Opinion
CIVIL ACTION 03-1088, SECTION "K".
July 25, 2003.
ORDER AND REASONS
Before this Court is a Motion to Remand the above captioned case to the Twenty-Fourth Judicial Civil District Court for the Parish of Jefferson, State of Louisiana (Rec. Doc. 6) brought by plaintiffs Kristie Harrod wife of/and Grant J. Harrod. For the reasons that follow the Court DENIES the Motion.
FACTS AND BACKGROUND
Plaintiffs filed the instant lawsuit in the Twenty Fourth Judicial District Court for the Parish of Jefferson on December 13, 2002, seeking damages from an alleged slip and fall incident experienced by Grant Harrod on the night of December 14, 2001 at an Exxon service station located at 2209 North Causeway Boulevard in Metairie, Louisiana. Plaintiffs allege that Mr. Harrod, upon exiting his vehicle to get gas, slipped and fell on fuel which had accumulated in the service station bay. Plaintiffs further allege that Mr. Harrod sustained severe personal injuries as a result of this fall. Plaintiffs claim that Mr. Harrod's accident was a direct result of negligence on behalf of Exxon Mobil as owner of the station, and also that of negligence by Ms. Veronica "Vonnie" Zenon, as employee of Exxon Mobil and station manager at the time of Mr. Harrod's accident, in performing her work related duties. Plaintiffs contend that Exxon Mobil is vicariously liable for any and all of Ms. Zenon's negligence.
Defendant Exxon Mobil removed this action to federal district court on April 16, 2003 on the basis of diversity jurisdiction and that defendant Vonnie Zenon had been fraudulently joined. Plaintiffs now move for remand.
DISCUSSION
1. Standard for Motion to Remand
The non-movant carries a heavy burden in establishing fraudulent joinder and must demonstrate it by clear and convincing evidence. Jernigan v. Ashland Oil, 989 F.2d 812, 814 (5th Cir. 1993). "[T]he question is whether there is arguably a reasonable basis for predicting that the state law might impose liability on the facts involved. If that possibility exists, a good faith assertion of such an expectancy in a state court is not a sham, is not colorable and is not fraudulent in fact or in law." Travis v. Irby, 326 F.3d 644, 647 (5th Cir. 2003). This possibility that state law may impose liability, however, must be reasonable, not merely theoretical. Travis, at 648 (5th Cir. 2003); Great Plains Trust Co. v. Morgan Stanley Dean Witter Co. 313 F.3d 305, 312 (5th Cir. 2002).
Fraudulent joinder claims can be resolved by "piercing the pleadings" and considering summary judgment-type evidence such as affidavits and deposition testimony. Ford v. Elsbury, 32 F.3d 931, 935 (5th Cir. 1994). Furthermore, district courts should resolve all disputed questions of fact and substantive law in favor of the plaintiff. Jackson v. Pneumatic Prod. Corp., No. 00-3615, 2001 WL 238214, *1 (E.D. La. Mar. 6, 2001). Finally, "[i]f the right to remove is doubtful, the case should be remanded." Sullivan v. Gen-Corp, Inc., 1995 WL 321743, *2 (ED. La. May 24, 1995) (Duval, J.) (quoting Ryan v. Dow Chemical Co., 781 F. Supp. 934, 939 (E.D.N.Y. 1992)).
The issue in this case is whether Ms. Zenon was fraudulently joined as a means to defeat diversity jurisdiction. The face of the plaintiffs' petition requires remand because Ms. Zenon is an in-state defendant, and thus there exists a lack of complete diversity. See 28 U.S.C. § 1441(b). Because the plaintiffs' claims are based on negligence, if there is a reasonable possibility that Ms. Zenon negligently breached a personal duty to Mr. Harrod then Ms. Zenon was not fraudulently joined and the Motion to Remand must be granted. See Hayden v. Acadian Gas Pipeline, 1997 WL 180380 (E.D.La. Apr. 10, 1997)). However, if there is no reasonable basis for predicting that the state law might impose liability on Ms. Zenon based on the facts involved then the Motion to Remand will fail. See Travis, 326 F.3d at 644.
