McKay v. Walmart, Inc., Civil Action 22-469-BAJ-RLB

BELINDA MCKAY v. WALMART, INC., ET AL.

Civil Action No. 22-469-BAJ-RLB

United States District Court, M.D. Louisiana

December 12, 2022

NOTICE

RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE

Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the United States District Court.

In accordance with 28 U.S.C. § 636(b)(1), you have fourteen (14) days after being served with the attached Report to file written objections to the proposed findings of fact conclusions of law and recommendations therein. Failure to file written objections to the proposed findings conclusions, and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions of the Magistrate Judge which have been accepted by the District Court.

ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

Before the Court is Plaintiff's Motion to Remand. (R. Doc. 2). The motion is opposed. (R. Doc. 8). For the reasons set forth herein, the undersigned recommends that the Motion to Remand be GRANTED and that this action be REMANDED to the 21st Judicial District Court, Livingston Parish, State of Louisiana.

I. Background

On or about July 16, 2021, Belinda McKay (“Plaintiff” or “McKay”) filed a Petition for Damages (“Petition”) in the 21st Judicial District Court, Livingston Parish, State of Louisiana, naming as defendants Walmart, Inc. (“Wal-Mart Inc.”), Wal-Mart Louisiana, LLC (“Wal-Mart Louisiana”), Wal-Mart Stores, East, LP (“Wal-Mart East”), Wal-Mart Associates, Inc. (“Wal-Mart Associates”), Angel LeBlanc (“LeBlanc” or “Leblanc”), and John Doe (“Doe”) (collectively “Defendants”). (R. Doc. 11-1). The removing defendants - Wal-Mart Inc. and Wal-Mart Louisiana - are hereinafter collectively referred to as “Wal-Mart” or “Walmart.'

Plaintiff alleges that on or about August 13, 2020, she was a customer at a Walmart Supercenter located at 34025 La. Hwy. 16 in Denham Springs, Louisiana, purportedly owned and operated by Wal-Mart and managed by LeBlanc. (R. Doc. 11-1 at 2, 6). Plaintiff used one of Wal-Mart's motorized shopping carts while she was shopping. (R. Doc. 11-1 at 3). While being operated by Plaintiff, the motorized shopping cart suddenly tipped over, causing injury to Plaintiff's head, shoulder, and knee. (R. Doc. 11-1 at 3). According to Plaintiff, the motorized shopping cart was defective because it was missing front wheels, which caused an imbalance with the cart. (R. Doc. 11-1 at 3).

On September 13, 2021, Wal-Mart and LeBlanc jointly filed an Answer. (R. Doc. 1-3). Paragraph 27 of the Answer provides the following: “Defendants deny any and all liability in this matter. In further answer, Angel LeBlanc specifically denies any independent negligence or liability as an associate/employee of Walmart.” (R. Doc. 1-3 at 3).

On February 16, 2022, Plaintiff testified at her deposition that she did not know LeBlanc or that she had even sued LeBlanc. (R. Doc. 2-3 at 2-3). The deposition transcript was delivered to the parties on March 20, 2022. (R. Doc. 2-2).

On or about March 31, 2022, Wal-Mart and LeBlanc filed a Motion and Incorporated Memorandum to Dismiss Angel Leblanc and Request for Expedited Consideration (“Motion to Dismiss”). (R. Doc. 4-11 at 7). In the Motion to Dismiss, Wal-Mart and LeBlanc made the following assertions:

• “Angel Leblanc was added as a local in-state defendant to defeat diversity jurisdiction in an attempt to avoid removal. She was improperly joined, and there is no basis for imposing liability on her as an individual.” (R. Doc. 4-11 at 1).

• “These allegations are insufficient to impose personal liability on Ms. Leblanc. Even if plaintiff can prove Angel Leblanc failed to administer the duties delegated to her by Walmart (which is denied), the Plaintiff cannot show that Angel Leblanc owed a personal duty to the Plaintiff.” (R. Doc. 4-11 at 2).

• “Plaintiff's claims against Ms. Leblanc should be dismissed as they were made simply in an effort to destroy diversity and prevent the matter from being removed to federal court.” (R. Doc. 4-11 at 3).

• “Again, Angel Leblanc was named as a defendant by opposing counsel for no other reason than to defeat diversity jurisdiction and avoid removal to federal court.” (R. Doc. 4-11 at 4).

On April 14, 2022, LeBlanc testified at her deposition Wal-Mart never assigned her the task of checking the motorized carts to make sure they were properly working and that she did not supervise others assigned with that task. (R. Doc. 2-4 at 2-3). The deposition transcript was delivered to the parties on April 20, 2022. (R. Doc. 2-2).

On May 3, 2022, Wal-Mart (through Joey Theresa Landry) testified at its deposition that no one at the Walmart Supercenter had the job of checking the casters on shopping carts. (R. Doc. 2-5 at 3). The deposition transcript was delivered to the parties on May 9, 2022. (R. Doc. 2-2).

