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Barwick v. Outback Steakhouse of Florida, LLC

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

June 5, 2019

LESA BARWICK, Plaintiff,
OUTBACK STEAKHOUSE OF FLORIDA, LLC, d/b/a Outback Steakhouse; JUSTIN BROWN; JOHN DOES 1-3, Defendants.



         This matter is before the Court on Plaintiff's Motion to Remand to State Court, (doc. 9). Plaintiff Lesa Barwick filed this lawsuit in state court to recover damages for injuries she suffered from a slip-and-fall at a restaurant owned by Defendant Outback Steakhouse of Florida, LLC (“Outback”). At the time of her fall, Defendant Justin Brown was employed as a manager at the restaurant. (Doc. 1-2.) After being served with the lawsuit, Defendant Outback removed the case to this Court and filed an Answer. (Docs. 1, 4.) In response, Plaintiff filed the present motion, seeking to have the case remanded back to the state court. (Doc. 9.) For the reasons explained more fully below, the Court GRANTS Plaintiff's motion and REMANDS the case to the Superior Court of Chatham County, Georgia.


         On or about February 4, 2017, Plaintiff visited an Outback Steakhouse restaurant located in Chatham County. (Doc. 1-2, p. 4.) According to the Complaint, at that time Defendant Outback “leased and operated” the restaurant and Defendant Brown was “a manager at [the restaurant] and shared in the responsibilities and duties owed to [Plaintiff].” (Id. at pp. 4-5.) Plaintiff claims that, during her visit, she “slipped and fell due to a foreign substance(s), and/or an unreasonably slick or greasy floor surface[] and due to the unreasonably unsafe and hazardous condition of [the restaurant's] floor.” (Id. at p. 4.) She suffered unspecified injuries requiring treatment including surgery, and as a result she incurred medical expenses. (Id. at pp. 8-9.)

         On November 5, 2018, Plaintiff, who is a resident of South Carolina, filed this lawsuit against Outback, Brown, and “John Doe[s]” 1-3 in the Superior Court of Chatham County seeking damages for her injuries. (Doc. 1-2.) Defendant Outback, which is-for jurisdictional purposes-undisputedly not a Georgia resident, (doc. 9-1, p. 2), removed the case to this Court on the basis of diversity jurisdiction, (doc. 1). Plaintiff now seeks to have the case remanded to the Superior Court of Chatham County, claiming Defendant Brown is a citizen of the state of Georgia and that Outback was therefore not permitted to remove the case from a Georgia state court to this Court. (Doc. 9.) In opposition, Outback does not dispute that Brown is a Georgia citizen, but it instead claims that Plaintiff fraudulently joined Brown as a defendant in the case solely for purposes of preventing Outback from removing the action to this Court. (Doc. 11.)


         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, as here, 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” in the action. McKenzie v. King Am. Finishing, Inc., No. 6:12-cv-065, 2012 WL 5473498, at *1 (S.D. Ga. Nov. 9, 2012) (quoting Stillwell, 663 F.3d at 1332).

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)).

         When ruling on 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.” Crowe, 113 F.3d at 1538. “The federal court makes these determinations based on the plaintiff's pleadings at the time of removal; but the court may consider affidavits and deposition transcripts submitted by the parties.” Id. In making this determination, “federal courts are not to weigh the merits of a plaintiff's claim beyond determining whether it is an arguable one under state law.” Id. 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); see also 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. Id. at 1332. 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 notice is given, and the statement of claim is short and plain. The true test is whether the pleading gives fair notice . . . .” Carley v. Lewis, 472 S.E.2d 109, 110-11 (Ga.Ct.App. 1996).


         In response to Plaintiff's Motion to Remand, Outback invokes the fraudulent joinder doctrine, contending that Brown's presence should be disregarded for jurisdictional purposes because Plaintiff has no actionable claim against him and Plaintiff only named him as a Defendant to thwart federal subject-matter jurisdiction. As explained above, the Court must determine whether there exists a “possibility that a ...

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