United States District Court, E.D. Louisiana
CRAIG R. SHORT
RACETRAC PETROLEUM, INC., Individually and d/b/a RACETRAC, ET AL.
ORDER AND REASONS
D. ENGELHARDT UNITED STATES DISTRICT JUDGE.
action, Plaintiff, Craig R. Short, contends that he suffered
bodily injuries when he allegedly slipped and fell in an area
of the parking lot at Defendant RaceTrac Petroleum,
Inc.'s Highway 190, Covington, Louisiana (Store No. 673)
location that "appeared to be recently painted and wet
from the rain." See Rec. Doc. 1-1 at
¶¶ II-III. Asserting diversity of citizenship
subject matter jurisdiction, RaceTrac previously removed this
action from Louisiana state court.
before the Court are Defendant "RaceTrac Petroleum,
Inc.'s Motion to Review Order of Magistrate Judge"
(Rec. Doc. 24) and Plaintiff Craig Short's "Motion
to Remand for Lack of Federal Court Jurisdiction" (Rec.
Doc. 28). The motions dispute the propriety of Magistrate
Judge Wilkinson's Order and Reasons (Rec. Doc. 17)
allowing Plaintiff to file his "First Supplemental and
Amending Complaint" (Rec. Doc. 18), which substitutes
the names of RaceTrac store manager and co-manager, Samantha
Pritchett McMillan and Janiqua Jackson, respectively, in the
place of the "John Doe" individual defendant named
in his state court petition.
opposes Plaintiff's addition of Ms. McMillan and Ms.
Jackson as defendants because they are citizens of Louisiana
for purposes of diversity of citizenship subject matter
jurisdiction. Thus, if permitted, their joinder as defendants
destroys the Court's diversity jurisdiction and requires
remand, pursuant to 28 U.S.C. §1447(e). See, e.g.,
Doleac ex rel. Doleac v. Michalson, 264 F.3d 470, 477-77
(5th Cir. 2001) (internal citations and quotations
omitted)("§1441(a) applies only to John Doe
defendants as such, not to subsequently named parties
identifying one of those fictitious defendants" whereas
"§ 1447(e) applies also to the identification of
fictitious defendants after removal"). In support of its
motion seeking de novo review of the Magistrate
Judge's amendment ruling,  Defendant RaceTrac contends that
Ms. McMillan and Ms. Jackson, the store manager and
co-manager, respectively, are improperly joined such that
Plaintiff's proposed amendment to add the two as
defendants must be rejected as futile, their citizenship
disregarded, and §1447(e) remand denied.
the amendment of pleadings, “Rule 15(a) [of the Federal
Rules of Civil Procedure] requires a trial court to grant
leave to amend freely, and the language of this rule evinces
a bias in favor of granting leave to amend.” Jones
v. Robinson Prop. Grp., LP, 427 F.3d 987, 994 (5th Cir.
2005). Leave to amend is in no way automatic, but the
district court must possess a “substantial
reason” to deny a party's request for leave to
amend. Id.. In deciding whether to grant leave to
file an amended pleading, the district court may consider
such factors as undue delay, bad faith or dilatory motive on
the part of the movant, repeated failure to cure deficiencies
by amendments previously allowed, undue prejudice to the
opposing party, and futility of amendment. Marucci
Sports, L.L.C. v. Nat'l Collegiate Athletic
Ass'n, 751 F.3d 368, 378 (5th Cir. 2014).
"'[F]utility' in this context . . . mean[s] that
the amended complaint would fail to state a claim upon which
relief could be granted." Stripling v. Jordan Prod.
Co., LLC, 234 F.3d 863, 873 (5th Cir. 2000). Futility is
determined by “the same standard of legal sufficiency
as applies under Rule 12(b)(6).” Marucci
Sports, 751 F.3d at 378 (quoting Stripling, 234
F.3d at 873)).
instance, RaceTrac maintains that, under the facts and
circumstances alleged by Plaintiff, no colorable claim for
personal tort liability exists under Louisiana law against
the two individual defendants. Having carefully considered
the law, the parties' submissions, and the record in this
matter, IT IS ORDERED that RaceTrac's
motion to review (Rec. Doc. 24) is DENIED to
the extent that it asks the Court to reject Magistrate Judge
Wilkinson's ruling allowing Plaintiff's amendment.
discovery may reveal, as urged by RaceTrac, that Ms. McMillan
and Ms. Jackson lacked the requisite personal responsibility
for and/or knowledge of the parking lot paint's
condition, such that their duties were only those of general
administrative responsibility for which personal liability
does not apply,  neither is necessarily precluded by the
allegations of Plaintiff's petition and First Amended and
Supplemental Complaint. Additionally, although RaceTrac's
motion to review is accompanied by declarations from Ms.
McMillan and Ms. Jackson denying any involvement with the
painting of the parking lot, any knowledge of who painted the
lot, when it was done or the type of paint used, or that any
hazardous conditions existed at the time Plaintiff fell, the
declarations were not previously provided to the Magistrate
Judge, or Plaintiff for consideration, in the first instance,
with Plaintiffs motion seeking leave to amend. See
Rec. Docs. 24-2 and 24-3. Accordingly, the Court finds such
questions more appropriately addressed, after pertinent
discovery, by means of summary judgment motion, rather than
at this pleading juncture.
the foregoing, IT IS FURTHER ORDERED that
the Magistrate Judge's ruling (Rec. Doc. 17) regarding
the Plaintiffs motion for leave to amend is
AFFIRMED and that Plaintiffs motion to
remand (Rec. Doc. 28) is GRANTED. IT
IS FINALLY ORDERED that this matter is
REMANDED to the 22nd Judicial
District Court for the Parish of St. Tammany.
 Race-Trac seeks de novo
review because of the remand directed upon amendment by
§1447(e). See Davidson v. Georgia-Pacific, LLC,
819 F.3d 758, 764-65 (5th Cir. 2016) (motion to
remand is dispositive matter for which magistrate judge
should enter a recommendation to the district court that is
subject to the district court's de novo
See generally Kemp v. CTL
440 Fed.Appx. 240, 245-46 (2017);
Bradley v. Wal-Mart Stores, Inc., Civil Action No.
16-3249, 2016 WL 3180644 (E.D. La. June 8, 2017)(Morgan, J.);
Garrett v. AEP River Opers., LLC, Civil Action No.
15-5562, 2016 WL 945056 (E.D. La. Mar. 14, 2016)(Vance, J.);
Gros v. Warren Properties, Civil Action No. 12-2184,
2012 WL 5906724 (E.D. La. Nov. 26, 2012) (Barbier, J.);
Thomas v. Wal-Mart Stores, Inc., Civil Action No.
11-2365, 2012 WL1019822 ...