Allen v. Wal-Mart Stores, LLC
| Decision Date | 14 March 2017 |
| Docket Number | CIVIL ACTION H-16-1428 |
| Parties | DELEESE ALLEN, Individually and as Representative of the Estate of Karalee Alaine Williams, Plaintiff, v. WAL-MART STORES, LLC, Gregory Mouton, Loretta Brewer-Winter, and Shanda Hutton, Defendants. |
| Court | U.S. District Court — Southern District of Texas |
Pending before the Court in the above referenced cause, originally filed in the 11th District Judicial Court of Harris County, Texas seeking an order to compel the preservation of physical and testimonial evidence, removed on diversity jurisdiction, and now alleging negligence and negligence per se in causing the wrongful death of Karalee Alaine Williams ("Williams") and the sale of unreasonably dangerous products, are the following motions: (1) Plaintiff Deleese Allen's ("Allen's") motion to remand (instrument #14) on the grounds that the removal was improper as there is no complete diversity1; (2) Defendant Wal-MartStores Texas, LLC's2 first amended 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted (#16), which superseded #2 and #3 after Plaintiff filed an amended complaint (#6); (3) Wal-Mart's objection to and motion to strike joinder (#17); and (4) Defendants Shanda Hutton ("Hutton"), Loretta Brewer-Winter ("Brewer-Winter"), and Gregory Mouton's ("Mouton's") 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted (#18). The same issues overlap in the various motions.
In her current complaint (#6 at p. 1), Allen, the mother of deceased Karalee Alaine Williams, states that Allen Moreover she claims that she was the only Plaintiff in the action at the time of removal. Thus the Court treats Allen as anindividual and as the sole plaintiff.3
Allen alleges that on Sunday, April 10, 2016, Williams, her daughter, entered WalMart Store 2439, 8700 North Highway 246, Baytown, Texas 77523, around 10:30 p.m. and purchased seven cans of "abusable volatile chemical in the form of compressed inhalant," the legitimate use of which was to clean computer keyboards, along with a towel. Allen explains that a towel can be used in the process of "huffing," i.e., in inhalant abuse and by the person inhaling to clean himself if he loses bowl or bladder control. #6 at pp. 6-7 & n.3. The next morning at 12:45 a.m. Williams again entered the store after having soiled herself. She bought more cans of abusable volatile chemical and paraphernalia in the form of compressed inhalant and told the checkout person that she had "had a seizure in the parking lot." Id. at 7. She then returned to the parking lot and inhaled the chemicals. At 3:45 a.m. Williams came back into the store, naked from the waist down, obtained a towel, and wrapped it around herself. She was observed by several employees, who told others. Williams again told an employee that she had had a seizure in the parking lot. An employee believed tobe Defendant Hutton offered her a sundress. Williams bought additional cans of compressed air and exited to the parking lot to continue using the inhalant. The complaint asserts that by this time any reasonable person would realize that Williams was mentally ill and continuing to inhale or ingest into her body an abusable volatile chemical in violation of Section 485.031 of the Health and Safety Code.4 Plaintiff accuses Hutton, Brewer-Winter, and Mouton of knowingly delivering or selling inhalant paraphernalia to Williams when they knew that she intended to inhale, ingest, apply, use or otherwise introduce the volatile chemical into her body in violation of Section 485.031.
On her fourth entry into the store, still before dawn on April11, 2016, it is believed that she purchased more inhalant and maybe more towels, and again returned to the parking lot and continued her abuse of the chemicals and paraphernalia. Her fifth visit to the store came after dawn that day, again to buy more cans of abusable volatile chemicals and paraphernalia and perhaps more towels. The sixth, seventh, and eighth visits that occurred during that day were for the same purpose, with the sellers knowing Williams was going to abuse the chemicals. At 1:20 a.m. on April 12, 2016 Williams made her ninth and last visit to the store for additional tools of inhalant abuse. She returned to the parking lot, where she died in her vehicle from the effects of using the chemicals and paraphernalia provided to her by Hutton, Mouton, Brewer-Winter, and others. It was not until Wednesday, April 13, 2016 at 1:20 a.m. that authorities were notified of her partially rigid body.
