United States District Court, N.D. Alabama, Eastern Division
MEMORANDUM OPINION AND ORDER
G. CORNELIUS, U.S. MAGISTRATE JUDGE.
pending is the combined motion to amend the complaint and
remand this matter to state court filed by the plaintiff,
Sakeena Rena Smith. (Doc. 13). The defendant, Dolgencorp,
LLC,  has responded (Doc. 14), and Smith has
replied (Doc. 15). The parties have unanimously consented to
magistrate judge jurisdiction pursuant to 28 U.S.C §
636(c). (Doc. 9). For the reasons that follow, Smith's
motion to amend is due to be granted, and this matter is due
to be remanded.
FACTS AND PROCEDURAL HISTORY
matter concerns a July 18, 2016 incident in which Smith was
physically assaulted. (See generally Doc. 1-1).
Smith filed her complaint in the Circuit Court of Calhoun
County, Alabama, on September 9, 2016, asserting claims under
Alabama law for assault, battery, and negligent hiring,
supervision, and training against Dolgencorp and nine
fictitious parties. (Id. at 2-5). The complaint
identifies fictitious parties A, B, and C as including the
individuals that assaulted, battered, and injured Smith.
(Id.). The complaint notes Smith was unaware of the
fictitious parties' identities and states that the
parties would be substituted under Rule 9(h) of the
Alabama Rules of Civil Procedure. (Id. at
October 12, 2016, Dolgencorp timely removed to this court on
the basis of diversity jurisdiction. (Doc. 1). The notice of
removal sufficiently alleges complete diversity of
citizenship between the named parties, disregarding the
citizenship of fictitious parties. (Id. at
3-4). The notice of removal also sufficiently
alleges the amount in controversy is satisfied due to the
complaint's allegations, the claims asserted, the
availability of punitive damages, and the parties'
settlement negotiations. (Id. at 4-5).
removal and the parties' consent to magistrate judge
jurisdiction, the court entered a Scheduling Order providing
a February 13, 2017 deadline to add parties. (Doc. 12). On
January 20, 2017, the plaintiff filed the instant motion,
seeking leave to amend the complaint and requesting remand to
state court. As to amendment, the motion notes that
Dolgencorp's initial disclosures revealed the identity of
the fictitious parties that assaulted her; they are
identified as two Dolgencorp employees-Martin Sauceda and
Kelley Cheshire. (Doc. 13 at 4; see Id. at 13-19).
The motion further notes that Dolgencorp's initial
disclosures represented Smith's first opportunity to
learn the individual defendants' identities because, soon
after the assault, Dolgencorp prohibited Smith and her
counsel from communicating with the business or its
employees. (Id. at 3).
remand, Smith argues that because the newly-named defendants
are Alabama citizens, complete diversity is lacking and this
matter is due to be remanded. (Doc. 13 at 7). Smith's
motion invokes 28 U.S.C. § 1447(e), under which the
court has discretion to allow joinder of new parties.
Dolgencorp's response and Smith's reply primarily
focus on whether joinder and remand under § 1447(e) are
appropriate here. (Docs. 14, 15).
explained below, the undersigned is not convinced §
1447(e) governs resolution of the instant motion. However,
regardless of the standard applied, the motion to amend is
due to be granted, and this matter is due to be remanded to
to § 1447, “[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.” 28 U.S.C. § 1447(e). Where a party seeks
to add new parties that would destroy diversity jurisdiction,
judges sitting in this district have noted that the court
"should scrutinize the amendment more closely than an
ordinary amendment and deny leave to amend unless strong
equities support amendment." Smith v. White Consol.
Indus., Inc., 229 F.Supp.2d 1275, 1281 (N.D. Ala. 2002)
(quotation marks omitted). Courts undertaking this inquiry,
which balances the defendant's interest in securing a
federal forum with the preference against parallel
litigation, "should consider: (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." Taylor
v. Alabama CVS Pharmacy, LLC, No. 16-1827-TMP, 2017 WL
3009695, at *7 (N.D. Ala. July 14, 2017) (quoting Small
v. Ford Motor Co, 923 F.Supp.2d 1354, 1356-57 (S.D. Fla.
the court is not convinced § 1447(e) governs the instant
motion. The § 1447(e) analysis only applies where a
plaintiff seeks to join a new defendant, not where a
plaintiff merely substitutes a defendant for one previously
named. See Ingram v. CSX Transp., Inc., 146 F.3d
858, 861-62 (11th Cir. 1998). The undersigned agrees with a
recent decision issued in this district in which the court
concluded that the identification of a fictitious party is
more akin to a substitution of a party, rather than the
addition of a new party. Taylor, 2017 WL 3009695 at
* 5. There, Judge Putnam reasoned that an amendment to name a
previously unknown fictitious party "does not trigger
the application of § 1447(e), because all that occurs is
an amendment to correct a misnomer, not the joinder of a new
noted in Taylor, other district courts within the
Eleventh Circuit have found that "substitution of a
proper non-diverse fictitious party requires remand."
Id. at 5-6. In a decision from the Middle District
of Alabama, the court held:
It is well-established that the court's diversity
jurisdiction is determined at the time the notice of removal
is filed. St. Paul Mercury Indemnity Co. v. Red Cab
Co., 303 U.S. 283, 289, 58 S.Ct. 586, 590, 82 L.Ed. 845
(1938); See also 14A Wright, Miller and Cooper,
Federal Practice and Procedure § 3739 at 581 (1985).
Furthermore, under the recently amended removal statute, the
citizenship of defendants sued under fictitious names should
be disregarded for purposes of removal. See 28
U.S.C. § 1441(a). However, subsequent to this amendment
of the removal statute, courts have found that where a
plaintiff's complaint provides a description of a
fictitious defendant in such a way that his or her identity
cannot reasonably be questioned, the court should consider
the citizenship of the fictitious defendant. Lacy v. ABC
Ins. Co., No. CIV.A. 95-3122, 1995 WL 688786 at *3 (E.D.
La. Nov. 17, 1995); Bro ...