Garver v. Holbrook
3:21-cv-00235
E.D. Va.Jun 30, 2021Background
- On April 17, 2019, Abigail Garver was struck by Richard Holbrook’s vehicle while riding a motorized skateboard in a Richmond bike lane; she alleges serious injuries and seeks $5,000,000 in damages.
- Garver sued Holbrook and his employer, law firm O'Hagan Meyer, asserting respondeat superior liability because Holbrook allegedly was acting within the scope of employment.
- Holbrook (a North Carolina resident) removed the case to federal court on diversity grounds with O'Hagan Meyer’s consent, arguing O'Hagan Meyer (a Virginia citizen) was fraudulently joined.
- Garver moved to remand, arguing Virginia's notice-pleading and the presumption for vicarious liability create at least a possibility of recovery against O'Hagan Meyer (citing possible work-related cellphone use by Holbrook).
- The court examined the fraudulent-joinder standard, the Virginia "going and coming" rule and its exceptions (including the ‘‘special errand’’/employer-charged-duty exception), and resolved factual ambiguities in Garver’s favor but concluded ordinary commute/brief work communications do not trigger vicarious liability.
- Holding: remand denied; O'Hagan Meyer dismissed as fraudulently joined; the case remains in federal court against Holbrook only. The Rule 12(b)(6) dismissal request as to Holbrook was denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether federal diversity jurisdiction exists given O'Hagan Meyer is a non-diverse defendant | Garver: Virginia notice pleading and presumption for vicarious liability give at least a possibility of recovery against O'Hagan Meyer | Holbrook: O'Hagan Meyer was fraudulently joined; removal proper | Court: Fraudulent joinder proven; O'Hagan Meyer dismissed; diversity exists as to Holbrook |
| Standard/record to apply in fraudulent-joinder analysis | Garver: Court should honor Virginia notice-pleading and not assess merits beyond complaint | Holbrook: Court may look beyond pleadings and apply a Twombly/Iqbal-like review to determine joinder basis | Court: May consider extrinsic record; but resolves factual disputes in plaintiff's favor given no discovery yet; applies "reasonable possibility"/no-possibility framework |
| Whether alleged cellphone communications during commute place Holbrook within scope of employment (exception to going-and-coming rule) | Garver: Holbrook might have been using phone for work; that could charge him with an employment duty and trigger vicarious liability | Holbrook: Even if communicating, ordinary commute or casual work communications do not constitute an employer-charged duty | Court: Even assuming phone use, Virginia law requires a special assignment/duty; ordinary commute and casual communications do not satisfy exception—no reasonable possibility of liability against employer |
| Rule 12(b)(6) dismissal of Holbrook | Garver: Complaint plausibly alleges negligence against Holbrook | Holbrook: Moved to dismiss broadly but argued only against employer liability | Court: Denied dismissal as to Holbrook (claims against Holbrook plausibly pleaded) |
Key Cases Cited
- Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148 (4th Cir. 1994) (burden on removing party; allegations construed in favor of remand)
- Mayes v. Rapoport, 198 F.3d 457 (4th Cir. 1999) (fraudulent joinder test: no possibility of recovery or outright fraud)
- Hartley v. CSX Transp., Inc., 187 F.3d 422 (4th Cir. 1999) (no-possibility standard favors plaintiff; "glimmer of hope" rule)
- Flores v. Ethicon, Inc., [citation="563 F. App'x 266"] (4th Cir. 2014) (fraudulent joinder typically found only in cases of legal impossibility)
- AIDS Counseling & Testing Ctrs. v. Group W. Television, Inc., 903 F.2d 1000 (4th Cir. 1990) (court may consider the entire record when assessing joinder basis)
- Beaudoin v. Sites, 886 F. Supp. 1300 (E.D. Va. 1995) (courts apply a factual/legal analysis and may allow limited discovery in complex joinder disputes)
- Asplundh Tree Expert Co. v. Pacific Emps. Ins. Co., 611 S.E.2d 531 (Va. 2005) (discusses going-and-coming rule and scope of employment in Virginia)
- Harbin v. Jamestown Vill. Joint Venture, 428 S.E.2d 754 (Va. Ct. App. 1993) (special errand/temporary assignment exception to going-and-coming rule)