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Wilson v. Ford

United States District Court, E.D. Virginia, Norfolk Division

February 5, 2016

DEBRA WILSON, Plaintiff,
ANDRE FORD, et al., Defendants.


Raymond A. Jackson, United States District Judge

Before the Court is Debra Wilson's ("Plaintiff”) Motion to Remand the ease lo the Newport News Circuit Court. The motion has been fully briefed and is ripe for judicial determination. The Conn finds a hearing will not aid in its decisional process. For the reasons stated be low. Plaintiffs Motion lo Remand is GRANTED.


On October 30, 2012 Defendant Andre Ford ("Defendant Ford"), an employee of Food Lion;;1609 in Newport News. Virginia, struck Plaintiff, a Food Lion customer, in the head with a cart as he pushed it through the store. Ex. 1. Compl. ¶ 8. ECF No. 1. Defendant ford concedes his employment status at the time of the incident with Defendants Food Lion. LLC and its parent company, Delhaize America, LLC (collectively the "Food Lion Defendants'"). Ex, 4, Answer ¶ 6. ECF No. I.

Plaintiff filed her Complaint in the Circuit Court for the City of Newport News on October 10, 2014, asserting a negligence claim against Defendant Ford and the Food Lion Defendants. Ex. I, ECF No, 1. On March 30, 2015. Plaintiff filed a Motion to Amend Complaint increasing the ad damnum from $50, 000.00 to $26, 346, 510.22. Ex. 2, ECF No. 1. The court granted Plaintiffs motion on April 1, 2015. Id. Accordingly, on May 7, 2015 Plaintiff filed her Amended Complaint. Id. Defendants removed the case to this Court on September 22. 2015. asserting diversity jurisdiction pursuant to 28 U.S.C. §1338. Not. of Removal, ECF No. 1. Plaintiff filed a Motion to Remand on October 2, 2015. ECF No. 11.

Plaintiff and Defendant Ford are residents of Virginia, which ordinarily destroys diversity amongst the parties. However, Defendants seek refuge in the fraudulent joinder doctrine as interpreted by the Court in Linnin v. Michielsens, 372 F.Supp.2d 811 (E.D. Va. 2005). Defs. Resp. to Pl's Mot. to Remand 3, ECF No. 15. Plaintiff argues that Defendants' fraudulent joinder argument is not founded on binding, well-supported case law and Defendants cannot prove the elements of fraudulent joinder as outlined by the United States Court of Appeals for the Fourth Circuit ("Fourth Circuit"). Pl's Mem. in Supp. of Mot. to Remand 4-6, ECF No. 12. Therefore. Plaintiff contends there is no diversity jurisdiction and the case should be remanded to the circuit court. Id.


A. Removal and Remand

A civil case commenced in state court may, as a general matter, be removed by the defendant to federal district court if the case could have been brought there originally. 28 U.S.C. § 1441 (2000). Removal of a case from state to federal court may be accomplished through 28 U.S.C. § 1441(a), which states in relevant part:

[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

The party seeking removal bears "[t]he burden of establishing federal jurisdiction." Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994) (citing Wilson v. Republic Iron & Steel Co., 257 U.S. 92 (1921)). Moreover, the Fourth Circuit has held that removal jurisdiction is to be strictly construed in light of federalism concerns. See Lontz v. Tharp, 413 F.3d 435, 440 (4th Cir. 2005). If federal jurisdiction is doubtful, remand to state court is required. Id. at 441.

B. Diversity Jurisdiction and the Fraudulent Joinder Exception

Parties must satisfy complete diversity for a federal court to exercise removal jurisdiction pursuant to 28 U.S.C. § 1441. Mayes v. Rapopori, 198 F.3d 457, 461 (4th Cir. 1999). Diversity jurisdiction allows a party to remove a case to federal court if all defendants are diverse from all plaintiffs and the amount in controversy exceeds $75, 000. 28 U.S.C. §§ 1332, 1441; see also Mayes, 198 F.3d at 464; Athena Auto., Inc. v. DiGregorio, 166 F.3d 288, 290 (4th Cir. 1990).

Parties may find an exception to the well-settled complete diversity rule in the fraudulent joinder doctrine. A claim of fraudulent joinder permits the district court to "disregard, for jurisdictional purposes, the citizenship of certain non-diverse defendants" upon a showing either that "[1] plaintiff committed outright fraud in pleading jurisdictional facts, or [2] there is "no possibility that the plaintiff would be able to establish a cause of action against the in-state defendant in state court."' Weidman v. Exxon Mobile Corp., 776 F.3d 214, 218 (4th Cir. 2015) (citing Mayes, 198 F.3d at 460); see also Barlow v. Colgate Palmolive Co., 772 F.3d 1001, 1016 (4th Cir. 2014) (calling this test for fraudulent joinder "our longstanding 'glimmer of hope' test"); Hartley v. CSX Transp., Inc., 187 F.3d 422, 424 (4th Cir. 1999) (citing this test for fraudulent joinder); Marshall v.Manville Sales Corp., 6 F.3d 229, 233 (4th Cir. 1993) (holding a claim does not need to ultimately succeed since only a possibility of a right to relief need be asserted). The defendant carries the burden to prove fraudulent joinder, a determination made after "resolving all issues of law and fact in the plaintiffs favor." Wygal v.Litton ...

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