# West v. Home Depot USA Inc

> District Court, E.D. Louisiana · October 7, 2021

URL: https://www.frixlaw.com/law-library/cases/10187132

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** October 7, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

BARBARA WEST CIVIL ACTION

VERSUS 21-1403

HOME DEPOT U.S.A., INC. SECTION: “J” (4)
AND ERIC HALL

ORDER & REASONS
Before the Court is a Motion to Remand (Rec. Doc. 6) filed by Plaintiff
Barbara West, which is opposed by Defendant Home Depot, U.S.A., Inc. (Rec. Doc.
9). Having considered the motion and legal memoranda, the record, and applicable
law, the Court finds that the motion should be DENIED.
FACTS AND PROCEDURAL BACKGROUND1
This case arises out of an alleged slip-and-fall accident at the Home Depot
Store in Hammond, Louisiana on September 17, 2020. Plaintiff, Barbara West,
contends that, while shopping at the Home Depot Store, she was injured when she
slipped and fell on a “substance” on the ground outside of the store. Plaintiff claims
that Home Depot employees had been stocking pallets of sandbags outside the store
earlier in the day.
Plaintiff subsequently filed suit in Louisiana state court on October 2, 2020
against Home Depot U.S.A., Inc. (“Home Depot”) and Eric S. Hall (“Hall”)(collectively
“Defendants”). Defendants removed the state court action to this Court on the basis

1 All facts come from (Rec. Doc. 1); (Rec. Doc. 6-1); (Rec. Doc. 9).
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of diversity jurisdiction. There is no dispute as to the parties’ citizenship. Plaintiff
Barbara West is a citizen of the State of Louisiana. Defendant Home Depot is a
foreign entity incorporated under the laws of Delaware, with its principal place of

business in Atlanta, Georgia. Defendant Eric S. Hall is the store manager for the
Hammond Home Depot, and he is a citizen of the State of Louisiana. At the time of
this writing, Plaintiff’s medical bills stand at approximately $20,000.
PARTIES’ ARGUMENTS2
Plaintiff first argues that removal to this Court was improper because complete
diversity does not exist between all parties. Specifically, Plaintiff asserts that both

Hall and Plaintiff are citizens of the State of Louisiana and, therefore, all parties are
not diverse. Furthermore, Plaintiff maintains that joinder of Hall is not improper
because she made specific allegations of direct negligence against Defendant Hall—
and not just allegations relating to his “representative and managerial capacity.”
Additionally, Plaintiff argues that remand should be granted because the amount in
controversy does not exceed $75,000, as required by 28 U.S.C. § 1332(a).
In response, Defendant Home Depot contends that this Court should not

consider the citizenship of Hall because he is an improperly joined party. Home Depot
claims, relying on the declaration of Hall, that Hall was off duty on the date of the
incident. Thus, Home Depot avers that complete diversity exists between Plaintiff, a
Louisiana citizen, and Home Depot, a citizen of Georgia and Delaware. Furthermore,
Defendant argues that the amount in controversy exceeds $75,000.

2 Parties’ arguments come from (Rec. Doc. 6-1); (Rec. Doc. 9).
2
LEGAL STANDARD
A defendant may remove to federal court “any civil action brought in a State
court of which the district courts of the United States have original jurisdiction.” 28

U.S.C. § 1441(a). “A federal district court has subject matter jurisdiction over a state
claim when the amount in controversy is met and there is complete diversity of
citizenship between the parties.” Mumfrey v. CVS Pharmacy, Inc., 719 F.3d 392, 397
(5th Cir. 2013) (citing 28 U.S.C. § 1332(a)). The amount in controversy required by §
1332(a) is currently $75,000. Id. The court considers the jurisdictional facts that
support removal as of the time of removal. Gebbia v. Wal-Mart Stores, Inc., 233 F.3d

880, 883 (5th Cir. 2000). Because removal raises significant federalism concerns, any
doubt about the propriety of removal must be resolved in favor of remand. Gasch v.
Hartford Acc. & Indem. Co., 491 F.3d 278, 281-82 (5th Cir. 2007).
A. Diversity of Citizenship
Section 1441(b) specifies that an action otherwise removable solely on the basis
of diversity jurisdiction may not be removed if any “properly joined” defendant is a
citizen of the state in which the action was brought. 28 U.S.C. § 1441(b)(2). Thus, a

properly joined in-state3 defendant will prevent removal, but an improperly joined in-
state defendant will not. Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 572 (5th Cir.
2004).

