* Pursuant to 5 T H C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

September 9, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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.

-------------------- Appeal from the United States District Court

for the Southern District of Mississippi

(3:03-CV-242-BN)

--------------------

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 appellate1 “[T]he court determines whether [the plaintiff] ha s any

possibility of recovery against the party whose joi nder is

2 jurisdict ion, we affirm the ruling appealed for essentially the

reasons expressed by that court.

I.

Smith filed s uit 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 Joh nson under our most recent

expression of the applicable test, 1 and concluded that Sm ith’squestioned. If there is arguably a r easonable basis for predicting

that the state law might impose liability on the facts involved,

then there is no fraudulent joinder. This p ossibility, however,

must be reasonable not merely theoretical.” T ravis v. Irby

, 326

F.3d 644, 648 (5th Cir. 2003)(emphasis in original).

3 joinder of Johnson could not pass our test. In so doing, the court

analyzed Johnson’s employ ment as an agent of his diverse codefendants in the framework of applicable Mississippi law. Based

on Smith’s allegations and discovery, the court noted the extent of

the duties, responsibilities, and autho rity 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 co urt. 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 t he 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-4

l evel supervisors. Johnson did not have responsibility or

authority to take steps or institute proc edures regarding patron

safety at the several store locations that were under his remote

supervision.

D espite being allowed sufficient time for remand discovery,

Smith fail ed 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 precau tions 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 co nditions 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,5

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.