Scott v. Walmart, Inc.

528 F.Supp.3d 1267

Brian SCOTT, Plaintiff,

v.WALMART, INC., Wal-Mart Associates, Inc., Wal-Mart Stores East, LP, and Robert Smith, Defendants.

Case No. 8:20-cv-2807-KKM-CPT

United States District Court, M.D. Florida, Tampa Division.

Signed March 17, 2021

John Lewis Holcomb, Jr., Holcomb Law, PLLC, Tampa, FL, for Plaintiff.

Marilyn G. Moran, Ford & Harrison, LLP, Orlando, FL, Fabian A. Ruiz, Ford & Harrison, LLP, Miami, FL, for Defendants.

ORDER

Kathryn Kimball Mizelle, United States District Judge

This matter is before the Court on Plaintiff Brian Scott's Motion to Remand this Action to State Court (Doc. 6) and Defendants’ Response in Opposition to Remand (Doc. 8). Because diversity jurisdiction is not satisfied and the action could not have originally been brought in federal court, the Court GRANTS Plaintiff's Motion.

I. Background

On October 14, 2020, Plaintiff filed a Complaint in the Circuit Court of the Thirteenth Judicial Circuit in and for Hillsborough County, Florida, alleging violations of the Florida Civil Rights Act of 1992 (FCRA) and an intentional infliction of emotional distress claim under Florida law against Defendants. (Doc. 1, Attachment 1). After being served on October 29, 2020, Defendants timely filed a Notice of Removal on November 30, 2020, see 28 U.S.C. § 1446(b) ; Fed. R. Civ. P. 6(a)(1)(C), alleging that diversity jurisdiction existed under 28 U.S.C. §§ 1332, 1441, and 1446, (Doc. 1, at 1–2).

On December 14, 2020, Plaintiff filed a Motion to Remand the action to state court, arguing that Defendants "failed to meet their burden to show diversity or that the jurisdictional amount in controversy ($75,000) has been satisfied." (Doc. 6, at 2). In its Response in Opposition to the Motion to Remand, Defendants argue that complete diversity exists because Defendant Robert Smith's citizenship should be ignored for jurisdictional purposes under the doctrine of fraudulent joinder and that Defendants have established that the amount in controversy more likely than not exceeds the jurisdictional requirement. (Doc. 8, at 4–24).

II. Analysis

A civil case filed in state court may be removed by the defendant to federal court if the case could have been brought originally in federal court. See 28 U.S.C. § 1441. "One of the limited grounds of jurisdiction that federal courts have is diversity jurisdiction, which is the only source of jurisdiction available in this case." Kirkland v. Midland Mortg. Co. , 243 F.3d 1277, 1280 (11th Cir. 2001). "Diversity jurisdiction exists where the suit is between citizens of different states and the amount in controversy exceeds the statutorily prescribed amount, in this case $75,000." Williams v. Best Buy Co., Inc. , 269 F.3d 1316, 1319 (11th Cir. 2001) (citing 28 U.S.C. § 1332(a) ). When a defendant removes an action from state court to federal court, the defendant "bears the burden of proving that federal jurisdiction exists." Id.

In determining "whether the case should be remanded, the district court must evaluate the factual allegations in the light most favorable to the plaintiff and must resolve any uncertainties about state substantive law in favor of the plaintiff." Crowe v. Coleman , 113 F.3d 1536, 1538 (11th Cir. 1997). Here, although Defendant Robert Smith's citizenship should be ignored when determining whether complete diversity exists, Defendants have not proved by a preponderance of the evidence that the amount in controversy more likely than not exceeds the jurisdictional requirement. Accordingly, diversity jurisdiction is not satisfied.

a. Diversity of Citizenship & Fraudulent Joinder

To qualify for diversity citizenship, there must be complete diversity between the parties, which means no plaintiff may be a citizen of the same state as any defendant. Legg v. Wyeth , 428 F.3d 1317, 1320 n.2 (11th Cir. 2005). Citizenship, which is equivalent to domicile for purposes of diversity jurisdiction, is the key fact that must be alleged to establish diversity for a natural person. See McCormick v. Aderholt , 293 F.3d 1254, 1257 (11th Cir. 2002) ; Taylor v. Appleton , 30 F.3d 1365, 1367 (11th Cir. 1994).

Plaintiff is a citizen of Florida. (Doc. 1, at 2). Defendants Walmart Inc.; Wal-Mart Associates, Inc.; and Wal-Mart Stores East, LP are citizens of Delaware and Arkansas (Doc. 1, at 2–4)—the states in which Defendants are incorporated and have their principal places of business. See 28 U.S.C. § 1332(c)(1) ; Hertz Corp. v. Friend , 559 U.S. 77, 92–93, 130 S.Ct. 1181, 175 L.Ed.2d 1029 (2010). Defendant Robert Smith, Plaintiff's former supervisor, is a citizen of Florida. (Doc. 1, at 5). Plaintiff argues that Defendants have not demonstrated complete diversity because Mr. Smith is a proper defendant, and Mr. Smith and Plaintiff are both citizens of Florida. (Doc. 6, at 2). Defendants argue that under the doctrine of fraudulent joinder, Mr. Smith's citizenship should be ignored for the purpose of establishing complete diversity. (Doc. 1, at 4). If Mr. Smith's citizenship is ignored, then complete diversity would exist.

