1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 MONICA MARIE WARREN, ) 4 ) Plaintiff, ) Case No.: 2:22-cv-00075-GMN-EJY 5 vs. ) ) ORDER 6 TARGET CORPORATION et al., ) 7 ) Defendants. ) 8 9 Pending before the Court is the Motion to Remand, (ECF No. 7), filed by Plaintiff 10 Monica Warren (“Plaintiff”). Defendant Stoltz Management of Delaware (“Stoltz”) filed a 11 Response, (ECF No. 10), and Plaintiff filed a Reply, (ECF No. 12). 12 For the reasons discussed below, the Court GRANTS Plaintiff’s Motion to Remand. 13 I. BACKGROUND 14 This is a premises liability action removed from state court. Plaintiff alleges that on 15 November 15, 2019, while exiting Target, Plaintiff slipped on a “hazardous substance” located 16 on a curb and fell. (See Compl. ¶¶ 16–33, Ex. A to Pet. Removal, ECF No. 1-1). Plaintiff 17 further alleges that as a result of the fall, Plaintiff suffered serious injuries, which required 18 medical treatment. (Id. ¶ 19). Defendant Linsy Fusch (“Fusch”), the Executive Team Leader 19 for General Merchandise at Target, documented the accident by completing an “Incident 20 Report” and taking Plaintiff’s statement. (Resp. 2:18–22, ECF No. 10). According to Plaintiff, 21 Defendants had sufficient time to identify the hazardous substance, remove it, and maintain the 22 premises.1 (See Compl. ¶¶ 18–50). Based on a failure to take those actions, Plaintiff 23 commenced this negligence action against Defendants in Clark County District Court, Nevada 24

25 1 Defendant Target Corporation (“Target”) owns the subject property, while Defendant Stoltz contracted with Defendant Target to manage the common areas of the shopping center. (Resp. 2:9–11). 1 on November 4, 2021, asserting claims for: (1) negligence; (2) respondeat superior; and (3) 2 negligent hiring, training, and supervision. (See Compl. ¶¶ 15–50). On January 14, 2022, 3 Defendants removed this action to federal court on the basis of diversity jurisdiction. (See 4 generally Pet. Removal, ECF No. 1). Plaintiff now seeks to remand to state court. (See 5 generally Mot. Remand, ECF No. 7). 6 II. LEGAL STANDARD 7 “Federal courts are courts of limited jurisdiction” and “possess only that power 8 authorized by Constitution and statute, which is not to be expanded by judicial decree.” 9 Kokkonen v. Guardian Life Ins. Co. of America,

(1994) (internal citations 10 omitted). “It is to be presumed that a cause lies outside this limited jurisdiction, and the burden 11 of establishing the contrary rests upon the party asserting jurisdiction.”

(internal citations 12 omitted). 13 The federal removal statute provides that a defendant may remove an action to federal 14 court based on federal question jurisdiction or diversity jurisdiction.

. “The 15 ‘strong presumption against removal jurisdiction means that the defendant always has the 16 burden of establishing that removal is proper,’ and that the court resolves all ambiguity in favor 17 of remand to state court.” Hunter v. Philip Morris USA,

(9th Cir. 2009) 18 (quoting Gaus v. Miles, Inc.,

(9th Cir. 1992) (per curiam)). “If at any time 19 before final judgment it appears that the district court lacks subject matter jurisdiction, the case 20 shall be remanded.”

(c). 21 To remove a state law civil action to federal court based on diversity jurisdiction, a

22 removing defendant must show that the parties are completely diverse and that the matter in 23 controversy exceeds the sum or value of $75,000.

(a). Complete diversity of 24 citizenship under

requires that each plaintiff be a citizen of a different state 25 than each defendant. Morris v. Princess Cruises, Inc.,

(9th Cir. 2001). 1 “Nevertheless, one exception to the requirement for complete diversity is where a non-diverse 2 defendant has been ‘fraudulently joined.’”

