Ramos v. Wal-Mart Stores, Inc., 5:16-cv-00304

202 F.Supp.3d 457

Jesus RAMOS and Norma Dolson, individually and as parents and co-administrators of the estate of Francine E. Ramos, deceased; Joseph Gray, Jr. and Irene Gray, individually and as parents and co-administrators of the estate of Trevor D. Gray, deceased; and Edward Ketrow, individually and as parent and administrator of the estate of Kory Ketrow, deceased, Plaintiffs,

v.WAL-MART STORES, INCORPORATED; Wal-Mart Stores East, L.P.; Wal-Mart Stores East, Inc.; Nicole Ann Everett; Addiel Javier; and John Doe Walmart Cashier, Defendants.

No. 5:16-cv-00304

United States District Court, E.D. Pennsylvania.

Signed August 18, 2016

Matthew A. Casey, Ryan P. Chase, Shanon S. Levin, Ross Feller Casey LLP, Philadelphia, PA, for Plaintiffs.

Adam N. Schupack, Mark A. Aronchick, Michele D. Hangley, Hangley Aronchick Segal Pudlin & Schiller, Philadelphia, PA, Anna M. Darpino, Patrick J. McDonnell, McDonnell & Associates, P.C., King of Prussia, PA, for Defendants.

MEMORANDUM OPINION

Plaintiffs' Motion to Remand, ECF No. 18—Granted

Joseph F. Leeson, Jr., United States District Judge

I. Introduction

Defendants removed this case from the Court of Common Pleas of Philadelphia County, Pennsylvania. The two named individual defendants are not diverse from most of the Plaintiffs, but Defendants contend that they were fraudulently joined solely to defeat diversity jurisdiction. Defendants also contend that federal question jurisdiction is available because at least one of the Plaintiffs' state law claims raises a federal issue sufficient for this case to be deemed to arise under federal law. Neither contention has merit. Accordingly, this case is remanded to the Court of Common Pleas.

II. Factual and Procedural Background

According to the Plaintiffs, on July 5, 2015, twenty-year-old Robert Jourdain walked into a Walmart store in Easton, Pennsylvania. Compl. ¶ 46, ECF No. 1-1. It was a few minutes before three o'clock in the morning, and Jourdain was intoxicated, having spent four hours at a bar earlier that night. Id. ¶¶ 47, 51. While in the store, he purchased a box of "Winchester .38 caliber handgun bullets" from either Defendant Nicole Everett, the store's general manager, Defendant Addiel Javier, the store's sporting goods manager, or another, unidentified cashier—or some combination of the three. See id. ¶¶ 25-27, 49. None of them asked Jourdain to present identification or made any other effort to ascertain his age before completing the transaction. Id. ¶¶ 53-55.

Jourdain then left the store, loaded the ammunition into a .38 caliber Smith & Wesson Model 10 revolver, and climbed into a vehicle driven by his friend, Kareem Mitchell. See id. ¶¶ 49, 57-59, 77. With them in the vehicle was Todd West, Jourdain's cousin. Id. ¶ 59. Over the next hour, West—accompanied by Jourdain and Mitchell—shot and killed three people. See id. ¶¶ 61-75, 78-85. The first victim was Kory Ketrow. At approximately 3:14 a.m.—less than thirty minutes after Jourdain purchased the ammunition—West spotted Ketrow in front of his home on Lehigh Street in Easton. Id. ¶¶ 61, 81. West fired at him from the window of Mitchell's vehicle, then exited the vehicle and continued to fire. Id. ¶ 81. Ketrow was still alive when he was discovered by first responders, but he later succumbed to multiple gunshot wounds. Id. ¶¶ 62-64.

West, Jourdain, and Mitchell then departed Easton and headed for Allentown. Id. ¶ 82. At approximately 3:35 a.m.—twenty minutes after West fatally wounded Ketrow—they encountered Francine Ramos behind the wheel of a vehicle located near the intersection of North Sixth Street and Greenleaf Street. Id. ¶ 67. With her was Trevor Gray. Id. West shot Ramos numerous times; she was later found dead in the vehicle, bleeding from her head. Id. ¶¶ 67, 69, 82. Gray tried to flee and take cover behind another vehicle, but he too suffered multiple gunshot wounds. Id. ¶¶ 72-73, 83. First responders found him alive, leaning against a parked car, but he died en route to the hospital. Id. ¶¶ 72-73.

Criminal charges are pending in the Court of Common Pleas of Lehigh County, Pennsylvania. The Plaintiffs are the parents and administrators of the estates of the three people murdered that morning. They claim that Walmart and the three aforementioned Walmart employees are liable for the deaths of their children because they permitted an intoxicated twenty-year-old to purchase handgun ammunition at three o'clock in the morning—conduct which may have also violated a federal law prohibiting the sale of certain types of ammunition to buyers under the age of twenty-one. See 18 U.S.C. § 922(b)(1). They originally filed this suit in the Court of Common Pleas of Philadelphia County, but Defendants timely removed it to this Court, invoking both diversity jurisdiction under 28 U.S.C. § 1332(a)(1) and federal question jurisdiction under 28 U.S.C. § 1331.

