Ashmore v. Dolgencorp, LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

MYRA ASHMORE CIVIL ACTION

VERSUS NO. 21-2184

DOLGENCORP, LLC, SECTION “B”(4)

D/B/A DOLLAR GENERAL

CORPORATION

ORDER AND REASONS

Before the Court are defendants’ notice of removal (Rec. Doc.

1), plaintiff’s motion to remand (Rec. Doc. 11), plaintiff’s motion

for leave to file a supplemental memorandum in support of her

motion to remand (Rec. Doc. 16), and defendants’ opposition to the

remand motion (Rec. Doc. 18). For the following reasons,

IT IS ORDERED that the plaintiff’s motion to remand (Rec.

Doc. 11) is DENIED; and

IT IS FURTHER ORDERED that defendant Renee Quinn is dismissed

from this litigation because she was improperly joined.

IT IS FURTHER ORDERED that plaintiff’s motion for leave to

file a supplemental response (Rec. Doc. 16) is GRANTED, allowing

the supplemental memorandum to be filed into the record.

I. FACTS AND PROCEDURAL HISTORY

On September 3, 2019, plaintiff filed a petition for damages

in the Civil District Court for the Parish of Orleans, alleging

gross and wanton negligence on the part of Dolgencorp, LLC (“Dollar

General”) and its employee, Renee Quinn (“Quinn”) (collectively

“Defendants”). See Rec. Doc. 1-2. The petition states that on or

about September 1, 2018, plaintiff visited the Dollar General store

on Morrison Road in New Orleans, Louisiana. Upon entering, she

“turned and fell over a pallet.” Id. The pallet was allegedly

stacked with cases of water, but no cases surrounded the perimeter

of the pallet. Id. Because of this, plaintiff allegedly “did not

see that the base extended out over a foot from the stack of

bottled water.” Id. Plaintiff tripped and fell over the extended

portion of the pallet, resulting in her seeking medical attention

for her injuries sustained in the accident. Id.

On November 24, 2021, defendants removed the case to this

Court, alleging diversity jurisdiction as a basis for removal.

Rec. Doc. 1. In their notice of removal, defendants argued the

section 1332 one-year removal bar should not apply to this case

because defendant had “no notice of the suit and was not served,

due to no fault of its own.” Id. at 2-3. Defendants were eventually

served with the lawsuit on June 4, 2021. Id.

On December 9, 2021, plaintiff filed a motion for an extension

of time to remand, asserting that pending discovery responses would

bear on her ability to remand the matter to state court. Id. On

December 10, 2021, defendants filed a timely opposition, arguing

that they provided plaintiff with the requested discovery

responses on December 3, 2021. Rec. Doc. 9. On December 23, 2021,

the court granted plaintiff’s motion in part, but only to allow a

remand motion based on lack of subject matter jurisdiction. Rec.

Doc. 10.

On December 24, 2021, plaintiff filed the instant one-

sentence motion to remand, asserting the Court lacks subject matter

jurisdiction over this case. Rec. Doc. 11. Plaintiff did not allege

the existence of a procedural defect that prevented removal. Id.

Six days later, plaintiff filed a motion to supplement her motion

to remand. Rec. Doc. 16. In her supplemental memorandum, plaintiff

presented more detailed arguments as to how the court lacks subject

matter jurisdiction, but she also asserted for the first time a

procedural defect in the removal process. Id. Specifically, she

alleged that defendants’ removal was untimely. Id.

On January 6, 2022, defendants filed an opposition to

plaintiff’s motion to remand, arguing that their removal was timely

and that there is complete diversity between the parties given

that defendant Quinn was improperly joined. Rec. Doc. 18.

II. LAW AND ANALYSIS

A. REMOVAL STANDARD

Federal courts are courts of limited jurisdiction. Manguno v.

Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir.

2002). A defendant may remove a state court action to federal court

if the federal court has original jurisdiction over the action. 28

U.S.C. § 1441(a); Syngenta Crop Prot., Inc. v. Henson, 537 U.S.

28, 34 (2002). The removing party bears the burden of demonstrating

the existence of federal jurisdiction. See Allen v. R&H Oil & Gas

Co., 63 F.3d 1326, 1335 (5th Cir. 1995). In assessing whether

removal was appropriate, the Court is guided by the principle,

that “removal statute[s] should be strictly construed in favor of

remand.” Manguno, 276 F.3d at 723. Furthermore, remand is

appropriate if the Court lacks subject matter jurisdiction, and

“doubts regarding whether removal jurisdiction is proper should be

resolved against federal jurisdiction.” Acuna v. Brown & Root Inc.,

200 F.3d 335, 339 (5th Cir. 2000) (citing Willy v. Coastal Corp.,

855 F.2d 1160, 1164 (5th Cir. 1988)).

Title 28, United States Code § 1447 governs the procedure

after removal and provides that all procedural defects must be

raised in a motion to remand filed within thirty days of removal.