“Although there is a general presumption against 3 fraudulent joinder, if the plaintiff fails to state a cause of action against a resident defendant, 4 and the failure is obvious according to the settled rules of the state, the joinder of the resident 5 defendant is fraudulent.” Hamilton Materials, Inc. v. Dow Chem. Corp.,

, 1206 6 (9th Cir. 2007) (internal citation and quotation marks omitted); see also GranCare, LLC v. 7 Thrower,

, 549–51 (9th Cir. 2018). “[A] federal court must find that a defendant 8 was properly joined and remand the case to state court if there is a ‘possibility that a state court 9 would find that the complaint states a cause of action against any of the non-diverse 10 defendants.’”

(emphasis original) (quoting Hunter,

). “Fraudulent joinder 11 must be proven by clear and convincing evidence.” Hamilton Materials Inc.,

. 12 III. DISCUSSION 13 Plaintiff, a citizen of Nevada, moves to remand this case to state court, arguing that 14 Defendant Fusch is also a Nevada citizen, and therefore, destroys diversity. (Mot. Remand 15 3:16–18, 5:3–12, ECF No. 7). Defendant Stoltz does not dispute that Defendant Fusch is a 16 Nevada citizen but argues that she was fraudulently joined in this action and her citizenship 17 should be ignored for purposes of subject matter jurisdiction. (Resp. 3:9–25). Thus, the 18 dispositive issue implicating the Court’s jurisdiction is whether Plaintiff fraudulently joined 19 Defendant Fusch. 20 “Fraudulent joinder is a term of art.” McCabe v. Gen. Foods Corp.,

, 1339 21 (9th Cir. 1987). “Joinder of a non-diverse defendant is deemed fraudulent, and the defendant’s

22 presence in the lawsuit is ignored for purposes of determining diversity, if the plaintiff fails to 23 state a cause of action against a resident defendant, and the failure is obvious according to the 24 settled rules of the state.” Morris,

. “[A] federal court must find that a 25 defendant was properly joined and remand the case to state court if there is a ‘possibility that a 1 state court would find that the complaint states a cause of action against any of the non-diverse 2 defendants.’” GranCare, LLC.,

(emphasis in original) (quoting Hunter, 582 3 F.3d at 1046); see Weeping Hollow Ave. Tr. v. Spencer,

(9th Cir. 2016) 4 (explaining that the focus of a fraudulent joinder analysis “will be on whether the plaintiff can 5 state a reasonable or colorable claim for relief under the applicable substantive law” (internal 6 citations omitted)). 7 Here, Plaintiff’s claims against Defendant Fusch are the same as those asserted against 8 Defendants: (1) negligence; (2) respondeat superior; and (3) negligent hiring, training, and 9 supervision. (Compl. ¶¶ 15–50, Ex. A to Pet. Removal). To prevail on a negligence claim in 10 Nevada, “a plaintiff must establish four elements: (1) the existence of a duty of care, (2) breach 11 of that duty, (3) legal causation, and (4) damages.” Sanchez ex rel. Sanchez v. Wal-Mart Stores, 12 Inc.,

(Nev. 2009). 13 Under a theory of vicarious liability, a plaintiff alleges that the employer is liable for the 14 negligence of its employee committed in the line and scope of employment. See McCrosky v. 15 Carson Tahoe Reg’l Med. Ctr.,

, 153 (Nev. 2017) (“The general rule of vicarious 16 liability is that an employer is liable for the negligence of its employee . . . .”). In this scenario, 17 the employee breaches a duty of care it owes to the plaintiff, but the employer is held 18 financially responsible for the employee’s negligence. See Glaster v. Dollar Tree Stores, Inc., 19 No. 2:15-cv-00252,

, at *3 (D. Nev. Jan 12, 2016) (“Defendant has not shown 20 that Plaintiff’s negligence claim against [the employee] would be rendered invalid by the 21 respondeat superior doctrine . . . . the fact that [the employer] can satisfy a judgment does not

22 affect the facial validity of a negligence claim against [the employee].”); Patton v. Wal-Mart 23 Stores, Inc., No. 2:16-cv-244,

