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Henderson v. SSC Montgomery South Haven Operating Co., LLC

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

November 28, 2017

GLORIA ELIZABETH HENDERSON, Plaintiff,
v.
SSC MONTGOMERY SOUTH HAVEN OPERATING CO., LLC etc., et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          W. HAROLD ALBRITTON SENIOR UNITED STATES DISTRICT JUDGE

         I. FACTS AND PROCEDURAL HISTORY

         This cause is before the court on the Plaintiff's Motion for Leave to Amend (Doc. #29).

         The Plaintiff, Gloria Elizabeth Henderson (“Henderson”), originally filed her Complaint in the Circuit Court of Montgomery County, Alabama. The case was removed to this court on the basis of diversity jurisdiction on February 17, 2017. A Motion to Remand was filed by Henderson. The Motion to Remand was denied by this court on April 27, 2017 because the named non-diverse defendant was not a proper defendant in the case. (Doc. #10). On May 11, 2017, Henderson filed an Amended Complaint naming only SSC Montgomery Haven Operating Co., LLC, a diverse defendant (“South Haven”), as a defendant in the case. (Doc. #14). In response to an Order from the court, South Haven answered the Amended Complaint, and asserted affirmative defenses. (Doc. #18). A Uniform Scheduling Order was entered on June 19, 2017. (Doc. #26).

         Henderson now seeks to amend the Complaint again to add as defendants two persons, Dr. Vikas Gupta and Dr. Saurabh Patil, whom she alleges in the proposed Amended Complaint are residents of the State of Alabama and who were her treating physicians. For reasons to be discussed, Henderson's Motion is due to be GRANTED.

         II. MOTION TO AMEND STANDARD

         Under 28 U.S.C. § 1447(e), “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.” In determining whether to allow the amendment, the court should examine the following factors: (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. Hensgens v. Deere and Co., 833 F.2d 1179, 1182 (5th Cir. 1987), cert. denied, 493 U.S. 851 (1989).[1]

         III. DISCUSSION

         In analyzing whether to allow Dr. Gupta and Dr. Patil to be joined, thereby necessitating remand, or to deny Henderson's request to join them as Defendants, this court will apply the Hensgens analytical factors outlined above.

         As to the first Hensgens factor, the extent to which the purpose of the amendment is to defeat diversity, South Haven argues that the new amendment does not add any facts, but only seeks to add two parties, and so is only for the purpose of defeating diversity.

         In response, Henderson argues that she has a viable claim against the doctors and it was always her intent to name the treating physicians in this case, as evidenced by her naming them as fictitious parties in her original complaint in state court. (Doc. #1-1).

         As Henderson points out, cases applying the Hensgens factors have found significance in the fact that a fictitious party was originally named. See Smith v. Catosouth, LLC, 432 F.Supp.2d 679, 681 (S.D.Miss. 2006) (citing a case for the proposition that “the fact that a plaintiff has included a defendant as a fictitious defendant in his state court pleading would tend to belie an inference that the plaintiff's motivation for seeking to amend post-removal to substitute a real party for the one previously identified only as a fictitious party is to defeat diversity jurisdiction.”). Cases also consider the strength of the claim against the individual sought to be added as part of the determination of whether the amendment is sought to defeat jurisdiction. See Smith v. White Consolidated Industries, Inc., 229 F.Supp.2d 1275, 1281 (N.D. Ala. 2002).

         In this case, Henderson has alleged theories of liability against treating physicians and there is no reason to conclude that such theories lack viability. Henderson has sought to add these defendants after having initially named fictitious defendants when the complaint was filed in state court. The court finds, therefore, that the first Hensgens factor weighs in favor of allowing the amendment. See Smith, 432 F.Supp.2d at 681.

         With regard to the second Hensgens factor, South Haven argues that Henderson could have named the doctors much earlier, because the records were provided to counsel for Henderson in May of 2017. South Haven points out that Dr. Gupta is identified as the attending physician on page 1 of a facility chart and on other pages of the chart and that Dr. Patil is also referenced on various pages of the records. South Haven cites cases for the proposition that adding non-diverse defendants after the case is removed when the identity was known at an earlier time indicates that the ...


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