Opinion
Civil Action No. SA-04-CA-703-XR.
October 6, 2004
ORDER ON MOTION TO REMAND
On this date, the Court considered Plaintiff's Motion to Remand (docket no. 4) and Plaintiff's Motion for Attorney's Fees (docket no. 7), and the various responses. After careful consideration, the Court will DENY the motions.
Facts and Procedural Background
On July 8, 2004, Plaintiff filed this lawsuit in the 407th Judicial District Court of Bexar County, Texas. Defendant Home Depot U.S.A. timely removed the case to this Court on August 5, 2004, alleging diversity jurisdiction. Plaintiff alleges that while shopping at a Home Depot store her leg was severely lacerated by a metal rod sticking out from one of the shelves. She alleges that Home Depot created an unreasonably dangerous condition and was negligent in failing to secure the rod. She also alleges that James Bruce, a store manager, failed to properly supervise and train the individual responsible for maintaining the rod or chain cutter that injured her. Home Depot alleges that Bruce, a Texas citizen, was fraudulently joined in an effort to defeat diversity jurisdiction.
Analysis
A. Improper or fraudulent joinderThere are two ways to establish improper or fraudulent joinder: (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 v. Illinois Central R.R. Co., ___ F.3d ___, 2004 WL 2011408 (5th Cir. 2004) (en banc). This case involves only the second method. Under this scenario, the test is "whether the defendant has demonstrated that there is no possibility of recovery by the plaintiff against an in-state defendant, which stated differently means that there is no reasonable basis for the district court to predict that the plaintiff might be able to recover against an in-state defendant." Id. "The party seeking removal bears a heavy burden of proving that the joinder of the in-state party was improper." Id.
B. Plaintiff's Negligent Supervision and Training Claim
As stated above, the test is "whether the defendant has demonstrated that there is no possibility of recovery by the plaintiff against an in-state defendant." Stated differently, is there any possibility that Plaintiff will be able to establish a negligence claim against Bruce. "Merely pleading a valid state law claim, or one whose validity is reasonably arguable, against the resident defendant does not mean that the joinder of the resident defendant is not fraudulent. . . ." Hornbuckle v. State Farm Lloyds, ___ F.3d ___, 2004 WL 2011409 (5th Cir. 2004). "A court is to pierce the pleadings to determine whether, under controlling state law, the non-removing party has a valid claim against the non-diverse parties." Id. "The court determines whether [the plaintiff] has any possibility of recovery against the party whose joinder is questioned. If there is arguably a reasonable basis for predicting that the state law might impose liability on the facts involved, then there is no fraudulent joinder. This possibility, however, must be reasonable not merely theoretical." Travis v. Irby, 326 F.3d 644, 648 (5th Cir. 2003). A district court, however, does not determine whether the plaintiff will actually or even probably prevail on the merits of the claim, but looks only for a possibility that the plaintiff might do so. Sid Richardson Carbon Gasoline Co. v. Interenergy Resources, Ltd., 99 F.3d 746 (5th Cir. 1996).
Defendant argues that the Texas Supreme Court's decision in Leitch v. Hornsby, 935 S.W.2d 114 (Tex. 1996), establishes that Plaintiff has no possibility of recovery against Bruce because Texas law allows recovery against a corporate agent only when the officer or agent owes an independent duty of reasonable care to the injured party apart from the employer's duty. In Leitch v. Hornsby, an injured employee brought a negligence action against his corporate employer and three corporate officers in their individual capacities. Plaintiff Hornsby argued that all three were negligent in failing to provide a safe workplace and equipment. The jury found all three defendants liable. On appeal, the court of appeals held that a corporate officer may be personally liable for corporate wrongdoing when the officer is an active participant in the tortious conduct. The Texas Supreme Court reversed, holding that the officers were not individually liable as a matter of law. In reaching its conclusion, the Court recognized that an employer has a duty to use ordinary care in providing a safe work place, but that duty belongs to the corporation itself, not the individual corporate officers. Id. at 117. The Court continued:
A corporate officer or agent can be liable to others, including other company employees, for his or her own negligence. However, individual liability arises only when the officer or agent owes an independent duty of reasonable care to the injured party apart from the employer's duty. For example, an agent whose negligence causes an auto accident may be held individually liable along with his or her employer when driving the course and scope of employment. Because the agent owes a duty of reasonable care to the general public regardless of whether the auto accident occurs while driving for the employer, individual liability may attach.
