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‘Howl-O-Scream’ Park Injury Prompts Suit

A woman who alleges injury from stepping off an “unprotected and invisible drop” at Busch Gardens’ Howl-O-Scream event cannot have her premises liability suit remanded to state court; although defendant park says plaintiff has fraudulently joined a defendant “John Doe” park employee, the Newport News U.S. District Court says the John Doe defendant’s citizenship need not be identified at this stage of the proceedings.

Plaintiff alleges she and her companion were entering the Fear Fair Maze in the Fiesta Italia section of the park at about 7:00 p.m. on Oct. 26, 2012, when she fell off the right side of the walkway next to defendant “John Doe’s monitoring position.” She alleges John Doe “was inattentive and failed to warn, guide, prevent, or in any way keep” her and two other invitees from falling over the walkway edge. She sued the park and it removed her suit to federal court.

The federal court has diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). Plaintiff, a resident of Henrico County, Virginia, is seeking damages of $500,000 plus costs and interest. According to the notice of removal, defendant is an LLC organized under Delaware law, with its principal place of business in Orlando, Fla. Plaintiff does not dispute that defendant SeaWorld is an out of state corporation. John Doe employee is sued under a fictitious name and his citizenship is disregarded at this stage of the proceedings.

Plaintiff asserts that John Doe employee was observed before, during and after the fall by two eyewitnesses, who called for medical assistance following the fall, and who remained until plaintiff was transported. Although plaintiff asserts his identity is readily discoverable, she has not amended her complaint, or supplemented her pleadings with any discovery that would support this assertion or indicate that John Doe is a resident of Virginia. This court has jurisdiction over this matter based on diversity of citizenship and plaintiff’s motion to remand is denied.

SeaWorld argues that even if John Doe is a resident of Virginia, he was fraudulently joined in an effort to defeat diversity jurisdiction because the complaint does not allege any affirmative acts of negligence by John Doe.

The complaint, the only record before the court, does not allege John Doe performed an affirmative act of negligence. SeaWorld’s argument of fraudulent joinder may apply to this complaint should discovery reveal John Doe is a Virginia resident. At this stage of the litigation, however, there should be discovery to supplement the record. The court will defer ruling on fraudulent joinder as a ruling is not necessary to resolve plaintiff’s motion to remand.

Berry v. SeaWorld Parks & Entertainment LLC (Miller, T.) No. 4:14cv152, March 11, 2015; USDC at Newport News, Va. VLW 015-3-119, 6 pp.

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