An issue of importance that any potential plaintiff must consider at the initiation of litigation is whether to bring his or her case in state or federal court. Given the differences in both procedural and, in more limited circumstances, substantive law to be applied, this choice can have a marked impact on the outcome of a case. Although not all litigants will have this option, since certain cases are limited to a particular forum based on their design or the issues involved, when the option presents itself litigants will often make an effort to keep the case in the chosen forum. Issues regarding the selective choice of forum were addressed in Garber v. Wal-Mart Stores, Inc., a recent decision from the United States District Court for the Southern District of Florida.
The Garber case arose from a slip-and-fall accident at a Wal-Mart store in Delray Beach, Florida. Following the fall, the injured customer brought a premises liability suit against Wal-Mart in the Circuit Court of the Fifteenth Judicial Circuit of Florida. Following initiation of the case, the defendant served a Request for Admission on the plaintiff, which asked in part that the plaintiff admit she was seeking less than $75,000 in damages. The plaintiff denied the admission. In a following response to interrogatory requests served by the defendant, the plaintiff claimed more than $88,000 in medical expenses. Thereafter, the defendant filed a notice of removal to federal court, since the action could’ve originally been brought in federal court because the parties were residents of diverse states and the amount in controversy exceeded $75,000. The parties then entered into a joint stipulation to dismiss the case without prejudice. Following dismissal of the first action, the plaintiff brought a second action in Florida state court, which was substantially similar to the first, except for the fact that the plaintiff added a new defendant, the manager of the Wal-Mart where the fall occurred. Following initiation of the second suit, Wal-Mart again filed a Notice of Removal. Following removal, the plaintiff made a motion in federal court to have the case remanded back to state court, since there was no federal subject matter jurisdiction. Therefore, at this juncture, the federal court needed to determine whether the presence of the new defendant eliminated possible federal jurisdiction such that the action could no longer be removed to federal court and, accordingly, should be remanded to back to state court.
As noted above, federal courts are courts of limited subject matter jurisdiction. One principal source of federal subject matter jurisdiction is known as diversity jurisdiction, which permits actions in federal court when the parties to the litigation are diverse – meaning “citizens” of different states – and the amount in controversy exceeds $75,000. In the original action, the plaintiff and Wal-Mart were diverse, and the preponderance of the adduced evidence suggested the amount in controversy exceeded $75,000. Thus, federal subject matter jurisdiction existed. However, in the second suit, the plaintiff added a new defendant, whom the plaintiff argued eliminated a basis for removal of the action to federal court. In most cases, diversity jurisdiction requires complete diversity, meaning all the defendants are diverse to all the plaintiffs. In addition, pursuant to 28 U.S.C. § 1441(b)(2), the federal removal statute, removal shall not be allowed when any defendant is a citizen of the state where the case was originally filed. In response, the defendant argued that the new defendant was “fraudulently joined” to the action purely to eliminate a basis for federal court jurisdiction, and thus the presence of the party should be disregarded for purposes of determining whether federal subject matter jurisdiction exists.
“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 v. Allstate Ins. Co., 663 F.3d 1332 (11th Cir. 2011). Under Florida state tort law, which would apply to the premises liability claims in this action, “[i]ndividual officers and agents of a corporation [can be] personally liable when they have committed a tort even if such acts are performed within the scope of their employment,” as long as the agent “acted tortiously in his individual capacity.” McElveen By and Through McElveen v. Peeler, 544 So. 2d 270, 271 (Fla. Dist. Ct. App. 1989). The added defendant, as noted above, was the manager of the Wal-Mart where the accident occurred. Looking at the complaint, the court found that the plaintiff had set forth sufficient allegations that the manager acted negligently in an individual capacity. Accordingly, the court could not hold that it would be impossible for the plaintiff to establish a cause of action against the manager in an individual capacity. Since the defendant also failed to cite any evidence that the plaintiff fraudulently pled any jurisdictional facts in order to bring the resident defendant into state court, there was no basis for removal to federal court, and the court remanded the case back to the state court.
As this case demonstrates, even basic premises liability actions can involve substantial jurisdictional wrangling long before any considerable discovery is performed. Given that the decision to bring action in state or federal court can be an important one and depends heavily on the parties sued, claims asserted, and allegations pled, litigants should always enlist the advice of experienced counsel before undertaking legal action to recover for their injuries. The South Florida premises liability attorneys at Frankl & Kominsky have experience representing plaintiffs in both state and federal court and, moreover, crafting litigation in order to keep it in the plaintiff’s optimal forum. If you’ve recently been injured and are interested in your options for recovery in either state or federal court, feel free to contact us for a free case consultation to discuss your situation.