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Howell v. Dolgencorp, LLC

United States District Court, W.D. Louisiana, Lafayette Division

February 14, 2019

JACQUELINE A. HOWELL
v.
DOLGENCORP, LLC, ET AL.

          JUNEAU, JUDGE.

          RULING AND ORDER

          CAROL B. WHITEHURST, UNITED STATES MAGISTRATE JUDGE.

         Before 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The 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.

         II. ANALYSIS

         Under 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.

         In 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 amendment;
3. Whether the plaintiff will be significantly injured if amendment is not allowed; and
4. Any other factors bearing on the equities.

         833 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.

         A. ...


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