Ashley v. Wal-Mart Stores E., LP
| Decision Date | 23 December 2020 |
| Docket Number | Civil Action No. 6:20-CV-106-CHB |
| Parties | PAMELA ASHLEY, Plaintiff, v. WAL-MART STORES EAST, LP, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Kentucky |
This matter is before the Court on four motions. First, Defendant Jason Higgins filed a Motion to Dismiss Plaintiff Pamela Ashley's claims against him due to fraudulent joinder [R. 5]. Plaintiff Ashley filed a Response to that Motion [R. 6], and Defendant Higgins filed a Reply [R. 10]. Second, Plaintiff filed a Motion to Remand the case back to state court for lack of subject-matter jurisdiction [R. 7]. Defendants Higgins and Wal-Mart Stores East (Wal-Mart) filed a Response [R. 14], and Plaintiff filed a Reply [R. 23]. Third, Plaintiff filed a Motion for Permissive Joinder and Leave to Amend Complaint (Motion to Amend) to add additional Wal-Mart employees as defendants [R. 8].1 Defendants filed a Response [R. 15], and Plaintiff filed a Reply [R. 17]. Finally, Plaintiff filed a Motion for Attorney Fees [R. 9]. Defendants filed a Response [R. 16], and Plaintiff filed a Reply [R. 24]. For the reasons explained below, the Court will grant Plaintiff's Motion to Remand, deny Plaintiff's Motion for Attorney's Fees, and defer all other motions to the state court.
Plaintiff Pamela Ashley has alleged that on July 7, 2019, she was walking in the Hazard, Kentucky Wal-Mart when she slipped on some liquid2 in an aisle, fell, and sustained severe injuries. [R. 1-3, pp. 2-7 (Complaint) at ¶¶ 6-8] On February 10, 2020, she sued Wal-Mart, as the owner of the store, and Higgins, as the store manager, for negligence, in Perry Circuit Court. [Id., ¶¶ 10-19] She also included as defendants unknown employees and contractors of the Hazard Wal-Mart in charge of maintaining the premises. [Id., ¶¶ 20-24]
Defendants answered the Complaint on February 21, 2020 [R. 1-3, pp. 20-27 (Answer)], and later submitted an affidavit from Defendant Higgins stating he did not work the day of the alleged accident. [R. 5-3 (Affidavit), ¶ 2] On May 14, 2020, Defendants removed the case to this Court. [R. 1] Defendants invoked the Court's diversity jurisdiction because there is diversity of citizenship between Plaintiff (citizen of Kentucky) and Wal-Mart (citizen of Delaware and Arkansas), and the amount in controversy is over $75,000. [Id., ¶¶ 2-4; see also 28 U.S.C. § 1332] Defendants admitted that Higgins is also a citizen of Kentucky but alleged that he was fraudulently joined, so his presence would not destroy diversity. [R. 1, ¶ 5]
Defendant Higgins filed a Motion to Dismiss under Fed. R. Civ. P. 12(b)(6) and 12(c) on May 22, 2020, alleging fraudulent joinder because there is no claim "that is plausible on its face" against him, especially in light of Grubb v. Smith, 523 S.W.3d 409 (Ky. 2017), which he argues limited negligence/premises liability for store employees. [R. 5, pp. 4-7] Plaintiff responded [R. 6], and Higgins replied. [R. 10] On June 12, 2020, Plaintiff filed a Motion to Remand, arguingthe Court lacks diversity jurisdiction because Plaintiff and Higgins are both Kentucky citizens, and Higgins was not fraudulently joined. [R. 7] Defendants responded [R. 14], and Plaintiff replied. [R. 23]
This Court will first consider Plaintiff's Motion to Remand because, if the Court lacks diversity jurisdiction, it lacks jurisdiction to decide the other motions (except for the Motion for Attorney Fees). 28 U.S.C. § 1447(c); Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 531 (6th Cir. 1999); see also Eastman v. Marine Mech. Corp., 438 F.3d 544, 549-50 (6th Cir. 2006). To invoke the Court's diversity jurisdiction, the removing party must demonstrate complete diversity at the time of removal—that is, all plaintiffs must be diverse from all defendants, and the amount in controversy must exceed $75,000. 28 U.S.C. §§ 1332(a), 1441(a); Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996); Coyne v. Am. Tobacco Co., 183 F.3d 488, 492 (6th Cir. 1999). All doubts concerning the propriety of removal must be resolved in favor of remand. Eastman, 438 F.3d at 549-50; Coyne, 183 F.3d at 493.
