 2017 in
the Dorchester County Court of Common Pleas. ECF No. 1-2.
Defendants removed the case on October 25, 2017, on the
grounds that Johnson is a “sham defendant” that
was “fraudulently joined” for the purpose of
destroying diversity jurisdiction. ECF No. 1-1 ¶¶
4-6. Paetzold filed the motion to remand on November 24,
2017, ECF No. 7, to which Walgreen responded on December 8,
2017, ECF No. 8, and Paetzold replied on December 15, 2017,
ECF No. 14. Defendants filed a supplemental response on
December 28, 2017, ECF No. 15, and Paetzold filed a sur reply
on January 4, 2018, ECF No. 16. The court held a hearing on
the motion on January 31, 2018. ECF No. 18. The motion has
been fully briefed and is ripe for review.
parties seeking to invoke the court's jurisdiction,
defendants have the burden of proving jurisdiction upon
motion to remand. Dixon v. Coburg Dairy, Inc., 369
F.3d 811, 816 (4th Cir. 2004) (citing Mulcahy v. Columbia
Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994)).
In deciding the motion, the federal court should construe
removal jurisdiction strictly in favor of state court
jurisdiction. Id. “If federal jurisdiction is
doubtful, a remand is necessary.” Mulcahy, 29
F.3d at 151 (citations omitted).
case is before the court under diversity jurisdiction.
Because the parties do not disagree on whether the amount in
controversy exceeds $75, 000, the only issue before the court
is whether there is complete diversity between the parties to
sustain the court's diversity jurisdiction. A civil case
that is otherwise removable solely on the basis of diversity
jurisdiction “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.A. § 1441(b)(2). Paetzold is a citizen of South
Carolina. The complaint alleges that Johnson is a citizen and
resident of Dorchester County, South Carolina. ECF No. 7-2
¶ 6. Defendants argue that Paetzold fraudulently joined
Johnson as a defendant in order to defeat diversity
jurisdiction. ECF No. 7 at 1.
establish fraudulent joinder of a nondiverse defendant, a
party must show 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; or [t]hat
there has been outright fraud in the plaintiff's pleading
of jurisdictional facts.” Mayes v. Rapoport,
198 F.3d 457, 464 (4th Cir. 1999) (quoting Marshall v.
Manville Sales Corp., 6 F.3d 229, 232 (4th Cir. 1993)).
“The burden on the defendant claiming fraudulent
joinder is heavy: the defendant must show that the plaintiff
cannot establish a claim against the nondiverse defendant
even after resolving all issues of fact and law in the
plaintiff's favor.” Id. (quoting
Marshall, 6 F.3d at 232-33). “This standard is
even more favorable to the plaintiff than the standard for
ruling on a motion to dismiss under Fed.R.Civ.P.
12(b)(6).” Hartley v. CSX Transp., Inc., 187
F.3d 422, 424 (4th Cir. 1999) (citation omitted). When
determining whether attempted joinder is fraudulent, the
court is “not bound by the allegations of the
pleadings, but may instead consider the entire record, and
determine the basis of joinder by any means
available.'” Mayes, 198 F.3d at 464
(quoting AIDS Counseling, 903 F.2d at 1004)
(internal citation and quotation omitted).
do not make any claims of “outright fraud”
committed by Paetzold. Thus, the key issue before the court
is whether there is any possibility that Paetzold could
establish a cause of action against Johnson in state court.
The court finds that such a possibility exists, and thus
remands the matter to state court, allowing Paetzold to
proceed against both defendants.
The Existence of a Duty Regarding the Shrubbery and Stop
first argue that Paetzold has no possible cause of action
against Johnson, because neither Walgreen nor Johnson had a
duty to either place a stop sign on the property or ensure
the visibility of the stop sign. ECF No. 8 at 5. They cite
Underwood v. Coponen, 625 S.E.2d 236, 237 (S.C. Ct.
App. 2006) to support their contention that South Carolina
does not impose upon Walgreen Co. a duty to maintain its
parking lot and bushes in a safe manner. ECF No. 15 at 2. In
Underwood, the plaintiff was driving in a
neighborhood when defendant Laurine Coponen
(“Coponen”) drover her car past a stop sign
without stopping and collided with the plaintiff's car.
Underwood, 625 S.E.2d at 237. Coponen claimed she
did not see the stop sign because the sign was blocked by a
tree located on the adjacent property, owned by Ansel Taylor
(“Taylor”). Taylor's wife testified that he
periodically trimmed the tree so that it would not obscure
the stop sign. The Underwood court found that
“Taylor's occasional trimming of his tree did not
create a duty for which he can be held liable.”
Id. at 239. This court interprets Underwood
as providing the following narrow rule: in South Carolina, a
private landowner is not responsible for maintaining the
trees on his private property so that they do not obstruct
traffic signs erected by the city for public
difference between Underwood and the instant action
is that Walgreen erected a stop sign on its private property
for use by its patrons, as compared to the city in
Underwood erecting a stop sign for use by the public
on public roads. The court in Underwood did not want
to force upon any citizen who occasionally trims branches
covering public traffic signs a duty to continue to do so,
because the court recognized that such a policy would
discourage citizens from ever engaging in this helpful
conduct. Id. n.3. That public policy concern is not
an issue here. To demonstrate that Johnson was fraudulently
added, defendants must prove that there is “no
possibility” that Paetzold has a viable cause of action
against Johnson. They attempt to achieve this by relying on
Underwood to claim ...