28 U.S.C. § 1447(c). In the Fifth Circuit, a procedural defect is

“any defect that does not go to the question of whether the case

originally could have been brought in federal district court.”

Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1544 (5th Cir. 1991);

see also Williams v. AC Spark Plugs Div. of Gen. Motors Corp., 985

F.2d 783, 786 (5th Cir. 1993) (holding that a statutory restriction

against removal was a waivable procedural defect). A plaintiff who

fails to file a motion to remand based on a procedural defect

within thirty days loses the right to challenge the defect. Elec.

Man, LLC v. Maillot, No. CV 19-10676, 2020 WL 634901, *4 (E.D. La.

Feb. 11, 2020); 14C Charles A. Wright & Arthur R. Miller, Federal

Practice and Procedure § 3739 (4th ed. 2016) (“After the expiration

of the 30-day period following the filing of the removal notice,

the right to object to non-jurisdictional defects in the removal

process is considered waived.”); Mitchell v. Ace Am. Ins. Co., No.

CV 15-15, 2016 WL 3013994 (E.D. La. May 26, 2016)(same). However,

unlike remand for procedural defects, a motion to remand based on

lack of subject matter jurisdiction may be made raised at any time.

Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1544 (5th Cir. 1991)

(“It is beyond doubt that although the parties can waive defects

in removal, they cannot waive the requirement of original subject

matter jurisdiction—in other words, they cannot confer

jurisdiction where Congress has not granted it.”).

In BEPCO, L.P. v. Santa Fe Minerals, Inc., plaintiff filed a

timely motion to remand asserting two objections, one based on a

policy’s service of suit clause and one based on lack of subject

matter jurisdiction. 675 F.3d 466, 469 (5th Cir. 2012).

Approximately one month later, plaintiff asserted another

procedural objection that removal was untimely, which the Court

found had not been waived based on the assertion of the original

objections. Id. In its reasoning, the Fifth Circuit “conclude[d]

that [§ 1447(c)] is unambiguous, and therefore must be enforced

according to its terms.” Id. at 471. The Court ruled that the

central inquiry in the timeliness analysis under § 1447(c) is

“whether the remand motion satisfies the 30-day requirement.” Id.

(emphasis added). In essence, the Court stated that a particular

procedural defect could be raised more than 30 days after removal,

if the motion to remand itself was filed within the 30-day window

provided by § 1447(c). Id.

BEPCO is the law in this Circuit. However, in light of BEPCO's

facts, it is not clear whether it was discussing the “the timing

of the remand motion” which already contains a procedural objection

which would operate to preserve the assertion of other subsequent

procedural objections, or “the timing of the remand motion” which

contains absolutely no procedural objection. It’s in light of this

uncertainty that we turn to other cases for guidance.

Other courts in this jurisdiction have ruled that failure to

raise non-jurisdictional grounds for remand within 30 days of

removal constitutes a waiver of those arguments. See Grace v.

Myers, No. CV 15-300-JWD-RLB, 2015 WL 4939893, *3 (M.D. La. Aug.

18, 2015); Davis v. Ciba-Geigy Corp., 958 F. Supp. 264 (M.D. La.

1997); BEPCO, L.P. v. Santa Fe Mins., Inc., No. CIV.A. 11-0132,

2011 WL 4499322 (W.D. La. Apr. 25, 2011), report and recommendation

adopted, No. CIV.A. 11-0132, 2011 WL 4499359 (W.D. La. Sept. 27,

2011).

For example, in Davis v. Ciba-Geigy Corp., the removed

plaintiff asserted only lack of subject matter jurisdiction as a

ground for remand. 958 F. Supp. 264, 266 (M.D. La. 1997). Sometime

later, the plaintiff for the first time asserted a procedural

defect in support of remand. Id. The Court found “the filing of a

timely motion to remand, which does not allege any defect in

removal procedure does not preserve plaintiff's right to object to

defect[s] in removal procedure after the 30-day period set forth

in 28 U.S.C. § 1447(c) has expired.” Id.

