United States District Court, E.D. Louisiana
GWENDOLYN PIERRE, ET AL.
T&K EXPRESS, INC., ET AL.
D. ENGELHARDT, JUDGE
ORDER AND REASONS
VAN MEERVELD, MAGISTRATE JUDGE
the Court is the Motion for Leave to File Second Amended
Complaint filed by plaintiffs Anietra Pierre, Felicia Pierre,
and Percy Ross (“Passenger Plaintiffs”). (Rec.
Doc. 28). For the following reasons, the Motion is DENIED,
without prejudice to the filing of a crossclaim.
lawsuit arises out of a motor vehicle accident involving a
commercial truck driven by defendant Melvin Ruch while
allegedly in the course and scope of his employment with
defendant T&K Express, Inc. (“T&K”).
Plaintiffs Gwendolyn Pierre, Anietria Pierre, Felicia Pierre,
and Percy Ross (collectively, the “Plaintiffs”)
allege that they were injured when the commercial truck
collided with the 2010 Dodge Journey in which they were
traveling. Gwendolyn Pierre (“Driver Plaintiff”)
was driving the Dodge Journey at the time of the accident,
and the remaining plaintiffs were passengers in the vehicle.
The Plaintiffs filed suit against Ruch, T&K, and Inspro
Insurance Company (“Inspro”) on December 12,
2016, in state court. It appears that all of the Plaintiffs
are Louisiana residents. Mr. Ruch and T&K
(“Defendants”) removed the action to this Court
on February 3, 2017, asserting that this Court has diversity
jurisdiction over the matter. Defendants filed their answer
on February 10, 2017, alleging, among other defenses, the
defenses of contributive negligence, comparative negligence,
and victim fault. On June 1, 2017, the Plaintiffs filed their
First Amended Complaint substituting insurer Employers Mutual
Casualty Company (“EMC”) as a defendant in place
of Inspro. EMC has not been served.
issues were apparently developing on the Plaintiffs'
side. On May 19, 2017, Plaintiffs' attorney, Bradley
Egenberg, moved for leave to withdraw without substitution of
counsel because he had received letters from all four
Plaintiffs terminating him and advising that the Irpino Law
Firm would be representing them. When no one enrolled on
their behalf, the District Judge denied Mr. Egenberg's
motion on May 24, 2017, until such time as substitute counsel
enrolled. On August 4, 2017, Mr. Egenberg was withdrawn as
counsel for the Passenger Plaintiffs and attorney Robert B.
Evans, III, was enrolled on their behalf. Mr. Egenberg
remained as counsel of record on the Court's docket for
Driver Plaintiff, Gwendolyn Pierre. On August 16, 2017, the
Passenger Plaintiffs filed the present motion for leave to
amend their complaint to assert a claim against the Driver
Plaintiff. The next day, Mr. Egenberg filed a memorandum in
opposition to the motion on behalf of the Driver Plaintiff in
which he insists that there was no suggestion of comparative
fault on the part of the Driver Plaintiff in the police
report of the collision nor in his assessment of the
Plaintiffs' testimony regarding the accident. He submits
that the only purpose of the amendment is fraudulent joinder.
He also insists that there was no conflict of interest in his
representation of all the Plaintiffs at the time of filing
suit, arguing that even if there was a possible claim against
the Driver Plaintiff, it would not have been in the
Plaintiffs' interest to sue the Driver Plaintiff because
she is insolvent, she has an insurance policy with low policy
limits of $15, 000/$30, 000, and the jury would have a bad
impression of the Plaintiffs if their counsel blamed the
Driver Plaintiff for the accident. Mr. Egenberg also argues
that the Driver Plaintiff's (announced, but at the time
of the memorandum, not yet enrolled) new counsel, Joshua
Allison, is “Of Counsel” at the same firm as Mr.
Evans. Thus, Mr. Egenberg submits that Mr. Evans cannot truly
believe there was a conflict of interest in Mr.
