United States District Court, D. Connecticut
RULING ON PLAINTIFF'S MOTION TO REMAND
BOND ARTERTON, U.S.D.J.
Michael Debiase, ("Mr. Debiase" or the
"Plaintiff), a citizen of Connecticut, brought this
negligence action in Connecticut Superior Court against:
Target Stores, Inc. ("Target"), a Minnesota company
with its principal place of business in Minnesota; Brightview
Landscape Development Inc. and Brightview Landscapes LLC,
both Delaware corporations with their principal places of
business in California; and Stephanie Barrante ("Ms.
Barrante"), a Connecticut resident and the manager of
the Target Store at 300 Chase Avenue in Waterbury,
Connecticut, after Plaintiff allegedly slipped and fell on
snow and ice obstructing the entrance to the Target Store in
Waterbury. Target and Ms. Barrante removed the action to
federal court on the grounds of diversity, arguing that Ms.
Barrante was fraudulently joined solely to defeat diversity.
See Notice of Removal [Doc. # 1]. Plaintiff now
moves [Doc. # 13] to remand to state court. For the reasons
that follow, Plaintiffs motion is GRANTED.
as here, jurisdiction is asserted by a defendant in a removal
petition, it follows that the defendant has the burden of
establishing that removal is proper." United Food
& Comm. Workers Union v. CenterMark Props. Meriden
Square, 30 F.3d 298, 301 (2d Cir. 1994). A case may only
be removed to a federal court if it could have been brought
there initially; in other words, the case must fall under the
court's original jurisdiction. See 28 U.S.C.
§ 1441(a) ("Except as otherwise expressly provided
by Act of Congress, any 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.").
subject-matter jurisdiction in this case is premised solely
on diversity of citizenship. See 28 U.S.C. §
1332(a)(1). "The citizenship requirement for diversity
jurisdiction has been interpreted to mean complete diversity
so that each plaintiffs citizenship must be different from
the citizenship of each defendant." Briarpatch Ltd.,
L.P v. Phoenix Pictures, Inc., 373 F.3d 296, 302 (2d
Cir. 2004). It is undisputed in this case that Plaintiff
Debiase is a Connecticut citizen and that Defendant Barrante
is a Connecticut citizen. Thus, if Ms. Barrante was properly
joined as a Defendant, diversity would be lacking.
limited circumstances, a named defendant may be disregarded
in determining diversity under the doctrine of fraudulent
joinder. That doctrine "is meant to prevent plaintiffs
from joining non-diverse parties in an effort to defeat
federal jurisdiction." Briarpatch Ltd., L.P.,
373 F.3d at 302 (2d Cir. 2004). Where, as here, no outright
fraud exists in the pleadings, the joinder of a non-diverse
defendant will only be deemed fraudulent if "there is no
possibility that the claims against that defendant could be
asserted in state court." Id. (citing
Pampillonia v. RJR Nabisco, Inc., 138 F.3d 459, 461
(2d Cir. 1998)). The defendant bears "the heavy
burden" of proving fraudulent joinder by "clear and
convincing evidence, with all factual and legal ambiguities
resolved in favor of plaintiff." Id. (citing
Pampillonia, 138 F.3d at 461).
argue that the allegations against Ms. Barrante are
"nearly identical" to the allegations against
Target and that the Complaint does not contain any allegation
that Ms. Barrante engaged in any act of negligence.
(Opp'n to Mot. to Remand [Doc. # 15] at 3-4.) Defendants
argue that there is no possibility that Plaintiff could
succeed against Ms. Barrante in state court because an
officer of a corporation "does not incur personal
liability for [the corporation's] torts merely because of
his official position." Id. at 5 (citing
Scribner v. O'Brien, Inc., 169 Conn. 398, 404
courts in this District, including this Court, have remanded
cases presenting similar factual situations under the
authority oiMeek v. Wal-Mart Stores, 72 Conn.App.
467 (2002). See Shannon v. Target Stores, Inc., No.
13-cv-612 (SRU), 2013 WL 3155378 (D. Conn. June 20, 2013)
(remanding case alleging negligence in maintenance of sloped
surface in front of store on basis of possibility of recovery
against manager); Szewczyk v. Wal-Mart Stores, Inc.,
No. 309CV1449JBA, 2009 WL 3418232, at *4 (D. Conn. Oct. 19,
2009) (remanding case alleging negligent supervision in
connection with a slip-and-fall on spilled liquid in store
Meek, the Connecticut Appellate Court affirmed a
jury verdict against Wal-Mart Stores, Inc. and the individual
store manager awarding damages for negligently-maintained
merchandise that fell from a shelf and injured the plaintiff.
Meek, 72 Conn.App. at 468.
Meek court specified that the manager and assistant
manager were liable on theories of negligent supervision and
[a]s to [the manager and assistant manager], the plaintiff
alleged that they failed to use reasonable care in following
Wal-Mart's safety policies concerning storage of
merchandise; they failed to properly supervise other
employees in storing merchandise safely and reasonably;
they failed to properly inspect the shelving where the tables
were stored; and they knew or should have known of numerous
other incidents in which Wal-Mart customers were injured by
falling merchandise that had been improperly stored, but
failed to use reasonable care to prevent merchandise from
falling on the plaintiff.
Meek, Conn. App. at 471. Defendant mistakenly
characterizes this passage as asserting that "the
managers were found liable for their involvement in how the
merchandise was stacked, " (Opp'n at 6) but the case
grounds the managers' liability in their negligent
supervision and inspection of the premises.
instant case, Plaintiff alleges that Ms. Barrante
"failed to establish and/or failed to follow procedures
for detecting and eliminating dangerous conditions such as
slippery snow and/or icy condition exterior front entrance
walkway area [sic] that caused the plaintiff to fall."
(Compl. [Doc. # 13-3] ¶ 4g.) No similar allegation is
made against Wal-Mart or the Brightview Defendants. As in
Szewczyk, the Plaintiff in the instant case
adequately alleges a failure to create or implement policies
that would prevent the dangerous condition from arising.
See Szewczyk , 2009 WL 3418232 at *4. Because this
Court cannot conclude from the Complaint that "there is
no possibility that the claims against [Ms. Barrante] could
be asserted in state court, " (id. at *5
(citing Briarpatch, 373 F.3d at 302)), Defendants
have failed to establish that Ms. Barrante was fraudulently
joined and have thus failed to meet their burden of showing
that complete diversity exists and the Court has
subject-matter jurisdiction. For this reason, the action must
foregoing reasons, the clerk is directed to remand the action
to the Connecticut Superior Court, Judicial District ...