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Paetzold v. Walgreens Co.

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

February 6, 2018

JEAN PAETZOLD, Plaintiff,
v.
WALGREEN CO. and MICHAEL A. JOHNSON, individually and as an Employee / Agent of Walgreen Co., Defendants.

          ORDER

          DAVID C. NORTON, UNITED STATES DISTRICT JUDGE

         This 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.

         I. BACKGROUND

         This action arises out of an incident occurring on or near the premises of the Walgreens store in Ladson, South Carolina.[1] 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. Id.

         Defendant 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.

         II. STANDARD

         As the 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).

         III. DISCUSSION

         This 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.

         To 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).

         Defendants 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.

         A. The Existence of a Duty Regarding the Shrubbery and Stop Sign

         Defendants 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 roadways.

         The key 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 ...


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