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Mask v. Strategic Restaurants Acquisition Co., LLC

United States District Court, S.D. Alabama, Southern Division

November 21, 2017

HOWARD STEPHEN MASK, Plaintiff,
v.
STRATEGIC RESTAURANTS ACQUISITION CO., LLC, Defendant.

          REPORT AND RECOMMENDATION

          P. BRADLEY MURRAY UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Plaintiff's Motion for Leave to Amend Complaint (Doc. 7), Plaintiff's Motion to Remand (Doc. 8), Defendant's Consolidated Response in Opposition to Plaintiff's Motion for Leave to Amend Complaint and Motion to Remand (Doc. 11), and Plaintiff's Reply to Defendant's Consolidated Response in Opposition to Plaintiff's Motion for Leave to Amend Complaint (Doc. 15). These motions have been referred to the undersigned Magistrate Judge for entry of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and S.D. Ala. Gen LR 72(a)(2)(S). Upon consideration of all relevant filings in this case, the undersigned recommends that Plaintiff's motion for leave to amend his complaint be GRANTED for the reasons set forth below. The undersigned further recommends that Plaintiff's motion to remand be GRANTED and that this action be REMANDED to the Circuit Court of Mobile County, Alabama.

         BACKGROUND

         On June 20, 2017, Plaintiff filed his original complaint in the Circuit Court of Mobile County, Alabama alleging claims for negligence, wantonness, breach of implied warranty, and violation of the Alabama Extended Manufacturers Liability Doctrine arising from his allegations that he suffered from food poisoning as a result of being served and ingesting Salmonella contaminated food at Burger King Store No. 4016. Plaintiff brought his original claim against Burger King of Alabama, Inc. and the following fictitious defendants:

Fictitious Defendants 1-20, being the persons, firms, corporations or other legal entities who negligently and/or wantonly packaged, prepared, and/or served contaminated food to Plaintiff, all of whose names are unknown to Plaintiff at this time but will be substituted by amendment when ascertained[.]

         (Doc. 1-1, caption). On August 3, 2017, Plaintiff filed his First Amended Complaint to correctly identify the owner/operator/manager of the subject Burger King as GPS Hospitality, IV, LLC a/k/a GPS Hospitality, LLC, d/b/a Burger King # 4016 (Doc. 1-1 at p. 30), and on August 11, 2017, Plaintiff filed his Second Amended Complaint to further correct the name of the owner/operator/manager of the subject Burger King as Strategic Restaurants Acquisition Co., LLC, d/b/a Burger King #4016 (Doc. 1-1 at p. 44). In both of these amended complaints, Plaintiff continued to assert claims against the fictitious defendants described above.

         Pursuant to 28 U.S.C. §§ 1332, 1441, and 1446, Defendant Strategic Restaurants Acquisition Co., LLC, (“SRAC”) filed a Notice of Removal of this action to this Court on September 15, 2017, in which it alleged complete diversity between Plaintiff and SRAC and an amount in controversy in excess of $75, 000. (Doc. 1). On October 13, 2017, Plaintiff filed a motion for leave to amend his complaint to substitute Dessie Grimes, who was the Burger King manager or one of the individuals involved in preparation of Plaintiff's food, in place of one of the fictitious defendants described in the original complaint. (Doc. 7 at p. 3). Because Grimes is a resident of Alabama, as is Plaintiff, he also filed a motion to remand this action to state court on the same date. (Doc. 8). In addition to arguing that the addition of Grimes as a defendant destroys diversity, Plaintiff also argues, in support of his motion to remand, that SRAC has failed to meet its burden of demonstrating that the amount in controversy exceeds $75, 000. (Doc. 8 at pp. 5-7).

