Ishmael v. General Growth Properties, Inc. et al, No. 1:2014cv00175 - Document 14 (S.D. Ga. 2014)

Court Description: ORDER granting 7 Motion to Remand. The Clerk is directed to Remand this case to the Superior Court of Richmond County and closed this civil action. Signed by Judge J. Randal Hall on 12/29/14. (cmr)

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Ishmael v. General Growth Properties, Inc. et al Doc. 14 ORIGINAL r-, -i.D THE T'NITED STATES DISTRICT IN FOR TITE SOUTHERN DISTRICT .' , '..7 U.S.c,', r ' ,i,' ' '- COURT ;rvu -- OF GEORGIA AUGUSTA DIVISION ASHLIE DANIELLE ISHMAEL, and as next individually, of AI,AYNA r"t tr;l/ t.-,. .;- '-'itl.' ' friend A MANOT, ISHMAEL, ROSE 2q nlt 0EC ,A ll:3! Plaintiff, cv 114-175 v. G E N E R A L G R O W T HP R O P E R T I E S , I N C . ; GENERAL GROWTH MANAGEMENT, INC.; G E N E R A L G R O W T HS E R V I C E S , f N C . ; AUGUSTA MALL. LLC; ANDREW PAUL WILKE; NATIONAL LIFE AND INSURANCE CO. ; VALOR ,JOHN SECURITY SERVICES, INC.; DOE CORPORATIONS 1 - 10 ; and 'JOHN ACCIDENT DOES 1_-50, Defendants ORDER case This superior court 's Pl-aintiff consideration, motion is comes of Richmond to Motion and before for the County. Remand. the reasons court on removal Now before (Doc. stated 7 .) herein, from the the Court Upon is due Plaintiff's , GRANTED Dockets.Justia.c I. f il-ed Pfaintiff of Court and her f| 1 \ !. | whila fTd { \fs. ll \\-rart r u LLU_ r . {- :r n L l c u n uu e n vrJ in t-he premises in a safe adequate (!d.); (3) tender years an.l i\ 4 ) l be in close t'r-]a|]Si no tl 20f4, frauduLently ('l) in into joined making as Iir^r and Valor -Iocation lT/l \ \rq. water / against f.\ Icol fountain" chjldren (Id. fountajn" (Id. that area, "failing for for allege play . (2) area difficult of a party the the nl:.zcrnrrnd Notice Defendants water tl 22)r around che fountain" their interior Lo keep and mainLain p.J y a fha it (Id. negl-igence a water to Augusta the to ^hi of (Id. a she Georgia. Jvurrv and 20L3, fountain's "failinq locate Fr-r'n the \/.,,r^ acts proximity filed 1.) f !n! r - condition" -rior^r fhe falling (Doc. iinn/. four Lo thereby Defendants Pl ai nti ff - safeguards 'tchoosing obstructed chifdren ..1n..j In an into proximity close compfaint: her provide urrv rrs al-l-eges Pfaintiff Defendants f.) 4vev!v+f4:J t f ad1 LluuL Accordi ncr 2n ) zv, in cl-aims |[ 18.) visited Augusta, 'r E f ' 1 r ^ 614}114 was focated that fountain t-h^ --1 ^j- Superior asserting 8 Ex. A. Ishmaef, Road, 3450 Wrightsboro at Mal-l- l-ocated Doc. the on AugusE 28, that A]ayna daughter, 2-year-ofd 20L4, 2a, (Compl., alleges in Defendants Jul-y on liabilitsy. Plaintiff complaint, againsts suit County Richmond based on premises her BACKGROITI{D n 23); f 1^a f-.r'1j- Fin anyone o' [to tO see] fl 24) . Removal- on August Andrew Paul Security Wilke Services 29, was was jurisdiction, paruies circuit, which the irrri such are a filed fo the al-l- resofved Am. Home Assurance v. 2001) of as Co., courts on againsE is between of as to remand." 1040, In of exercise of 264 F.3d wfrere S 1441(b) . the favor limited of a ciLizen uncertainties in exists' diversity citizenship 28 U.s.c. filed. that. corp. instant cl-aim presenUs jurisdiction named defendants is be the may be removed to where the removed case a presumpt.ion is "the.re srji r-1ion - (1) diversity suit (Doc. purposes. court where diversity remand complete jurisdiction, a state Federal- courEs, where one of or in state must not is there (2) or S 1441(a-b) . 