United States District Court, M.D. Alabama, Northern Division
MEMORANDUM OPINION AND ORDER
HAROLD ALBRITTON SENIOR UNITED STATES DISTRICT JUDGE
FACTS AND PROCEDURAL HISTORY
cause is before the court on the Plaintiff's Motion for
Leave to Amend (Doc. #29).
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).
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
MOTION TO AMEND STANDARD
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
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
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.
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).
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).
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.
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