The complaint states that WalMart has been aware of the hazards and dangers of inhalant abuse for a long time. In 2007 the parents of a California teenager, who died after inhaling an aerosol dust remover without adequate warnings, sued WalMart Stores, Inc. for selling the dust remover, which produces a euphoric state when inhaled. The trend of inhaling dust remover products, called "dusting," had been reported by the media since at least 1996 and resulted in many lawsuits. In 2012, James W. Monticelli sued WalMart and IQ Products after his son purchasedforty cans of dust remover during one month and died of inhalant abuse. In 2014 Roger Taft Collins purchased several cans of air duster product from a WalMart store in Mont Avery, North Carolina and used them in its parking lot, where his body was found. Thus WalMart certainly knew of the hazards of abusable volatile chemicals and the Texas statute prohibiting providing sale of such chemicals to someone who was going to abuse them. The complaint charges that Hutton (resident of Liberty County, Texas), Mouton (resident of Chambers County, Texas) and Brewer-Winter (resident of Harris County, Texas), and others in the WalMart 2439 store knew, as would any reasonably prudent person, that Williams was abusing the chemicals by the sheer volume and the number of visits she made to the store in the course of approximately a single day, her physical appearance, and the fact that the quantities purchased could not reasonably be construed as for any purpose other than illegal use. It further asserts that Defendants knew or should have known of the common law duty not to provide a minor or mentally impaired adult with dangerous instrumentalities or products like abusable volatile chemicals that cause harm. Furthermore Williams exhibited many of the symptoms of inhalant abuse, which include losing touch with surroundings, loss of self-control, violent behavior, nausea, unconsciousness, giddiness, loss of inhibition (as in her appearance naked from waist down), loss of appetite and hallucinations.
Allen also contends, upon information and belief, some or all of the unreasonably dangerous, abusable volatile chemicals were manufactured, sold, and placed into the stream of commerce by seller IQ Products Company ("IQ), a foreign corporation with its principal place of business in Houston, Texas, and designed, manufactured, marketed, and a 3M brand of dust remover sold by 3M, and were the producing cause of Williams' death. IQ, 3M, and WalMart as sellers have liability under law for products liability for the design, manufacture, marketing and sale of an unreasonably dangerous product, and, under the law of negligence,5 for breaching their duty of ordinary care to the purchaser of such products. Allen also names Defendant 3M Co. and identifies its principal place of business in Minnesota, but alleges no facts about it.Apparently neither IQ nor 3M has been served nor appeared.
Alternatively, Defendants failed to provide proper and adequate warnings regarding all the adverse effects associated with the use of "CleanSafe" and 3M dust remover and their severity, including risk of cardiovascular injury, brain injury, and sudden death. The dust remover was misused in a reasonably foreseeable way as an inhalant, resulting in serious injuries to Williams that caused her death. Defendants knew or should have known at the time that the dust remover was defective, that people foreseeably would misuse it, and that it exposed them to an increased risk of severe injury or death.
In removing a case from state court, the federal district court must resolve all contested fact issues and ambiguities of state law in favor of the plaintiff and remand. Gasch, 491 F.3d at 281. The Fifth Circuit explains, since Id. at 281-82, quoting Carpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d 362, 365-66 (5th Cir. 1995). Furthermore, "[i]f at any time before final judgment it appears that the district court lacks jurisdiction, the case shall be remanded." 18 U.S.C. § 1447(c).
Under 28 U.S.C. §1332, a defendant may remove a case if there is (1) complete diversity of citizenship and (2) the amount in controversy is greater than $75,000, exclusive of interests and costs. Under 28 U.S.C. § 1441(b), when original federal jurisdiction is based on diversity, a defendant may remove a state court civil action only "if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought."
The doctrine of improper joinder, or fraudulent joinder,6 prevents defeat of federal removal jurisdiction premised on diversity by the presence of an improperly joined, non-diverse defendant. Borden v. Allstate Ins. Co., 589 F.3d 168, 171 (5th Cir. 2009). Where improper...
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