28 U.S.C. in fifed question shoufd Court tEGAI.,. STANDARD two circumstances: in court federal the now' considers the Court initially Actions a thus jurisdictionaf for II. federaL and on september L6, 2014, Plaintiff 10.) to Remand, which Motion partyt a citizenship their disregard 1 tltl 8, as identified improperly the the this federal removal Rus se 1f l-050 (1lth Cir. (emphasis added). Even presence that I of party According rn^^1(1n\ courts so, may retain defendant" a non-diverse to defeat to federaf Defendants jurisdiction the where party the "ignore is Mydatt Services, the joined plaintiff jurisdiction. diversity proper and Stil-1well rnc. v. fns Aflstate the pfalntiff such a case/ the non-di verse No. Inc., 663 F.3d 1329, 1332 (11tsh Cir. Co., is to said 'fraudulent.Iy have McKenzie defendanL." King v. *1 2OI2 WL 5473498, at 6:12-cv-055, 2011) Am. "In j oined' Finishing, (S.D. Ga. Nov. 9, 201_2). 'the removing party joinder, fraudufent To estabfish proving by clear and convincj-ng of has Ehe burden (1) there is no possibility the evidence that either: pfaintiff a cause of action against the can establish plainLiff has the or defendanE; e) resident frrrrdrr'lcrrt- n r s vd lo t, 663 F a motion the factual and Iaw substantive aE 5473498, "not ^ c - - Fr - L --!rr i. r r.9 : n . r s 6s- . r possibility (intsernal- that cause a a of IL at action ? would any federal- court must and remand the case to state court." a433, f440-4a (11th Cir. 709 F.2d find find there that one that 1983), the of harrnnd is f aw. " even a compl-aint the joinder Coker v. must court state under the 20l-2 wL el:im "tilf the defendanEs, The . One against F.3d state about McKenzie, Tndeedf court to favorable nl:inriff'e arvuar,r( L332. state most omitted) of dlr 113 must evaluate court uncertainties quotations .tJ tha a.)ltm:n plaintiff." the merits the F.3d district any of hrin.t omitted) ). light the resolve favor in (afterations in 1r Cr.wF remand, "the must wl-at l^ar 663 Stillwell-. states *2 weigh tI (mrotino 1997) f11 court.' 1-112 to f^r-fq ctn:l state affegations pl-aintiff erii cti into ef id 1535, l-538 (11th Cir. With irrri defendant resident qt- i l lr^rFl l l r1 r resident was proper Amoco Oif superseded by Co., statute on grounds other at (reversing 1333 the least, defendant t'The burden of evidence. " Po1l v. 2460769, rg *3 in aE contrast to requires immateri-al short as Defi . In very would cause a notice *3 (quoting lhe whether of pleading fair notice and p]ain. given, The true test and is joinder F.3d aE standard, pleading 20L2 conclusions statement whelher the WL In 1334) Georgia S 9-11-8. the cl-aim, McKenzie, 553 and p-Leading standards court.'" states quotations pl-ausibilit.y See O.C.G.A. pl-eadinq is the heavy 2007 wL l-:07-cv-959, fraudulenE to a is and convincing (internal the pl-eading federa] a not Stil-Iwell-, pleading. notice a Iook federal No, 2007) addressing in by clear Mgirnt., Inc., court, state prevailing 5473498, long must be supported 'musL necessarily applicable srandards the court joinder fraudulent (N.D. Ga. Aug. 24, omitted) Court "this to concludi-ng t'at stated Georgia's motion a state 653 F.3d , in because complaint esLablishing and such a claim citations erred Georgia given of Ethan . standards) one, court a pfaintiff's the againsc acti on that v. Inc. Stil-l-welf deniaf joined f raudu.Lent.Ly Manor, 1993); district the that" concfude Cir. court's the possible isl tit Georgetown district that was defendant (11th a holdj-ng and remand in 1533 