# Jenkins v. Winn Dixie Montgomery, LLC

> District Court, E.D. Louisiana · February 27, 2025

URL: https://www.frixlaw.com/law-library/cases/10813928

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** February 27, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10813928

## How later opinions describe it (automated extraction)

- finding that an employee’s alleged personal knowledge of a dangerous pipeline could give rise to a personal duty under Canter
- noting that a supervisor’s knowledge of a risk of harm and failure to respond to the risk could create personal liability under Canter

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

KEOKA P. JENKINS * CIVIL ACTION
*
VERSUS * NO. 24-2607
*
WINN-DIXIE MONTGOMERY, LLC ET AL. * SECTION L(3)

ORDER & REASONS

Before the Court is a Motion to Remand filed by Plaintiff Keoka Jenkins. R. Doc. 5.
Defendant Winn-Dixie Montgomery, LLC (“WDM”) opposes the motion. R. Doc. 6. After
considering the record, briefing, and applicable law, the Court now rules as follows.
I. BACKGROUND

Plaintiff alleges that on August 3, 2023, she was shopping at a Winn-Dixie Store in New
Orleans, Louisiana when she fell “after slipping in a foreign liquid on the floor” of the property.
R. Doc. 1-2 at 2. Plaintiff later filed a personal injury action in state court against Winn-Dixie
Montgomery, LLC (“WDM”) and Mike Piazza (“Piazza”), who she alleges was the manager of
the store at the time of her injury. Id. at 1. In her petition, Plaintiff avers that her injuries were
caused, at least in part, by Piazza’s negligence because he “failed to properly and safely inspect,
maintain and clean the floors so as to prevent an unreasonable risk of harm . . . to plaintiff.” Id. at
3. Plaintiff avers that Piazza was “aware of the liquid substance on the floor” before she fell and
“neglectfully failed to warn customers specifically, [Plaintiff].” Id. at 4. On November 5, 2024,
WDM removed the case to this Court on the basis of diversity jurisdiction pursuant to 28 U.S.C.
§ 1332. R. Doc. 1. WDM asserts that the amount in controversy requirement is satisfied based on
the Plaintiff’s allegations in the petition. Id. at 5. With respect to diversity of citizenship, WDM
asserts that there is complete diversity because Plaintiff is a citizen of Texas; WDM is a citizen of
Florida; and the citizenship of Piazza (Louisiana) must be ignored because he is an improperly
joined Defendant.
II. PRESENT MOTION
Plaintiff moves to remand to state court. R. Doc. 5-1. While she acknowledges there is

complete diversity between all the parties, she notes that Defendant Piazza is a citizen of Louisiana,
which makes removal improper given a lawsuit based on diversity jurisdiction may not be removed
if any properly joined defendant is a citizen of the forum state. Id. Plaintiff argues that WDM’s
assertion of improper joinder in its Notice of Removal is unfounded and that Piazza’s citizenship
must be considered in the removal analysis. Id. at 3. More specifically, she contends that WDM
failed to demonstrate in its Notice of Removal that Plaintiff cannot establish a cause of action
against Piazza. Id. at 4. She explains that her cause of action arises out of Piazza’s breach of his
duties to inspect and maintain the floors, as well as his actual knowledge of the liquid on the
property’s floor which caused Plaintiff to fall Id. at 6. Additionally, Plaintiff notes that WDM
removed this case before there was an opportunity for discovery and that Plaintiff’s complaint

sufficiently contains allegations recognized to establish a cause of action under Louisiana law. Id.
at 15.
In opposition, WDM reasserts its argument that Piazza was improperly joined in this
lawsuit to destroy diversity jurisdiction on the basis of the defendant-forum state exception. R.
Doc. 6. WDM argues that Plaintiff’s petition merely sets forth “generalized allegations regarding
the bare-bones employment duties of a manger.” Id. at 2. It maintains such allegations are
insufficient to state a valid claim against Piazza because Plaintiff must show that Piazza had a
“personal responsibility” to her and breached that duty in order to impose liability under Louisiana
law. Id. at 4. Moreover, WDM argues that Plaintiff has not alleged Piazza committed any specific
personal negligent acts which caused her damages. Id. at 6. WDM thus requests this Court to find
it has jurisdiction and deny Plaintiff’s request for remand. Id. at 9-10.
III. APPLICABLE LAW
A defendant may remove “any civil action brought in a State court of which the district

