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McIntosh v. Costco Wholesale Corp.

United States District Court, E.D. Louisiana

July 23, 2019

CHAVELA McINTOSH
v.
COSTCO WHOLESALE CORPORATION

         SECTION “F”

          ORDER AND REASONS

          MARTIN L. C. FELDMAN UNITED STATES DISTRICT JUDGE

         Before the Court is the plaintiff's motion for reconsideration of the magistrate judge's June 5, 2019 Order denying the plaintiff's motion for leave to file first amended complaint, or in the alternative, motion for certification pursuant to 28 U.S.C. § 1292(b) for interlocutory appeal. For the reasons that follow, the motion is DENIED.

         Background

          While walking down a Costco shopping aisle on June 10, 2018, Chavela McIntosh slipped in a liquid substance on the floor and fell into a stack of sodas.

         Ms. McIntosh sued Costco and one of its employees in Orleans Parish Civil District Court, alleging that “Costco . . . and [its] employee(s), including but not limited to Christian Boedding, supervisor(s), agent(s), or others” were at fault or negligent in 17 different ways. On October 22, 2018, Costco removed the suit to this Court, invoking the Court's diversity jurisdiction. Four months after removal, on February 25, 2019, defendant Boedding was dismissed from this action without prejudice.

         On May 20, 2019, after receiving Costco's discovery responses, McIntosh moved for leave to amend her petition to name three additional Costco employees as defendants; the contested motion to amend was automatically referred to the magistrate judge. According to McIntosh, “B.C.T.” and Shelia Brewer worked for Costco as floor walkers on the day of the incident, and Adrian McDonald served as duty manager. McIntosh also sought to plead three additional grounds for negligence, including the failure to: “conduct proper floor walks every hour, per Costco's policies;” “ensure floor walks are conducted properly every hour, per Costco's policies;” and “immediately remedy any unreasonable [sic] dangerous conditions in aisle or floors.” Costco opposed the motion to amend on the ground that McIntosh has no valid claim against the additional defendants (who are all residents of Louisiana) and sought to join them for the sole purpose of defeating diversity jurisdiction. On June 5, 2019, the magistrate judge agreed with Costco and denied the plaintiff's motion for leave to file first amended complaint. McIntosh now moves for reconsideration of the magistrate judge's June 5, 2019 Order. In the alternative, she requests certification of the order for interlocutory appeal.

         I.

         A. Pursuant to Federal Rule of Civil Procedure 72(a), a party may appeal the ruling of the magistrate judge to the district judge. A magistrate judge is afforded broad discretion in the resolution of non-dispositive motions. See Fed.R.Civ.P. 72(a); see also 28 U.S.C. § 636(b)(1)(A). If a party objects to a magistrate judge's ruling on a non-dispositive matter, the Court will disturb a magistrate's ruling only when the ruling “is clearly erroneous or is contrary to law.” See Fed.R.Civ.P. 72(a); see also Castillo v. Frank, 70 F.3d 382, 385 (5th Cir. 1995). A finding is “clearly erroneous” when the reviewing Court is “left with the definite and firm conviction that a mistake has been committed.” United States v. Stevens, 487 F.3d 232, 240 (5th Cir. 2007) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).

         B.

         Federal Rule of Civil Procedure 15(a) provides that leave to amend a pleading should be “freely” given “when justice so requires.” However, where the post-removal joinder of a non-diverse defendant would destroy subject matter jurisdiction, a district court is vested with discretion to either “deny joinder, or permit joinder and remand the action.” 28 U.S.C. § 1447(e). In exercising such discretion, the Fifth Circuit instructs, a court should consider the following factors: (1) “the extent to which the purpose of the amendment is to defeat federal jurisdiction, ” (2) “whether plaintiff has been dilatory in asking for amendment, ” (3) “whether plaintiff will be significantly injured if amendment is not allowed, ” and (4) “any other factors bearing on the equities.” Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir. 1987).

         As another Section of this Court has observed, “[w]ith regard to the first Hensgens factor, the case law indicates that as long as the plaintiff states a valid claim against the new defendants, the principal purpose is not to destroy diversity jurisdiction.” Herzog v. Johns Manville Prod. Corp., No. 02-1110, 2002 WL 31556352, at *2 (E.D. La. Nov. 15, 2002) (Fallon, J.). “Under Louisiana law, an employee is personally liable if (1) the employer owes a duty of care to a third person; (2) the employer delegated that duty to a defendant-employee; (3) and the defendant-employee breached the duty through his own fault and lack of ordinary care.” Moore v. Manns, 732 F.3d 454, 456-57 (5th Cir. 2013) (per curiam) (citing Canter v. Koehring, 283 So.2d 716, 721 (La. 1973), superseded on other grounds by statute, La. R.S. § 23.1032 (1998)). “However, a defendant-employee's ‘general administrative responsibility' is insufficient to impose personal liability.” Id. (affirming district court's denial of motion to amend to add non-diverse employees on the ground that plaintiff's “proffered amendment relied on the proposed parties' general responsibilities to oversee safety rather than on evidence of personal fault, as required to trigger individual liability under Louisiana law.”).

         II.

         On June 5, 2019, the magistrate judge denied the plaintiff's motion to amend, finding that three of the four Hensgens factors weigh against amendment. As for the first factor, the magistrate judge determined that the plaintiff's “principal motivation is to defeat federal subject matter jurisdiction” because her proposed amended complaint contains no factual allegations to support the non-diverse employees' personal liability. Although the second Hensgens factor (the lack ...


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