Richardson v. Wal-Mart Stores Tex., LLC

192 F.Supp.3d 719

Pearline and Leon RICHARDSON, Plaintiffs,

v.WAL-MART STORES TEXAS, LLC, et al., Defendants.

CIVIL ACTION H-15-3167

United States District Court, S.D. Texas, Houston Division.

Signed June 16, 2016

Avery Nicholas Sheppard, Eileen Frances O'Neill, Paul William Smith, Ware, Jackson, Lee, O'Neill, Smith & Barrow, LLP, Houston, TX, Fred Davis, Davis & Davis, Bryan, TX, for Plaintiffs.

Julie Christina Warnock, John A. Ramirez, Bush Ramirez, LLC, Houston, TX, for Defendants.

MEMORANDUM OPINION AND ORDER

Gray H. Miller, United States District Judge

Pending before the court is Pearline and Leon Richardson's (collectively, "Plaintiffs") motion for remand. Dkt. 24. Having considered the motion, related briefing, oral argument, and applicable law, the court is of the opinion that the motion should be GRANTED and the case should be REMANDED to the 506^thJudicial District Court of Grimes County, Texas.

I. BACKGROUND

On September 16, 2015, Pearline Richardson ("Richardson") commenced an action in the 506th Judicial District Court of Grimes County, Texas, in which she sought personal injury damages resulting from a slip-and-fall that occurred on July 1, 2015, in defendant Wal-Mart Stores Texas, LLC's ("Wal-Mart") store. Dkt.1, Ex. A. On October 28, 2015, Wal-Mart removed the suit to this court based on diversity jurisdiction. Dkt. 1. On March 10, 2016, Richardson filed an amended complaint, joining her husband as a co-plaintiff and a Wal-Mart employee, Anita Bias ("Bias"), as a defendant. Dkt. 22. The amended complaint raises a negligent undertaking claim against Bias and a premises liability claim against Wal-Mart. Dkt. 22. In their amended complaint, Plaintiffs contend that Bias breached the duty of care she owed to Richardson when she discovered a spilled bottle of shampoo on the Wal-Mart floor but failed to properly clean up the spill. Id. Richardson alleges that Bias removed the bottle of shampoo but did not mark the area or otherwise identify the spill, leaving the spill more difficult to identify and more dangerous than before. Id. On the same day that Plaintiffs filed their amended complaint, they filed a motion to remand, arguing that Bias's joinder destroys the court's diversity jurisdiction. Dkt. 24. On May 31, 2016, the court heard oral argument on Plaintiffs' motion. The motion has been fully briefed and is now ripe for disposition.

II. LEGAL STANDARD AND ANALYSIS

A party 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 (2012). The party seeking removal bears the burden of establishing federal jurisdiction. Willy v. Coastal Corp. , 855 F.2d 1160, 1164 (5th Cir.1988). This statutory right to removal is strictly construed because "removal jurisdiction raises significant federalism concerns." Id. (citations omitted). "[A]ny doubt about the propriety of removal must be resolved in favor of remand." Gasch v. Hartford Accident & Indem. Co. , 491 F.3d 278, 281–82 (5th Cir.2007).

In opposition to remand, Wal-Mart raises three arguments: (1) Bias was improperly joined; (2) even if properly joined, Bias is diverse; and (3) if Bias is non-diverse, the court should exercise its discretion under Hensgens to prohibit Plaintiffs from joining her.

A. Improper Joinder

1. Legal Standard

A case may be removed despite the presence of a non-diverse defendant if that defendant was joined improperly, without a legal basis to do so. Hornbuckle v. State Farm Lloyds , 385 F.3d 538, 542 (5th Cir.2004). The removing party bears the heavy burden of demonstrating improper joinder. Travis v. Irby , 326 F.3d 644, 649 (5th Cir.2003). "Improper joinder can be established in two ways: (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." Mumfrey v. CVS Pharmacy, Inc. , 719 F.3d 392, 401 (5th Cir.2013) (alteration omitted). In this case, Wal-Mart asserts only the second basis for improper joinder, which focuses on whether the plaintiff has asserted a valid state law cause of action against the non-diverse defendant. Smallwood v. Ill. Cent. R.R. Co. , 385 F.3d 568, 573 (5th Cir.2004) (en banc). To determine whether the non-diverse defendant was improperly joined, the court asks "whether the defendant has demonstrated that there is no possibility of recovery by the plaintiff against an in-state defendant, which stated differently means that there is no reasonable basis for the district court to predict that the plaintiff might be able to recover against an in-state defendant." Id.