Thus, unless alter ego is established, corporate officers and agent are subject to personal liability for their actions within the employment context only when they breach an independent duty of care.Id. (citations omitted). The Court then concluded that the individual defendants, who were not Hornsby's employers, did not owe him an independent duty of care because Hornsby's employer had the non-delegable duty to use ordinary care in providing a safe workplace. The individual defendants were acting within their capacities as officers of Hornsby's employer and not in their individual capacities, and their alleged actions, whether active or passive, were actions of a corporate officer on behalf of the corporation and were deemed the corporation's actions. Id. at 118. The corporate officers had no individual duty as corporate officers to provide Hornsby with a safe workplace, and the record revealed no other duty breached by the corporate officers. Thus, the corporate officers were not individually liable as a matter of law. Id.
Plaintiff replies that she has alleged an independent cause of action against Bruce and the Fifth Circuit's decision in Valdes v. Wal-Mart Stores, Inc., Nos. 97-20179 and 97-20610 (5th Cir. Sept. 4, 1998) mandates a remand of this lawsuit to Bexar County, Texas. In Valdes, the plaintiff was abducted at knife point from a Wal-Mart parking lot. Her assailant forced her to drive to another location where he raped her. Valdes sued Wal-Mart and its general manager of the store from which she was abducted. Wal-Mart removed the case to federal district court arguing that Valdes fraudulently joined the Wal-Mart general manager. The district court denied Valdes's motion to remand, but later that decision was reversed by the Fifth Circuit in an unpublished decision. The Fifth Circuit distinguished Leitch v. Hornsby stating that " Leitch was not a premises case and we cannot say with full confidence that it will be applied outside of the employer-employee context." Id. at p. 12, fn. 6.
Despite Plaintiff's assertion that she has alleged an independent cause of action against the store manager, the Court notes that Plaintiff also alleges that Bruce and all other employees of Home Depot were acting in the course and scope of their employment with Home Depot. See paragraph IV of Plaintiff's Original Petition.
The Court in Leitch recognized the general rule that "[a] corporate officer or agent can be liable to others . . . for his or her own negligence." But it qualified the rule: "However, individual liability arises only when the officer or agent owes an independent duty of reasonable care to the injured party apart from the employer's duty." Although the facts of Leitch involved an employer's duty to an employee, its language regarding the individual liability of corporate officers and agents was broader than that limited context. In fact, the example it cites concerning employees involved in auto accidents involves third parties, not employees. Thus, Leitch is not limited to the employer-employee context. See, e.g., Palmer v. Wal-Mart Stores, Inc., 65 F. Supp.2d 564 (S.D. Tex. 1999) (applying Leitch and concluding that employee of Wal-Mart could not be individually liable to a customer alleging negligence in slip-and-fall case absent allegation of breach of independent duty).
The Texas Supreme Court issued Williams v. Olivo, 952 S.W.2d 523 (Tex. 1997), the year after Leitch v. Hornsby. In that case, the employee of an independent contractor who was injured on the general contractor's site sued the general contractor and its on-site representative. The Court concluded that the jury charge failed to submit the necessary elements for recovery against either the general contractor or its representative. The Court noted that, because the plaintiff failed to secure a jury finding about the representative's negligence but did obtain a finding that he was the general contractor's employee, the only liability theory against the general contractor was respondeat superior for the representative's negligence. However, because the representative could not be liable for negligence because of the lack of jury findings, the Court then noted that, "[w]e need not decide whether, under these facts, Graham could incur individual liability" and cited Leitch v. Hornsby.
Given the undisputed facts, Home Depot has met its burden of demonstrating that there is no possibility of recovery by Plaintiff against Bruce for any negligent supervision claim.
Conclusion
For the reasons stated above, the Court DENIES Plaintiff's motion to remand (docket no. 4). Because the Court has denied the motion to remand, the Court DENIES Plaintiff's motion for attorney's fees (docket no. 7).