United States District Court, M.D. Alabama, Northern Division
GARY L. SMITH, Plaintiff,
AUTAUGA NORTHERN RAILROAD, LLC; et al., Defendants.
REPORT AND RECOMMENDATION
A. BAKER, UNITED STATES MAGISTRATE JUDGE
Gary L. Smith, sues Defendants, Autauga Northern Railroad,
LLC (“Autauga Northern”), Watco Companies, LLC
(“Watco”), and numerous fictitious Defendants for
personal injuries he sustained when the vehicle he was
driving was struck by a train on County Road 17 near the
Autauga Northern railroad tracks in Chilton County, Alabama,
on December 21, 2016. (Doc. 3-1). Before the court is
Plaintiff's Motion to Remand (Doc. 15), Plaintiff's
Motion for Leave to Amend Complaint and Supplement to Motion
to Remand (Doc. 18), and Plaintiff's Supplemental Motion
for Leave to Amend Complaint and Supplement to Motion to
Remand (Doc. 20).
parties have fully briefed the issues, including a sur-reply
from Defendants. For the reasons that follow, the undersigned
Magistrate recommends Plaintiff's supplemental motion for
leave to amend be granted, Plaintiff be permitted to amend
his complaint, and this matter be remanded to the Circuit
Court for Chilton County.
removed this case from the Circuit Court for Chilton County
pursuant to 28 U.S.C. §§ 1332, 1441, and 1446.
Plaintiff's Complaint alleges state law claims of
negligence, wanton and reckless conduct, negligent
entrustment, failure to warn, and failure to maintain. (Doc.
3-1). Defendants contend diversity of citizenship exists-and
thus jurisdiction is proper in this court-because Defendants
are citizens of Kansas and Plaintiff is an Alabama citizen.
Plaintiff contests this court's diversity jurisdiction
contending diversity does not exist among the parties because
Engineer Matthew Davis, who was operating the train at the
time of the accident and whom Plaintiff seeks to add as a
Defendant, is an Alabama citizen.
parties do not contest personal jurisdiction or venue, and
the court finds sufficient information of record to support
both. See 28 U.S.C. § 1391. On June 9, 2017,
the above-styled matter was referred to the undersigned for
recommendation on all pretrial matters by United States
District Judge Myron H. Thompson. (Doc. 13); see
also 28 U.S.C. § 636(b); Rule 72, Fed. R. Civ. P.;
United States v. Raddatz, 447 U.S. 667 (1980);
Jeffrey S. v. State Bd. of Educ. of State of Ga.,
896 F.2d 507 (11th Cir. 1990).
STANDARD OF REVIEW
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). “If [the court] permits the amendment
of the nondiverse defendant, it then must remand to the state
court.” Hensgens v. Deere & Co., 833 F.2d
1179, 1182 (5th Cir. 1987).
PROCEDURAL AND FACTUAL BACKGROUND
April 20, 2017, Plaintiff Gary L. Smith
(“Plaintiff”) filed a civil complaint in the
Circuit Court of Chilton County, Alabama. (Doc. 3-1). The
complaint, sounding exclusively in state law, alleges claims
for negligence, wanton and reckless conduct, negligent
entrustment, failure to warn, and failure to maintain against
Defendants Autauga Northern and Watco. Id. at 8-11.
Additionally Plaintiff names twenty-one fictitious
defendants, including “the driver of the
locomotive.” Id. at 1. On May 24, 2017,
Autauga Northern and Watco (collectively
“Defendants”) Further, Defendants submit that the
allegations of the complaint support claimed damages in
excess of $75, 000 which satisfies the jurisdictional amount
in controversy. Id., ¶¶ 12-20. It does not
appear Plaintiff disputes the jurisdictional amount in
does, however, dispute that diversity of citizenship exists,
and has filed a motion for remand (Doc. 15) and supplement to
his motion to remand (Docs. 18, 20). In support of remand,
Plaintiff initially argued that Autauga Northern had its
principal place of business in Alabama. He next argued
because he intended to amend his complaint to add as
Defendants the employee or employees operating the train, he
urged remand is warranted due to lack of diversity. One of
the fictitious defendants sued by Plaintiff included
“the driver of the locomotive.” (Doc. 3-1, ¶
4). Although Plaintiff did not have the names of the
Defendant employees operating the train when he filed his
initial complaint, he alleged his intention to amend once the
name or names were discovered. Id. Plaintiff
requested information regarding the identity of the driver
though interrogatories served with the initial complaint.
