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Smith v. Dollar General Corp.

United States District Court, N.D. Alabama, Eastern Division

August 15, 2017




         Presently 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, [1] 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.


         This 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 5).

         On 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).[2] 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).

         Following 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).

         As to 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).

         As 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 state court.


         Pursuant 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. 2013)).

         Again, 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 defendant." Id.[3]

         As 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 ...

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