United States District Court, W.D. Louisiana, Shreveport Division
REPORT AND RECOMMENDATION
L. HORNSBY U.S. MAGISTRATE JUDGE
Staten (“Plaintiff”), who was a passenger in a
pickup truck, was injured in a two-vehicle accident. On
October 30, 2018, she filed suit in state court against the
driver of the other vehicle, his employer, and his insurer.
Allied World Assurance Company, the insurer, removed the case
based on diversity jurisdiction and specifically alleged in
its answer that the accident was caused by the comparative
fault of Plaintiff or the driver of the pickup truck in which
she was a passenger.
responded by filing a Motion for Leave to Amend Complaint
(Doc. 15) to add as a defendant James Grayson, who was the
driver of the pickup truck in which she was riding.
Defendants argue that leave should be denied because
Plaintiff is attempting to destroy diversity jurisdiction.
For the reasons that follow, it is recommended that
Plaintiff's motion be granted and that this civil action
be remanded to state court.
and the Proposed Amendment
after removal a plaintiff seeks to join a new defendant whose
joinder would destroy subject matter jurisdiction, the court
may (1) deny joinder or (2) permit joinder and remand the
case. 28 U.S.C. § 1447(e). The court's decision of
the issue is guided by the factors set forth in Hensgens
v. Deere & Co., 833 F.2d 1179 (5th Cir. 1987).
See also Cobb v. Delta Exports, Inc., 186 F.3d 675,
678-79 (5th Cir. 1999). Although leave to amend is ordinarily
freely granted, Hensgens instructs that when a
district court is faced with an amendment that adds a
non-diverse party it “should scrutinize that amendment
more closely than an ordinary amendment.” Id.
court must balance the defendant's interests in
maintaining the federal forum with the competing interest of
not having parallel lawsuits. Factors to be considered
include (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 the amendment, (3) whether
the plaintiff will be significantly injured if the amendment
is not allowed, and (4) any other factors bearing on the
equities. Hensgens, 833 F.2d at 1182; Hawthorne
Land Co. v. Occidental Chemical Corp., 431 F.3d 221, 227
(5th Cir. 2005).
alleged in her state court petition that she was a passenger
in a Chevrolet Silverado being driven by James Grayson. The
pickup was traveling westbound on I-20 in the right lane when
Ricardo Guardiola, who was driving a Peterbilt tractor in the
left lane, abruptly changed lanes and struck the driver's
side of Mr. Grayson's pickup. Plaintiff alleged that Mr.
Guardiola, who later pleaded guilty to improper passing, was
negligent in causing the accident. Plaintiff named as
defendants Mr. Guardiola, his employer (Lindamood Demolition
Inc.), and his liability insurer (Allied World). She did not
sue Mr. Grayson.
World removed the case on February 5, 2019 based on an
assertion of diversity jurisdiction. Plaintiff is a citizen
of Louisiana, and the other defendants are citizens of
Delaware or Texas, and Plaintiff's counsel had advised
that Plaintiff's damages exceed $75, 000.
Guardiola and his employer filed an answer that included a
standard affirmative defense that “contributory and/or
comparative negligence of the plaintiff unnamed and parties
(sic) as an absolute bar in reduction of any recovery
herein.” The answer also asserted that if the court
were to find that the fault of any other person, whether a
party or not, contributed to the accident, then the liability
of the named defendants should be proportionally reduced by
the percentage of negligence attributed to that person. Doc.
7, First Affirmative Defense and ¶ 22.
World later filed a separate answer (Doc. 10) and was more
specific about its allegation of third-party fault. Its First
Defense (with emphasis added) asserted:
The alleged damages of the Plaintiff, if any, were not caused
by any fault, negligence, liability attributable to
Defendant, Allied World, but instead were caused solely and
proximately through the negligence and/or comparative
negligence of Plaintiff and/or of the driver of the
vehicle in which Plaintiff was a passenger, a
third-party for whom Defendant is not responsible, including,
but not limited to, the acts of negligence listed below and
others to be shown at the time of trial:
a) failing to exercise reasonable care under the
circumstances prevailing at the ...