Miciotto v. Hobby Lobby Stores

Case: 21-30456 Document: 00516387928 Page: 1 Date Filed: 07/08/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 21-30456 July 8, 2022
Lyle W. Cayce
Clerk
Susan Miciotto,
Plaintiff—Appellant,
versus
Hobby Lobby Stores, Incorporated,
Defendant—Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:19-CV-735
Before Higginbotham, Haynes, and Wilson, Circuit Judges.
Per Curiam:*
Susan Miciotto appeals the district court’s denial of her motion to
remand. She also appeals two evidentiary rulings made by the district court.
Because the district court properly concluded that remand was inappropriate
due to improper joinder and did not abuse its discretion regarding the
evidentiary rulings, we affirm.
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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I.
Susan Miciotto sued Hobby Lobby Stores, Inc. in Louisiana state
court after falling and injuring herself outside of the Lafayette, Louisiana
Hobby Lobby store. According to Miciotto, she was exiting the store on
November 30, 2017, when she tripped over a warped or broken wooden
expansion joint and fell. In her original petition for damages, Miciotto named
Hobby Lobby and “John Doe” as defendants. She alleged Hobby Lobby, an
Oklahoma corporation, had actual or constructive knowledge of the
“hazardous condition which caused [her] fall.” She further alleged that
“John Doe, a resident of Louisiana, and presently unknown employee of
[Hobby Lobby], who had direct responsibility over the premises . . . in the
course and scope of his employment, failed to warn against a known hazard
or, alternatively, failed to discover and remedy the hazard.”
In her supplemental and amended petition for damages, Miciotto
substituted defendant John Doe with Hobby Lobby employees Allen Calais
and Michelle Savoy. She stated that Calais’s and Savoy’s parishes of
domicile were “presently unknown” but alleged Louisiana citizenship for
both defendants. Substantively, Miciotto alleged
Calais and Savoy [were] Hobby Lobby employees with direct
responsibility over the premises of Hobby Lobby Stores, Inc.
for the inspection, discovery, repair, and/or warning against
the hazardous condition complained of in this suit. Calais and
Savoy, in the course and scope of their employment, failed to
warn against a known hazard or, alternatively, failed to discover
and remedy the hazard as required in the exercise of reasonable
care.
Shortly after Miciotto filed her amended petition, Hobby Lobby
removed this action to federal court, asserting diversity jurisdiction under 28
U.S.C. § 1332. According to Hobby Lobby, the amount in controversy
exceeded the statutory minimum, and Miciotto lacked any “arguable or
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reasonable basis on which to state a cause of action against [Calais or Savoy],
and thus, the alleged lack of diversity caused by their presence [did] not bar
removal.” Miciotto moved to remand, asserting lack of diversity. The
magistrate judge entered a report and recommendation that remand be
denied. Miciotto objected, but the district court adopted the magistrate’s
report and recommendation, dismissed Calais and Savoy without prejudice,
and denied Miciotto’s motion to remand.
The case proceeded to trial, and the jury rendered a verdict in favor of
Hobby Lobby. Prior to trial, the district court made evidentiary rulings that
Miciotto contends “dramatically affected [the] presentation of her case.”
Miciotto now raises three issues on appeal: (1) the district court erred in
denying her motion to remand; (2) the court abused its discretion in
excluding post-accident photographs; and (3) it likewise abused its discretion
in excluding testimony of Stephanie Cummings. We address these issues in
turn.
II.
The denial of Miciotto’s motion to remand is reviewed de novo.
Butler v. Denka Performance Elastomer, LLC, 16 F.4th 427, 435 (5th Cir.
2021). Both evidentiary rulings are reviewed for abuse of discretion. Huynh
v. Walmart Inc., 30 F.4th 448, 457–58 (5th Cir. 2022). Under the abuse of
discretion standard, “we will not reverse erroneous evidentiary rulings
unless the aggrieved party can demonstrate ‘substantial prejudice.’” Id. at
458 (internal quotation marks and citation omitted).
III.
A.
Miciotto first asserts that the district court erred in denying her
motion to remand. Hobby Lobby, on the other hand, contends that the
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district court properly denied the motion because the individual, nondiverse
Hobby Lobby employees were improperly joined as parties to this action. We
agree with Hobby Lobby.
When parties lack complete diversity, removal is only appropriate if
the non-diverse defendant was improperly joined. Hicks v. Martinrea Auto.
Structures (USA), Inc., 12 F.4th 511, 514 (5th Cir. 2021). This court has
“recognized two ways to establish improper joinder: (1) actual fraud in the
pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a
cause of action against the non-diverse [defendant] in state court.”
Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 573 (5th Cir. 2004) (internal
quotation marks and citation omitted). Here, fraud is not at issue; our focus
is on Miciotto’s ability to establish a cause of action against Calais or Savoy.
