Smith v. Amoco Corp. , 113 F. App'x 19 ( 2004 )


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  •                                                                United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    September 9, 2004
    FOR THE FIFTH CIRCUIT
    Charles R. Fulbruge III
    Clerk
    No. 04-60343
    Summary Calendar
    WILLIAM C. SMITH, III,
    Plaintiff-Appellant,
    versus
    AMOCO CORP.; PANTRY, INC., doing
    business as PANTRY STORE #3431;
    DAVID JOHNSON; JOHN DOES, 1-10,
    Defendants-Appellees.
    --------------------
    Appeal from the United States District Court
    for the Southern District of Mississippi
    (3:03-CV-242-BN)
    --------------------
    Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
    PER CURIAM:*
    This case implicates application of the fraudulent-joinder
    doctrine in connection with removal and remand of diversity cases.
    Plaintiff-Appellant William C. Smith III seeks reversal of the
    district court’s dismissal of co-Defendant-Appellee David Johnson,
    the only    non-diverse    defendant   named    by    Smith.     After    first
    determining that Smith’s notice of appeal from the district court’s
    dismissal    order   was     timely,   and     that    we   have     appellate
    *
    Pursuant to 5TH CIR. R. 47.5, the court has determined that
    this opinion should not be published and is not precedent except
    under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
    jurisdiction, we affirm the ruling appealed for essentially the
    reasons expressed by that court.
    I.
    Smith filed suit in Mississippi state court seeking damages
    for personal injuries that he allegedly incurred as an innocent
    invitee during an armed robbery of a business belonging to one or
    more of the diverse co-defendants.                They removed the case to
    district court, contending that Johnson had been joined solely to
    defeat federal diversity jurisdiction.                The diverse co-defendants
    argued that Smith’s joinder of Johnson was fraudulent because,
    under the applicable substantive law of Mississippi, Smith does not
    have any possibility of recovery against Johnson.
    Smith insists on appeal, as he did in the district court, that
    Mississippi law is at least ambiguous as to whether he could
    conceivably recover against Johnson.             Smith argues that ambiguity
    prevents reaching a conclusion that the law is well settled,
    without   which     there   can   be   no    determination     that    he    has   no
    possibility of recovery against Johnson.               As such, asserts Smith,
    joinder was not fraudulent and the case must be remanded to the
    state court in which it was originally filed.
    After allowing time for “remand discovery,” the district court
    tested    Smith’s    action   against       Johnson    under   our    most   recent
    expression of the applicable test,1 and concluded that Smith’s
    1
    “[T]he court determines whether [the plaintiff] has any
    possibility of recovery against the party whose joinder is
    2
    joinder of Johnson could not pass our test.   In so doing, the court
    analyzed Johnson’s employment as an agent of his diverse co-
    defendants in the framework of applicable Mississippi law.    Based
    on Smith’s allegations and discovery, the court noted the extent of
    the duties, responsibilities, and authority vested in Johnson by
    his principals relative to management of the business where Smith
    was injured, both generally and as to safety and security of
    invitees like Smith, and concluded that Smith could not prevail
    against Johnson under Mississippi law.
    II.
    As we agree with all the parties that oral argument should be
    dispensed with in this appeal, we decide it on the basis of the
    facts and law as presented in the appellate briefs of the parties
    and the record on appeal, including the orders and opinions of the
    district court.   In the end, our review of the briefs and record
    and our independent analysis of the law applicable to the operative
    facts of this case lead us to the same conclusion reached by the
    district court.   Johnson was not employed as a full time, onsite
    manager or supervisor at the store where the incident occurred. At
    all times relevant to Smith’s claims, Johnson served as a mid-level
    supervisor of a number of stores, reporting to one or more   higher-
    questioned. If there is arguably a reasonable basis for predicting
    that the state law might impose liability on the facts involved,
    then there is no fraudulent joinder. This possibility, however,
    must be reasonable not merely theoretical.” Travis v. Irby, 
    326 F.3d 644
    , 648 (5th Cir. 2003)(emphasis in original).
    3
    level   supervisors.   Johnson   did    not   have   responsibility   or
    authority to take steps or institute procedures regarding patron
    safety at the several store locations that were under his remote
    supervision.
    Despite being allowed sufficient time for remand discovery,
    Smith failed to establish that Johnson was vested with either
    onsite responsibility or supervisory responsibility for conditions
    affecting customer safety at the store in question or, for that
    matter, any of the other stores for which Johnson had general
    merchandising and personnel responsibility.          Neither did Smith
    establish that Johnson had —— and ignored —— specific knowledge of
    the alleged deficiencies in safety precautions for the property
    where the incident occurred.     Under well-established Mississippi
    law, as correctly explicated by the district court, Smith has not
    shown that the instant situation was one in which an agent such as
    Johnson could be held personally liable for unsafe conditions at
    the premises in question.   The district court correctly concluded
    that Smith had no reasonable possibility of recovery against
    Johnson.
    III.
    The district court committed no error in dismissing Johnson as
    a fraudulently joined defendant in Smith’s personal injury action.
    It follows that, in the absence of any non-diverse defendant,
    4
    removal on grounds of fraudulent joinder was proper, as was denial
    of remand. The rulings and orders of the district court implicated
    in this appeal are, in all respects,
    AFFIRMED.
    5
    

Document Info

Docket Number: 04-60343

Citation Numbers: 113 F. App'x 19

Judges: Wiener, Benavides, Stewart

Filed Date: 9/9/2004

Precedential Status: Non-Precedential

Modified Date: 10/19/2024