1. Individual Liability of Employees Performing Work-Related Functions
Under Louisiana law, individual liability of an employee for a work-related function can only exist if there was a breach of a personal duty of care to another. The conditions to be met in order to find such a breach of a personal duty are outlined by the Louisiana Supreme Court as follows:
(1) The employer must owe a duty of care to the third person, the breach of which has caused the damage for which recovery is sought;
(2) This duty is delegated by the employer to the employee;
(3) The employee has breached this duty through personal fault (as contrasted with technical or vicarious fault);
(4) With regard to personal fault, personal liability cannot be imposed upon an employee simply because of his general administrative responsibility for performance of some function of the employment. He must have a personal duty towards the injured plaintiff, breach of which specifically has caused the plaintiffs damages.See Hayden, 1997 WL 180380 *2 (E.D. La. Apr.10, 1997) (quoting Canter v. Koebring Co., 283 So.2d 716, 721 (La. 1973). Furthermore, if the responsibility in question is delegated with due care to responsible subordinates then the delegating employee cannot be held personally liable for the negligent performance of this responsibility unless the employee personally knows or should know of the duty's non-performance and fails to cure the risk of harm. Canter v. Koehring Co., 283 So.2d 716, 721 (La. 1973).
Thus in order for Ms. Zenon to remain as a defendant, plaintiffs must show that Ms. Zenon owed (1) a personal duty of care to Mr. Harrod; (2) that such a duty was breached by her resulting in (3) damage to Mr. Harrod; (4) that the breach was caused by Ms. Zenon's personal negligence; and (5) that Ms. Zenon's breach of personal duty was not part of her general administrative duties.
Generic allegations alone are insufficient to establish that a non-diverse defendant was not fraudulently joined. Badon v. RJR Nabisco, Inc., 236 F.3d 282, 286 (5th Cir. 2000). Therefore plaintiffs must show that Ms. Zenon had a personal duty towards Mr. Harrod, the breach of which specifically caused Mr. Harrod's injuries. Plaintiffs essentially argue that because Mr. Harrod was given the name and address of Ms. Zenon by one of the station employees when Mr. Harrod reported his fall, and because Mr. Harrod was told by the employee that Ms. Zenon would contact him, these actions are sufficient to prove the Ms. Zenon had a personal duty of care to Mr. Harrod. See Rec. Doc 6.
Such generic evidence leads this Court to conclude that plaintiffs have fallen far short of the standard for personal liability outlined above in Cantor. Firstly, the record reflects that Ms. Zenon, even though she was the station manager at the time of Mr. Harrod's fall, was not present at the station when the fall occurred. Ms. Zenon's shift ended at approximately 6:00 p.m. on the night of the fall, December 14, 2001, and she did not return to the station until 8:00 am. the next day. Ms. Zenon's testimony reflects that when she left the station there was no amount of fuel spilled in any of the station's fuel bays. Rec. Doc. 9., Ex."B," ¶¶ 5-7. Mr. Harrod's fall occurred approximately three hours later, at 9:00 p.m. While station managers do have a generalized duty of care to make sure that premises under their control are reasonably safe for customers, managers cannot reasonably be expected to predict the future, much less have any personal knowledge as to what the exact conditions of their businesses are three hours after they have gone home. Personal liability cannot be imposed upon any employee, manager or otherwise simply because of a generalized administrative responsibility, such as making sure employees keep fuel bays reasonably clean. See Cantor, 283 So.2d at 721. Plaintiffs have presented no evidence that Ms. Zenon, in her personal capacity, failed in her duty to provide a reasonably safe station environment. Plaintiffs do not contradict any of Ms. Zenon's affidavit testimony as to the cleanliness of the station while she was at work nor do they sufficiently prove that at any time Ms. Zenon knew or should have known of fuel spillage but failed to take action. See Rec. Doc. 9., Ex."B," ¶~5. Indeed, Ms. Zenon only became aware of Mr. Harrod's accident the next day, December 15, 2001, when she was informed of Mr. Harrod's claim by another employee. Rec. Doc. 9., Ex."B," ¶¶ ~6. Because Ms. Zenon was not present at the station at the time of Mr. Harrod's fall, the Court finds she could not have personally known nor prevented any of the events at issue. To hold Ms. Zenon personally liable for the events surrounding Mr. Harrod's accident would be to hold her personally liable simply because of her position as store manager. This the Court declines to do. See also Green v. Kmart Corp., 834 So.2d 1084 (La.App. 3 Cir. 11/20/02).