courts of the United States have original jurisdiction . . . to the district court of the United States
for the district and division embracing the place where such action is pending.” 28 U.S.C. §
1441(a). When original jurisdiction is based on diversity of citizenship, the cause of action must
be between “citizens of different States” and the amount in controversy must exceed the “sum or
value of $75,000, exclusive of interest and costs.” 28 U.S.C. § 1332(a)-(a)(1). A civil action that
is otherwise removable based on diversity jurisdiction under § 1332(a), “may not be removed if
any of the parties in interest properly joined and served as defendants is a citizen of the State in
which such action is brought.” 28 U.S.C. § 1441(b)(2). Subject matter jurisdiction must exist at
the time of removal to federal court and be based on the facts and allegations contained in the
complaint. St. Paul Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir.

1998) (“jurisdictional facts must be judged as of the time the complaint is filed . . .”). “Federal
courts are courts of limited jurisdiction,” possessing “only that power authorized by Constitution
and statute.” Gunn v. Minton, 568 U.S. 251, 256 (2013) (quoting Kokkonen v. Guardian Life Ins.
Co. of America, 511 U.S. 375, 377 (1994)). Thus, remand is proper if at any time the court lacks
subject matter jurisdiction. See 28 U.S.C. § 1447(c). The Fifth Circuit has explained that the
removal statute should be strictly construed. Manguno v. Prudential Prop. & Cas. Ins. Co., 276
F.3d 720, 723 (5th Cir. 2002). The removing party has the burden of proving federal diversity
jurisdiction. Garcia v. Koch Oil Co. of Tex. Inc., 351 F.3d 636, 638 (5th Cir. 2003). Any doubt
concerning the basis of jurisdiction should be resolved in favor of remand. Acuna v. Brown &
Root, 200 F.3d 335, 339 (5th Cir. 2000).
The party seeking removal based on improper joinder of a forum defendant bears a “heavy”
burden of proving that the joinder was improper. Travis v. Irby, 326 F.3d 644, 649 (5th Cir.

2003). Joinder is improper if the defendant can establish: “(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 in state court.” Id. at 647. WDM has not alleged actual fraud in Plaintiff’s pleading
of jurisdictional facts, so the Court will only consider the latter test for improper joinder. In that
situation, the test for improper joinder is whether there is a reasonable basis that state law would
allow for recovery against the forum defendant, not a mere theoretical possibility that the claim
could be successful. Id. at 648. To determine if a plaintiff’s complaint adequately states a
reasonable basis for recovery, courts generally apply a Rule 12(b)(6) type analysis. Smallwood v.
Ill. Cent. R.R. Co., 385 F.3d 568, 573 (5th Cir. 2004). In most cases, “if a plaintiff can survive a
Rule 12(b)(6) challenge, there is no improper joinder.” Id.

If a court determines that the forum party has been improperly joined under a Rule
12(b)(6)-type analysis, that party must be dismissed without prejudice. Id. at 209. This dismissal
is based on lack of subject matter jurisdiction and does not operate as an adjudication on the
merits. Id. at 210. When applying the Rule 12(b)(6)-type test for improper joinder inquiries, a
federal court reads the original state court pleading through the lens of the federal pleading
standards and must determine whether the plaintiff has plead “enough facts to state a claim to relief
that is plausible on its face.” Id. at 203; Int'l Energy Ventures, 818 F.3d 193, 200 (5th Cir.
2016) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible
when the plaintiff pleads facts that allow the Court to “draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The
court must accept all well-pleaded facts as true and must draw all reasonable inferences in favor
of the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 239 (5th Cir. 2009). But the court is
not bound to accept as true legal conclusions couched as factual allegations. Iqbal, 556 U.S. at

