United States District Court, N.D. Alabama, Northeastern Division
CHARLENE F. DELORENZO, Plaintiff, WAL-MART STORES, INC., et al., Defendant.
MEMORANDUM OPINION AND ORDER
K. KALLON UNITED STATES DISTRICT JUDGE.
Foods Company, Inc.,  timely removed this slip-and-fall
negligence case from the Circuit Court of Madison County,
Alabama asserting diversity jurisdiction pursuant to 28
U.S.C. §§ 1332, 1441, and 1446. Doc. 1 at 1.
Following removal, the parties conducted a Rule 26(f)
scheduling conference and made their initial disclosures.
Shortly thereafter, Charlene Delorenzo moved for leave to
amend her complaint in order to identify a non-diverse
defendant, Jonathan Todd Kirk, whom she had initially named
in her complaint as a fictitious defendant. Doc. 20 at 1-2.
Dean Foods opposes the motion arguing that the proposed
amendment would destroy diversity and require a remand.
Accordingly, Dean Foods asks the court to deny the motion
pursuant to 28 U.S.C. § 1447(e). Delorenzo's motion
is now fully briefed, see docs. 20; 22; and 23, and
is due to be granted.
courts are directed to give the plaintiff leave to amend her
pleading “when justice so requires, ”
Fed.R.Civ.P. 15(a)(2), but a district court retains the
discretion to deny a proposed amendment that would destroy
diversity jurisdiction. See, e.g., Bevels v. Am.
States Ins. Co., 100 F.Supp.2d 1309, 1312 (M.D. Ala.
2000) (collecting cases supporting the district court's
power to deny plaintiff the right to amend if the amendment
would destroy jurisdiction).
§ 1447(e) governs the joinder of non-diverse defendants
in federal court. Under § 1447(e), the court has
“only two options: (1) deny joinder; or (2) permit
joinder and remand [the] case to state court.”
Ingram v. CSX Transp., Inc., 146 F.3d 858, 862 (11th
Cir. 1998). The choice between those options “is
committed to the sound discretion of the district
court.” Mayes v. Rapoport, 198 F.3d 457, 462
(4th Cir. 1999); see also Hensgens v. Deere &
Co., 833 F.2d 1179, 1182 (5th Cir. 1987) (explaining
that a district court should “use its discretion in
deciding whether to allow” the addition of a
non-diverse party after removal).
instance, however, the parties disagree regarding whether
§ 1447(e) even applies to Delorenzo's motion.
Instead, Delorenzo argues that, because her original
complaint named and described various fictitious defendants
pursuant to Rule 9(h) of the Alabama Rules of Civil
Procedure, diversity jurisdiction never existed over her
case. Therefore, her substitution of a named party for a
previously unidentifiable fictitious defendant does not
trigger § 1447(e) because she is not adding a new party
to the action. Because the court finds that Delorenzo's
motion is properly granted under § 1447(e), it is
unnecessary to determine whether Delorenzo can substitute a
named defendant for a fictitious one without applying the
court's § 1447(e) analysis is guided by
consideration of 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 amendment, ” (3)
“whether [the] plaintiff will be significantly injured
if amendment is not allowed, ” and (4) “any other
factor bearing on the equities.” Hensgens, 833
F.2d at 1182. The court addresses these factors in
sequential order, except for the second factor which is not
Whether the Amendment is Intended to Defeat Federal
in analyzing the intent to defeat federal jurisdiction
factor, district courts frequently look toward the strength
of the case against the proposed defendant and whether,
despite knowing about the proposed defendant previously, the
plaintiff only sought to add that defendant after removal.
Smith v. White Consol. Indus., Inc., 229 F.Supp.2d
1275, 1280 (N.D. Ala. 2002). Although the court is not in a
position to weigh the strength of Delorenzo's claim
against Kirk at this very early stage of the proceeding, Kirk
does not appear to be peripheral to the action. The proposed
amended complaint suggests that Kirk was the employee working
in the area where Delorenzo's fall occurred, and it was
allegedly Kirk's negligence which caused or directly
contributed to her injuries. Docs. 20 at 2-3; 20-1 at 16-17,
19. This indicates Kirk sits squarely at the heart of this
proceeding making it unlikely that Delorenzo seeks to add him
solely to avoid a federal forum. See Taylor v. Ala. CVS
Pharm., L.L.C., No. 7:16-cv-1827, 2017 WL 3009695, at *8
(N.D. Ala. July 14, 2007) (noting that the fact that the
proposed non-diverse defendant was “central to the
merits of the plaintiff's case” weighed in favor of
Delorenzo did not immediately seek to join Kirk, the
non-diverse defendant, after removal. See Ibis Villas at
Miami Gardens Condo Ass'n, Inc. v. Aspen Specialty Ins.
