Bryant v. The Kroger Company et al, No. 1:2015cv00131 - Document 59 (S.D. Ga. 2016)
Court Description: ORDER granting Plaintiff's 19 Motion to Remand; directing the Clerk to remand said case to the Superior Court of Richmond County; and directing that the Clerk shall close this case. Signed by Judge J. Randal Hall on 5/2/2016. (jah)
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Bryant v. The Kroger Company et al Doc. 59 IN THE UNITED FOR THE STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION ANNE MARIE BRYANT, * Plaintiff, * v. * CV 115-131 * THE KROGER COMPANY, et al., * •k Defendants. * ORDER Currently before the Court is Plaintiff's motion to remand. (Doc. 19.) For the reasons discussed below, the Court GRANTS Plaintiff's motion.1 I. Background This case is based on injuries Plaintiff Anne Marie Bryant suffered when she tripped and fell while visiting a Kroger. March 7, 2014, Plaintiff visited the Kroger grocery located at 3435 Wrightsboro Road in Augusta, Georgia. II.) On store (Doc. 18 As she was exiting the store, Plaintiff tripped and fell 1 Defendant The Kroger Company has also moved to dismiss Plaintiff's amended complaint. address Because the Court finds remand proper, the Court will not that motion. Dockets.Justia.com on a mat When that was Plaintiff located near the fell, she injured (Id. 1 17.) lower back. store's her exit. hip, Consequently, her 1 (Id. neck, 9-10.) and her Plaintiff underwent back and neck surgery and incurred over $80,000 in medical expenses. (Id. 1 17-18.) On July 23, 2015, Company ("Kroger") Richmond initial County, Plaintiff filed suit against The Kroger and five John Does in the Superior Court of Georgia. complaint, (Doc. Plaintiff 1, Ex. 1 at 3-6.) In her alleged that Defendants breached their duty to exercise reasonable care by failing to properly maintain the mat at the exit of the store, failing to properly inspect the area in which the mat was located, and failing to properly warn customers about the area's conditions. 4.) With respect to the John Doe Defendants, (Id. at Plaintiff's original complaint claimed that these Defendants were "persons or entities that own, operate and/or work at the Store." (Id. at 3. ) Based on diversity jurisdiction, this Court on August 20, purposes, initial disclosures manager (Doc. 1.) For jurisdictional Plaintiff is a citizen of Georgia and Kroger is a citizen of Ohio. their 2015. Kroger timely removed to of to On September 4, disclosures. Plaintiff, the store, 2015, (Doc. 19, the parties submitted Ex. Kroger listed Michael and Elizabeth 1.) In Everett, Haralson, a its a co- floral- department employee, discoverable information. in to response Kroger a (Id. named (Doc. 19, same day, Everett at Ex. 6.) e-mail Everett's both residents of Georgia. That individuals follow-up provided information. as and 2 at 1.) likely On from to September possess 11, Plaintiff's Haralson's Everett 2015, counsel, residential and Haralson are (Id.) Plaintiff filed an amended complaint, which 1 5-6.) and Haralson as a co-manager, he exercised supervisory control her motion to remand the 18 alleges that, S[ 5.) Everett, (Doc. with (Id. to parties.2 Specifically, over the store. respect as amended Contemporaneously, because the addition complaint Plaintiff filed of Everett and Haralson as parties defeats diversity. II. Discussion 1. Federal Rule of Civil Procedure 15 Kroger first maintains that Plaintiff's amended complaint is without Rule of effect Civil because Procedure 15. she untimely Rule filed it under Federal 15 provides that a party may amend a pleading as a matter of course within twenty-one days after serving the pleading or "if the pleading is one to which a responsive But pleading is required, 21 days after service of a 2 Plaintiff's amended complaint also adds Phil Solesbee as a party. because he is a citizen of South Carolina, his citizenship does not affect diversity jurisdiction. responsive pleading . . . ." Fed. R. Civ. P. 15(a) (1) (B) . Kroger argues that Plaintiff's amendment is untimely because she filed it answer. more Rule than 6(d), twenty-one however, days after provides that Kroger filed its "[w]hen a party may or must act within a specified time after service and service is made under Rule are added after the period would otherwise expire under Rule 6(a)." Fed. R. Rule Civ. P. 5(b)(2)(C), 6(d). 5(b)(2)(C). Kroger Accordingly, (D) , (E) , or served (F) , 3 days Plaintiff according to Plaintiff had twenty-four days during which to file her amended complaint. Plaintiff filed her amended complaint twenty-two days after Kroger answered. on September Seely, No. (W.D.N.C. Mar. 3:16-cv-00023-MOC-DCK, 2, 2016) - Plaintiff's amendment, therefore, was timely under Rule 15 and Rule 6. v. 11 First S. 2016 WL 830869, Bank at *1 n.l ("Plaintiff had 21 days under Rule 15 and three days under Rule 6 for a total of 24 days from January 20, 2016 ... to course.")/ 2012 WL Kaufman 3134348, file v. at an Amended Corizon *1 (E.D. Complaint Health, Mich. Inc., Aug. 1, as No. a matter of 12-CV-10162, 2012) (allowing amendment on the twenty-third day pursuant to Rule 15 and Rule 6). issue Because Plaintiff timely amended, Kroger's argument on this fails. 2. 