678.
IV. ANALYSIS
WDM argues that Piazza has been improperly joined in this case because Plaintiff has no
possible cause of action against him under Louisiana law. An employee may not be personally
liable “simply because of his general administrative responsibility for performance of some
function of the employment.” Canter v. Koehring Co., 283 So.2d 716, 721 (La. 1973). However,
both Louisiana courts and the Fifth Circuit have found an individual employee liable to a third
party for damages under the four-prong test articulated in Canter when: (1) the employer owes a
duty of care to the plaintiff; (2) the employer delegates the duty to the employee; (3) the employee
has breached the duty of care through personal fault; and (4) the employee has a personal duty

towards the plaintiff, and the breach of that duty caused the plaintiff’s damages. Id. at 721; see
also Anderson v. Ga. Gulf Lake Charles, LLC, 342 F. App’x. 911, 916 (5th Cir. 2009) (“Canter’s
four-part test is used to determine whether an employee is individually liable to third persons. . .
.”) (quoting In re 1994 Exxon Chem. Fire, 558 F.3d 378, 386 (5th Cir. 2009)). Thus, the central
inquiry in the Court’s analysis is whether Plaintiff has stated a legitimate claim against Piazza in
light of Canter and its progeny.
Here, it appears WDM takes issue with the fourth element of the jurisprudential test
outlined in Canter, arguing that Piazza did not have a personal responsibility to Plaintiff nor did
he breach a personal duty owed to her. Instead, it contends that Piazza’s duties and his alleged
negligence in carrying out those duties arose from his “general administrative responsibilities” as
an employee and manager for Winn Dixie. While the Court agrees that Plaintiff’s generic
assertions, such as Piazza’s failure “to properly and safely inspect, maintain and clean the floor,”
seem to fall short of a personal duty, WDM’s argument ultimately fails due to one crucial

allegation made in the petition. Plaintiff has specifically alleged that Piazza was “aware of the
liquid substance on the floor,” and he failed to warn the Plaintiff. This Court and other sections
have held that similar allegations to the one made here regarding an employee’s personal
knowledge of an alleged defect were sufficient to state a claim against an employee-supervisor.
See, e.g., Garnett v. ABC Ins. Co., No. CV 24-2111, 2024 WL 4953539, at *3 (E.D. La. Dec. 3,
2024); Creppel v. Apache Corp., 2004 WL 1920932 at *3-4 (E.D. La. Aug. 25, 2004) (“Thus, even
if [defendant’s] responsibility . . . were delegated to others, and he acted as a general administrator,
he could still be liable for plaintiffs’ injuries if he had personal knowledge of the danger and failed
to cure the risk of harm.”); Hayden v. Phillips Petroleum Co., 788 F. Supp. 285, 287 (E.D. La.
1992) (finding that an employee’s alleged personal knowledge of a dangerous pipeline could give

rise to a personal duty under Canter); Amaya v. Holiday Inn New Orleans, 2011 WL 4344591 at
*2 (E.D. La. Sept. 15, 2011) (“An employee who has personal knowledge of a danger and fails to
cure the risk of harm may be liable for a plaintiff’s injuries under Canter.”). Even the Fifth Circuit
has reached the same conclusion when addressing this issue. Ford v. Elsbury, 32 F.3d 931, 935-
36 (5th Cir. 1994) (noting that a supervisor’s knowledge of a risk of harm and failure to respond
to the risk could create personal liability under Canter). Although some courts have dismissed
store managers under somewhat similar facts, any ambiguity in the controlling state law must be
resolved in favor of Plaintiff. See Travis, 326 F.3d at 649.
Accordingly, the Court finds that Plaintiff has stated a viable claim against Piazza, and that
he is a proper party to this lawsuit. As such, this Court does not have jurisdiction because Piazza
is a citizen of Louisiana, the forum of this civil action, making removal improper. The Court thus
remands this case back to state court for further proceedings.
V. CONCLUSION
IT IS HEREBY ORDERED that Plaintiff Keoka Jenkins’s Motion to Remand, R. Doc.
5, is GRANTED. This case is remanded back to the Orleans Parish Civil District Court for further
proceedings.
New Orleans, Louisiana, this 27th day of February, 2025.

Sell

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10813928. Public record. Not legal advice.