United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
September 9, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-60343
Summary Calendar
WILLIAM C. SMITH, III,
Plaintiff-Appellant,
versus
AMOCO CORP.; PANTRY, INC., doing
business as PANTRY STORE #3431;
DAVID JOHNSON; JOHN DOES, 1-10,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Mississippi
(3:03-CV-242-BN)
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Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
This case implicates application of the fraudulent-joinder
doctrine in connection with removal and remand of diversity cases.
Plaintiff-Appellant William C. Smith III seeks reversal of the
district court’s dismissal of co-Defendant-Appellee David Johnson,
the only non-diverse defendant named by Smith. After first
determining that Smith’s notice of appeal from the district court’s
dismissal order was timely, and that we have appellate
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
jurisdiction, we affirm the ruling appealed for essentially the
reasons expressed by that court.
I.
Smith filed suit in Mississippi state court seeking damages
for personal injuries that he allegedly incurred as an innocent
invitee during an armed robbery of a business belonging to one or
more of the diverse co-defendants. They removed the case to
district court, contending that Johnson had been joined solely to
defeat federal diversity jurisdiction. The diverse co-defendants
argued that Smith’s joinder of Johnson was fraudulent because,
under the applicable substantive law of Mississippi, Smith does not
have any possibility of recovery against Johnson.
Smith insists on appeal, as he did in the district court, that
Mississippi law is at least ambiguous as to whether he could
conceivably recover against Johnson. Smith argues that ambiguity
prevents reaching a conclusion that the law is well settled,
without which there can be no determination that he has no
possibility of recovery against Johnson. As such, asserts Smith,
joinder was not fraudulent and the case must be remanded to the
state court in which it was originally filed.
After allowing time for “remand discovery,” the district court
tested Smith’s action against Johnson under our most recent
expression of the applicable test,1 and concluded that Smith’s
1
“[T]he court determines whether [the plaintiff] has any
possibility of recovery against the party whose joinder is
2
joinder of Johnson could not pass our test. In so doing, the court
analyzed Johnson’s employment as an agent of his diverse co-
defendants in the framework of applicable Mississippi law. Based
on Smith’s allegations and discovery, the court noted the extent of
the duties, responsibilities, and authority vested in Johnson by
his principals relative to management of the business where Smith
was injured, both generally and as to safety and security of
invitees like Smith, and concluded that Smith could not prevail
against Johnson under Mississippi law.
II.
As we agree with all the parties that oral argument should be
dispensed with in this appeal, we decide it on the basis of the
facts and law as presented in the appellate briefs of the parties
and the record on appeal, including the orders and opinions of the
district court. In the end, our review of the briefs and record
and our independent analysis of the law applicable to the operative
facts of this case lead us to the same conclusion reached by the
district court. Johnson was not employed as a full time, onsite
manager or supervisor at the store where the incident occurred. At
all times relevant to Smith’s claims, Johnson served as a mid-level
supervisor of a number of stores, reporting to one or more higher-
questioned. If there is arguably a reasonable basis for predicting
that the state law might impose liability on the facts involved,
then there is no fraudulent joinder. This possibility, however,
must be reasonable not merely theoretical.” Travis v. Irby, 326
F.3d 644, 648 (5th Cir. 2003)(emphasis in original).
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level supervisors. Johnson did not have responsibility or
authority to take steps or institute procedures regarding patron
safety at the several store locations that were under his remote
supervision.
Despite being allowed sufficient time for remand discovery,
Smith failed to establish that Johnson was vested with either
onsite responsibility or supervisory responsibility for conditions
affecting customer safety at the store in question or, for that
matter, any of the other stores for which Johnson had general
merchandising and personnel responsibility. Neither did Smith
establish that Johnson had —— and ignored —— specific knowledge of
the alleged deficiencies in safety precautions for the property
where the incident occurred. Under well-established Mississippi
law, as correctly explicated by the district court, Smith has not
shown that the instant situation was one in which an agent such as
Johnson could be held personally liable for unsafe conditions at
the premises in question. The district court correctly concluded
that Smith had no reasonable possibility of recovery against
Johnson.
III.
The district court committed no error in dismissing Johnson as
a fraudulently joined defendant in Smith’s personal injury action.
It follows that, in the absence of any non-diverse defendant,
4
removal on grounds of fraudulent joinder was proper, as was denial
of remand. The rulings and orders of the district court implicated
in this appeal are, in all respects,
AFFIRMED.
5