United States District Court, S.D. New York
D.A., an infant by his Father and Natural Guardian, AMAURYS ALMARANTE, Plaintiff,
TARGET CORPORATION and TAWANA BETHEA, Defendants.
OPINION AND ORDER
PAUL OETKEN United States District Judge.
D.A. is an infant, and his father, Amaurys Almarante, brought
this action on his behalf against Defendants Target
Corporation (“Target”) and its employee Tawana
Bethea, alleging negligence in the upkeep of a Target store
that caused D. A. to fall and sustain injuries. (Dkt. No. 1,
Ex. A (“Compl.”) ¶¶ 2-23.) D.A. first
filed this case in the Supreme Court of the State of New
York, Bronx County. (Dkt. No. 1 ¶ 1.) Target thereafter
removed the action to this Court based on diversity
jurisdiction on November 18, 2016. (Id. at 7.).
concedes that, as captioned, the parties are not
completely diverse: Defendant Bethea, like Plaintiff D. A.,
is a resident of the state of New York. (Id. ¶
9.) But Target contends that this Court nevertheless has
jurisdiction because Bethea was fraudulently joined.
(Id. ¶¶ 9, 21.) D.A., for his part,
vigorously maintains that Bethea is a proper party and has
filed a motion to remand the case to state court. (Dkt. No.
16.) For the reasons that follow, the motion to remand is
district courts have original jurisdiction over cases
“between . . . citizens of different states, ”
where the amount in controversy exceeds $75, 000. 28 U.S.C.
§ 1332(a). “Diversity jurisdiction under §
1332(a) ‘requires complete diversity between all
plaintiffs and defendants.'” Wachtell, Lipton,
Rosen, & Katz v. CVR Energy, Inc., 18 F.Supp.3d 414,
418 (S.D.N.Y. 2014) (quoting Pampillonia v. RJR Nabisco
Inc., 138 F.3d 459, 460 (2d Cir. 1998)).
joinder “requires the court to disregard the presence
of a [party] who is not a ‘real party in interest,
'” where that party would defeat diversity
jurisdiction. Intershoe, Inc. v. Filanto S.P.A., 97
F.Supp.2d 471, 474 (S.D.N.Y. 2000) (quoting Blakeman v.
Conroy, 512 F.Supp. 325, 327 (E.D.N.Y. 1981)). When a
defendant argues for diversity jurisdiction based on
fraudulent joinder, it “must demonstrate, by clear and
convincing evidence, either that there has been outright
fraud committed in the plaintiff's pleadings, or that
there is no possibility, based on the pleadings, that a
plaintiff can state a cause of action against the non-diverse
defendant in state court.” Pampillonia, 138
F.3d at 461. “This is so when ‘the allegations in
the plaintiff's pleading . . . are shown to be so clearly
false and fictitious that no factual basis exists for an
honest belief on the part of plaintiff that there is
liability-in short that the joinder is without any reasonable
basis in fact and is made without any purpose to prosecute
the cause in good faith . . . .'” In re Rezulin
Prod. Liab. Litig., 133 F.Supp.2d 272, 281 (S.D.N.Y.
2001) (alterations in original) (quoting Metro. Prop.
& Cas. Ins. Co. v. J.C. Penney Cas. Ins. Co., 780
F.Supp. 885, 888 (S.D.N.Y. 1991)). “The defendant
seeking removal bears a heavy burden of proving fraudulent
join[d]er, and all factual and legal issues must be resolved
in favor of the plaintiff.” Pampillonia, 138
F.3d at 461.
theory of fraudulent joinder boils down to an argument that
Bethea, a Target employee, was not responsible for the
conditions that caused injury to D.A. and that she did not
owe a duty to D.A. (Dkt. No. 1 ¶¶ 10-22.) Thus,
Target argues, there is no claim against Bethea.
end, Target first argues that D.A. fails to allege a
sufficient factual basis that Bethea “created”
the unsafe condition at the Target store (clothing strewn on
the floor). (Id. ¶ 20.) But the complaint
plainly alleges that, on the date in question, Bethea
“fail[ed] to keep and maintain” the area of the
store where D.A. fell and that she caused the premises to be
unsafe. (Compl. ¶ 20.) In fact, D.A. named Bethea in
this action based on Target's own disclosures (before the
case was filed), which identified Bethea as the relevant
on-duty employee. (Dkt. No. 11, Ex. B.)
thus has alleged a factual basis that Bethea was
personally involved in creating the hazardous condition in
the area of the Target store where D.A. was injured. And the
Court is obligated at this stage and in this posture to take
D.A.'s representations as true and draw all inferences in
his favor. See Pampillonia, 138 F.3d at 461. Given
Target's heavy burden to make out fraudulent joinder,
see id., D.A. has done enough to allege a
non-fraudulent claim against Bethea with respect to her
responsibility for the unsafe condition at the store.
further argues that Bethea did not owe any duty to D.A.
Target contends that Bethea was operating solely as a Target
employee and, further, that the allegations against her
amount to inaction or “nonfeasance, ”
which, without more, does not constitute a breach of any duty
to a store patron. (Dkt. No. 12-4 ¶ 37-38.) (In making
this argument, Target acknowledges that employees
can, under certain circumstances, be directly liable
to patrons for their actions. (Id.))
D.A. has a different view of the case: Target identified
Bethea as the individual responsible for the area of the
store where D.A. sustained his injuries (Dkt. No. 11, Ex. B);
Bethea's actions, therefore, created the dangerous
condition; and she is liable for her own malfeasance. The
complaint includes some factual allegations evincing this
theory-that Bethea was responsible for “keep[ing] and
maintain[ing]” the premises “in a safe and proper
condition, ” and that she caused it to “become
and remain dangerous and unsafe, ” directly leading to
D.A.'s injuries. (Compl. ¶ 20.)
light of these allegations and given that federal courts,
when considering fraudulent joinder claims, are warned not to
evaluate “whether Plaintiffs are likely to succeed on
the[ir] claims on the merits, ” see MBIA Ins. Corp.
v. Royal Bank of Canada, 706 F.Supp.2d 380, 396
(S.D.N.Y. 2009) (collecting cases), the Court declines to
find Bethea's joinder to be fraudulent. The Court is
particularly moved by the fact that Target identified Bethea
as the relevant employee (Dkt. No. 11, Ex. B), and that, as
Target impliedly concedes, there are circumstances
in which employees, as well as their employers, can be liable
for torts (Dkt. No. 12-4 ¶¶ 37-38). As such, the
Court cannot conclude that Bethea's joinder is
“without any reasonable basis in fact and is
made without any purpose to prosecute the cause in
good faith.” In re Rezulin Prod. Liab. Litig.,
133 F.Supp.2d at 281 (emphasis added) (quoting Metro.
Prop. & Cas. Ins. Co., 780 F.Supp. at 888).
the Court finds that joinder of Bethea was not fraudulent,
the parties are not completely diverse. As a result, the
Court concludes that it lacks subject matter jurisdiction
over this matter and, further, that the ...