United States District Court, W.D. Louisiana, Lafayette Division
JACQUELINE A. HOWELL
DOLGENCORP, LLC, ET AL.
RULING AND ORDER
B. WHITEHURST, UNITED STATES MAGISTRATE JUDGE.
the Court is the Motion for Leave to File Third Supplemental
and Amending Petition [Doc. 20], filed by the plaintiff
Jacqueline A. Howell. The motion is jointly opposed by Ace
American Ins. Co. and XL Insurance America, Inc. (jointly,
“Ace and XL”) [Doc. 23], and by DG Louisiana,
LLC, Dolgencorp LLC, and Dollar General Corp. (jointly,
“Dollar General”) [Doc. 24], which adopt the
opposition brief of Ace and XL. For the following reasons,
the motion is DENIED.
FACTUAL AND PROCEDURAL BACKGROUND
facts relevant to the instant motion are not disputed and
have been set forth in this Court's Report recommending
denial of the plaintiff's Motion to Remand [Doc. 16].
Those findings are referenced herein in globo. In
short, this Court recommended denial of the plaintiff's
Motion to Remand [Doc. 16], and the district judge agreed
[Doc. 28]. As an alternative to remand on the grounds of
untimeliness of the removal, the plaintiff seeks to amend her
complaint by adding a non-diverse defendant post-removal,
whose presence in the lawsuit would require remand of this
matter to the state court. Specifically, the plaintiff seeks
to add Shelli Miller as a party defendant. Ms. Miller is an
employee of Dollar General, who was working on the day of the
plaintiff's accident, as testified to by other employees
of Dollar General. The plaintiff seeks to assert negligence
claims against Ms. Miller for her actions in allegedly
placing an obstruction in the aisle at Dollar General, which
allegedly was the cause of the plaintiff's accident and
injuries. All defendants oppose the inclusion of Ms. Miller
as a party to the lawsuit, arguing the plaintiff is
attempting to add Ms. Miller for the sole purpose of
defeating diversity jurisdiction and requiring remand of this
matter to state court. For the following reasons, the Court
agrees that Ms. Miller should not be joined in this matter,
and the motion to add her is, therefore, DENIED.
28 U.S.C. §§1447(c), “[i]f 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.” Rule 15(a)(2) of the Federal Rules of Civil
Procedure make clear that leave to amend a complaint should
be freely given “when justice so requires.”
Fed.R.Civ.P 15(a)(2). The jurisprudence is clear, however,
that when confronted with an amendment to add a non-diverse
party after removal, courts are cautioned to use discretion
in deciding whether to allow that party to be added.
Hensgens v. Deere & Co., 833 F.2d 1179, 1182
(5th Cir. 1987). Accord Desert Empire Bank v.
Ins. Co. of North America, 623 F.2d 1371 (9th
Cir.1980); McIntyre v. Codman & Shurtleff, 103
F.R.D. 619 (S.D.N.Y.1984); Grogan v. Babson Brothers Co.
of Illinois, 101 F.R.D. 697 (N.D.N.Y.1984). Amended
pleadings in such cases are to be scrutinized “more
closely than an ordinary amendment.” Hensgens,
833 F.2d at 1182. In the instant matter, if the Court grants
the motion to amend and allows Ms. Miller to be joined, the
Court must remand this matter to state court. If the Court
denies the joinder, the matter cannot be remanded.
deciding whether to allow leave to amend, the Fifth Circuit
in Hensgens set forth the following factors a court
should consider in deciding whether to allow the joinder of a
non-diverse party post removal, to wit:
1. The extent to which the purpose of the amendment is to
defeat federal jurisdiction;
2. Whether the plaintiff has been dilatory in asking for
3. Whether the plaintiff will be significantly injured if
amendment is not allowed; and
4. Any other factors bearing on the equities.
F.2d at 1182. “The district court, with input from the
defendant, should then balance the equities and decide
whether amendment should be permitted. If it permits the
amendment of the nondiverse defendant, it then must remand to
the state court. If the amendment is not allowed, the federal
court maintains jurisdiction.” Hengens, 833
F.2d at 1182.