Co., 799 F.Supp.2d 1333, 1335 (S.D. Fla. 2011)
(emphasizing that courts should be especially wary of motions
to “join non-diverse defendants made immediately after
the case is removed, and before discovery has
commenced”). Instead, Delorenzo sought to amend her
complaint after the parties made their initial disclosures.
Doc. 22 at 4. This is consistent with Delorenzo's
contention that she wanted to sue Kirk from the beginning, as
evidenced by the fictitious defendants she designated in her
state court complaint, but could not identify him as a proper
defendant until after she received Dean Foods' initial
disclosures. Doc. 20 at 2-3. Thus, the timing of her motion
strongly suggests that Delorenzo seeks an amendment on the
basis of new information obtained in discovery rather than to
avoid federal court.
Foods argues that, in light of Delorenzo's failure to
provide a specific explanation as to why she seeks to add
Kirk as a defendant, the court must presume Delorenzo's
proposed amendment is solely intended to defeat federal
jurisdiction. In the absence of any case law establishing
that a court is to presume a plaintiff's attempted
joinder of a non-diverse defendant is motivated by a desire
to defeat federal jurisdiction absent a contrary explanation,
the court disagrees. The single case Dean Foods provides to
support this proposition, Jerido v. American General Life
& Accident Insurance Co., 127 F.Supp.2d 1322 (M.D.
Ala. 2001), makes no reference to the existence of a
presumption in this context. Instead, the court in
Jerido found that an attempt to join a defendant
“without identifying that person in any manner, and
without making any allegations against that person”
evinced a transparent attempt to destroy jurisdiction.
Id. at 1325. Here, Delorenzo not only identifies
Kirk as the individual tortfeasor involved in the case, doc.
20 at 2-3, but her amended complaint also specifically
asserts a negligence claim against him. Doc. 20-1 at 16-17.
As already discussed, Kirk appears to lie at the heart of
Delorenzo's case as an alleged tortfeasor intimately
connected with the chain of events purportedly causing
Delorenzo's fall. Given this close connection, the court
is convinced Delorenzo's amendment to add Kirk is
motivated by her desire to fully litigate her claims rather
than to frustrate federal jurisdiction.
Whether the Plaintiff will be Significantly Injured
third factor, whether Delorenzo will be prejudiced if her
proposed amendment is not allowed, is a much closer call.
Dean Foods is correct to assert that Delorenzo has not
demonstrated that she will prove unable to obtain full relief
without Kirk's presence in the case. See Sexton v. G
& K Servs., Inc., 51 F.Supp.2d 1311, 1314 (M.D. Ala.
1999) (noting the importance of determining whether full
relief is possible absent the joinder of the additional
defendant). Based on the proposed amended complaint,
Delorenzo's claims against all the defendants, including
Kirk, are largely duplicative. See Doc. 20-1 at
3-20. None of the corporate entities named as defendants are
insolvent and Dean Foods concedes that Kirk was “acting
within the line and scope of his employment on the date of
the incident.” Doc. 22 at 6.
a denial of the proposed amendment would force DeLorenzo to
litigate her claims against Kirk in a separate lawsuit in
state court. Because these claims are duplicative of the ones
she raises against the other defendants in the case,
“the danger of parallel federal/state proceedings with
the [accompanying risks] of inconsistent results and the
waste of judicial resources, ” Hensgens, 833
F.2d at 1182, is directly implicated by a denial of the
proposed amendment. Indeed, courts have repeatedly recognized
that forcing the plaintiff to litigate in state court causes
her “to bear additional costs and time and does not
serve the purpose of judicial economy.” Osgood v.
Disc. Auto Parts, LLC, 955 F.Supp.2d 1352, 1356 (S. D.
Fla. 2013); see also Taylor, 2017 WL 3009695, at *9
(explaining that unnecessarily litigating the “exact
same factual and legal questions . . . [wastes] precious
judicial resources and [increases] the cost of litigation for
all parties”); Ibis Villas, 799 F.Supp.2d at
1337 (recognizing the prejudice the necessity of parallel
proceedings potentially imposes on the ...