The basis for invoking either of those grants of subject matter jurisdiction is not immediately apparent. Most of the Plaintiffs and both of the named individual Defendants (Everett and Javier) are citizens of Pennsylvania, see id. ¶¶ 1-20, 25-26, and the Complaint contains only state law claims for negligence, negligence per se, and negligent entrustment, see id. ¶¶ 109-213. Defendants contend, however, that Everett and Javier were fraudulently joined to defeat diversity jurisdiction, which means that their presence may be disregarded for the purpose of this jurisdictional inquiry.¹ With respect to federal question jurisdiction, Defendants contend that this case belongs to that "small and special category" of cases that are deemed to arise under federal law despite containing no federal cause of action. SeeGunn v. Minton , ––– U.S. ––––, –––– – ––––, 133 S.Ct. 1059, 1064–65, 185 L.Ed.2d 72 (2013) (quoting Empire Healthchoice Assurance, Inc. v. McVeigh , 547 U.S. 677, 699, 126 S.Ct. 2121, 165 L.Ed.2d 131 (2006) ). Plaintiffs disagree on both counts and believe that this action should be remanded. Plaintiffs are correct.

III. The individual Defendants, Everett and Javier, were not fraudulently joined.

"The doctrine of fraudulent joinder represents an exception to the requirement that removal be predicated solely upon complete diversity." In re Briscoe , 448 F.3d 201, 216 (3d Cir.2006). However, the "removal statutes are to be strictly construed against removal," so this exception should not be invoked lightly. Id. at 217 (quoting Batoff v. State Farm Ins. Co. , 977 F.2d 848, 851–52 (3d Cir.1992) ). Only if "there is no reasonable basis in fact or colorable ground supporting the claim against the joined defendant, or no real intention in good faith to prosecute the action against the defendant[ ]" can a plaintiff's decision to join a non-diverse party be considered fraudulent. Id. This means that "if there is even a possibility that a state court would find that the complaint states a cause of action against any one of the resident defendants, the federal court must find that joinder was proper and remand the case to state court." Id. This is not the same inquiry that a court conducts when a defendant moves to dismiss a case for failing to state a claim. Id. at 218. The fact that a plaintiff may not be able to prevail against a particular defendant does not necessarily mean that the decision to file suit against that defendant was fraudulent—more must be shown before it is safe to conclude that the defendant was joined in bad faith. The question is not whether the claims against the non-diverse defendant lack merit, but rather whether those claims are "wholly insubstantial and frivolous," Id. at 218 (quoting Batoff , 977 F.2d at 852 ), such that "they should have never been brought at the outset," Batoff , 977 F.2d at 853–54 (quoting Neitzke v. Williams , 490 U.S. 319, 328, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) ). This standard places a "heavy burden of persuasion" on the removing party. See Briscoe , 448 F.3d at 217 (quoting Batoff , 977 F.2d at 851–52 ).

Defendants contend that no claim for negligence (whether under ordinary negligence principles or the doctrine of negligence per se) or negligent entrustment is cognizable against Everett or Javier because they did not personally participate in the sale of ammunition. Plaintiffs have alleged that both Everett and Javier "sold handgun ammunition to Robert Jourdian," see Compl. ¶ 35, and that they were "directly involved in the...sale," see id. ¶¶ 25-26, but Defendants argue that the Court may look past those allegations because they have produced affidavits from Everett and Javier declaring that they were not involved.²

The problem with this argument is that a court engaging in a fraudulent joinder inquiry "must accept any well-pleaded allegations as true." Briscoe , 448 F.3d at 219 ; Batoff , 977 F.2d at 851–52. While it is true that "a court can look to more than just the pleading allegations to identify indicia of fraudulent joinder," it cannot do so for the purpose of adjudicating the merits of those allegations. See Briscoe , 448 F.3d at 219 (cautioning that "a district court must not step ‘from the threshold jurisdictional issue into a decision on the merits' " (quoting Boyer v. Snap – on Tools Corp. , 913 F.2d 108, 112 (3d Cir.1990) )).³ Plaintiffs have alleged that both Everett and Javier were directly involved in the sale, and to accept the truth of the affidavits would be to reject the truth of their well-pleaded allegations. That would be particularly troublesome in light of the fact that Plaintiffs have not yet had any opportunity to develop support for their allegations (and probe the veracity of these affidavits) through discovery. See Abels v. State Farm Fire & Cas. Co. , 770 F.2d 26, 33 (3d Cir.1985) (recognizing that where the plaintiffs had not "had a reasonable opportunity to complete discovery and develop a record" that "[i]t would be premature for a court...to declare at [that] stage that there [was] no basis in fact for the...allegations").

Even if Everett and...