This case is more akin to Davis, supra. Defendants removed the

present action from state court on November 24, 2021. Thus,

plaintiff was required to file her motion to remand based on a

procedural defect before the thirty-day deadline on December 24,

2021. Plaintiff did not meet that deadline. Instead, on December

24, she filed a motion to remand alleging only lack of subject

matter jurisdiction. Six days later, plaintiff filed a motion for

leave to file a supplemental memorandum supporting her motion to

remand, arguing both procedural defects and lack of subject matter

jurisdiction. Like the plaintiff in Davis, Ashmore did not file

any procedural defect objections until after the thirty-day period

lapsed. Because plaintiff failed to object to a defect in the

removal procedure within thirty days of the filing of the notice

of removal, the Court finds that plaintiff has waived her objection

to any defect in the removal procedure.

Additionally, the Court finds that its decision to disregard

plaintiff’s untimely procedural objection is proper because to

allow such an objection, would not only go against this Court’s

previously issued order,1 but it would also set a dangerous

precedent that plaintiffs can file one-sentence motions to remand

based on lack of subject matter jurisdiction knowing they can file

their procedural defect objection after the thirty-day deadline.

Because the Court does not wish to set such a precedent

here, this opinion will focus on plaintiff’s timely objection

for lack of subject matter jurisdiction.

B. LACK OF SUBJECT MATTER JURISDICTION – DIVERSITY

For diversity jurisdiction to exist, all parties must be

completely diverse. McLaughlin v. Miss. Power Co., 376 F.3d 344,

353 (5th Cir. 2004). This means that “all persons on one side of

the controversy be citizens of different states than all persons

on the other side.” Id. (citing Harrison v. Prather, 404 F.2d 267,

1 On December 23, 2021, the court issued an Order and Reasons granting in part

plaintiff’s request for an extension of time to remand. The Court stated the

motion “[was] granted in part only to allow a remand based on lack of subject

matter jurisdiction.” Additionally, the Court noted “to the extent an extension

is sought to assert a procedural defect in the removal notice beyond the 30-

day window, that request must be disallowed ….” Rec. Doc. 10 (emphasis added).

272 (5th Cir. 1968)). Importantly, federal courts “must presume

that a suit lies outside [its] limited jurisdiction.” Howery v.

Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). Due to this

presumption against federal jurisdiction, the removal statute is

to be “strictly construed, and 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).

Additionally, the Court must “resolve any contested issues of

material fact, and any ambiguity or uncertainty in the controlling

state law” in plaintiff's favor. Morgan v. Chubb Lloyds Ins. Co.

of Tex., No. 4:21-CV-00100-P, 2021 WL 2102065, at *1 (N.D. Tex.

May 25, 2021) (Pittman, J.) (quoting Griggs v. State Farm Lloyds,

181 F.3d 694, 699 (5th Cir. 1999)).

Here, plaintiff argues diversity jurisdiction is

absent because both she and Quinn are Louisiana citizens. In

response, defendants argue the citizenship of Quinn should be

ignored because she was improperly joined to defeat diversity.

Plaintiff denies this contention and asserts a reasonable cause

of action against Quinn for negligence has been properly alleged.

Defendant Quinn was Improperly Joined

In the seminal case Cavallini v. State Farm Mut. Auto Ins.

Co., the Fifth Circuit stated, in pertinent part,

The burden of proving a fraudulent joinder is a heavy

one. The removing party must prove that there is

absolutely no possibility that the plaintiff will be

able to establish a cause of action against the in-state

defendant in state court, or that there has been outright

fraud in the plaintiff's pleading of jurisdictional

facts. Because no one disputes that the Cavallinis and

Cunningham] are Texas residents, our sole concern is

whether there is a possibility that that Cavallinis had

set forth a valid cause of action against Cunningham. We

evaluate all of the factual allegations in the

plaintiff's state court pleadings in the light most

favorable to the plaintiff, resolving all contested

issues of substantive fact in favor of the plaintiff,

and then examine relevant state law and resolve all

uncertainties in favor of the non-removing party.

44 F.3d 256, 259 (5th Cir.1995) (quotations omitted); accord Griggs

v. State Farm Lloyds, 181 F.3d 694, 699 (5th Cir.1999). This

Circuit has also endorsed the use of summary judgment type

procedures for reviewing fraudulent joinder claims. See Griggs,

181 F.3d at 700 (“Thus, while we have frequently cautioned the

district courts against pre-trying a case to determine removal

jurisdiction, a federal court may consider summary judgment-type

evidence such as affidavits and deposition testimony when

reviewing a fraudulent joinder claim.”)