         CONCLUSIONS OF LAW

         A. Motion to Amend

         Plaintiff seeks leave of court to file an amended complaint substituting a specific individual, Dessie Grimes, in place of one of the fictitious defendants named in the original complaint, pursuant to Rule 15 of the Federal Rules of Civil Procedure or, in the alternative, pursuant to 28 U.S.C. § 1447(e). (Doc. 7 at pp. 3-7). Because Grimes is a resident of Alabama, the amendment would destroy diversity jurisdiction. As SRAC rightly asserts, the liberal amendment rules contained in Rule 15 do not apply in this situation. Instead, the discretionary provisions of 28 U.S.C. § 1447(e) apply when a plaintiff seeks to amend his complaint to join a defendant that would destroy complete diversity.[1] See Starnes Davis Florie, LLP v. GOS Operator, LLC, Civ. A. No. 12-0387-WS-N, 2012 WL 3870413, at *2 (S.D. Ala. Sept. 5, 2012) (citing Ingram v. CSX Transp., Inc., 146 F.3d 858, 862 (11th Cir.1998) (holding that where the plaintiff sought to amend complaint post-removal to join a defendant that would destroy complete diversity, “in determining whether to grant [plaintiff]'s motion, the district court should have considered 28 U.S.C.A. § 1447(e)”)). Section 1447(e) states as follows: “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). “Decisions applying § 1447(e) have made clear that the statutory language means just what it says.” Portis v. Wal-Mart Stores, Inc., Civ. A. No. 07-0557-WS-C, 2007 WL 3086011, at *2 (S.D. Ala. Oct. 19, 2007). When § 1447(e) is applicable, the court is “left with only two options: (1) deny joinder; or (2) permit joinder and remand [plaintiff]'s case to state court.” Ingram, 146 F.3d at 862 (noting that a district court has no discretion to add a non-diverse defendant, then “retain jurisdiction and decide the case on the merits”). “The determination of which of these options is more appropriate in a particular case ‘is left to the discretion of the district court.'” Starnes Davis Florie, 2012 WL 3870413, at *3 (quoting Fontainebleau Gardens Condominium Ass'n, Inc. v. Pacific Ins. Co., 768 F.Supp.2d 1271 (S.D. Fla. 2011)).

         Although allowing joinder that would destroy diversity is within the discretion of the district court, case law within the Eleventh Circuit, as well as other circuits, instructs courts to consider four factors in evaluating whether to permit joinder pursuant to § 1447(e): “(1) the extent to which the purpose of the amendment is to defeat federal jurisdiction, (2) whether the plaintiff has been dilatory in asking for the amendment, (3) whether the plaintiff will be significantly injured if the amendment is not allowed, and (4) any other factors bearing on the equities.” Starnes Davis Florie, 2012 WL 3870413, at *3 (quoting Scipione v. Advance Stores Co., Inc., No. 8:12-cv-687-T-24-AEP, 2012 WL 3105199, at *2 (M.D. Fla. July 31, 2012) (citations and internal quotation marks omitted)); see also Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir. 1987); Holiday Isle, LLC v. Clarion Mortg. Capital, Inc., Civ. A. No. 07-00798-CG-C, 2008 WL 1756369, at *2 (S.D. Ala. Apr. 11, 2008). “This framework is designed to facilitate the balancing of the defendant's interest in maintaining a federal forum with the competing interest disfavoring parallel lawsuits in federal and state courts.” Holiday Isle, 2008 WL 1756369, at *2.

         The first factor to consider is the extent to which the purpose of Plaintiff's amendment is to defeat federal jurisdiction. SRAC argues that the fact that Plaintiff had documents that included “multiple references” to Grimes's name prior to removal proves that Plaintiff's purpose in amending his complaint after the case was removed is to defeat diversity jurisdiction. The documents to which SRAC refers are several Mobile County Health Department inspection reports documenting inspections of the subject Burger King restaurant that were received by a person whose name appears to be “Dessie Grimes.” (Doc. 11-2). The name is written in cursive and is difficult to decipher. There is no indication on these reports as to the position Grimes held at this Burger King restaurant or whether she was present there on the date of the subject incident. What is clear in this case is that, at the time the original complaint was filed, Plaintiff intended to substitute individual defendants who “negligently and/or wantonly packaged, prepared, and/or served contaminated food to Plaintiff” at the time those individuals were identified. (Doc. 1-1, caption).

         Even though SRAC cites cases which hold that a plaintiff's attempt to add a non-diverse defendant after the case was removed when he knew the identity of that defendant at an earlier time suggests that the purpose of the plaintiff's amendment was to defeat federal jurisdiction, the Court is unconvinced that the timing of the amendment here necessarily implies that it was offered solely to destroy diversity jurisdiction. SRAC's argument is, in fact, perplexing. If, as SRAC contends, Plaintiff knew Grimes's identity and her possible role in the subject incident at the time he filed the complaint, the safest way for him to prevent removal was simply to name her in the original complaint, not wait until after removal and hope for remand. Rather, in the circumstances of this case, the fact that Grimes was added in a post-removal amendment suggests that even if Plaintiff knew her name, he did not know the extent of her involvement at the time the complaint was filed. The Court finds that this factor weighs in favor of Plaintiff.

         The second factor to evaluate is whether Plaintiff has been dilatory in filing for leave to amend to add Grimes. In this case, the notice of removal was filed on September 15, 2017, and Plaintiff filed his motion for leave to amend his complaint to add Grimes less than one month later, on October 13, 2017, which was less than four months after the original complaint was filed. SRAC's answer was not filed until September 20, 2017, and no scheduling order has yet ...


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