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Martin v. Thomas

United States District Court, N.D. Mississippi, Oxford Division

August 27, 2019

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
v.
ELANA THOMAS and DOLLAR GENERAL CORPORATION DEFENDANTS

          MEMORANDUM OPINION

          NEAL B. BIGGERS, JR. UNITED STATES DISTRICT JUDGE

         This 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.

         Factual and Procedural Background

         Plaintiff, 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.

         On May 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.

         Plaintiff 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.

         Standard of Review

         The 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.

         Subsection (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)).

         Following 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).

         Analysis

         Plaintiff 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).

         Defendants 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.

         Plaintiff 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, ...


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