Angeron v. Big Lots Stores, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

EVELYN ANGERON, ET AL. CIVIL ACTION

VERSUS NO: 20-1001

BIG LOTS STORES, INC., ET AL. SECTION: "S" (5)

ORDER AND REASONS

IT IS HEREBY ORDERED that plaintiffs' Motion to Remand (Rec. Doc. 9) is

GRANTED, and the matter is REMANDED to the 32nd Judicial District Court for the Parish of

Terrebonne, State of Louisiana.

BACKGROUND

Plaintiffs, Evelyn and Byron Angeron, Louisiana citizens, filed this action against Big

Lots Stores, Inc. ("Big Lots"), an Ohio citizen, and Gregory Ellis, a Louisiana citizen, in the 32nd

Judicial District Court for the Parish of Terrebonne, State of Louisiana. Plaintiffs allege that

Evelyn Angeron was injured when she tripped over the base of a merchandise shelf, colliding

with a large column at the Big Lots store located in Houma, Louisiana. She alleges that the

obstructing shelf base was approximately three inches tall, and left exposed because a shelf had

either been removed from it, or had not yet been placed on it in the course of assembling it. Ellis

was the store manager at the time of the accident. Plaintiffs allege that Ellis was personally

responsible for the creation of that hazard, for failing to warn Mrs. Angeron of the hazard’s

existence, and for not removing the encumbrance before Mrs. Angeron entered the store.

Big Lots removed the action to the United States District Court for the Eastern District of

Louisiana alleging that the court has diversity subject matter jurisdiction over the action pursuant

to 28 U.S.C. § 1332. Big Lots alleges that the Louisiana defendant, Ellis, was improperly joined

because all of the allegations against Ellis stem from Ellis' general administrative responsibilities

as manager, and thus are technical or vicarious fault for which he cannot be held personally

liable.

Plaintiffs filed the instant motion to remand, arguing that Ellis was not improperly joined,

because he is potentially personally liable for plaintiffs' damage.

DISCUSSION

A. Legal Standard for Motions to Remand

Motions to remand to state court are governed by 28 U.S.C. 1447(c), which provides that

“[i]f at any time before the final judgment it appears that the district court lacks subject matter

jurisdiction, the case shall be remanded.” The removing defendant bears the burden of

demonstrating that federal jurisdiction exists and therefore that removal was proper. Jernigan v.

Ashland Oil, Inc., 989 F.2d 812, 815 (5th Cir.1993). In assessing whether removal is appropriate,

the court is guided by the principle, grounded in notions of comity and the recognition that

federal courts are courts of limited jurisdiction, that removal statutes should be strictly construed.

See Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir.2002). Doubts

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regarding whether federal jurisdiction is proper should be resolved against federal jurisdiction.

Acuna v. Brown & Root, 200 F.3d 335, 339 (5th Cir. 2000).

B. Diversity Subject Matter Jurisdiction under § 1332(a)

Defendants removed this action alleging that this court has diversity subject matter

jurisdiction under 28 U.S.C. § 1332(a)(1), which provides that district courts have original

jurisdiction over civil actions where the amount in controversy exceeds $75,000, exclusive of

interest and costs, and are between citizens of different States. Defendants contend that the

Angerons are Louisiana citizens, and the properly joined defendant, Big Lots, is not. They argue

that Ellis, a Louisiana citizen, was improperly joined solely to defeat diversity subject matter

jurisdiction.

1. Improper Joinder

Defendants argue that Ellis' citizenship should be disregarded for the purposes of

establishing subject matter jurisdiction because he was improperly joined considering that the

Angerons cannot maintain claims against him under Louisiana law.

There are two ways to establish improper joinder: (1) actual fraud in the pleading of

jurisdictional facts, or (2) the inability of the plaintiff to establish a cause of action against the

allegedly improperly joined parties in state court. Smallwood v. Ill. Cent. R.R., 385 F.3d 568,

573 (5th Cir. 2004) (en banc). The United States Court of Appeals for the Fifth Circuit has

stated:

The test for fraudulent joinder is whether the defendant has demonstrated that there

is no possibility of recovery by the plaintiff against an in-state defendant, which

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stated differently means that there is no reasonable basis for the district court to

predict that the plaintiff might be able to recover against an in-state defendant.