(Doc. 15-3). On May 25, 2017, counsel for Plaintiff wrote to
defense counsel requesting the name and address of the
engineer operating the train on the date of the accident.
(Doc. 15-4). Plaintiff has also filed an affidavit of his
counsel who states that on June 12 and June 13, 2017, he
verbally and then in writing requested the name of the
engineer operating the train. (Docs. 15-5, ¶ 9; 15-6).
On June 23, 2017, Plaintiff moved to remand on the basis that
the Defendants' employee operating the train on the date
of the accident would destroy diversity. (Doc. 15 at 5).
Plaintiff learned of engineer Matthew Davis' name upon
receipt of the Defendants' initial disclosures, dated
July 12, 2017, although Plaintiff still did not receive the
address of Davis at that time. (Doc. 18-2 at 2). In a letter
to defense counsel dated July 19, 2017, Plaintiff's
counsel requested the home address for Matthew Davis. (Doc.
18-3). On the same date, Plaintiff moved to amend his
complaint to add Matthew Davis as a named Defendant. (Doc.
18). Plaintiff alleges in his amended complaint that upon
information and belief Matthew Davis is a resident citizen of
Alabama. (Doc. 18-1, ¶ 4). Plaintiff argues in his
motion to remand that adding the non-diverse Defendant
supports his request for remand. (Doc. 15 at 1). In a letter
dated July 20, 2017, defense counsel provided the address for
Davis confirming his Alabama citizenship. (Doc. 20-1).
Plaintiff filed a Supplemental Motion to Amend and Supplement
to his Motion to Remand. (Doc. 20). In the revised Amended
Complaint, Plaintiff alleges Defendant Matthew Davis is a
resident citizen of the State of Alabama. (Doc. 20-2, ¶
oppose the amendment and remand. (Docs. 17, 21, 23-1). In
response to Plaintiff's motions, Defendants argue that
removal was proper at the time they removed the action.
Defendants point out that Plaintiff's reliance on law
related to corporations to determine an entity's
citizenship, as opposed to the law related to limited
liability companies, is misplaced. Additionally, Defendants
contend Plaintiff may not now add the non-diverse locomotive
driver as a party to defeat diversity and fictitious party
pleading may not be relied upon for purposes of determining
diversity. Defendants further argue that as Matthew
Davis' employer, they are vicariously liable for his
alleged negligent conduct and thus his joinder serves no
purpose other than to destroy diversity. In their sur-reply
(Doc.no. 25), Defendants refute Plaintiff's claims of
gamesmanship, pointing out that complete diversity existed
when the case was removed, that Defendants were under no
obligation to provide Plaintiff with names prior to their
initial disclosures, and Plaintiff erred in assuming Autauga
Northern was an Alabama citizen. (Doc. 23-1 at 2).
Additionally, Defendants state they did provide Davis'
name and address. Id. at 3.
Northern is a limited liability company, and thus its
citizenship for diversity purposes is determined by the
citizenship of its members, see Rolling Greens MHP, L.P.
v. Comcast SCH Holdings L.L.C., 374 F.3d 1020, 1022
(11th Cir. 2004), and not its principal place of business.
Mallory & Evans Contractors & Eng'rs, LLC v.
Tuskegee Univ., 663 F.3d 1304, 1305 (11th Cir. 2011)
(finding allegation that “[i]ts principal place of
business [was] in Scottdale, Georgia, ” was
insufficient allegation of limited liability company's