3 The term “in-state” is used to describe a defendant who is a citizen of the state where the action was
brought, preventing removal under § 1441(b), as well as a defendant who would be non-diverse from a
plaintiff, destroying diversity jurisdiction under § 1332(a).
3
The party seeking removal bears a heavy burden of proving that the joinder of
the in-state defendant was improper. Id. at 574. The Fifth Circuit has recognized two
ways to establish improper joinder: “(1) actual fraud in the pleading of jurisdictional

facts, or (2) inability of the plaintiff to establish a cause of action against the non-
diverse party.” Id. at 573 (quoting Travis v. Irby, 326 F.3d 644, 646-47 (5th Cir. 2003)).
To establish improper joinder where there is no allegation of actual fraud, the
defendant must demonstrate that there is no possibility of recovery by the plaintiff
against any in-state defendant, which, stated differently, means that there is no
reasonable basis to predict that the plaintiff might be able to recover against an in-

state defendant. Id. “A ‘mere theoretical possibility of recovery under local law’ will
not preclude a finding of improper joinder.” Id. at 573 n.9 (quoting Badon v. RJR
Nabisco Inc., 236 F.3d 282, 286 (5th Cir. 2000)).
A court should ordinarily resolve the issue by conducting 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 defendants. Id. at
573. The federal pleading standard governs whether a plaintiff has stated a claim

against a non-diverse defendant for purposes of the improper joinder analysis. Int'l
Energy Ventures Mgmt., L.L.C. v. United Energy Grp., Ltd., No. 14-20552, 2016 WL
1274030, at *3 (5th Cir. Mar. 31, 2016). Where a plaintiff has stated a claim, but has
misstated or omitted discrete and undisputed facts that would preclude recovery, the
court may, in its discretion, pierce the pleadings and conduct a summary inquiry.
Smallwood, 385 F.3d at 573. Because the purpose of the improper joinder inquiry is
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to determine whether the in-state defendant was properly joined, the focus of the
inquiry must be on the joinder, not the merits of the plaintiff’s case. Id.
B. Amount in Controversy

When the petition is silent on the exact amount of claimed damages, the
removing party bears the burden of proving “by a preponderance of the evidence that
the amount in controversy exceeds $75,000.” Grant v. Chevron Phillips Chem. Co.,
309 F.3d 864, 868 (5th Cir. 2002) (citing Manguno v. Prudential Prop. & Cas. Ins. Co.,
276 F.3d 720, 723 (5th Cir. 2002)). The removing party can satisfy this burden either:
“(1) by demonstrating that it is ‘facially apparent’ from the petition that the claim

likely exceeds $75,000 or (2) by setting forth the facts in controversy—preferably in
the removal petition, but sometimes by affidavit—that support a finding of the
requisite amount.” Id. (quoting Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th
Cir. 1995)). “Removal, however, cannot be based simply upon conclusory allegations.”
Allen, 63 F.3d at 1335. If the removing party can establish by a preponderance of the
evidence that the amount in controversy exceeds the requisite amount, “[t]he plaintiff
can defeat diversity jurisdiction only by showing to a ‘legal certainty’ that the amount

in controversy does not exceed $75,000.” Grant, 309 F.3d at 869 (citing De Aguilar v.
Boeing Co., 47 F.3d 1404, 1412 (5th Cir. 1995)). It is well settled that this is not a
burden-shifting exercise; rather, the “plaintiff must make all information known at
the time he files the complaint.” Id.

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DISCUSSION
A. Diversity of Citizenship
The issue of diversity before the Court turns on whether Hall is properly joined.

