Laborde v. Treadwell Restaurants of La., LLC

• Decision Date: 09 April 2013
• Docket Number: CIVIL ACTION NO. 12-2328
• Parties: RODNEY LABORDE AND LORI LABORDE v. TREADWELL RESTAURANTS OF LA, LLC, ET AL.
• Court: U.S. District Court — Western District of Louisiana

RODNEY LABORDE AND LORI LABORDE

v.TREADWELL RESTAURANTS OF LA, LLC, ET AL.

CIVIL ACTION NO. 12-2328

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA MONROE DIVISION

Dated: April 9, 2013

JUDGE ROBERT G. JAMES

MAG. JUDGE KAREN L. HAYES

MEMORANDUM RULING

Before the undersigned magistrate judge, on reference from the District Court, are two motions filed by plaintiffs Rodney Laborde and Lori Laborde: 1) a motion for leave of court to file an amended complaint [doc. # 12]; and 2) a motion to remand [doc. # 15]. The motions are opposed. For reasons assigned below, the motions are GRANTED.¹

Background

On August 7, 2012, Rodney Laborde (hereinafter, sometimes referred to as "Laborde") and his wife, Lori Laborde, both Louisiana domiciliaries, filed the instant suit for damages in the 4th Judicial District Court, for the Parish of Ouachita, State of Louisiana, against defendants Treadwell Restaurants of LA, LLC ("Treadwell"); an unknown manager of Treadwell; and Treadwell's liability insurer, Zurich American Insurance Company ("Zurich"). Plaintiffs allege that on September 8, 2011, they went to the Treadwell-owned and operated Kentucky FriedChicken ("KFC") restaurant at 1706 Martin Luther King Boulevard to purchase something to eat. (Petition). After they paid for their meal, and while they were traversing the dining room toward a table, Rodney Laborde slipped and fell to the wet floor. Id., ¶ 3.

Plaintiffs attributed the accident to the failure of Treadwell's unknown manager, or one of his subordinates, to place a sufficient number of signs to warn customers about the slippery and dangerous conditions prevalent in the area where Laborde fell. Id., ¶ 4. Moreover, because Treadwell's manager was acting within the course and scope of his employment, plaintiffs contend that Treadwell is solidarily liable with its manager for plaintiffs' damages. Id., ¶ 5.

As a result of the fall, Laborde sustained severe bodily injuries to his shoulder, neck, right arm, and other areas. Id., ¶ 7. Plaintiffs seek recovery against defendants for all of their resulting and related damages, including Lori Laborde's claim for loss of consortium. Id., ¶¶ 7-10.

On September 6, 2012, defendants, Treadwell and Zurich, timely removed the matter to federal court on the apparent basis of diversity jurisdiction. See Notice of Removal. Upon prompting by the court, removing defendants amended their notice of removal to allege complete diversity of citizenship, and to establish that the amount in controversy exceeded the requisite jurisdictional minimum. (Dec. 27, 2012, Order [doc. # 8] and Amended Notice of Removal [doc. # 9]). In so doing, removing defendants reasserted that the citizenship of the unknown manager defendant must be disregarded for purposes of diversity because he was sued under a fictitious name. See 28 U.S.C. § 1441(b)(1).

The record reflects that by November 29, 2012, plaintiffs had discovered that Darrell Jackson was the unknown restaurant manager whom they had sued fictitiously. See Rule 26(f)Case Management Report [doc. # 6]. Moreover, although plaintiffs stated their intention to seek leave of court to substitute Darrell Jackson in lieu of the fictitiously named restaurant manager, they did not file the instant motion for leave to amend until February 14, 2013. Plaintiffs attributed the delay to their inability to depose Jackson until February 12, 2013. (M/Leave [doc. # 12]).

Because Jackson is non-diverse, his substitution will destroy the court's diversity jurisdiction and compel remand. 28 U.S.C. § 1447(e). Consequently, plaintiffs also filed a motion to remand in the event that the court grants their motion for leave to amend. Removing defendants oppose both motions. The matter is now before the court.

Law and Analysis

I. Motion for Leave to Amend

A proposed amendment to substitute a named party for a fictitiously named party may be considered under Rule 15. See Doleac ex rel. Doleac v. Michalson, 264 F.3d 470, 475 (5th Cir. 2001). Rule 15 provides that leave to amend shall be "freely [granted] when justice so requires." Fed.R.Civ.P. 15(a)(2). This rule is circumscribed, however, by 28 U.S.C. § 1447(e) which states that "[i]f after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the State court." 28 U.S.C. § 1447(e); Ascension Enters. v. Allied Signal, 969 F. Supp. 359, 360 (M.D. La. 1997) (Section "1447(e) trumps Rule 15(a)."). Furthermore, if permitted, the substitution of a non-diverse, named defendant for a fictitiously named defendant will destroy subject matter jurisdiction, and compel remand. Doleac, supra; 28 U.S.C. § 1447(e).

