United States District Court, S.D. Georgia, Savannah Division
Christopher L. Ray United States Magistrate Judge
moves to stay discovery in this case, doc. 21, pending her
motion to remand, doc. 9. For the following reasons, the
motion is GRANTED. Within 14 days of the
District Judge's ruling on the pending motion to remand,
the parties shall confer and file a joint status report
including a proposed schedule for all further deadlines in
this case When a party seeks a stay pending resolution of a
remand motion, the court takes a “preliminary
peek” at the motion to assess the likelihood that it
will be granted. McCabe v. Foley, 233 F.R.D. 683,
685 (M.D. Fla. 2006) (“[A] request to stay discovery
pending a resolution of a motion is rarely appropriate unless
resolution of the motion will dispose of the entire
case.”). A stay makes sense when the dismissal motion
likely will dispose of the case, thus obviating discovery,
see Sams v. GA West Gate, LLC, 2016 WL 3339764 at *
6 (S.D. Ga. June 10, 2016), or would dispose of at least some
part of the case, thus narrowing it, see United States ex
rel. Jolie Johnson v. Spanish Oaks Hospice, Inc., No.
CV415-143, doc. 47 (S.D. Ga. July 19, 2017). Based on that
“preliminary peek, ” the remand motion appears
sufficiently strong to warrant staying discovery.
case arises from a slip-and-fall at an Outback Steakhouse in
Chatham County, Georgia. Doc. 1-2 at 4. Plaintiff filed a
claim against the steakhouse as well as defendant Justin
Brown-a manager at the steakhouse at the time of the incident
and resident of Chatham County. Doc. 1. Because Plaintiff is
a resident of South Carolina, doc. 1-2 at 3, and defendant
Outback Steakhouse of Florida, LLC is a resident of Delaware
and Florida, doc. 11 at 2, this case would normally be
removable to this Court on the basis of diversity
jurisdiction. 28 U.S.C. § 1332(a)(1). However, pursuant
to 28 U.S.C. § 1441(b)(2), a lawsuit which is otherwise
removable may not be removed “if any of the parties in
interest properly joined and served as defendants is a
citizen of the State in which such action is brought.”
Thus, this case is only removable if defendant Brown is not a
removed to this Court on the basis that Brown's joinder
was fraudulent. Doc. 1. Relying to the forum-defendant rule,
plaintiff argues that defendant Brown's joinder was not
fraudulent, and as a result, this case should be remanded.
doctrine of fraudulent joinder is a judicially created
“exception to the requirement of complete
diversity.” Triggs v. John Crump Toyota, Inc.,
154 F.3d 1284, 1287 (11th Cir. 1998). Courts will invoke it
in three situations. First, if no possibility exists that the
plaintiff can prove a cause of action against the nondiverse
defendant, joinder is deemed fraudulent. Id.
(citing Coker v. Amoco Oil Co., 709 F.2d 1433, 1440
(11th Cir. 1983) superseded on other grounds as stated in
Georgetown Manor, Inc. v. Ethan Allen, Inc., 991
F.2d 1533 (11th Cir. 1993)). Second, fraudulent joinder will
be found where “outright fraud” exists in the
plaintiff's statement of jurisdictional facts.
Id. Finally, fraudulent joinder exists “where
a diverse defendant is joined with a nondiverse defendant as
to whom there is no joint, several or alternative liability
and where the claim against the diverse defendant has no real
connection to the claim against the nondiverse
defendant.” Id. (citing Tapscott v. MS
Dealer Serv. Corp., 77 F.3d 1353, 1355 (11th Cir. 1996)
abrogated on other grounds by Cohen v. Office Depot,
204 F.3d 1069 (11th Cir. 2000)). The removing party bears the
burden of showing fraudulent joinder. Crowe v.
Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997).
standard the Court uses to evaluate the plaintiff's claim
against the allegedly fraudulently joined defendant is by
necessity a “lax one.” Stillwell v. Allstate
Ins. Co., 663 F.3d 1329, 1332 (11th Cir. 2011).
“If 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 the joinder was proper and remand the case to
the state court.” Coker, 709 F.2d at 1440-41
(emphasis added). “In other words, ‘[t]he
plaintiff need not have a winning case against the allegedly
fraudulent defendant; he need only have a possibility of
stating a valid cause of action in order for the joinder to
be legitimate.'” Stillwell, 663 F.3d at
1333 (citing Triggs, 154 F.3d at 1287).
invokes the first method by which to prove fraudulent
joinder. Namely, defendant argues that Georgia law does not
allow a claim to be asserted against a property manager on
the basis of legal or supervisory control. Doc. 11. It notes
that evidence in the record indicates that defendant Brown
exhibited no supervisory control over the premises.
Id. at 4. However, as this Court has previously
noted, “there exists an inconsistency in the
interpretation of O.C.G.A. § 51-3-1 by Georgia
courts. Specifically, courts have been inconsistent as to
whether legal control is necessary or whether supervisory
control will suffice.” Bryant v. Kroger
Company, 2016 WL 1756916 at * 3 (S.D. Ga. May 2, 2016)
(citing Ishmael v. Gen Growth Props., Inc., 2014 WL
7392516 at *2 (S.D. Ga. Dec. 29, 2014) (internal citations
omitted). Plaintiff, for her part, has argued that defendant
Brown shared in supervisory control. Doc. 14 at 3. Given
these alleged facts and circumstances, it seems possible that
this Court could find a claim against defendant Brown. Thus,
the “preliminary peek” indicates a likelihood
that the motion to remand would be granted. On that basis, a
stay is warranted.
argues, nevertheless, that even if a stay is warranted due to
the pending remand, it is inappropriate here because the
parties will need to engage in discovery regardless of which
court has jurisdiction. Doc. 22 at 2. That may be true.
However, the Court is disinclined to exercise discretion over
a case's discovery-and the pendent scheduling order and
discovery disputes that may arise as a result thereof-where
the Court may ultimately be the inappropriate jurisdiction.
As a result, Plaintiffs motion to stay, doc. 21, is
GRANTED. The parties are directed to meet
and confer and file an amended Rule 26(f) report within
fourteen days of the Court's ruling on the motion to
remand if, of course, such motion is denied.
 Plaintiff's case appears to be
proceeding pursuant to O.C.G.A. § 51-3-1, doc. 9-1 at 8,
and common law ...