In determining if a plaintiff has established a cause of action against a
non-diverse defendant, courts use a Federal Rule of Civil Procedure 12(b)(6)-
type analysis. Typically, “if a plaintiff can survive a Rule 12(b)(6) challenge,
there is no improper joinder.” Id. The usual Rule 12(b)(6) standard applies:
“a complaint must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Facial plausibility is met “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. Further, in making this
determination, we “evaluate all of the factual allegations in the plaintiff’s
state court pleadings in the light most favorable to the plaintiff, resolving all
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contested issues of substantive fact in favor of the plaintiff.” Green v.
Amerada Hess Corp., 707 F.2d 201, 205 (5th Cir. 1983). 1
We turn to the state law applicable to Miciotto’s claims. Miciotto
alleged a premises liability claim. More specifically, she alleged that Hobby
Lobby and its employees, Calais and Savoy, “failed to warn against a known
hazard or, alternatively, failed to discover and remedy the hazard,” which
ultimately resulted in her injury. Under Louisiana law, an individual may be
liable to a third party as a result of the individual’s breach of an employment-
imposed duty when:
1. The principal or employer owes a duty of care to the third
person (which in this sense includes a co-employee), breach of
which has caused the damage for which recovery is sought.
2. This duty is delegated by the principal or employer to the
defendant.
3. The defendant . . . employee has breached this duty through
personal (as contrasted with technical or vicarious) fault. The
breach occurs when the defendant has failed to discharge the
obligation with the degree of care required by ordinary
prudence under the same or similar circumstances . . .
including when the failure results from not acting upon actual
knowledge of the risk to others as well as from a lack of ordinary
care in discovering and avoiding such risk of harm which has
resulted from the breach of the duty.
1
There are also a small number of cases, not including today’s case, in which “the
plaintiff has ‘stated a claim, but has misstated or omitted discrete facts that would
determine the propriety of joinder. In such cases, the district court may, in its discretion,
pierce the pleadings and conduct a summary inquiry.’” Hicks, 12 F.4th at 515 (quoting
Smallwood, 385 F.3d at 573). That said, “a summary inquiry is appropriate only to identify
the presence of discrete and undisputed facts that would preclude plaintiff’s recovery
against the in-state defendant.” Smallwood, 385 at 573–74.
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4. . . . [P]ersonal liability cannot be imposed upon the . . .
employee simply because of his general administrative
responsibility for performance of some function of the
employment. He must have a personal duty towards the
injured plaintiff, breach of which specifically has caused the
plaintiff’s damages. If the defendant’s general responsibility
has been delegated with due care to some responsible
subordinate or subordinates, he is not himself personally at
fault and liable for the negligent performance of this
responsibility unless he personally knows or personally should
know of its non-performance or mal-performance and has
nevertheless failed to cure the risk of harm.
Canter v. Koehring Co., 283 So. 2d 716, 721 (La. 1973), superseded on other
grounds by statute, La. Stat. § 23:1032 (1998).
Miciotto contends the district court “failed to evaluate all of the
factual allegations in the state court pleadings in the light most favorable to
[her].” See Green, 707 F.2d at 205. More specifically, she asserts that the
district court erred in not finding that her “allegations of knowledge and
failure to warn against Calais and Savoy state[d] a personal duty and breach
which is more than a general administrative responsibility for performance of
some function of employment.” According to Miciotto, Canter
acknowledges that an employee who has personal knowledge of a dangerous
condition but fails to address the condition may be held personally liable
regardless of an employer’s delegated responsibility.
Hobby Lobby responds that the district court correctly denied
Miciotto’s motion to remand because her petition stated “only general
allegations of negligence against Hobby Lobby’s individual employees . . .
and fail[ed] to establish any of the Canter factors.” Hobby Lobby asserts that
the magistrate’s report and recommendation, adopted by the district court,
correctly concluded that Miciotto “failed to allege any specific facts to show
that these individual employees had any duty to [her].” Put differently,
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Hobby Lobby argues that Miciotto “presented no evidence of actual
knowledge other than . . . conclusory and unsupported allegations.” And
“general conclusory allegation[s] that Calais or Savoy had actual knowledge
of the condition, without any supporting facts, [are] insufficient to support a
claim against them.” We agree.
In her amended petition, Miciotto alleged that Calais and Savoy
“failed to warn against a known hazard or, alternatively, failed to discover
and remedy the hazard as required in the exercise of reasonable care.” And
as Miciotto correctly argues, in some instances, knowledge plus “failure to
cure the risk of harm” can be enough to create personal liability on the part
of employees. Canter, 283 So. 2d at 721. 2 That said, the issue is that Miciotto
failed to allege any specific factual allegations to substantiate her conclusory
allegations, which merely track the general scope of the duty owed under
Louisiana law. This matters because “Louisiana retains a system of fact
pleading, and mere conclusions of the plaintiff unsupported by facts will not
set forth a cause or right of action.” Scheffler v. Adams & Reese, LLP, 950 So.