Here, it is undisputed that Plaintiff and Defendant Higgins are both citizens of Kentucky. [R. 1-3, ¶¶ 1-3; R. 1, ¶¶ 3, 5] According to Defendants, this is no obstacle to the Court's exercise of jurisdiction because they argue that Higgins was fraudulently joined. [R. 14, p. 3] "When a non-diverse party destroys complete diversity, 'the removing defendant may avoid remand only by demonstrating that the non-diverse party was fraudulently joined.'" Clark v. Lowe's Home Ctrs., LLC, No. 6:19-CV-114-REW, 2019 WL 5092941, at *1 (E.D. Ky. Oct. 11, 2019) (quoting Jerome-Duncan, Inc. v. Auto-By-Tel, L.L.C., 176 F.3d 904, 907 (6th Cir. 1999)). A party alleging fraudulent joinder "must demonstrate that there is no 'colorable' cause of action" against the defendant. Pinion v. Wal-Mart Stores E., LP, No. CV 15-25-ART, 2015 WL 12989971, at *1(E.D. Ky. May 12, 2015) (quoting Coyne, 183 F.3d at 493). Wal-Mart bears a "heavy burden" in demonstrating fraudulent joinder. Kent State Univ. Bd. of Trs. v. Lexington Ins. Co., 512 F. App'x 485, 489-90 (6th Cir. 2013); see also Murriel-Don Coal Co. v. Aspen Ins. UK Ltd., 790 F. Supp. 2d 590, 597 (E.D. Ky. 2011). Here, Higgins's joinder is fraudulent only if it is "clear that there can be no recovery [against Higgins] under the law of the state on the cause alleged or on the facts in view of the law." Alexander v. Elec. Data Sys. Corp., 13 F.3d 940, 949 (6th Cir. 1994) (quoting Bobby Jones Garden Apartments, Inc. v. Suleski, 391 F.2d 172, 176 (5th Cir. 1968)). If Plaintiff has "even a 'glimmer of hope' then any charge of fraudulent joinder fails, and the Court must remand the case to state court for want of subject-matter jurisdiction." Christensen v. ATS, Inc., 24 F. Supp. 3d 610, 613 (E.D. Ky. 2014) (quoting Murriel-Don Coal Co., 790 F. Supp. 2d at 597); see also Clark, 2019 WL 5092941, at *1.
The fraudulent joinder test is more lenient than the standard for a 12(b)(6) motion to dismiss, Casias v. Wal-Mart Stores, Inc., 695 F.3d 428, 433 (6th Cir. 2012), and necessitates resolving "all disputed questions of fact and ambiguities in the controlling . . . state law in favor of the non-removing party," Coyne, 183 F.3d at 493 (quoting Alexander, 13 F.3d at 949) (alteration added by Coyne court). A plaintiff's motive is "irrelevant" to the fraudulent-joinder inquiry. Jerome-Duncan, 176 F.3d at 907. The Court, in assessing the motion, may consider summary judgment-type evidence but solely "for the limited purpose of determining whether there are 'undisputed facts that negate [plaintiff's] claim.'" Casias, 694 F.3d at 433 (quoting Walker v. Philip Morris USA, Inc., 443 F. App'x 946, 955-56 (6th Cir. 2011)).
With these standards in mind, the Court finds that Defendants have not met their "heavy burden" of demonstrating fraudulent joinder given the uncertainty in Kentucky premises-liability law and the scant factual record before the Court (with ambiguities in both resolved in Plaintiff'sfavor). Relying primarily on Grubb, Defendants argue that Higgins cannot be held liable for negligence under Kentucky law because "he lacked control over the alleged transient object or condition involved in Plaintiff's incident" and "he had no duty or vicarious duty to remedy or warn of an alleged condition . . . that he did not cause or create." [R. 14, p. 9] Defendants submitted an affidavit by Higgins that states that he "did not work" on the day of the alleged incident, "had no advance notice of any such object or condition," had "no control over the alleged transient object or condition," and "had no ability to warn Plaintiff" about the object or condition. [R. 1-1 (emphasis added)] Defendants argue that Grubb and other precedent preclude liability against employees who do not have sufficient control and do not directly cause the unsafe condition at issue. [R. 14, pp. 9-14]
Plaintiff Ashley alleges that Higgins, as store manager, "had a duty to supervise and maintain [the] store premises in a reasonably safe condition," and that he "failed to exercise ordinary care in inspecting, supervising, and maintaining the premises in a reasonably safe condition." [R. 7, p. 6; R. 1-3, ¶¶ 15-18] She further claims that Higgins had a duty to supervise the employee in charge of the store that day—and those actions could have caused Plaintiff's slip-and-fall even if the Higgins was not at the store himself. [R. 7, pp. 6, 8; R. 23, p. 10] Plaintiff argues that Grubb is not controlling for several reasons: Grubb was decided after a full factual record following a bench trial; its holding is fact-specific and based on the particular duties and degree of control of the store manager in that case; and given the lack of majority opinion in Grubb, Kentucky has adopted no "bright-line rule that a store manager cannot be held liable under a premises-liability theory." [R. 7, p. 7; R. 23, pp. 7-9] Plaintiff urges remand especially given that she "has not been afforded the opportunity to depose [Higgins]," or givenan opportunity to explore the "scope of [Higgins's] employment duties and level of autonomy over the premises." [R. 7, p. 7]
The Court must determine whether there is any colorable claim against Higgins, the non-diverse party, understanding the limited nature of federal jurisdiction and resolving all factual and legal uncertainties in favor of remand. Eastman, 438 F.3d at 549-50; Coyne, 183 F.3d at 493. First, it is undisputed that Higgins was the store manager. [R. 1-1] Further, although Wal-Mart claims that a "transient" object or condition caused Plaintiff's alleged fall, [R. 1-1, ¶ 3], Plaintiff makes no such allegation and points out that "[w]e do not even know how long the condition was present on the floor." [R. 7, p. 8] There are few details before the Court concerning the object...
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