The Court, upon a summary judgment inquiry into the record, concludes that Hall
was improperly joined. As the record indicates, Hall was not present on the day of the
incident and, therefore, could not have been directly involved in creating the alleged
hazard.
Under Louisiana law, an individual employee will be liable to a third person if
the plaintiff can prove that the employee breached a personal duty to that third

person. See Canter v. Koehring Co., 283 So. 2d 716, 721 (La. 1973). In Canter v.
Koehring Co., the Louisiana Supreme Court established a test to determine if the
non-diverse defendant owes such a duty to the plaintiff. Id. A court will find such a
duty exists if all elements are met:
(1) The principal or employer [owes] a duty of care to the customer; (2)
This duty [is] delegated by the principal or employer to the employee in
question; (3) The employee . . . breached this duty through his own
personal fault; and (4) Personal liability [is not] imposed on the
employee simply because of his general administrative responsibility for
performance of some function of employment; rather, he must have a
personal duty to the plaintiff that was not properly delegated to another
employee.
Brady v. Wal-Mart Stores, Inc., 907 F. Supp. 958, 960 (M.D. La. July 19, 1995); see
also Canter, 283 So. 2d at 721. Here, the fourth element is at issue. Plaintiff asserts
that Hall breached a personal duty owed to her through his direct involvement in
creating the hazard and/or failing to remedy it. (Rec. Doc. 6-1 at 5). In response, Home
Depot argues that the allegations merely relate to Hall’s administrative duties. (Rec.
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Doc. 9 at 4). Furthermore, Home Depot claims that Hall was off-duty on the day of
the incident and, therefore, could not have been directly involved. Id. at 9. Thus,
Home Depot contends that Hall should be dismissed from this case under Canter. Id.

at 8.
Louisiana courts have found that a store manager cannot be held personally
liable for an incident if the store manager was off-duty on the date in question. See
Brown v. Wal-Mart La., LLC, No. 10 CV 1402, 2011 WL 13161555, at *5 (W.D. La.
Mar. 12, 2011)(holding that defendant was improperly joined as she was not store
manager on the date of the incident). In Black v. Lowe’s Home Centers, Inc., the

United States District Court for the Middle District of Louisiana found defendant
store manager to be improperly joined when the plaintiff brought suit following an
alleged slip and fall incident. No. 10-478-RET, 2010 WL 4789165, at *1 (M.D. La.
Nov. 17, 2010) (report & recommendation adopted No. 10-478-C-M2, 2010 WL
4790906 (M.D. La. Oct. 22, 2010)). In denying plaintiff’s motion to remand for lack of
diversity jurisdiction, the court relied on the fact that there was no evidence that
defendant store manager was working at the store on the date of the incident. Id.

Therefore, the court reasoned, the plaintiff was seeking to impose liability on the
store manager solely for breaching his supervisory duties—in violation of Canter—
and dismissed him from the suit. Id.

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Here, Plaintiff makes a series of allegations against Hall, most of which accuse
him of failure to adequately supervise other employees.4 However, Plaintiff makes
two claims against defendant that accuse him of being directly involved in creating

the hazard. First, Plaintiff contends that Hall “[c]reated an unsafe and hazardous
condition.”(Rec. Doc. 6-1 at 4). Second, Plaintiff claims that Hall “[f]acilitated and/or
contributed to creating the hazard by participating in the stocking.” Id. However, just
as there was proof that the store manager in Black was not present on the day of the
incident, Defendant Home Depot presents evidence, by way of affidavit, that Hall was
off-duty on the date of Plaintiff’s alleged slip and fall. (Rec. Doc. 9-1). Therefore,

because the evidence indicates that Hall was off duty, the only allegations that
Plaintiff could reasonably make against him relate solely to his general supervisory
duties. Because such claims are barred by Canter, the Court concludes that Hall was
improperly joined to this suit.
B. Amount in Controversy
A brief examination of the amount in controversy issue further establishes that
Plaintiff’s Motion to Remand should be denied. Pursuant to 28 U.S.C. § 1332(a), the

amount in controversy must exceed $75,000. The removing party bears the burden of

4 Plaintiff accuses Hall of “A) Failure to maintain a safe environment for HOME DEPOT U.S.A., INC. customers;
B) Failure to be aware of and/or warn of the dangerous condition; C) Failure to properly train and instruct
employees in maintaining a safe environment for customers; D) Creating an unsafe and hazardous condition;
E) Failure to remove the dangerous condition; F) Failure to barricade the aisle from customer access while the trip
hazard was on the floor; G) Facilitating and/or contributing to creating the hazard of trip hazards being present by
participating in the stocking and/or other like conduct involving stocking and/or otherwise arranging the display of
products outside the store; H) Having the existence of the subject trip hazard for such a period of time that had ERIC
S. HALL been acting as a prudent manager, he would have learned of and remedied the hazard; I) Having direct
and/or constructive knowledge of the unreasonably dangerous and unsafe condition and failing timely remedy the
problem; J) Failing to follow-up with employees and staff to insure that appropriate safety protocols were in place;
K) Failing to direct and/or supervise employees in appropriate safety protocols.” (Rec. Doc. 6-1 at 4-5).
8
proving, by a preponderance of the evidence, that this threshold amount has been
exceeded. Grant, 309 F.3d at 868. Although Plaintiff asserts that her medical bills
currently stand at around only $20,000, Defendant Home Depot argues that the