28 U.S.C. § 1447(e) In addition maintains in that order its timeliness Plaintiff added avoid federal to Typically, to when a defendant argument, Everett and (S.D. Ga. removal, Dec. 28 district Section 29, makes such an But § 1447(e) court's 1447(e) applies matter of course. Id. parties jurisdiction. e.g., the Court Ishmael v. 2014 WL 7392516, plaintiff Mates v. at *1 amends after Rapoport, the case has with 28 U.S.C. begins been 198 removed, 462 n.ll ("[A] the § 1447(e)."). even when the plaintiff at also ("When a plaintiff seeks to join a after analysis a applies. (4th Cir. 1999) defendant when as argument, See, No. CV 114-175, 2014). U.S.C. F.3d 457, 462 nondiverse Inc., Haralson subject-matter applies the fraudulent-joinder doctrine. Gen. Growth Props., Kroger amended as a district court has the authority to reject a post-removal joinder that implicates 28 U.S.C. § 1447(e), even if the joinder was without leave of court."). Section 1447(e) provides: "If after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, permit joinder and remand the action to the State court." U.S.C. § 1447(e). Under § 1447(e), the Court discretion when deciding whether to allow the 198 F.3d at 462. In doing so, exercises joinder. or 28 its Mayes, the Court analyzes whether the amendment is sought for the purpose of defeating jurisdiction, whether Plaintiff suffer if equitable Stores, Jan. the been amendment factors. Inc., 25, has No. 2007). dilatory, is Mayes, "This denied, 198 06-0817-WS-C, the F.3d at harm will and other appropriate 462; Sharp v. 2007 WL 215644, framework is Plaintiff at *3 designed to Wal-Mart (S.D. Ala. facilitate the balancing of the defendant's interests in maintaining a federal forum with the competing interest disfavoring parallel lawsuits in federal and state courts." Sharp, 2007 WL 215644, at *3. With respect to the first two factors — the purpose of the amendment and whether Plaintiff was dilatory - the Court finds that they weigh in favor of allowing the amendment. Although Plaintiff moved to removed, remand fairly quickly after Kroger she did not receive discovery about Everett Kroger made removal. she its initial Plaintiff learned of Plaintiff's disclosures, amended and moved to Everett's original and Haralson's complaint sought and Haralson until which occurred remand on the citizenship. relief after same day Further, from unnamed employees, which indicates that Plaintiff always intended to sue additional parties. See Id^_ at *3 ("Thus, plaintiff's intent since the inception of this lawsuit . . . has been to sue not only Wal-Mart, but employees . . . ."). also the store manager and other Because Plaintiff has always intended to sue store employees and because she amended immediately after Kroger's initial disclosures, the facts do not suggest that she acted improperly or that she was dilatory. The third and fourth allowing the amendment. factors also weigh in favor of Although Plaintiff will not necessarily suffer serious harm absent the amendment, she will be forced to litigate parallel lawsuits in order to maintain a suit against Everett and Haralson. litigation "The the concerning deleterious same effects subject of matter duplicative and parties must be weighed in the balance of equities." similar Id. at *5. The balance of the equities in this case - including Kroger's right to choose a federal forum - weigh in favor of a single lawsuit again, in state that court. Kroger This has known is especially true since Plaintiff considering, initiated the lawsuit that she intended to sue store employees. Because there is no indication amend simply to avoid jurisdiction, judicial efficiency counsels that Plaintiff seeks she was not dilatory, against duplicative to and litigation, Plaintiff's amendment is proper under § 1447(e). 3. Fraudulent Joinder Although the fraudulent-joinder doctrine is not generally applied when an amendment comes after removal, consideration. it can be a See Mayes, 198 F.3d at 463; Furfaro v. Aguilera, No. 5:15-cv-615-Oc-30PRL, 2016 WL 614657, at *2 (S.D. Fla. 16, 2016). Feb. Because Kroger alludes to an argument under the fraudulent-joinder doctrine, the Court will briefly address the issue. To establish fraudulent joinder, *the removing party has the burden of proving [by clear and convincing evidence] that either: (1) there is no possibility the plaintiff can establish a cause of action against the resident defendant; or (2) the plaintiff has fraudulently pled jurisdictional facts to bring the resident Stillwell 2011) v. (per against defendant Allstate Ins. curiam). the into state court.' Co, 663 Kroger employees fail F.3d argues as a 1329, that matter analysis, possible.4 however, is whether (11th Plaintiff's of cannot be owners or occupiers under O.C.G.A. correct 1332 law Cir. claims because they § 51-3-1.3 The Plaintiff's claims are Ishmael v. Gen. Growth Props., Inc., No. CV 114-175, 2014 WL 7392516, at *2 (S.D. Ga. Dec. 29, 2014) ("Indeed, [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 was proper . . . ." (citation omitted) must find that joinder (internal quotation marks omitted)). 3 O.C.G.A. § 51-3-1 provides: Where an invitation, owner or occupier of land, by express or implied induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe. 4 The Court also must apply Georgia's more liberal notice-pleading standard, not the federal plausibility standard. Ishmael, 2014 WL 7392516, at *2. 8 As this inconsistency Georgia Court in has previously the Id. courts. interpretation at *3. noted, of there exists § 51-3-1 O.C.G.A. Specifically, an by courts have been inconsistent as to whether legal control is necessary or whether supervisory control determined O.C.G.A. Georgia suffice. law Id. supports In a Ishmael, Court claim possible this under § 51-3-1 against someone who exercises only supervisory control. the that will Id. at *4. Court to And Kroger has not provided any reason for stray from its previous holding. Accordingly, Kroger's argument under the fraudulent-joinder doctrine fails. Ill. For remand the (doc. reasons 19) is Conclusion explained GRANTED. above, The Plaintiff's Clerk is directed to this case to the Superior Court of Richmond County. shall CLOSE this motion to REMAND The Clerk case. ORDER ENTERED at Augusta, Georgia this ^2__ day of May, 2016. HONORABLE J. RANDAL HALL UNITED/ STATES DISTRICT JUDGE ]RN DISTRICT OF GEORGIA
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