Virginia Lawyers Weekly VA Lawyers Weekly
Where a woman alleged a case of wooden blinds fell from a shelf and struck her in the head and shoulders while she was shopping at Wal-Mart, and that the store manager herself improperly stacked and stocked the box of wooden blinds, she plausibly alleged a claim against the store manager. Because that store manager and the plaintiff were both Virginia residents, the removed suit was returned to the circuit court.
Background
Elizabeth Edmonds sued Wal-Mart Stores East L.P. and Wal-Mart Stores Inc., as well as Patsy Harris, an assistant manager at Wal-Mart Supercenter #1345, alleging they were liable for injuries Edmonds allegedly suffered when a case of wooden blinds fell from a shelf and struck her in the head and shoulders. After defendants removed the case from the circuit court, Edmonds filed a motion to remand.
Analysis
Both Edmonds and Harris are citizens of Virginia, meaning that their citizenship is not diverse for jurisdictional purposes. Defendants contend that removal is appropriate because defendant Harris was fraudulently joined in this litigation. Edmonds counters that she “has a cognizable cause of action under Virginia law against Defendant Patsy Harris for Harris’s affirmative acts of misfeasance.”
Edmonds contends, among other allegations, that Harris herself improperly stacked and stocked the box of wooden blinds “by placing the boxes of blinds in front of the mid-height security bar in an unstable and non-secure position on the shelf[], causing the blinds on the shelf to be unstable and to fall upon the Plaintiff.” This constitutes an affirmative act giving rise to a personal duty owed by Harris under the standard premises liability theory articulated in Virginia law.
“[R]esolving all issues of law and fact in the plaintiffs favor,” Edmonds’ assertion that Harris caused her injury by negligently mishandling merchandise presents a straightforward negligence claim under Virginia law. Defendants do not establish fraudulent joinder because they have not shown that “no possibility” exists that the plaintiff would be able to “establish a claim” against Harris.
The defendants fail to meet the heavy burden required to demonstrate fraudulent joinder because, on this record, they do not establish that Harris’ conduct was nonfeasance, or a mere failure to act. Edmonds plainly alleges actions taken by Harris that could have caused her injury, meaning that the court cannot conclude that Edmonds did not fraudulently join Harris. In the absence of complete diversity, plaintiff’s motion to remand will be granted.
Defendants seek to bolster their argument of fraudulent joinder by appending the declaration of Patsy Harris in which she states that she did not cause or witness the accident and that she “did not tell Elizabeth Edmonds that [she] stocked the blinds.” This conflicts with the allegations in Edmonds’ complaint. Defendants also ask this court to consider an email from Edmonds’ counsel saying that Edmonds got the impression that Harris stacked the blinds. If included, these documents might muddy this record. But the court will not add these documents to this federal record because “a jurisdictional inquiry is not the appropriate stage of litigation to resolve these various uncertain question of laws and fact.” Consideration of these documents would necessarily engender further jurisdictional discovery, a process the Fourth Circuit disfavors. The court limits its review to only the pleadings.
Plaintiff’s motion to remand granted.
Edmonds v. Harris, Case No. 3:22-cv-496, March 9, 2023. EDVA at Richmond (Lauck). VLW 023-3-110. 11 pp.