On June 27, 2022, the state court judge held oral arguments on the Motion to Dismiss, orally granting the motion and dismissing LeBlanc as a defendant. (R. Doc. 11 at 2, 4; R. Doc. 11-4 at 1).^[1]

On July 13, 2022, within 30 days of dismissal of LeBlanc as a defendant, Wal-Mart removed the action on the basis that this Court has diversity jurisdiction pursuant to 28 U.S.C. § 1332. (R. Doc. 1).^[2] Wal-Mart asserts that there is complete diversity because Plaintiff is a citizen of Louisiana; the Wal-Mart entities are citizens of Arkansas and Delaware; LeBlanc, the only non-diverse defendant, was dismissed from the suit prior to removal; and the citizenship of fictitiously named defendants, such as Doe, is not considered when determining whether an action is removable. (R. Doc. 11 at 3-4). Wal-Mart further asserts that Wal-Mart Associates is not a proper party to the matter because Plaintiff never requested service on that entity. (R. Doc. 11 at 4). Wal-Mart also asserts that the amount in controversy is met because Plaintiff specifically alleges in the Petition that her damages exceed seventy-five thousand dollars, exclusive of interest and costs. (R. Doc. 11-1 at 7).

Finally, and most importantly, Wal-Mart asserts that removal is timely because it was filed within 30 days after it received the state court's oral dismissal of LeBlanc, the only non-diverse defendant. (R. Doc. 11 at 5).

On July 17, 2022, Plaintiff filed the instant Motion to Remand, seeking remand on the basis that Wal-Mart did not timely remove the action despite the improper joinder (sometimes referred to as “fraudulent joinder” by the parties)^[3] of LeBlanc. (R. Doc. 2).

II. Arguments of the Parties

A. Plaintiff's Arguments

Plaintiff does not dispute that, given the dismissal of LeBlanc, this Court can properly exercise diversity jurisdiction under 28 U.S.C. § 1332 because the parties are completely diverse and the required amount in controversy is met. Instead, Plaintiff argues that Wal-Mart's removal of the matter was untimely under 28 U.S.C. § 1446(b).

In so arguing, Plaintiff asserts that the proper standard for determining whether the 30-day period for removal is triggered (whether based on the Petition or a subsequent document) is from the time where “an improper joinder could first be ascertained” by the defendants. (R. Doc. 2-1 at 6-7). Based on this standard, Plaintiff argues that Wal-Mart could have “ascertained” that this action was removable at various points in this litigation prior to LeBlanc's actual dismissal as a defendant: (1) service of the Petition; (2) the filing of Wal-Mart and LeBlanc's Answer; (3) the receipt of the transcripts for Plaintiff, LeBlanc, and Wal-Mart's depositions; or (4) the filing of Wal-Mart and LeBlanc's Motion to Dismiss. (R. Doc. 2-1 at 7-16, 18). Plaintiff also argues that the subsequent dismissal of LeBlanc as a defendant did not trigger a new removal period given that improper joinder could have been “first ascertained” at one of the earlier points in the litigation. (R. Doc. 2-1 at 17-18).

Plaintiff first argues that because Wal-Mart “could have ascertained” that LeBlanc was improperly joined upon service of the Petition, removal was untimely under Section 1446(b)(1). (R. Doc. 2-1 at 7). Plaintiff asserts that while she “believed” at the time she filed the Petition that LeBlanc was charged by Wal-Mart with the “duty to maintain its motorized shopping cards and ensure that they are safe for customer use,” Wal-Mart “knew” from the start of this lawsuit that this duty had not been delegated to LeBlanc (or any other Wal-Mart employee) for the purposes of establishing personal liability under Canter v. Kohring Co., 283 So.2d 716 (La. 1973).^[4] (R. Doc. 2-1 at 8). Plaintiff then argues that this Court should apply a standard considering Wal-Mart's “actual knowledge” of improper joiner since the commencement of this lawsuit. (R. Doc. 2-1 at 9-11).

Plaintiff then argues that Paragraph 27 of the Answer (which was co-filed by Wal-Mart and LeBlanc) “confirms” that Wal-Mart was “aware of the improper joinder of LeBlanc” at the time the Answer was filed on September 13, 2021. (R. Doc. 2-1 at 11-14). Plaintiff relies on additional district court decisions in support of the assertion that Wal-Mart “objectively could have discovered” the improper joinder of LeBlanc without reliance on “subjective knowledge.” (R. Doc. 2-1 at 11-14).

Plaintiff next turns to the receipt of deposition transcripts for the purpose of establishing that Wal-Mart could have ascertained the improper joinder of LeBlanc prior to the dismissal of LeBlanc. (R. Doc. 2-1 at 14-15). In particular, Plaintiff points out the...