Having considered the petition in the light most favorable to

plaintiff, the Court finds that there is no possibility that

plaintiff will be able to prove her state law negligence claims

against Quinn. In Canter v. Koehring, the Louisiana Supreme Court

identified four distinct criteria which must be satisfied before

an employee can be found liable to a third party for his or her

injury:

(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...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...; and

(4) [P]ersonal liability cannot be imposed upon the officer,

agent, or employee simply because of his general

administrative responsibility for performance of some

function of employment. He must have a personal duty

towards the injured plaintiff, breach of which specifically

caused the plaintiff's damages.

283 So. 2d 716, 721 (La. 1973). See also Anderson v. Ga. Gulf

Lake Charles, LLC, 342 Fed.Appx. 911, 916 (5th Cir. 2009) (quoting

In re 1994 Exxon Chem. Fire, 558 F.3d 378, 386 (5th Cir. 2009))

(“Canter’s four-part test is used to determine whether an employee

is individually liable to third persons, even if they are not co-

employees.”)

In Rushing v. Wal-Mart Stores, Inc., a case similar to the

case at bar, a store patron sued Wal-Mart and the store manager

for personal injuries she allegedly sustained when two cases of

drinks fell from a shelf onto her head while shopping at a Wal-

Mart store in Hammond, Louisiana. No. CIV.A. 15-269, 2015 WL

1565064 (E.D. La. Apr. 8, 2015). The action was filed in state

court and removed to federal court, despite the apparent lack of

complete diversity, on improper joinder grounds. Id. at *1. In

considering the plaintiff's motion to remand, the court looked to

the plaintiff's allegations of negligence against the Wal-Mart

store manager. Id. at *3. Among other things, plaintiff alleged

that the store manager was liable, for: “Failing to maintain proper

supervision of its employees; Failing to properly stock the shelves

of the subject premises; and Failing to maintain a safe and proper

look-out …” Id.

Upon review, the court concluded that the plaintiff's

allegations against the store manager were insufficient to trigger

personal liability, as the plaintiff did not allege that Wal-Mart

delegated any duty to the manager or that the manager breached

such a duty through personal fault. Id. at *3–4. Instead, according

to the court, the plaintiff merely alleged, generically, that the

store manager “failed to supervise and provide proper training and

instructions to Wal-Mart's employees,” which does not amount to

the breach of a personal duty to ensure the plaintiff's safety.

Rushing, 2015 WL 1565064 at *4. Accordingly, as a matter of law,

plaintiff could not recover against the store manager under

Louisiana law.

In this case, plaintiff alleges that Quinn is responsible for

the injuries she sustained in her trip and fall accident,

attributing several acts of negligence, including (1) Failure to

consider the safety of others; (2) Failure to maintain the

property; and (3) Failure to warn and/or caution patrons of any

danger on the premises, to name a few. However, like the plaintiff

in Rushing, plaintiff’s state court petition does not allege that

Quinn owed a personal, independent duty to store patrons

delegated by Dollar General. There is no allegation that Quinn

breached such a duty through personal, rather than technical or

administrative, fault. This seems to be a “case of attempting to

place liability on an employee simply because of her general

administrative responsibility for performance of some function

of employment.” Rushing, 2015 WL 1565064 at *4 (quoting Carter v.

Wal-Mart Stores, Inc., No. Civ.A. 04-0072, 2005 WL 1831092, at *3

(W.D. La. July 28, 2005)).

Because plaintiff’s allegations are not sufficient under

Canter or Rushing , to impose personal liability on Quinn,

plaintiff’s negligence claims against Quinn cannot stand. See

Longino ex rel. JL v. Dolgencorp, LLC, No. 12-CV-00997, 2012 WL

3146349 (W.D. La. June 25, 2012), report and recommendation

adopted, No. 12-CV-00997, 2012 WL 3145462 (W.D. La. Aug. 1, 2012)

(denying plaintiff’s motion to remand, and ruling to dismiss her

negligence claim against Dollar General’s district manager because

she failed “to assert any allegations or provide any evidence that

Dolgencorp delegated any duty to [the district manager]” or that

the district manager personally breached his duty.) Thus, Quinn

was improperly joined to defeat federal diversity jurisdiction,

and must be dismissed from this action. Complete diversity

exists between the remaining parties, and federal jurisdiction is

proper before this Court.

New Orleans, Louisiana this 3rd day of May, 2022

___________________________________

SENIOR UNITED STATES DISTRICT JUDGE