"Fraudulent joinder is a judicially created doctrine that provides an exception to the requirement of complete diversity." Triggs v. John Crump Toyota, Inc. , 154 F.3d 1284, 1287 (11th Cir. 1998). Joinder has been deemed fraudulent when "there is no possibility that the plaintiff can prove a cause of action against the resident (non-diverse) defendant."¹ Id. (citation omitted). "The plaintiff need not have a winning case" against the nondiverse defendant." Id. Rather, "[i]f 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." Crowe , 113 F.3d at 1538 ; see Triggs , 154 F.3d at 1287. "When considering a motion for remand, federal courts are not to weigh the merits of a plaintiff's claim beyond determining whether it is an arguable one under state law." Crowe , 113 F.3d at 1538.

Intentional infliction of emotional distress is the only claim that Plaintiff alleges against Mr. Smith. (Doc. 1, Attachment 1). Because Mr. Smith's conduct as alleged is not sufficiently outrageous to support the tort of intentional infliction of emotional distress under Florida law, there is no possibility that Plaintiff can state a claim against Mr. Smith.

To establish a claim for intentional infliction of emotional distress, a plaintiff must allege conduct that is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community."² Bordenkircher v. Am. Home Prods. , No. 5:03-cv-0443-Oc-10GRJ, 2004 WL 6066924, at *4 (M.D. Fla. Jan. 26, 2004). "It is within the court's domain to determine whether the conduct alleged rises to the required level of outrageousness." Id. ; see Broberg v. Carnival Corp. , 303 F. Supp. 3d 1313, 1317–18 (S.D. Fla. 2017) ("Whether conduct is outrageous enough to support a claim of intentional infliction of emotional distress is a question of law for the court to decide, not a question of fact.").

Plaintiff argues that his complaint satisfies the elements for an intentional infliction of emotional distress claim through his allegations that Plaintiff had a panic attack at work; went to the hospital from his shift; remained in the hospital for three days; and that Mr. Smith, Plaintiff's supervisor, called Plaintiff "as he was driving to Walmart for his shift" and "fired [Plaintiff] for violating Walmart's absence ‘points’ policy." (Doc. 6, at 3–4).

Even accepting Plaintiff's allegations as true that his employment termination caused him extreme emotional distress and that Mr. Smith terminated Plaintiff's employment after Plaintiff had been in the hospital and while Plaintiff was "in an extremely fragile emotional state" (Doc. 6, at 3, 5), Plaintiff woefully fails to allege facts that approach the requisite standard for outrageous conduct. Plaintiff's allegations do not satisfy the high burden under Florida law requiring conduct that is "outrageous," "atrocious," or "utterly intolerable in a civilized society," which is necessary to support a claim for intentional infliction of emotional distress. Bordenkircher , 2004 WL 6066924, at *4 ; see Broberg , 303 F. Supp. 3d at 1317–18 ("While there is no exhaustive or concrete list of what constitutes outrageous conduct, Florida common law has evolved an extremely high standard.") (quoting Garcia v. Carnival Corp. , 838 F. Supp. 2d 1334, 1339 (S.D. Fla. 2012) ). Compare Williams v. Worldwide Flight Servs., Inc. , 877 So. 2d 869, 870–71 (Fla. Dist. Ct. App. 2004) (finding that repeated racial epithets, false disciplinary reports, job termination threats, and assignment to dangerous duties were "reprehensible, objectionable, and offensive," but did not rise to the level of extreme and outrageous conduct). Because Plaintiff has failed to establish a claim for intentional infliction of emotional distress against Mr. Smith as a matter of law, the Court concludes that Mr. Smith was fraudulently joined. Accordingly, the Court will ignore the citizenship of Mr. Smith for purposes of considering diversity of citizenship.

b. Amount in Controversy

Because Defendants’ Notice of Removal (Doc. 1) fails to include sufficient plausible allegations that the amount in controversy exceeds the jurisdictional threshold at the time of removal, Defendants have failed to prove by a preponderance of the evidence that the amount in controversy is satisfied.

(i) Background and Legal Standard

The Supreme Court has explained that a defendant's notice of removal "need include only a plausible allegation that the amount in controversy exceeds the jurisdictional threshold." Dart Cherokee Basin Operating Co., LLC v. Owens , 574 U.S. 81, 89, 135 S.Ct. 547, 190 L.Ed.2d 495 (2014). "If a plaintiff makes an unspecified demand for damages in state court, a...