The opinion of the court was delivered by: Henry T. Wingate Chief United States District Judge
Before the court is the motion of the plaintiff, Jessie Womack, requesting that this court remand these proceedings to the Circuit Court of Lincoln County, Mississippi, [docket # 8] from where it was removed to this federal forum by defendant. Plaintiff filed this action on March 13, 2007, in the Circuit Court of Lincoln County, Mississippi, alleging state law claims grounded in negligence.
Procedural History and Background Facts
This is an action for personal injuries allegedly sustained by the plaintiff, Jessie Womack, while she was shopping at the Dollar General store located at 211 Hwy. 51, Brookhaven, Mississippi. Plaintiff alleges she was injured on May 11, 2004, when she slipped and fell on the floor of the store. Ms. Womack maintains that the defendants failed properly to maintain the business premises; that the defendants knew or should have known of the dangerous conditions; and that the defendants failed to make reasonable periodic inspections.
The subject lawsuit was filed on March 13, 2007, against Dollar General Corporation ("Dollar General") and Stacy Jordan in the Circuit Court of Lincoln County, Mississippi. The case was removed to federal court on May 4, 2007, on the purported basis of diversity jurisdiction*fn1 [docket #1]. Although both Ms. Womack and Ms. Jordan are Mississippi citizens, the defendants averred in their Notice of Removal that Ms. Jordan had been fraudulently joined in the action to defeat federal jurisdiction. On May 11, 2007, Stacy Jordan was terminated as a party in this action. Also, on May 11, 2007, plaintiff filed an amended complaint to substitute Brenda Simmons as a defendant [docket # 5]. Ms. Womack claims Ms. Simmons, also a Mississippi citizen, was the manager of the store at the time of the incident.
The plaintiff has now moved to remand this case to state court, and argues that Ms. Simmons was not fraudulently joined because plaintiff has alleged a viable claim against her personally, as store manager under Mississippi law [docket # 8]. The plaintiff claims that because Ms. Simmons is a proper defendant in this action, complete diversity between the parties does not exist and this court does not have subject matter jurisdiction. For the reasons which follow, this court denies plaintiff's motion to remand.
Under Title 28 U.S.C. § 1447(c),*fn2 a district court is mandated to remand a case if, at any time before final judgment, it appears the court lacks subject matter jurisdiction. Once a motion to remand has been filed, the burden is on the removing party to establish that federal jurisdiction exists. The Fifth Circuit has held that the removal statutes are to be construed "strictly against removal and for remand." Eastus v. Blue Bell Creameries, L.P., 97 F.3d 100, 106 (5th Cir.1996); see Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-109, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941).
II. Standard for Diversity Jurisdiction
Federal courts are courts of limited jurisdiction. Removing defendants bear the burden of establishing federal subject matter jurisdiction. See Pullman Co. v. Jenkins, 305 U.S. 534, 540, 59 S.Ct. 347, 83 L.Ed. 334 (1939); see also De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995); Webb ex. rel. Groth v. City of Leland, Mississippi, 2004 WL 3092767, 1 (N.D. Miss. 2004). "Only state-court actions that could have originally been filed in federal court may be removed to federal court by the defendant." Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). Thus, where there is no federal question basis for jurisdiction, as in this case, the defendant bears the burden of showing that diversity jurisdiction exists. Pursuant to Title 28 U.S.C. § 1332, federal courts have subject matter jurisdiction over cases where "the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between . . . citizens of different States[.]" In order for a federal court to exercise subject matter jurisdiction under the rubric of "diversity jurisdiction," there must be complete diversity between the opposing parties. See Strawbridge v. Curtiss, 3 Cranch 267, 2 L.Ed. 435 (1806). In this case, the plaintiff and defendant Simmons are citizens of Mississippi, while defendant Dollar General is a Tennessee corporation.
III. Was Ms. Simmons fraudulently joined?
To demonstrate improper joinder of resident defendants, the removing defendants must demonstrate either: "(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." Crockett v. R.J. Reynolds Tobacco Co., 436 F.3d 529, 532 (5th Cir. 2006). As the defendants rely on both prongs in this case, the threshold questions are:
(1) whether plaintiff committed fraud in pleading the facts of this case; and (2) whether "there is no reasonable basis for the district court to predict that the plaintiff might be able to recover against an in-state defendant. Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 573 (5th Cir. 2004) (en banc), cert. denied, 544 U.S. 992,125 S.Ct.1825, 161 L.Ed.2d 755 (2005). The burden of proof is on the removing party. Guillory v. PPG Indus., Inc., 434 F.3d 303, 308 (5th Cir. 2005). In deciding whether a party was improperly joined, we resolve all contested factual issues and ambiguities of state law in favor of the plaintiff. Id. As "the effect of removal is to deprive the state court of an action properly before it, removal raises significant federalism concerns." Carpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d 362, 365-66 (5th Cir. 1995). ...