***

The court may conduct a Rule 12(b)(6)-type analysis, looking initially at the

allegations of the complaint to determine whether the complaint states a claim under

state law against the in-state defendant. Ordinarily, if a plaintiff can survive a Rule

12(b)(6) challenge, there is no improper joinder. That said, there are cases,...in which

a plaintiff has stated a claim, but has misstated or omitted discrete facts that would

determine the propriety of joinder. In which cases, the district court may, in its

discretion, pierce the pleadings and conduct a summary inquiry.

Id. (citations omitted).

The “burden of persuasion placed upon those who cry ‘fraudulent [or improper] joinder’

is indeed a heavy one.” B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981). When

reviewing an improper joinder claim, “the district court ‘must evaluate all of the factual

allegations in the light most favorable to the plaintiff, resolving all contested issues of

substantive fact in favor of the plaintiff.’ ” Burden v. Gen. Dynamics Corp., 60 F.3d 213, 216

(5th Cir. 1995) (quoting B., Inc., 663 F.2d at 549). Further, the court must resolve all ambiguities

in the controlling state law in the plaintiff’s favor. Id.

2. The Angerons' Cause of Action Against Ellis

Because defendants do not claim that plaintiffs committed actual fraud in the pleadings,

the sole issue for determining whether Ellis is improperly joined is whether the plaintiffs would

be able to establish a cause of action against him in Louisiana state court. See Smallwood, 385

F.3d at 573. In Canter v. Koehring Co., 283 So.2d 716, 722 (La. 1973)(superseded by statute on

other grounds), the Supreme Court of Louisiana stated:

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The failure to act as required by the employment duty may deprive the third person

of a protection owed [her] by the principal or employer, and such risk of harm

because of the breach may have been reasonably foreseeable. Thus, the breach of the

duty imposed by the employment or agency relationship may, under general tort

principles, be actionable negligence because of the creation or maintenance thereby

of an undue risk of harm to others.

(citations omitted).

An employee is liable to a third-person damaged by reason of the breach of an

employment-imposed duty under the following circumstances:

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) This 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

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 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 mal-performance and has

nevertheless failed to cure the risk of harm.

Id. at 721.

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The Fifth Circuit echoed the fourth item above when it recognized that a critical factor in

determining whether a manager has personal liability is whether the manager “was aware or

should have been aware of a risk of harm and nevertheless failed to respond to the risk in the

manner in which a reasonably prudent plant manager would respond in the same or similar

circumstances.” Ford v. Elsbury, 32 F.3d 931, 936 (5th Cir. 1994).

The Angerons were invitees of Big Lots, and thus were owed a duty of care. They allege

that the duty was delegated to Ellis as the store manager. They further allege that Ellis breached

a personal duty to ensure Mrs. Angeron's safety in the store beyond his routine employment

function or general administrative duties. Specifically, they allege that Ellis had personal

knowledge that Mrs. Angeron was visually impaired, personally interacted with her both before

and after the incident, and had personal knowledge of the defective structure that caused her

injury because he personally participated in the partial assembly or disassembly of the defective

structure that caused Mrs. Angeron's injury. They further allege that after the incident, Ellis told

Plaintiffs, “I told them to fix this,” while referring to the shelf base upon which she tripped.

Thus, plaintiffs have alleged both that Ellis was personally involved in creating the

hazard, and that despite his actual knowledge failed to remedy the hazard. The court finds that

these allegations against Ellis allege a failure to act that exceeds his general administrative

responsibilities as manager. Accordingly, defendants have not demonstrated that there is no

possibility of recovery by plaintiffs in a cause of action for negligence against Ellis, an in-state

defendant. The court therefore lacks jurisdiction, and plaintiffs' motion to remand is granted, and

the case is remanded to state court.

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CONCLUSION

IT IS HEREBY ORDERED that plaintiffs’ Motion to Remand (Rec. Doc. 9) is

GRANTED, and the matter is REMANDED to the 32" Judicial District Court for the Parish of

Terrebonne, State of Louisiana.

New Orleans, Louisiana, this 29th day of April, 2020.

ANN VIAL LE oa

UNITEISTATES DISTRICT JUDGE