United States District Court, E.D. Louisiana
ORDER AND REASONS
L. C. FELDMAN UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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)).
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).
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.”).
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 ...