, at *2 (D. Nev. Dec. 19, 2016) (finding that 24 Wal-Mart’s employee was not fraudulently joined, despite Wal-Mart’s vicarious liability and 25 1 ability to satisfy a judgment, because the plaintiff alleged that the employee breached a duty of 2 care the employee owed to the plaintiff). 3 Plaintiff argues that Defendant Fusch is negligent because she was “responsible for 4 managing the subject Target location, including overseeing the maintenance and care of the 5 curb,” and that her mismanagement of the curb allowed a hazardous substance to remain on the 6 curb. (Compl. ¶¶ 18–21); (Mot. Remand 7:26–27). According to Plaintiff, Defendant Fusch 7 breached her duty to Plaintiff by not keeping the curb clear of slipping hazards, and this breach 8 resulted in Plaintiff’s severe injuries. (Compl. ¶¶ 22–26). Defendant Stoltz, in rebuttal, asserts 9 that Defendant Fusch was an Executive Team Leader for General Merchandise but was not 10 responsible for “overseeing the inspection and maintenance of the subject curb.” (Reply 3:21– 11 24, ECF No. 10). 12 Specifically, Defendant Stoltz argues that the allegations in Plaintiff’s Complaint have 13 no basis in fact and attempts to disprove those allegations by submitting a Declaration from 14 Defendant Fusch. Defendant Fusch contends that on the day of Plaintiff’s fall, she was solely 15 “designated as the person who would document and investigate customer incidents that 16 occurred within the store.” (Fusch Decl. ¶ 2, Ex. A to Resp., ECF No. 10-1). Defendant Fusch 17 decided to document Plaintiff’s accident by completing an “Incident Report” when she learned 18 that an ambulance would be needed despite the accident purportedly being outside the purview 19 of her responsibilities because it was outside the store. (Id.) 20 The Court is unable to conclude that the claims against Defendant Fusch are wholly 21 without merit because the facts carry with them reasonable inferences of personal responsibility

22 based on her position with Defendant Target. The party seeking removal “bears a heavy 23 burden of proving that the joinder of the in-state party was improper.” Hunter,

1043. Given that Defendant Fusch was tasked with investigating incidents within Target and 25 that she went outside to take Plaintiff’s statement as part of filing an Incident Report, the Court 1 cannot find that the statements in Defendant Fusch’s Declaration, standing alone, completely 2 divorce Defendant Fusch from the allegations of the Complaint that she was responsible for 3 maintaining the curb. See Olvera v. Walmart, Inc., No. 2:22-cv-00107,

, at 4 *3 (D. Nev. June 15, 2022) (observing that a manager, whose only action in a slip-and-fall case 5 was taking the victim’s statement, could have potentially been held liable under respondeat 6 superior for failure to recognize and remove the hazardous condition); Schmidt v. CVS 7 Pharmacy, Inc., No. 2:19-cv-01687,

, at *3 (D. Nev. Sept. 1, 2020) (finding 8 that a plaintiff raised a colorable negligence claim where the plaintiff alleged that a store 9 manager managed and controlled a CVS property, and therefore owed a duty to invitees to 10 maintain the premises). 11 The Court finds that Defendant Stoltz has failed to meet the heavy burden of 12 establishing that Plaintiff fraudulently joined Defendant Fusch in this action. See Hamilton 13 Materials Inc.,

(“Fraudulent joinder must be proven by clear and convincing 14 evidence.”). It is possible that a state court would find that Plaintiff’s Complaint raises a 15 colorable negligence cause of action against Defendant Fusch. As such, the Court “must find 16 that [Defendant Fusch] was properly joined and remand the case to state court.” Grancare, 17 LLC,

. Accordingly, the Court grants Plaintiff’s request to remand the case.2 18 /// 19 /// 20 /// 21 ///

22 /// 23 24

25 2 Having found that Plaintiff alleges a colorable negligence claim against Defendant Fusch, the Court need not address the claim for negligent training and supervision. 1 IV. CONCLUSION 2 IT IS HEREBY ORDERED that Plaintiff’s Motion to Remand, (ECF No. 7), is 3 GRANTED. 4 IT IS FURTHER ORDERED that Defendant Target Corporation’s Motion to Implead 5 a Third-Party, (EFC No. 21), is DENIED without prejudice as moot. 6 DATED this __1___ day of October, 2022. 7 8 ___________________________________ Gloria M. Navarro, District Judge 9 UNITED STATES DISTRICT COURT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25