United States District Court, E.D. Virginia, Richmond Division
EARL L. ROSS, JR., Plaintiff,
DEVIN LEE et al., Defendants.
Robert E. Payne Senior United States District Judge
This matter is before the Court on PLAINTIFF EARL L. ROSS, JR.'S MOTION TO REMAND AND OBJECTION TO DEFENDANT'S NOTICE OF REMOVAL (Docket No. 7) . For the reasons stated below, the motion to remand will be granted, and the case remanded to the Circuit Court for the City of Richmond. In light of this ruling, DEFENDANT HARBOR FREIGHT TOOLS USA, INC S MOTION TO DISMISS (Docket No. 5) will be denied as moot.
Ross's suit is a slip-and-fall premises liability case. The state court complaint alleges that Harbor Freight contracted with St. Moritz Security Service to provide security at the Harbor Freight store in question, and that St. Moritz subcontracted with Ross's employer, Patriot Protective Services, which placed Ross in the store on the day of the incident. (Docket No. 1, Ex. 3, ¶ 6) ("Complaint") . Devin Lee ("Lee") was the on-duty supervisor of the store when the accident occurred. (Complaint ¶ 2). Ross's original complaint alleged that, while performing a security check, Ross slipped and fell on a slippery substance on the floor and suffered injury. (Complaint ¶ 7, 16). Ross (a Virginia resident) filed this action in the Circuit Court of the City of Richmond against both Harbor Freight (a Delaware corporation with its primary place of business in California) and Lee (a Virginia resident) seeking $100, 000 in damages. (Notice of Removal ¶¶ 1-5).
Harbor Freight, in its Notice of Removal, argued that Ross has no state law claim against Lee because, under Virginia law, premises liability duties are typically owed only by the landlord or owner, not by an employee. (Notice of Removal, Docket No. 1, ¶¶ 15-18) (relying on Harris v. Morrison, Inc., 32 Va. Cir. 298, 298-99 (1993)). An employee is only liable when the employee "personally caused the accident or committed any affirmative act which contributed to the accident." (Notice of Removal ¶¶ 15-18) (quoting Harris, 32 Va. Cir. at 298-99). Defendants accordingly removed on the basis of diversity jurisdiction, asserting that non-diverse defendant Lee was fraudulently joined because Ross has no plausible state law claim against Lee. (Notice of Removal ¶ 5, 11).
Ross, in his Motion to Remand, contested the fraudulent joinder allegation and provided an affidavit swearing additional facts tending to show that Lee took the sort of affirmative action that establishes employee liability.
On the date of the incident, Defendant Lee placed a leaking generator in a shopping cart, knowing it was leaking. Pl. Aff. ¶ 7. Defendant Lee then moved the shopping cart with the leaking generator to the back of the store, knowing that the generator was leaking and that it continued to leak. Pl. ¶¶. 8-9. Defendant Lee knew that the leaking generator was located in an area where the security personnel ... regularly travelled ... Pl. Aff. ¶ 9 ... After Mr. Ross fell on the substance leaking from the generator, Defendant Lee remarked that she had planned to get the oil spill up but had not yet done so ... Pl. Aff. ¶ 10.
(Pl.'s Mtn. to Remand 2).
The crux of the remand decision is whether Ross has stated a valid state law claim against the non-diverse defendant, Lee, or whether, instead, he is a fraudulently joined party whose citizenship may be disregarded for purposes of analyzing diversity of citizenship.
A. Timely Removal
Harbor Freight was served on August 18, 2015, and filed its Notice of Removal on September 17, 2015. (Def.'s Notice of Removal ¶ 23) . The Notice of Removal was accordingly timely filed under § 1446(b)(1).
The Court notes, however, that Ross filed his action in state court on August 22, 2014 (Def.'s Notice of Removal, Ex. 3, 2), such that more than one year elapsed between filing and removal. This still leaves the Court with a potential § 1446(c)(1) issue.
A case may not be removed under subsection (b)(3) on the basis of jurisdiction conferred by section 1332 more than 1 year after commencement of the action, unless the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action.
§ 28 U.S.C. 1446(c)(1). Subsection (b)(3) states that
Except as provided in subsection (c), if the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may ...