Plaintiffs alternatively argue that it was necessary for Ms. Zenon to be named individually in the instant action because at the time of the filing the identity of her employer was not readily apparent. Rec. Doc. 6, p. 2. Evidently, the database maintained by the Secretary of State for Louisiana contains in excess of thirty entities with the names "Exxon" or "Mobil" or "Exxon Mobil" in the titles, a number which caused great difficulty for plaintiffs in deciding whom to sue. As such, to preserve their rights to proceed, plaintiffs included Ms. Zenon. However, the Court fails to see any reason as to why Ms. Zenon should continue to remain a party to this action, especially now that the exact identity of Ms. Zenon's employer and responsible party for the service station has been clearly identified as "Exxon Mobil."
Consequently the Court finds that Ms. Zenon has no personal liability for any of the events relating to Mr. Harrod's alleged accident and as such, plaintiffs have no reasonable basis for their claims against her. Simply put, because Ms. Zenon owned no personal duty of care to Mr. Harrod, there is no reasonable possibility that she breached any duty of care. Consequently, there exists no reasonable possibility that plaintiffs can recover against Ms. Zenon under state law. Thus, the Court finds that Ms. Zenon was fraudulently joined in this action for the purpose of defeating diversity jurisdiction.
2. Timeliness
Plaintiffs argue in the alternative that even if the Court finds that Ms. Zenon was fraudulently joined in the instant action, the case must still be remanded because Exxon Mobil's Notice of Removal was not timely filed. "Removal statutes are to be construed strictly against removal and for remand and a failure to timely file a notice of removal is a defect that requires remand to state court." Delaney v. Viking Freight, Inc., 41 F. Supp.2d 672 (674) (E.D. Tex. 1999) (quoting Eastus v. Blue Bell Creameries, L.P., 97 F.3d 100, 106 (5th Cir. 1996) (quotes omitted), and citing Royal v. State Farm Fire Cas. Co., 685 F.2d 124, 127 (5th Cir. 1982). Typically the thirty-day period for removal begins to run from the date a defendant is properly, or formally, served. Badon, 224 F.3d at 390 (emphasis added). Thus absent proper service, the thirty-day removal period will not be triggered. Id. If the case pled in the initial complaint is removable, a defendant has thirty days from receipt of the initial pleading to file a notice of removal. Vinson v. Sheraton Operating Corp., 2001 WL 1090793, at *1 (E.D. La. Sept 14, 2001). However, mere receipt of the complaint without any formal service is not enough. Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347 (1999); See also Vinson, 2001 WL 1090793 at *1. A defendant's time for removal is triggered by either simultaneous service of the summons and complaint or by receipt of the complaint after and apart from the formal service of the summons. Id.
Plaintiffs contend that Exxon's removal of this matter from state court took place more than thirty days after service on Ms. Zenon and thus was untimely. Plaintiffs argue that the time for removal should begin to run from the date of service on Ms. Zenon at her place of employment on March 13, 2003 at the service station where Mr. Harrod's fall occurred. Plaintiffs apparently base this contention on the fact that because Ms. Zenon works for Exxon Mobil, she necessarily acts as their representative. If the Court accepted plaintiffs' argument, then Exxon's notice of removal, which was not filed until April 16. 2003, would be untimely. The Court disagrees with plaintiffs' interpretation for several reasons.
