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Ishmael v. General Growth Properties, Inc.

United States District Court, S.D. Georgia, Augusta Division

December 29, 2014

ASHLIE DANIELLE ISHMAEL, individually, and as next friend of ALAYNA ROSE ISHMAEL, a minor, Plaintiff,


J. RANDAL HALL, District Judge.

This case comes before the Court on removal from the Superior Court of Richmond County. Now before the Court is Plaintiff's Motion to Remand. (Doc. 7.) Upon due consideration, and for the reasons stated herein, Plaintiff's motion is GRANTED.


Plaintiff filed suit against Defendants in the Superior Court of Richmond County on July 21, 2014, asserting claims based on premises liability. (Compl., Doc. 8 Ex. A, ¶ 18.) In her complaint, Plaintiff alleges that on August 28, 2013, she and her 2-year-old daughter, Alayna Ishmael, visited the Augusta Mall located at 3450 Wrightsboro Road, Augusta, Georgia. (Id. ¶ 1.) While at the mall, Alayna fell into an interior water fountain that was located in close proximity to the play area. (Id. ¶ 20.) According to Plaintiff, the fountain's location "creat[ed] a dangerous condition" for young children. (Id.)

Plaintiff alleges four acts of negligence against Defendants in her complaint: (1) "failing to keep and maintain the premises in a safe condition" (Id. ¶ 22); (2) "failing [to] provide adequate safeguards in and around the water fountain" (Id.); (3) "choosing to locate a play area for children of tender years in close proximity to a water fountain" (Id. ¶ 23); and (4) "causing the view from the playground to the fountain to be obstructed thereby making it difficult for anyone [to see] children falling into the fountain" (Id. ¶ 24).

Defendants filed their Notice of Removal on August 29, 2014. (Doc. 1.) Defendants allege that Andrew Paul Wilke was fraudulently joined as a party and Valor Security Services was improperly identified as a party[1] and thus the Court should disregard their citizenship for jurisdictional purposes. (Doc. 1 ¶¶ 8, 10.) On September 16, 2014, Plaintiff filed the instant Motion to Remand, which the Court considers now.


Actions initially filed in a state court may be removed to federal court in two circumstances: (1) where the claim presents a federal question or (2) where diversity jurisdiction exists. 28 U.S.C. § 1441(a-b). Federal courts, as courts of limited jurisdiction, must remand a case removed on diversity where there is not complete diversity of citizenship between the parties or where one of the named defendants is a citizen of the state in which the suit is filed. 28 U.S.C. § 1441(b). In this circuit, "there is a presumption against the exercise of federal jurisdiction, such that all uncertainties as to removal jurisdiction are to be resolved in favor of remand." Russell Corp. v. Am. Home Assurance Co., 264 F.3d 1040, 1050 (11th Cir. 2001) (emphasis added).

Even so, courts may retain jurisdiction and "ignore the presence of a non-diverse defendant" where the plaintiff joined that party to defeat federal diversity jurisdiction. Stillwell v. Allstate Ins. Co., 663 F.3d 1329, 1332 (11th Cir. 2011). "In such a case, the plaintiff is said to have fraudulently joined' the non-diverse defendant." McKenzie v. King Am. Finishing, Inc., No. 6:12-cv-065, 2012 WL 5473498, at *1 (S.D. Ga. Nov. 9, 2012).

To establish fraudulent joinder, the removing party has the burden of proving by clear and convincing evidence that either: (1) there is no possibility the plaintiff can establish a cause of action against the resident defendant; or (2) the plaintiff has fraudulently pled jurisdictional facts to bring the resident defendant into state court.'

Stillwell, 663 F.3d at 1332 (quoting Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997) (alterations omitted)).

With a motion to remand, "the district court must evaluate the factual allegations in the light most favorable to the plaintiff and must resolve any uncertainties about state substantive law in favor of the plaintiff." McKenzie, 2012 WL 5473498, at *2 (internal quotations omitted). The court must "not [] weigh the merits of a plaintiff's claim beyond determining whether it is an arguable one under state law." Stillwell, 663 F.3d at 1332. Indeed, "[i]f there is even a possibility that a state court would find that the complaint states a cause of action against any one of the resident defendants, the federal court must find that joinder was proper and remand the case to state court." Coker v. Amoco Oil Co., 709 F.2d 1433, 1440-41 (11th Cir. 1983), superseded by statute on other grounds as stated in Georgetown Manor, Inc. v. Ethan Allen, Inc., 991 F.2d 1533 (11th Cir. 1993); Stillwell, 663 F.3d at 1333 (reversing a district court's denial of a motion to remand and holding that the district court erred in concluding the defendant was fraudulently joined because "at the very least, [it is] possible that a Georgia state court would conclude that" the plaintiff's complaint stated a cause of action against the defendant given Georgia's notice pleading standards).

"The burden of establishing fraudulent joinder is a heavy one, and such a claim must be supported by clear and convincing evidence." Poll v. Deli Mgmt., Inc., No. 1:07-cv-959, 2007 WL 2460769, at *3 (N.D.Ga. Aug. 24, 2007) (internal quotations and citations omitted). In addressing a fraudulent joinder claim, "this Court must necessarily look to the pleading standards applicable in state court, not the plausibility pleading standards prevailing in federal court.'" McKenzie, 2012 WL 5473498, at *3 (quoting Stillwell, 663 F.3d at 1334). In contrast to the federal pleading standard, Georgia simply requires notice pleading. See O.C.G.A. § 9-11-8. Thus, "it is immaterial whether a pleading states conclusions or facts as long as fair ...

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