United States District Court, S.D. Mississippi, Northern Division
P. JORDAN III CHIEF UNITED STATES DISTRICT JUDGE
Moore slipped and fell in the grocery store. Seeking
compensation for her injuries, she sued the Kroger Company
(“Kroger”) and Store Manager Mike Williams in
state court. Kroger removed the case, saying Williams is
improperly joined since he was not working the day of the
accident. Because Williams is improperly joined and diversity
jurisdiction is satisfied, Moore's motion to remand 
the case is denied.
Facts and Procedural History
October 14, 2016, Valerie Moore slipped in a wet, slippery
substance on the floor of Kroger. Compl. [1-1] at 3. She
fell, sustained injuries, and filed suit in state court
alleging negligence. Id. Moore (a Mississippi
resident) named Kroger (an Ohio corporation) and Store
Manager Mike Williams (also a Mississippi resident) as
defendants Id. at 2.
Williams was improperly joined, Kroger removed the case based
on diversity jurisdiction. 28 U.S.C. § 1332. Plaintiff
now seeks remand to state court. Kroger responded in
opposition, and Plaintiff declined to file a
Improper Joinder Standard
28 U.S.C. § 1441, “any civil action brought in a
State court of which the district courts of the United States
have original jurisdiction, may be removed by the
defendant” to federal district court. 28 U.S.C. §
1441(a). Kroger premises federal jurisdiction on 28 U.S.C.
§ 1332, under which the district courts have
jurisdiction over civil actions between “citizens of
different States.” Id. § 1332(a)(1). The
diversity statute requires complete diversity between all
named plaintiffs and all named defendants. See Lincoln
Prop. Co. v. Roche, 546 U.S. 81, 84 (2005).
improper-joinder rule “is a narrow exception to the
rule that diversity jurisdiction requires complete
diversity.” Smallwood v. Ill. Cent. R.R. Co.,
352 F.3d 220, 222 (5th Cir. 2003). To that end, “[t]he
burden is on the removing party; and the burden of
demonstrating improper joinder is a heavy one.”
Cuevas v. BAC Home Loans Servicing, LP, 648 F.3d
242, 249 (5th Cir. 2011). In evaluating a claim of improper
joinder, the Court “examine[s] if there is arguably a
reasonable basis for predicting that the state law might
impose liability on the facts involved.”
Smallwood, 352 F.3d at 223 (citation omitted and
punctuation altered). But “[a] ‘mere theoretical
possibility of recovery under local law' will not
preclude a finding of improper joinder.” Smallwood
v. Ill. Cent. R.R. Co., 385 F.3d 568, 573 n.9 (5th Cir.
2004) (en banc) (quoting Badon v. RJR Nabisco, Inc.,
236 F.3d 282, 286 n.4 (5th Cir. 2000)).
district court should ordinarily resolve an improper-joinder
claim by conducting Rule 12(b)(6)-type analysis applying the
federal standards. Id.; Int'l Energy
Ventures Mgmt., L.L.C. v. United Energy Grp., Ltd., 818
F.3d 193, 200 (5th Cir. 2016) (“Rule 12(b)(6) analysis
necessarily incorporates the federal pleading
standard.”). The Court first assesses “the
allegations in a plaintiff's state court pleading.”
Tedder v. F.M.C. Corp., 590 F.2d 115, 116 (5th Cir.
1979) (citing Pullman Co. v. Jenkins, 305 U.S. 534,
537 (1939)); see also Gardner v. Cooksey,
2:11-CV-255-KS-MTP, 2012 WL 968026, at *2 (S.D.Miss. Mar. 21,
2012) (“This court must refer to the allegations made
in the original pleading to determine whether the plaintiff
can make out a viable claim against the resident
defendant.”) (citations omitted). But “there are
cases, hopefully few in number, in which the plaintiff has
stated a claim, but has misstated or omitted discrete facts
that would determine the propriety of joinder.”
Smallwood, 385 F.3d at 573. In such cases, the
district court has the discretion to “pierce the
pleadings and conduct a summary inquiry.” Id.
Analysis The question is whether Moore has alleged facts
supporting a negligence claim against Williams. In her
Complaint, Moore claims “Defendants”: (1) allowed
her to walk in an area that was known or should have been
known to be unsafe; (2) failed to have an adequate number of
employees maintaining the store; (3) failed to keep a proper
lookout for patrons; and (4) neglected to warn of apparent
and latent dangers. Compl. [1-1] at 3 (asserting generic
allegations against “Defendants”). But Kroger
says Williams was not working the day of the fall. Notice of
Removal  at 1; see Williams Aff. [8-1] at 1-2.
speaking, there is a reasonable possibility of liability
against a manager with some connection to the events that
form the basis of the lawsuit. For example, in Smith v.
Petsmart, Inc., the Fifth Circuit held there was a
reasonable possibility the plaintiff, who tripped over a
forklift left in an aisle, could recover for injuries against
the store manager on duty. 278 Fed.Appx. 377, 381 (5th Cir.
2008) (noting the non-diverse defendant “was the only
manager on duty” when the plaintiff was injured).
Similarly, in Mims v. Renal Care Group, Inc., the
district court found the facility manager was properly joined
where the injured plaintiff alleged that he had warned the
defendant “numerous” times about some damaged
garbage cans that contributed to his injury. 399 F.Supp.2d
740, 745 (S.D.Miss. 2005) (granting remand).
contrast, in Doss v. NPC International, Inc., the
district court held that a local Pizza Hut manager was
improperly joined because he was not working when the
plaintiffs dined and contracted food poisoning. No.
4:10-CV-17-SA-DAS, 2010 WL 1759153 at *6 (N.D. Miss. Apr. 29,
2010). Judge Aycock noted “it is undisputed that [the
manager defendant] was not working on the day Plaintiffs
visited Pizza Hut, that he did not prepare or serve their
food, that he did not supervise the preparation or service of
their food, and that he had no knowledge of what was
occurring at Pizza Hut.” Id. Judge Aycock
concluded the plaintiffs therefore had no reasonable
possibility of recovery against the manager defendants and
denied the motion to remand. Id.
same holds true here. Kroger has presented uncontroverted
evidence that Williams was not working the day Moore fell.
Williams Aff. [8-1] at 1-2. He cannot be expected to divert
customers, keep a lookout, or warn of dangers when he is not
physically present in the store. Moreover, Moore's
Complaint is devoid of allegations that Williams somehow
failed to act in the past in a way that contributed to her
fall. See Jones, 2011 WL 8198563, at *3 (finding
apartment managers who failed to take steps to insure the
safety of residents, but were not on the premises at the time
of a shooting, were properly joined). In fact, Moore's
Complaint does not contain any allegations specific
to Williams. See Compl. [1-1] at 3 (asserting only
generic allegations against “Defendants”);
see also Doss, 2010 WL 1759153 at *2 (finding
improper joinder and noting the complaint did not
“contain any allegations specifically directed”
at the manager defendant).
has met its burden; Moore has not pled facts which suggest a
reasonable basis for predicting that the state law might
impose liability against ...