First, it appears from the record that even though Ms. Zenon was personally named in the instant suit, she was never (and has yet to be) personally (and thus properly) served in this action, a violation of 28 U.S.C. § 1446(b). The record reflects that the Jefferson Parish Sheriffs Office, acting under plaintiffs' instructions, attempted to serve Ms. Zenon on March 13, 2003 at the service station where the alleged accident occurred. Yet Ms. Zenon was no longer working at that service station, having moved some seven months earlier to another Exxon Mobil Station nearby, and the sheriff subsequently left the copy of the plaintiffs' complaint with another employee instead. Rec. Doc. 9., Ex. "B," ¶¶ 8-9.
Louisiana law requires a plaintiff suing a defendant in its personal capacity to personally serve the defendant at their "dwelling house or usual place of abode." See La. Civ. Code Ann. art. 1231. Nothing in the record indicates that Ms. Zenon has ever received a formal copy of the claims against her. Parties are not obliged to engage in litigation unless proper service is made against them. Omni Capital Int'l, Ltd. v. Rudolf Wolff Co., 484 U.S. 97, 104 (1987). As such plaintiffs' argument of untimeliness must fail. Because Ms. Zenon was never properly served, the thirty-day period of removal as against her personally never began to run.
Secondly, plaintiffs' alternative argument that improper service upon a fraudulently joined plaintiff should still trigger the thirty-day removal period as to the remaining properly joined defendants defies logic and is contrary to well established case law. Plaintiffs' argument, if accepted, suggests that in order to timely file any Notice of Removal each defendant in an action is responsible for knowing the precise date their co-defendants were served. Additionally, the law clearly states that "nominal" parties need not join in the removal petition. See Robinson v. National Cash Register Co., 808 F.2d 1119, 1123 (5th Cir. 1987); B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549-50 (5th Cir. Unit A Dec. 1981). To establish that non-removing parties are nominal parties, "the removing party must show., that there is no possibility that the plaintiff would be able to establish a cause of action against the non-removing defendants in state court." B., Inc., 663 F.2d at 549. This is essentially the same standard for fraudulent joinder. Applied to this case, Ms. Zenon, because she was fraudulently joined, qualifies as a nominal party. Because nominal parties need not join a petition for removal it follows that service upon them does not trigger the thirty day period for removal proceedings.
Further, the Court finds that Exxon Mobile timely filed its Notice of Removal. In removal cases involving fraudulent joinder claims, the period for timely removal commences when the defendant can first ascertain that a party has been fraudulently joined. Vinson, 2001 WL 1090793 at *1; see also Jernigan v. Ashland Oil, 989 F.2d 812, 817 (5th Cir. 1993). Exxon Mobil's allegation of fraudulent joinder is based solely upon the allegations in plaintiffs' petition for damages. See Rec. Doc. 1. Thus Exxon Mobil could have ascertained that Ms. Zenon was fraudulently joined at the time the initial pleading was formally served to them on March 19 (this Court notes in contrast that Ms. Zenon, having never formally received a complaint, was denied any opportunity to ascertain the validity of her position as a named party). Consequently, the service of the initial petition upon Exxon Mobil on March 19, 2003 triggered the thirty-day removal period. The record reflects Exxon Mobil filed its Notice of Removal on April 16, 2003, within the thirty-day period. Thus, the Court finds that the defendant's Notice of Removal was timely.
The plaintiff properly served Exxon Mobil on March 19, 2003 when the plaintiff served Exxon's registered agent.
Accordingly, because the Court finds that Defendant Veronica Zenon was fraudulently joined in order to defeat diversity jurisdiction and that Defendant Exxon Mobil's Notice of Removal was timely filed, the Court finds that complete diversity does exist in this case.
IT IS ORDERED that plaintiffs' Motion to Remand (Rec. Doc. 6) is hereby DENIED.