2d 641, 646–47 (La. 2007). Courts are thus not required to accept conclusory
allegations. 3 We therefore find no error in the district court’s denial of
Miciotto’s motion to remand.
2
Miciotto contends that her allegation that Calais and Savoy had “direct
responsibility” is equivalent to alleging the “delegation of a specific duty,” but even if not,
“a duty exists under general tort principles, independent of any delegated responsibility
from [Hobby Lobby].” Because Miciotto’s pleadings fall short regardless, we do not
address this argument.
3
See also Giles v. Wal-Mart Louisiana LLC, No. CV 16-2413, 2016 WL 2825778, at
*4 (E.D. La. May 13, 2016) (“Plaintiff’s allegation that all [d]efendants ‘had actual or
constructive knowledge’ of the allegedly dangerous condition on the premises is a
conclusory allegation that the [c]ourt is not required to accept and it does not amount to an
allegation that [the non-diverse defendant] personally knew of the allegedly dangerous hole
in the parking lot.”); Deggs v. Fives Bronx, Inc., No. CV 19-406-BAJ-EWD, 2020 WL
12948065, at *8 (M.D. La. Mar. 3, 2020) (“The allegation that Housley ‘failed to
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B.
Miciotto next contends that the district court erred by excluding post-
accident photographs. Again, we find no error.
For background, Hobby Lobby hired Ladybugs Parking Lot Sweeping,
Inc. to repair wooden expansion joints on its premises and the adjacent
premises of Hobby Lobby affiliate Mardel. Ladybugs took photos depicting
the expansion joints prior to repair. These photos were taken in April 2018,
approximately five months after Miciotto’s fall.
Prior to trial, Hobby Lobby filed a motion in limine to exclude
Ladybugs’s photographs, contending they could confuse and mislead the jury
by presenting an inaccurate representation of the sidewalk at the time of the
subject accident. 4 According to Hobby Lobby, the photos did not reflect “an
accurate depiction of the scene of [the subject] incident and thus [were] not
relevant” because they were taken five months after Miciotto’s accident.
Hobby Lobby further asserted that Ladybugs’s photographer could not say
whether the photographs depicted the sidewalk outside of the Hobby Lobby
store, the sidewalk outside of the neighboring store, or somewhere in
between.
Miciotto opposed Hobby Lobby’s motion, asserting that the
photographs were relevant to proving Hobby Lobby’s failure to exercise
reasonable care because they showed widespread deterioration of the
adequately inspect and repair the subject equipment such that it was in an adequate safe
working manner prior to the accident,’ is the sort of conclusory allegation that
this [c]ourt is not required to accept.”), report and recommendation adopted sub nom. Deggs
v. Five Bronx, Inc., No. CV 19-00406-BAJ-EWD, 2020 WL 1442970 (M.D. La. Mar. 24,
2020).
4
Hobby Lobby’s motion also sought to exclude photographs taken by Miciotto’s
expert in 2020. Miciotto does not challenge the exclusion of these photographs.
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expansion joints substantially similar to the condition that caused her fall.
But the district court agreed with Hobby Lobby:
Miciotto [did] not establish[] that the condition of the sidewalk
at the time of the accident was substantially similar to the
condition depicted in the photographs. The Ladybugs
photographs were taken in April 2018, some five months after
the incident. Further, the person who took the photographs
admits that he is not sure whether they show the portion of the
sidewalk where the incident occurred.
Miciotto v. Hobby Lobby Stores, Inc., No. 6:19-CV-00735, 2021 WL 220121, at
*3 (W.D. La. Jan. 21, 2021). We cannot say the district court abused its
discretion in reaching this conclusion.
Abuse of discretion is a high standard. “A district court abuses its
discretion when its ruling is based on an erroneous view of the law or a clearly
erroneous assessment of the evidence.” In re: Taxotere (Docetaxel) Prod. Liab.
Litig., 26 F.4th 256, 263 (5th Cir. 2022) (citation and internal quotation
marks omitted). Neither is present here. Rather, as the district court
properly noted, “[t]he essential prerequisite of admissibility is relevance.”
United States v. Hall, 653 F.2d 1002, 1005 (5th Cir. 1981). And even when
evidence is relevant, “[t]he court may exclude [it] if its probative value is
substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403.
The district court ultimately determined that, “[w]hile the
photographs may be marginally relevant, any such relevance [wa]s
substantially outweighed by the prejudice resulting from the jury reviewing
photographs that do not depict the sidewalk condition at the time of the
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accident.” Miciotto, 2021 WL 220121, at *3. 5 Miciotto contends on appeal
that the court ignored her expert report, which indicated the conditions
shown in Ladybugs’s photos were likely substantially similar to the
conditions at the time of the accident. She also contends that Hobby Lobby
had control over the entire premises, including Mardel’s sidewalks, so the
photographs were “relevant to proof of Hobby Lobby’s prior knowledge and
failure to exercise reasonable care” regardless. However, these contentions
merely reflect Miciotto’s disagreement with the court’s assessment.
