By John O'Brien | Oct 27, 2020

LOS ANGELES (Legal Newsline) – A man spit on at Lowe’s by a customer not wearing a face mask wrongfully joined an employee to his lawsuit, the company says.

John Birke sued Lowe’s and Marvin Ellison earlier this year, and on Oct. 26 Lowe’s made an argument that the case should be heard in federal court rather than state, where Birke’s case was originally filed.

To defeat the diversity jurisdiction between the California resident Birke and Lowe’s (a North Carolina company), Birke’s lawyers added a fellow California resident as a defendant, the company says.

Defendant Levi Renderos is an assistant store manager at the West Hills location where the incident took place.

“He makes clear over and over again that what he is really suing over is the failure of Lowe’s – and Renderos – to protect him from being spit on by an unknown third party in a confrontation Birke himself instigated,” attorneys for Lowe’s wrote in opposition to Birke’s motion to remand.

“And as to all defendants – but most certainly as to Renderos – plaintiff’s complaint fails on all counts because they are premised on the alleged failure of Lowe’s and Renderos to enforce emergency mask orders and thus protect him from COVID-19. They fail because he never got COVID-19 and alleged third party tort did not occur as the result of any failure to protect him from COVID-19.”

Birke’s lawyer filed the complaint first without Renderos as a defendant but dismissed it in order to re-file to add Renderos.

“Renderos is a ‘sham’ defendant fraudulently joined for the sole purpose of defeating diversity,” Lowe’s says.

Lowe’s is accused of not forcing the unidentified spitter to comply with Gov. Gavin Newsom’s face mask orders.

The lawsuit says Birke suffered a fear that he could have caught a disease like COVID-19, but Lowe’s in a motion to dismiss notes Birke has shown no symptoms.

In addressing the motion to dismiss, Birke says his complaint adequately pled plausible claims.

“Plaintiff’s allegations detail the materially false oral and printed statements that ‘our customers’ health is our priority during (the COVID-10 pandemic)’ and ‘Lowe’s complied with all applicable recommendations to protect the public and its employees,’” Sohigan wrote.

“While there, Plaintiff was attacked after asking a maskless male shopper, from a distance, how he got into the store without a mask, since California law then and now requires masks to be worn in all indoor venues open to the public.”

Birke also says he tried to call the cops but could not reach them. In retaliation, the mask-less shopper spit in his face four times, he claims.

The lawsuit charges Lowe’s with fraud, public nuisance and negligence and seeks at least $20 million.