991 F.2d Inc., Allen, stated as simply "it is or facts as of clalm is Thus, pleading gives carlev notice f ai-r (Ga. ct. III. presence the above, F.2d at a against cause of Court 110-11 Io9, order to thaE Mr. Wilke a state court action Pfaintiff under determine whether Mr. law. Wilke. was prove a Given the the exists there that he Mr. jurisdj-ction.3 cannot Georgia wou.Id find aqainst" because dj-versity defeat alfege disregard should purposes must court that "possibility states in Defendants action the jurisdictional for joined Specifically, cause of S.E.2d DISCUSSION that contend Defendants fraudulenlly 472 Lewis, 2 App. Witke's v. a compfaint See Coker, 709 L 4 4 0- 4 L . ' failed to specifically a-tIege Mr. Wilke Defendants argue that Ptaintiff that and instead only asserted in the compLaint, was an "owner or occupier" (Doc. 10 at 4.) Defendants further he was the manager of the shopping ma1l. "Fa'ls Lo -nclude any r IegaL-on of whaL, i f a1yt1inq, chaL P-air riII croir which caused or to do in that capacity or failed wilke did Defendant (rd.) Defendants thus contend thaL to the damages sought." contrabuted used the generic term "DeterddnLs" in he-r compLainr:, ra!her because Plaintiff fL 1- c^^^iFi^rtt\/ i,-16r-i f. n6ia-di- 's aclions, she iS u-able Lo (fd. at 7-8.) a claim against Mr. Wilke. to specifically identify addressed the failure the court rn McKenzie, that the There, the defendants argued actionsdefendant's individual 'Defendants' plura.l and not distinguish terni used ldidl complaint "the McKenzie, 20L2 wI' individually." of each defendant actions between the to held Lhat the plaintiffs' "decision The court expressly 5473498, at *4'Derenda-ts' p]eadi rg wich 'eorgia'' no.ice is corsis!e-! use rre pl-ra Although PLaintiff used Lhe more fd. This Court agrees. requi.ement." individualLy identifying each rather than generic term "Defendants" each DefendanL has been put on notice it is clear that Defendant, individual of the claims. state I presence Valor Systems' for Security also challenge Defendants jurisdictionaL the proper party is Mydatt Services, purposes, claiming that presence in the instant action Inc. Because the court finds that Mr. wilke's -rr. i , 1 o e s n o ! a d o - L e s sV a l o r S e c u r ' t y S y s t e r s ' s t a t u s . .tac-'.\'< 6 premises owner in occupier or leads or induces purposer his caused by fand, by to faifure exercise a duty ^- ^--.1^i or the over controljusrify to r!r9L'LL. / flrL., ct. question critical injury hqY. subject \ \rv^ r . .^n?\ z= whether the c.,haar invitation, implied for persons care in keeping t'he Thus, to owe as "an individual 2].2 was S 5l--3- exercised at the time PoI1 liability." ct i arr., owner person a v. Del-i (N.D, Ga. *4 2007 WL 2460769, rr l-awful injuries under O.C.G.A. premises of any for whether the subject 1 :07-cv-0959, an must qualify decermine imposiLion the i /v ^ i tu - ri rrY. t r \ r / is "fwlhere S 51-3-1. fiability to Georgia, ordinary Wilke 'tTo Id. ." occupier sufficient Mr. statute, -an.l nf an owner or L, this under such O.C.G.A. premises and approaches safe." of premises come upon his damages to doctsrine or express in liabfe t.he on In complaint. to others is he her of liability based negligence al-l-eges Pfaintiff S.E.2d 29, 3l of (Ga, App. 1975) ) . The primary in inconsistency issue Gcnroi. ..eses as premises property in is liabitity interest." Servs. Inc. the Pofl, v. of an to Perry, S 51-3-1 7ega7 at. 387 S.E.2d.898,905 the or *4 (citing (Ga. ct. Georgia