Thomas, Thomas & Hafer Attorney Sarah Cobbs successfully argued fraudulent joinder of a store manager, allowing the case to remain in Federal Court.  The suit concerned allegations of negligence, and claims of personal injury, after a cup filled with urine tipped over on a store shelf and spilled onto the Plaintiff.  The action was originally filed in State Court, with suit being brought against not only the store, but the store manager as well.  Attorney Cobbs promptly removed the action to Federal Court, arguing that the joinder of the store manager was fraudulent and was designed to destroy diversity jurisdiction, in an effort to keep the matter in State Court.  In tandem with her Notice of Removal, Attorney Cobbs also filed a Motion to dismiss the store manager for failure to state a viable claim.  Countering these filings, the Plaintiff sought to remand the case back to State Court, arguing that the store manager’s failure to discover the hazard was proof of misfeasance, such that the joinder was proper.

Agreeing with Sarah, the Court found that the Plaintiff failed to show that the store manager had participated in creating the harm, as required.  The Court found that the allegations against the store manager amounted to a failure to take action that may have prevented the incident, as opposed to affirmative actions by the manager that caused or created the harm.  Accordingly, the Court dismissed the store manager from the case, with prejudice, and denied the Plaintiff’s Motion to remand the case back to State Court.

Questions about this case can be directed to Sarah Cobbs at (412) 926-1447 or scobbs@tthlaw.com.