Egenberg's representation of all of the Plaintiffs if he
thinks it is acceptable for an attorney that is “Of
Counsel” with his firm to represent the Driver
Plaintiff. Mr. Egenberg adds that when Mr. Evans advised him
that he would be taking over representation of the
Plaintiffs, he indicated that he would represent the entire
Pierre family. On August 25, 2017, Mr. Allison was
substituted in place of Mr. Egenberg as counsel for the
Defendants also oppose the proposed amendment arguing that
the appropriate mechanism for the Passenger Plaintiffs to
protect themselves in case fault is apportioned to the Driver
Plaintiff is by filing a crossclaim. They point out that Mr.
Evans wrote an email to the District Judge's law clerk
explaining that this is what he planned to do. Defendants
argue that the Passenger Plaintiffs' only purpose in
filing the Second Amended Complaint is to defeat diversity
jurisdiction. They point out that the proposed Second Amended
Complaint does not include any allegations against the Driver
Plaintiff and even asserts that Passenger Plaintiffs do not
believe she did anything wrong to cause the accident.
Passenger Plaintiffs have filed a Reply Memorandum. They
argue that the pleading filed by Mr. Egenberg on behalf of
the Driver Plaintiff was unauthorized because he no longer
represented her at the time of filing (although he remained
counsel of record). Passenger Plaintiffs argue that Mr.
Egenberg did create a conflict of interest. They argue that a
crossclaim would not sufficiently protect them because
“it does not guarantee Passenger Plaintiffs any
recovery.” They do not provide further explanation of
the basis for this assertion or why a complaint against the
Driver Plaintiff would be preferable in this regard.
Court notes that the issue of whether any conflicts of
interest existed or exist in the representation of the
Plaintiffs by their attorneys is not before the undersigned
at this time.
Federal Rule of Civil Procedure 15(a)(2), when the time
period for amending a pleading as a matter of course has
passed, a party may amend its pleadings by consent of the
parties or by leave of court. “The court should freely
give leave when justice so requires.” Fed. R. Civ.
Proc. 15(a)(2). “If after removal the plaintiff seeks
to join additional defendants whose joinder would destroy
subject matter jurisdiction, the court may deny joinder, or
permit joinder and remand the action to the State
court.” 28 U.S.C. § 1447(e). Because the
Court's decision on a motion for leave to amend to add a
non-diverse defendant will affect its jurisdiction over the
matter, the Court must “scrutinize that amendment more
closely than an ordinary amendment.” Hensgens v.
Deere & Co., 833 F.2d 1179, 1182 (5th Cir. 1987).
“[I]n deciding whether to grant leave to amend, courts
must balance the defendant's interest in retaining the
federal forum with plaintiff's competing interest in
avoiding parallel federal/state lawsuits.” Williams
v. Carmean, No. CIV. A. 99-1095, 1999 WL 717645, at *1
(E.D. La. Sept. 13, 1999). The Fifth Circuit has also
instructed courts to consider “the extent to which the
purpose of the amendment is to defeat federal jurisdiction,
whether plaintiff has been dilatory in asking for amendment,
whether plaintiff will be significantly injured if amendment
is not allowed, and any other factors bearing on the
equities.” Hensgens, 833 F.2d at 1182.
Defendants point out, courts in this district have held that
where car accident plaintiffs seek to protect their interest
in the event the driver plaintiff is found liable for
comparative fault, “the proper mechanism for doing so
in such cases is to allow plaintiffs to file a cross-claim
against their co-plaintiff, under Federal Rule of Civil
Procedure 13(g).” Williams, 1999 WL 717645, at
*2 (striking plaintiffs' supplemental and amending
complaint, which had added the plaintiff driver as a
defendant, and granting plaintiffs leave to file a crossclaim
against the plaintiff driver); Butler v. Rigsby, No.
CIV. A. 96-2453, 1997 WL 655928, at *1-2 (E.D. La. Oct. 20,
1997) (granting passenger plaintiffs in a car accident case
leave to assert a crossclaim against the driver plaintiff
because the defendants had alleged contributive negligence,
comparative negligence, and third party fault). If the
passenger plaintiffs' claim ...