Disagreement with that assessment does not make it erroneous under our
standard of review. Accordingly, we affirm the court’s exclusion of
Ladybugs’s photographs. 6
C.
Finally, Miciotto asserts that the district court erred by excluding
portions of Stephanie Cummings’s testimony from trial. We find no abuse
of discretion.
Cummings was a witness to Miciotto’s accident. Her discovery
deposition was taken in July 2020, and her trial deposition was taken in June
2021. Hobby Lobby objected to portions of Cummings’s trial testimony as
hearsay and filed a motion in limine to exclude the hearsay statements. 7 In
5
Because Miciotto intended to illustrate the condition of the sidewalk by
introducing the subject photographs, the district court noted their admissibility turned on
whether the photographs were “substantially similar” to the condition at the time of the
accident. See 1 Muller & Kirkpatrick, Federal Evidence § 9:27. (Westlaw
2016).
6
Because we find no error in the district court’s ruling, we need not reach whether
Miciotto’s substantial rights were affected by the ruling. Huynh, 30 F.4th at 458.
7
“Simply stated, ‘hearsay’ is any out-of-court statement introduced in evidence
for the purpose of proving the truth of the matter contained in the statement.” United
States v. Williamson, 450 F.2d 585, 589 (5th Cir. 1971); see also Fed. R. Evid. 801(c).
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its motion, Hobby Lobby noted its anticipation that Miciotto would attempt
to “introduce an alleged statement from an unidentified Hobby Lobby
employee, through the testimony of . . . Cummings, to prove that Hobby
Lobby had notice of the [sidewalk] condition prior to [Miciotto’s] fall.”
Although various portions of Cummings’s testimony are at issue, the
following quote captures the gist: “I do recall hearing someone mention that
somebody had mentioned to them that something was sticking up out of the
ground there. That there was a problem with something sticking up out of
the ground there. I did not hear in great detail anything beyond that.”
The court addressed Hobby Lobby’s motion in limine and objections
to Cummings’s trial deposition testimony together, sustaining the objections
and excluding the subject testimony as hearsay. The court further concluded
that the testimony did not meet the requirements for the hearsay exception
provided in Federal Rule of Evidence 801(d)(2)(D). 8
On appeal, Miciotto contends Rule 801(d)(2)(D) “clearly applied” to
Cummings’s testimony, and the district court provided no explanation as to
why it ruled otherwise. Hobby Lobby, however, contends that Cummings’s
testimony was properly excluded, because “Cummings [could not] identify
the employee who allegedly made the statement and her testimony [did not]
have a sufficient evidentiary foundation to establish that any hearsay
exception applies, including that enumerated in [Rule] 801(d)(2)(D).”
In her briefing, Miciotto states that while Cummings could not
identify the employee who allegedly made the statement, the employee was
“later determined” to be Kelly Fanguy, Hobby Lobby’s front-end manager.
8
Under Rule 801(d)(2)(D), a statement is not hearsay if “[t]he statement is offered
against an opposing party and . . . was made by the party’s agent or employee on a matter
within the scope of that relationship and while it existed.”
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More specifically, she states another witness, former Hobby Lobby employee
Angela Akmenkalns, “testified that Fanguy made a statement at the scene
that she had reported the condition to management because she (Fanguy)
was afraid someone was going to fall.”
Reviewing the record, we nonetheless conclude that the district court
did not abuse its discretion in excluding Cummings’s testimony. As pointed
out by Hobby Lobby, Cummings stated several times in her depositions that
she could not identify the speaker who allegedly made the subject statement.
In fact, Cummings stated that she could not even recall if the speaker was a
male or female, or had blonde hair or dark hair. 9 This court has previously
indicated that “[a]bsent some indication of who made the [hearsay] remarks,
[the remarks] fail[] to qualify as admissions by a party-opponent under
Federal Rule of Evidence 801(d)(2).” Cleveland v. Ford, 12 F.3d 209, 1993
WL 530226, at *2 (5th Cir. Dec. 9, 1993) (unpublished). Against this
backdrop, we do not discern an abuse of discretion.
IV.
For the reasons discussed above, we find no reversible error in the
district court’s denial of Miciotto’s motion to remand or in its evidentiary
rulings.
AFFIRMED.
9
At one point, Cummings stated that she thought she remembered the person
being “kind of petite with shorter hair.” However, Fanguy—who Miciotto alleges made
the statement—testified that she did not have short hair at the time of the incident and
would not describe herself as “petite” given that she was 5 feet, 7 inches tall.
12