United States District Court, D. Maryland
THE ESTATE OF MARY SUE WELSH C/O MARTIN EUGENE WELSH, P.R.
MICHAELS STORES, INC., et al.
CATHERINE C. BLAKE, UNITED STATES DISTRICT JUDGE
February 29, 2016, Mary Sue Welsh allegedly tripped and fell
because of a bulging floor tile at a Michaels store located
in the Snowden Square Shopping Center at 9041 Snowden River
Parkway in Howard County, Maryland. On February 14, 2019,
through her Estate, she filed suit against Michaels Stores,
Inc.; The Michaels Companies, Inc.; Kimco Realty Corp.
("Kimco").; and Snowden 156, LLC
("Snowden"). The defendants timely removed the case
to this court on April 2, 2019. Now pending are the
plaintiffs motion to remand (ECF No. 11), and the motion for
summary judgment filed by Kimco and Snowden (ECF No. 23).
Stores, Inc. ("Michaels") has filed an answer. The
Michaels Companies, Inc., already has been dismissed without
opposition (ECF Nos. 12 and 24), and the plaintiff does not
oppose summary judgment as to Snowden. Indeed the record
developed in connection with the motions demonstrates that
Snowden has no connection to the property where the Michaels
store is located. That property is owned by JLPK Columbia,
LLC, a Delaware limited liability company ("JLPK"),
which leased it to Michaels. (ECF 21, Exhibits 3-1.0). JLPK
has not been named as a defendant, and the statute of
limitations has run.
first question for the court is whether Kimco, which was
incorporated in Maryland, is a proper defendant in this case,
or has been "fraudulently joined." If Kimco is a
proper defendant, there is no diversity jurisdiction, and the
motion to remand must be granted. The Estate relies on a
website and an SEC filing to show that Kimco "owns and
operates" multiple shopping centers across the country,
one of which is Snowden Square, S.C., where the property
owned by JLPK and leased to Michaels is located. The Estate
asserts that Kimco is an "equitable owner" and
likely pays the taxes on the property despite JLPK being the
"titled" owner. (ECF 30, Reply, Exhibits 1-5).
Kimco asserts that it was not the owner, and the fact the
property was owned by a subsidiary is not sufficient to
impute liability to Kimco.
establish fraudulent joinder "the removing party must
show either 'outright fraud in the plaintiffs pleading of
jurisdictional facts' or that 'there is no
possibility that the plaintiff would be able to
establish a cause of action against the in-state defendant in
state court.'" Johnson v. Am. Towers, LLC,
781 F.3d 693, 704 (4th Cir. 2015) (quoting Marshall v.
Manville Saks Corp., 6 F.3d 229, 232 (4th Cir. 1993))
(emphasis in original). This is an exceptionally heavy burden
that is "more favorable to the plaintiff than the
standard for ruling on a motion to dismiss under Fed.R.Civ.P.
12(b)(6)." Johnson, 781 F.3d at 704 (quoting
Hartley v. CSX Transp., Inc., 187 F.3d 422, 424 (4th
Cir. 1999)). The removing party must demonstrate that
"the plaintiff cannot establish a claim even after
resolving all issues of law and fact in the plaintiffs
favor." Johnson, 781 F.3d at 704 (quoting
Hartley, 187 F.3d at 424). A plaintiff s claims
against non-diverse defendants "need not ultimately
succeed to defeat removal"; rather, the plaintiff
"must show only a 'glimmer of hope' of
succeeding against the non-diverse defendants."
Johnson, 781 F.3d at 704 (citing Marshall,
6 F.3d at 223; Mayes v. Rapoport, 198 F.3d 457,
466 (4th Cir. 1999)).
Estate alleges that Kimco breached its duty "to hand
over a safe building for its intended purpose" and
"to inspect the premises before and after the tenancy of
the codefendants began." (ECF 2, Complaint ¶ 25).
Although the Estate alleged in its complaint that Kimco owned
the Michaels property, the defendants have since shown that
the property is owned by JLPK. In its Reply, the Estate now
argues that Kimco owed a duty to Ms. Welsh based on its
status as an equitable owner of the Michaels property. It is
not clear what the Estate means by "equitable
owner." To the extent that the Estate argues that Kimco
owed Ms. Welsh a duty because Kimco 1) pays taxes on the
Michaels property and 2) owns Snowden Square Shopping Center,
in which Michaels is located, the Estate provides no case law
in support of this. As the Estate has so far alleged no basis
for holding that Kimco owed Ms. Welsh a duty, the Estate has
not shown any possibility of success against Kimco.
is some suggestion, however, that Kimco may have assumed
duties with respect to the maintenance or financial
obligations of the Michaels property. (See Reply,
Exhibits 1-4). The court notes that only portions of the
lease are in the record, and neither the tease nor other
documents in the record show whether Kimco has any direct
involvement with the Michaels property or assumed any duties
relevant to Ms. Welsh's injury.
that the present complaint was based on the Estate's
factual misunderstanding, the court will deny the
Estate's motion to remand without prejudice to permit the
parties to conduct limited jurisdictional discovery and/or to
allow the Estate to file an amended complaint. The court also
will deny without prejudice the motion for summary judgment
as to Kimco but grant it, without opposition, as to Snowden.
A separate order follows.
Ms. Welsh is now deceased, but her
death is not alleged to be related to the injuries suffered
in the fall.
The owner of a property may be liable
for the safety of the tenants or their guests. Although a
landlord "ordinarily has no obligation to maintain the
leased premises for the safety of the tenant;"
/lemmings v. Petham Wood Ltd. Liability Ltd.
Partnership,375 Md. 522. 537-38 (2003). a landlord may
be liable if she "agrees to rectify a dangerous
condition in the leased premises, and fails to do
so.'" Matthews v. Amberwood Assocs. Ltd.
Partnership, Inc..351 Md. 544. 555 (1998). or maintains
control over the portion of the property with the dangerous
or defective condition. Hemmings. 375 Md. at 537.