United States District Court, N.D. Mississippi, Oxford Division
ADAM MARTIN, individually and on behalf of the Wrongful Death Beneficiaries of JOE A. MARTIN, SR., Deceased; and ADAM MARTIN, as Executor of the Estate of JOE A. MARTIN, SR., Deceased PLAINTIFFS
ELANA THOMAS and DOLLAR GENERAL CORPORATION DEFENDANTS
B. BIGGERS, JR. UNITED STATES DISTRICT JUDGE
cause comes before the court upon Plaintiff's motion to
remand. Upon due consideration of the motion, response and
applicable authority, the court is ready to rule.
and Procedural Background
Adam Martin, brings this wrongful death suit individually and
on behalf of the beneficiaries of Joe A. Martin, Sr.,
Deceased, and as executor on behalf of the Estate of Joe A.
Martin, Sr., Deceased.
21, 2017, Joe A. Martin arrived on the premises of Dollar
General's location on West Bankhead Street in New Albany,
Mississippi. Martin allegedly slipped and fell in a puddle of
blowing bubbles product and possibly other liquid on the
floor of an aisle in the store. Forty-one days after the
incident, on July 1, 2017, Martin died as a result of the
injuries sustained in his fall.
filed this case in Union County Circuit Court on October 29,
2018, alleging wrongful death and negligence against the
Defendants Elana Thomas and DolGenCorp, improperly named as
Dollar General Corporation. On December 4, 2018, Defendants
filed their Amended Notice of Removal to substitute
DolGenCorp for Dollar General Corporation.
federal removal statute, 28 U.S.C. § 1441(a), allows for
the removal of “any civil action brought in a State
court of which the district courts of the United States have
original jurisdiction.” Original federal diversity
jurisdiction exists, “where the matter in controversy
exceeds $75, 000, exclusive of interest and costs, and is
between . . . citizens of different States.” 28 U.S.C.
§ 1332(a); Addo v. Globe Life and Accident Ins.
Co., 230 F.3d 759, 761 (5th Cir. 2000). Diversity of
citizenship that has been improperly or collusively
manufactured is proscribed by statute. 28 U.S.C. 1359.
(b) of the federal removal statute specifies citizenship of
the parties is not regarded when removing suits falling under
federal law. Smallwood v. Illinois Cent. R.R. Co.,
385 F.3d 568, 573 (5th Cir. 2004). All other suits are
removable “only if none of the parties in interest
properly joined and served as defendants is a citizen of the
State in which such action is brought.” Id.
(quoting 28 U.S.C. § 1441(b)). Further, the burden is on
the removing party to establish federal jurisdiction.
Doss v. NPC Int'l, Inc., No. 4:10-CV-17-SA-DAS,
2010 WL 1759153 at *2 (N.D. Miss. April 29, 2010) (quoting
Massarella v. The Lane Co., Inc., 298 F.Supp.2d 430,
432 (N.D. Miss. 2003)).
removal to the federal district court by a defendant, a
plaintiff may file a motion for remand, and “[i]f it
appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.” 28 U.S.C.
§ 1447(c). After a motion to remand is filed, there is a
heavy burden on the party seeking to maintain federal
jurisdiction to show the requirements for removal have been
met. De Aguilar v. Boeing Co., 47 F.3d 1404, 1408
(5th Cir. 1995), certiorari denied, 516 U.S. 865
(1995); Travis v. Irby, 326 F.3d 644, 649 (5th Cir.
2003). Moreover, removal statutes must be strictly construed
in favor of state court jurisdiction and against removal.
Shamrock Oil & Gas Corp. v. Sheets, 313 U.S.
100, 108-109 (1941).
alleges Defendants have not met their heavy burden of proving
that removal is proper. Plaintiff argues it is undisputed
that complete diversity is lacking because the decedent was a
citizen of Mississippi and Defendant Elana Thomas is a
citizen of Mississippi. Improper joinder of a party to defeat
diversity jurisdiction 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.” Smallwood, 385 F.3d at 573 (5th Cir.
2004) (en banc) (quoting Travis, 326 F.3d at
646-47). In establishing a cause of action against the
non-diverse party in state court, “there must be a
reasonable possibility of recovery, not merely a theoretical
one.” Campbell v. Stone Ins., Inc., 509 F.3d
665, 669 (5th Cir. 2007).
argue that Plaintiff cannot establish a cause of action
against Thomas. Defendant's burden of proving improper
joinder is, however, a heavy one. Kling Realty Co. v.
Chevron United States, Inc., 575 F.3d 510, 514 (5th Cir.
2009). The court must, therefore, determine if Defendants
“demonstrated that there is no possibility of recovery
by [Plaintiff] against [Thomas].” Id.
alleges he has stated a claim against Defendant Elana Thomas
that would survive a Rule 12(b)(6) challenge and asserts the
court should not pierce the pleadings to consider
Thomas's affidavit. In ruling on a motion to remand when
improper joinder has been asserted, the court initially looks
at the allegations and conducts a Rule 12(b)(6)-type of
analysis to ascertain “whether the complaint states a
claim under state law against the in-state defendant.”
Smallwood, 385 F.3d at 573. Ordinarily, there is no
improper joinder if the plaintiff survives a 12(b)(6)
challenge. Id. There are some cases, however, where
a plaintiff states a claim, ...