The Smallwood court established the procedure for determining if joinder was proper for a non-diverse defendant, declaring that "[t]he court may conduct 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 defendant." Id. The court further concluded that "if a plaintiff can survive a Rule 12(b)(6) challenge, there is no improper joinder." Id. In keeping with Smallwood , the Fifth Circuit recently confirmed that the district court applies the federal 12(b)(6) pleading standard to judge the sufficiency of the plaintiff's complaint for the purposes of the improper joinder analysis. See Int'l Energy Ventures Mgmt., L.L.C. v. United Energy Grp., Ltd. , 818 F.3d 193, 205 (5th Cir.2016) (clarifying that the pleading standard in removal cases should be the federal 12(b)(6) standard, applied to the relevant state law claims).

To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Gines v. D.R. Horton, Inc. , 699 F.3d 812, 816 (5th Cir.2012) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "Factual allegations must be enough to raise a right to relief above the speculative level...on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly , 550 U.S. at 555, 127 S.Ct. 1955. As part of the Twombly -Iqbal analysis, the court proceeds in two steps. First, the court separates legal conclusions from well-pled facts. Iqbal , 556 U.S. at 678–79, 129 S.Ct. 1937. Second, the court reviews the well-pled factual allegations, assumes they are true, and then determines whether they "plausibly give rise to an entitlement to relief." Id. at 679, 129 S.Ct. 1937.

2. Analysis

Plaintiff alleges a negligent undertaking claim against Bias. Dkt. 22. A defendant is liable for negligent undertaking if the defendant (1) undertook to perform services that it knew or should have known were necessary for the plaintiff's protection; (2) the defendant failed to exercise reasonable care in performing those services; and, (3) either the plaintiff relied on the defendant's performance or the defendant's performance increased the plaintiff's risk of harm. Custom Transit, L.P. v. Flatrolled Steel, Inc. , 375 S.W.3d 337, 363 (Tex.App.–Houston [14th Dist.] 2012, pet. denied).

The parties primarily dispute whether Bias owed a duty of care to Richardson. Texas law is clear that an employee can be held individually liable for negligent conduct resulting in injury. See Crooks v. Moses , 138 S.W.3d 629, 637 (Tex.App.–Dallas 2004, pet. denied) ("In other words, if one undertakes to make the premises safe for others, he or she owes a duty to use due care."). Further, Texas law "recognize[s] that a duty to use reasonable care may arise when a person undertakes to provide services to another, either gratuitously or for compensation." Torrington Co. v. Stutzman , 46 S.W.3d 829, 837 (Tex.2000).

However, Wal-Mart argues, citing Leitch v. Hornsby , that Bias may be individually liable for actions within the scope of her employment only if Bias owed a duty of care to Richardson independent from the employer's duty. See 935 S.W.2d 114 (Tex.1996). The comparison to Leitch is unpersuasive. In Leitch , the Supreme Court of Texas held that corporate officers and directors would not be held individually liable to an injured employee because there was no connection between the corporate officer's behavior and the injury sustained by the employee. Id. at 118. Unlike the defendant in Leitch , Bias was personally involved in the conduct that allegedly contributed to Richardson's injury. Furthermore, there is no employer-employee relationship between Plaintiffs and Defendants like in Leitch. Therefore, the reasoning in Leitch is inapplicable to this case.

Wal-Mart has also cited several cases involving contractual relationships between the parties. See Jones v. Pesak Bros. Constr., Inc. , 416 S.W.3d 618, 631 (Tex.App.–Houston[1st Dist.] 2013, no pet.) (finding no individual duty owed because alleged behavior was defined in contract between plaintiff and defendant); Tex. Specialty Trailers, Inc. v. Jackson & Simmen Drilling Co. , No. 2–07–228–CV, 2009 WL 2462530, at *4 (Tex.App.–Fort Worth Aug. 13, 2009, pet. denied) (limiting defendant's liability to the contractual agreement between plaintiff and defendant); Dukes v. Philip Johnson/Alan Ritchie Architects, P.C. , 252 S.W.3d 586, 602 (Tex.App.–Fort Worth 2008, pet. denied) (finding no individual duty owed because the alleged behavior fell within the terms of the contract between plaintiff and defendant). These cases are distinguishable. In this case, there is no privity of contract between Bias and Plaintiffs. Wal-Mart has cited no Texas case law that suggests that an employment contract limits liability for negligent behavior towards customers. To the contrary, "[a] corporation's employee is...