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Smith v. Autauga Northern Railroad, LLC

United States District Court, M.D. Alabama, Northern Division

November 16, 2017

GARY L. SMITH, Plaintiff,
v.
AUTAUGA NORTHERN RAILROAD, LLC; et al., Defendants.

          REPORT AND RECOMMENDATION

          DAVID A. BAKER, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, 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).

         The 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.

         I. JURISDICTION

         Defendants 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.

         The 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).

         II. STANDARD OF REVIEW

         “If 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).[1]

         III. PROCEDURAL AND FACTUAL BACKGROUND

         On 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 controversy.

         Plaintiff 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, ¶ 4).

         Defendants 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.

         IV. ANALYSIS

         Autauga 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 ...


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