Under these circumstances, courts are required to "scrutinize [the] amendment more closely than an ordinary amendment." Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir. 1987). Specifically, the court must balance the defendant's interest in maintaining a federal forum, with the competing interest of avoiding parallel lawsuits by considering the following "Hensgens factors,"

[1] the extent to which the purpose of the amendment is to defeat federal jurisdiction, [2] whether the plaintiff has been dilatory in asking for amendment, [3] whether plaintiff will be significantly injured if amendment is not allowed, and [4] any other factors bearing on the equities. The district court, with input from the defendant, should then balance the equities and decide whether amendment would be permitted. If it permits the amendment of the non-diverse defendant, it must remand to the state court. If the amendment is not allowed, the federal court maintains jurisdiction.

Wilson v. Bruks-Klockner, Inc., 602 F.3d 363, 367-368 (5th Cir. 2010) (citation omitted).

In the matter sub judice, neither side mentions or discusses the Hensgens factors in their memoranda. Instead, the parties limit their discussion solely to whether plaintiffs have a reasonable possibility of recovery against the restaurant manager, Jackson. Thus, the court will address this issue first.

a) Colorable Claim

A plaintiff will not be "significantly injured" by a court's denial of leave to add a clearly meritless claim. Wilson, 602 F.3d at 368. Thus, it is within a district court's discretion to deny a proposed amendment as futile, if there is no reasonable basis to predict that plaintiff will be able to recover against the would-be, non-diverse defendant. Id. Indeed, leave to amend to join a party "against whom recovery is not really possible and whose joinder would destroy subject matter jurisdiction," should never be granted. Cobb. v. Delta Exports, Inc., 186 F.3d 675, 678(5th Cir. 1999). The party opposing joinder has the opportunity to prevent joinder by arguing that plaintiff has no "colorable claim" against the proposed defendant. Id. In so doing, the district court may permit "limited discovery into 'discrete and undisputed facts' that had been omitted from the complaint and that might preclude recovery against the in-state defendant . . ." Wilson, 602 F.3d at 373 (citing Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 573-74 (5th Cir.2004). In other words, the court may "pierce the pleadings," as is sometimes done in an improper joinder analysis.²

1) Corporate Officer or Employee Liability

Louisiana law provides that in limited circumstances a corporate officer or employee may be held individually liable for injuries to third persons. Ford v. Elsbury, 32 F.3d 931, 935 (5th Cir. 1994) (citing Canter v. Koehring Co., 283 So.2d 716 (La. 1973)). The liability may be imposed on such individuals even if the duty breached arises solely from the employment relationship. Ford, 32 F.2d at 936. Liability may be imposed on a manager under the following conditions:

1. The principal or employer owes a duty of care to the third person . . . breach of which has caused the damage for which recovery is sought.

2. The duty is delegated by the principal or employer to the defendant.

3. The defendant officer, agent, or employee has breached this duty through personal (as contrasted with technical or vicarious) fault. The breach occurs when the defendant has failed to discharge the obligation with the degree of care required by ordinary prudence under the same or similar circumstances-whether such failure be due to malfeasance, misfeasance, or nonfeasance, including when thefailure results from not acting upon actual knowledge of the risk to others as well as from a lack of ordinary care in discovering and avoiding such risk of harm which has resulted from the breach of the duty.

4. With regard to the personal (as contrasted with the technical or vicarious) fault, personal liability cannot be imposed upon the officer, agent, or employee simply because of his general administrative responsibility for performance of some function of the employment. He must have a personal duty towards the injured plaintiff, breach of which specifically has caused the plaintiff's damages. If the defendant's general responsibility has been delegated with due care to some responsible subordinate or subordinates, he is not himself personally at fault and liable for the negligent performance of this responsibility unless he personally knows or personally should know of its non-performance or malperformance and has nevertheless failed to cure the risk of harm.

Ford v. Elsbury, 32 F.3d 931, 936 (5th Cir. 1994) (citing, Canter, 283 So.2d at 721).

It is manifest that, "[a] merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage." La. R.S. 9:2800.6(A). Generally, "the owner or operator of a facility has the duty of exercising reasonable care for the safety of persons on his premises and the duty of not exposing such...