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Rodriguez v. Walmart Inc.

United States District Court, D. New Mexico

September 18, 2018

ISABEL RODRIGUEZ, Plaintiff,
v.
WALMART INC.; WAL-MART ASSOCIATES, INC.; ASHLEY K. PITTS, Defendants.

          MEMORANDUM OPINION AND ORDER

          KIRTAN KHALSA UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on Plaintiff Isabel Rodriguez's Motion to Remand (Doc. 5) filed April 27, 2018. Defendants filed a Response to Plaintiff's Motion to Remand on May 17, 2018. (Doc. 14.) Plaintiff Isabel Rodriguez's Reply to Defendants' Response in Opposition to Her Motion to Remand (Doc. 15) was filed on May 30, 2018. The Court has considered the parties submissions, the record, and the relevant law. For the reasons that follow, the Court concludes that Plaintiff's Motion to Remand is well taken and shall be GRANTED.

         I. Background

         This lawsuit arises from an incident in which Plaintiff Isabel Rodriguez was injured while attempting to access an electric shopping cart at a Walmart store in Espanola, New Mexico. (Doc. 1-1 at 3-5.) Defendant Ashley Pitts was the assistant manager of the Walmart store, and one of the most (if not the most) senior management personnel on duty at the time of Plaintiff's injury. (Doc. 1-1 at 2-3.) Ms. Pitts is a resident (and, the Court presumes, is a citizen of)[1] New Mexico. (Doc. 1 at 4; Doc. 1-1 at 2.) Plaintiff is a resident and a citizen of the State of New Mexico. (Doc. 1-1 at 1.) The corporate Defendants are citizens of Delaware and Arkansas. (Doc. 1 at 4-5.)

         According to Plaintiff's Complaint, the circumstances surrounding her injury were the following. On July 24, 2017, Plaintiff parked her car in a “handicap parking” area near the entrance of the Walmart. (Doc. 1-1 at 3.) Plaintiff, who has problems breathing and who walks with a cane, uses an electric shopping cart. (Doc. 1-1 at 3.) Plaintiff looked for an electric shopping cart outside of the store, but she did not see one. (Doc. 1-1 at 3.) Plaintiff proceeded to the store's front vestibule where, again, she did not find an electric shopping cart. (Doc. 1-1 at 3.) Plaintiff proceeded to the main front-end lobby of the store where she spotted a single electric shopping cart plugged into a wall outlet. (Doc. 1-1 at 3.) As she was walking toward this cart, Plaintiff tripped over an unpainted concrete barrier (or “berm”). (Doc. 1-1 at 3-4.) Plaintiff fell to the concrete floor, injuring her skull, face, and shoulder. (Doc. 1-1 at 3-4.) The injuries to her caused her to bleed profusely from her forehead. (Doc. 1-1 at 4.) As Plaintiff lay on the floor of the Walmart store no one came to her aid. (Doc. 1-1 at 4) She called her grand-son-in-law to assist her, and he arrived five minutes later. (Doc. 1-1 at 4-5.)

         Two unnamed Walmart employees stood nearby looking at Plaintiff, but they did not assist her until her grand-son-in-law asked them for paper towels to stop the flow of blood from Plaintiff's head. (Doc. 1-1 at 5.) When they were asked, however, the employees stated that they had called 911. (Doc. 1-1 at 5.) After Plaintiff was transported to the hospital in an ambulance, Ms. Pitts instructed the two male employees to “pull the carts forward” along the berm. (Doc. 1-1 at 5.)

         The berm's function was to serve as a gutter and a guide for manual shopping carts used inside the store. (Doc. 1-1 at 4.) Plaintiff alleges that the concrete berm over which she tripped “was an unreasonably dangerous condition of the premises” because: it was the same color and texture of the floor, which made it indistinguishable from the floor; there were no markings on the floor or nearby signs to alert customers to the tripping hazard that the berm created; the berm was not painted; there were no barriers or other devices that would prevent customers from walking near or across the berm; and shopping carts were not pulled up along the length of the berm, which allowed the berm to be an open tripping hazard. (Doc. 1-1 at 4.)

         Based on the foregoing Plaintiff filed the present lawsuit claiming, in Count I, that Walmart and Walmart Associates negligently created or caused a dangerous condition to exist on their premises; claiming, in Count II, that Ms. Pitts, as the person in control of the configuration of store equipment in the front-end lobby on the day in question was negligent in her duty to safeguard the premises for public use; and claiming, in Count III that Walmart and Walmart associates were negligent in training Ms. Pitts. (Doc. 1-1 at 6-8.) Plaintiff filed her Complaint in State of New Mexico, First Judicial District Court, County of Rio Arriba. (Doc. 1-1 at 1.)

         Defendants filed a notice of removal alleging, in relevant part, that Plaintiff had fraudulently joined Ms. Pitts to this action to avoid diversity jurisdiction. (Doc. 1 at 3.) Defendants' fraudulent joinder argument is premised on the notion that Count II against Ms. Pitts is not actionable under New Mexico tort law. (Doc. 1 at 3-4.)

         In the Motion presently before the Court, Plaintiff argues that Defendants cannot carry the requisite “heavy burden” of establishing that Ms. Pitts was fraudulently joined. (Doc. 5 at 6.) Plaintiff argues, further, that Defendants lacked an objectively reasonable basis for removing this matter and, as such, Defendants should be required to reimburse her for the fees and costs incurred as a result of the removal. (Doc. 5 at 9.)

         For the reasons that follow, the Court concludes that Defendants have not demonstrated that Ms. Pitts was fraudulently joined. Because the Court concludes, further, that Defendants did not lack an objectively reasonable basis for arguing that Plaintiff's claim against Ms. Pitts constituted fraudulent joinder, the Court determines that Plaintiff should bear the reasonable costs and fees that she incurred as a result of the removal.

         II. Analysis

         A. Overview of the Law of Fraudulent Joinder

         “In order to invoke diversity jurisdiction, a party must show that complete diversity of citizenship exists between the adverse parties and that the amount in controversy exceeds $75, 000.[2] Complete diversity is lacking when any of the plaintiffs has the same residency as even a single defendant.” Dutcher v. Matheson, 733 F.3d 980, 987 (10th Cir. 2013) (citation omitted). In determining whether there is complete diversity between the adverse parties, the Court must disregard parties who have been fraudulently joined. Dodd v. Fawcett ...


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