amount in controversy will ultimately exceed the $75,000 threshold. (Rec. Doc. 9 at
11).
In support of this assertion, Home Depot cites a series of past cases, involving
injuries and damages similar to Plaintiff’s, in which courts found that the amount in
controversy requirement had been satisfied. Id. at 12. In Gebbia v. Wal-Mart Stores,
Inc., the Fifth Circuit held that the amount in controversy requirement was satisfied

when the plaintiff alleged injuries to her wrist, knee and patella, and upper and lower
back. 233 F.3d at 883. Furthermore, the plaintiff alleged “damages for medical
expenses, physical pain and suffering, mental anguish and suffering, loss of
enjoyment of life, loss of wages and earning capacity, and permanent disability and
disfigurement.” Id. According to the court, such allegations made it facially apparent
that the plaintiff’s claimed damages exceeded $75,000. Id. Additionally, in Cook v.
Walmart, Inc., the court found that the amount in controversy requirement was

satisfied when the plaintiff’s medical bills stood at $12,755 for injuries to her lower
back and knee, and there was evidence that she intended to proceed with further
treatment. No. 20-02945, 2021 WL 1440135, at *2 (E.D. La. Apr. 16, 2021).
Here, Plaintiff’s alleged injuries are similar to those of the plaintiff in Gebbia.
In addition to the wrist, knee, and back pain that the plaintiff in Gebbia alleged,
Plaintiff claims she suffers from: acute fracture in her ankle, neck pain, right
9
shoulder pain, left shoulder pain, radiating pain down left leg, and hip pain. (Rec.
Doc. 1-4). Additionally, Plaintiff states that her injuries have necessitated the use of
crutches, a boot, a knee scooter, and a wrist brace. Id. Furthermore, like the plaintiff

in Cook, who intended to proceed with further treatment, Plaintiff states that her
medical treatment is in its early stages. (Rec. Doc. 1-2 at 4). In her petition for
damages, Plaintiff contends that she is entitled to general damages, as well as special
damages in the form of past and future medical expenses, lost wages, loss of earning
capacity, and amounts for past and future loss of services. (Rec. Doc. 1-3). Because
the injuries and damages cited by Plaintiff are similar to, and in some ways exceed,

those of the plaintiff in Gebbia, the Court finds that the amount in controversy
requirement has been met.
Because Home Depot has met its burden of establishing that the amount in
controversy requirement has been met, Plaintiff may remain in state court only if she
makes a showing to a “legal certainty” that the amount in controversy does not exceed
$75,000. For example, Plaintiff may submit a binding stipulation or affidavit limiting
recovery to less than that amount. In Ardoin v. Allstate Insurance Co. the court made

clear that, in order to stay in state court, “a plaintiff must affirmatively renounce the
right to accept a judgment in excess of $75,000 for his pre-removal state court
pleadings and stipulations to bind him.” No. 06-7624, 2007 WL 97062, at *2 (E.D. La.
Jan. 9, 2007). Here, Plaintiff has not made such a showing or renunciation.

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CONCLUSION
In conclusion, because the Court finds that Hall was improperly joined, as he
was off-duty on the day of the alleged incident, complete diversity exists between all
parties. Additionally, the injuries at issue in this case are similar to those described
in previous cases wherein the court found that the amount in controversy
requirement had been met. Thus, Defendants have established by a preponderance
of the evidence that the amount in controversy requirement has been met.
Furthermore, Plaintiff has failed to show to a “legal certainty” that the amount in
controversy does not exceed $75,000.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff's Motion to Remand is DENIED.
New Orleans, Louisiana, this 7th day of October, 2021.
7
My
CARL J. BA VY
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10187132. Public record. Not legal advice.