Pol-l-, r c r - r r r i* e d control other apparent by in \con1-rcrl' ownership 2007 WL 2460769, is detailed the f haf restricted form of .Tudge story srrooaqled "havc court interpretation the SpecificalIy, courus. the before over some fof the possessory Ga. Bldg. App. 1989)). estabfished the controf Id. " lml ost cou.rts control will the "where premj-ses at with Consistent include to 'owner of or the the of time view, supervisory manager within a store v. Ott occupier. "' be had l-atter of 2olo wL 582575, *2 No. 5:09-cv-215, may individual thar: exhibj tj ng some fevel aqree definition liability that. subject cases). be sufficient Inc., Stores, the (Iisting injury.- S 51-3-1 statute over under supervisory recognized have courts Georgia Other tshe Wal-Mart (M.D. Ga. Feb. r_6. 2010). of A number possessory Iegal include to occupier" or "owner (recognizing qrttv,,Y ar hor and ordinances, tL rh t r rr -^v c . - 'i e property manager's 3l-9 S.E.2d of an fact question r22, existed apartment premises to of e r .s ru L i sn J rr I n r Yl r r- and inspecting, 423 S.E.2d fact liability as under 123 (Ga. Ct.. App. as to complex qualify Lang (Ga. Ct. 384 n.2 ,fones App. camnl ianr-o r^r f h i maintaining, owed a duLy under S 51-3-1); Mgimt., Inc. , a v. manager who was responsible regulations, (finding a l-ess than 382, repairj ng Lhe premises, " Bal-cor Prop. something a property that t:^r with of 62'7 S.E.2d Inc., 2OO5t those tshe meaning interpreted Norman SeS_r___S-:_g_., interest. Americas, Lasaffe have courLs ceorgia whether an a 15 (Ga. Ct. management S 51-3-l-) r 1984) a partner exercised as to 14, or company that v. control occupier) ; v. 1992) and Trupp, a question whose partnership sufficient owrler Ashley App. Gregory (holding and owned over the Coffer v. the S.E. or person owner certain " nafand:ni-q possibility Wifke Mr. on two on jurisdiction. l-.t of under Matos Court which the Georgia court in store. Id.; not could cL. nr..'r Adams v. . 1 ^ L " q yn !i F rI ' . - r O.C.G.A. asserted him. ") . no case, of vL under a997], App. j-n this l-iab1e be hel-d liabfe t.hc S other as ("Rega-rdless sFars' 51-3-1, an owner basis for a Eo he matter imposing or the held Sears cannot law, be Adams a of a 150, l-53 might be an hefd and the that 490 S.E.2d personal No. occupier was neither of defeat Inc., on whecher washington sf ore. as claiming In denying Appeals of of premises a joined Sears Roebuck & Co., because Adams v. and heavily relied l-aw, Georgia Wa1-MarL Stores, v. nO 1S citizenship, fraudufently was the manager (ca. WL 2007 thefe removed defendants diversity that Wal-Mart v. remand. Eo decision, "under supervisory 4;05-cv-2!3 -WTM, Doc. 39 (S.D. Ga. May 9, 2006). motion to duty Pol-l-, show l-iable Matos the Matos, manager store diversity sufficient hefd be cases: based action the that a managel: may, a S 51-3-1. ^i-t-pmnl. could In Roebuck. liability l-hai r in nrimari l1, l.Flv Sears under liable owes that *5. at 2460769, with and hefd be property that (holding 19321 App. the demonstl:ate circumstances authoritv, ct. of charge in cases These invitees), (ca. L1-9, L22 L67 Bradshaw, 'owner f iabl-e Adams has liability upon the Although dec j-ded t.he weight (M.D. manager must *3 (M.D. Ga. July a states of cause Wal-Mart *1 2010 WL L48-12L3, at 325, courts potential case. Based on the could defendantl WL 582576, at means of of liability *3 store existing case (finding [the store Iaw, LP, it is No. with a 5:09-cv- to regard slip-and-fa11 possibl-e that