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Delorenzo v. Wal-Mart Stores, Inc.

United States District Court, N.D. Alabama, Northeastern Division

December 21, 2017

CHARLENE F. DELORENZO, Plaintiff, WAL-MART STORES, INC., et al., Defendant.



         Dean Foods Company, Inc., [1] 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.

         I. ANALYSIS

         Federal 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).

         Ordinarily, § 1447(e) governs the joinder of non-diverse defendants in federal court.[2] 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).

         In this 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 statute.

         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.[3] The court addresses these factors in sequential order, except for the second factor which is not in dispute.[4]

         A. Whether the Amendment is Intended to Defeat Federal Jurisdiction

         First, 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 joinder).

         Moreover, 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.

         Dean 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.

         B. Whether the Plaintiff will be Significantly Injured

         The 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.

         Nonetheless, 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 ...

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