RONALD WHITE

v.

WAL-MART STORES EAST, LP

WAL-MART STORES EAST, LP and DEANNA MIRANDA,

Defendants. /

ORDER1

Before the Court is Plaintiff Ronald White’s Motion to Remand (Doc. 29) and Defendants Walmart Stores East, LP and Deanna Miranda’s response in opposition (Doc. 30). Also here is Miranda’s Motion to Dismiss (Doc. 23), to which White did not respond. The Court denies the Motion to Remand and grants the Motion to Dismiss. This is a slip-and-fall case.2 White brings negligence claims against both Walmart and Miranda (a Walmart store manager). Walmart removed. A pending motion to dismiss came with the case, which the Court granted with leave to amend because White did not state a claim against Miranda. (Doc. 20). Now, White seeks

Co., 269 F. 3d 1316, 1319 (11th Cir. 2001). To have diversity, the parties must be completely diverse. 28 U.S.C. § 1332(a). Both White and Miranda are Florida citizens. So the parties are not diverse, and the Court must remand unless an exception (like fraudulent joinder) applies. Stillwell v. Allstate Ins., 663 F. 3d 1329, 1332 (11th Cir. 2011).

Despite the lack of diversity, a defendant may remove if the nondiverse defendant was fraudulently joined. Triggs v. John Crump Toyota, Inc., 154 F. 3d 1284, 1287 (11th Cir. 1998). This misjoinder applies when “there is no possibility that the plaintiff can prove a cause of action against the resident (non-diverse) defendant.” Id. To decide the issue, a court considers “the plaintiff’s pleadings at the time of removal, supplemented by any affidavits and deposition transcripts.”

Pacheco de Perez v. AT&T Co., 139 F. 3d 1368, 1380 (11th Cir. 1998). A removing party must make a fraudulent joinder showing by clear and convincing evidence. Stillwell, 663 F. 3d at 1332. And courts take all factual allegations and uncertainties about state law in a light most favorable to plaintiff. Pacheco, 139 F. 3d at 1380. Yet if defendant presents unrebutted affidavits, “the court cannot then resolve the facts in the Plaintiffs’ favor based solely on the unsupported allegations in the Plaintiffs’ complaint.” Legg v. Wyeth, 428 F. 3d 1317, 1323 (11th Cir. 2005). In Florida, an employee can be liable for negligence committed within the scope of their employment. White v. Wal-Mart Stores, Inc., 918 So. 2d 357, 358 (Fla. Dist. Ct. App. 2005). But the employee must “breach [a] duty through personal—as opposed to technical or vicarious—fault.” De Varona v. Discount Auto Parts, LLC, 860 F. Supp. 2d 1344, 1347 (S.D. Fla. 2012). So an employee is not “liable simply because of his general administrative responsibility for performance of some function of his or her employment—he or she must be actively negligent.” White, 918 So. 2d at 358 (alteration accepted, internal quotation marks omitted, and citation omitted). Miranda’s affidavit explains she had no knowledge or involvement in White’s slip and fall. (Doc. 30-1). She wasn’t even working when it happened. And White offers nothing to rebut this evidence. In fact, White now clarifies he has no clue who the store manager was that day. (Doc. 29 at 4 (“This store manager is currently unknown to the Plaintiff, however, [Walmart] is well aware of the employee’s identity. This information was requested of Defendant in the form of Interrogatories severed with the initial Complaint.”)).³ Nor does the Amended Complaint offer facts supporting a claim against Miranda. As Walmart contends, the duties Miranda allegedly breached just parrot the allegations against Walmart

White fraudulently joined Miranda, the Court disregards her citizenship and denies the Motion to Remand. Given this conclusion on fraudulent joinder, the Court grants Miranda’s Motion and dismisses the case against her. Accordingly, it is now

ORDERED: (1) Plaintiff’s Motion to Remand (Doc. 29) is DENIED. (2) Defendant’s Motion to Dismiss Count II of Plaintiffs First Amended Complaint (Doc. 23) is GRANTED. a. Count 2 of the Amended Complaint (Doc. 21) is DISMISSED. b. The Clerk is DIRECTED to terminate Deanna Miranda as a Defendant. (3) Plaintiff must FILE an amended complaint to remove allegations against Deanna Miranda on or before October 21, 2020. Failure to do so will result in the closure of this case without further notice. DONE and ORDERED in Fort Myers, Florida on October 7, 2020.

UNITED STATES DISTRICT JUDGE

Copies: All Parties of Record