lthe law."); Ott, 2010 Georgia duty manager'sl under ("Georgia 2010) however, in conclude complaint to pfausibfe a] S 51--3-1 "provide Is that to manager 72, manager under liable be held establishing a unabfe East, guidance, v. Parker Plaintiff's (M.D. Ga. Apr. clear provided have not a 2011 wL 3236095, aL a Stores in -Lmposed on favor) ; is the against" state this "uncertainties may be Court that action Stephens v. S 51-3-L.); the possibilicy no is there that ("IT]he 20Ll) 28, the that No. 5:11-cv-136, a1 ., et Goshen Real-ty Corp. of See Hambrick v. 'a plaintiff's the in resolved be was 2 0 1 4 W L 1 9 2 ] - 3 4 1, a L * 4 I iabif ity w h et . h e r .Law" rega rding ceorgia (holding decision Matos since courts result a contrary 1-4, 20L4) May Ga. federal EasL, LP, No. 4:1-4-cv-66, Stores Wal-Mart Adams the years the in authority of and now dictates has shifted in Matos, in result the supports that recognizes Court keep the premises n j-s following the Adams decision supreme court from the ceorgia An opinion was held thaL a director of security Court There, the instructive. Anderson v. Atlanta of the premises at issue. neither an owner nor occupier Tn so 53? S.E.2d 345, 350 (Ga. 2000) . Games, Inc., Ollmpic Comm. for with that of a r L compared a securi ty d i rec .or's .LiabiLiry J^ooi ng, Lhe Co,r for the proposition Bourn v. Herring manager, citing or general corporation uv vr u ' v!,er yv! Lf . r ^ t 4 v ri J r n gr r ra 'ln.l r^iFind -ni',arar E^rryn \z nav HFrrirl.' l-0 ha <' hjp-- il r-66 S.E.2d i:hj A9, 92 l:-v lca. rs owne.Ls 1959)). 2oO7 WL 2460769, Pol-f, safe."); j udgment summary did not its fine of earfier owner or cfear rrndor is 2460769, at *7. oI v. Triggs Cir. John to carry their as there is cause of at action whether a either as an 'owner the the Court heawy burden Inc., least against finds of Wilke. 1-1 T h at 154 stating be F.3d that For that WL be contingent nots ouLcome because a valid cause See IegiLimate. " L28'7 (11th l-284, Defendants that 2007 litigation of Lo is or 'owner an Polf, might establ-ishing some possibility Mr. See in stage joi nder store ^rinnin'ac exercised have a possibiliLy for of as an agent liabiliLy he crump ToyoEa, Thus, 1-998). makes to as ;.ren.\' wilke's early this order in action liabLe controf need "only Pfaincif' under opinions various -amrn6l ." of at determinative these I r^.1 iti.,)nel That Mr. degree the abandon liabl-e be stiIl exists enorr^h , r r.u.s.!- a r -L a fi n tI - v J q L ur tLIe the manager was not coul-d S 51-3-1-, or O.c.G.A. under n L u u r n i a rI ,c ! vnnr P on between held be may manager he 1and, uncertainty "some occupier' of or "overrule (3) even if and cases," Ehe disparity that to (2) available, . agency principles) Indeed, was remand and on a mot j-on for was decided it an intent indicate occupier (ordering evidence more where Adams court an (1) Adams because distinguishing *5 at have fraudulent Pl-aintif f reason, faifed joinder states a compl-ete iurisdiction is citizenship of diversity over this 7) is to the further hereby the on foregoi GRAIi|1[ED. superior di.rected court to Lhe court facks CONCI,USION ng, The of Pfainciff's Clerk is Richmond Augusta, to Motion DIRECTED county, motions TERMINATE all ORDER ENTERED at and matt.er. IV. Based present. not Georgia, to Remand {Doc. REIIAND this The Clerk and CLOSE tshis case. Georgia. this H STATES DISTRTCT DISTRICT is u^oor Pt December, 2 01-4. L2 case .JUDGE OF GEORGIA

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