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Lawson v. Wal-Mart Stores East, L.P.

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

February 2, 2018

EBONY LAWSON, Plaintiff,
v.
WAL-MART STORES EAST, L.P., and DAVID ROBERTS, Defendants.

          MEMORANDUM OPINION AND ORDER

          VIRGINIA EMERSON HOPKINS United States District Judge.

         Plaintiff Ebony Lawson (“Ms. Lawson”) initiated this personal injury action in the Circuit Court of Jefferson County against Defendant Wal-Mart Stores East, L.P. (“Wal-Mart”) on July 10, 2017.[1] (Doc. 1 at 2 ¶ 5); (Doc. 1-4 at 1).[2] Wal-Mart removed Ms. Lawson's case to federal court on November 9, 2017, on the basis of diversity jurisdiction arising under 28 U.S.C. § 1332. (Doc. 1 at 2 ¶ 4).

         On November 29, 2017, Ms. Lawson filed a Motion To Remand (doc. 4) (the “Remand Motion”) due to the fact that she had attempted to amend her complaint to include a non-diverse Wal-Mart Store Manager, David Roberts (“Mr. Roberts”), as a second Defendant. Ms. Lawson attached a copy of her amended complaint (filed in state court) to her Remand Motion. (Doc. 4-1). Ms. Lawson's initial efforts to add Mr. Roberts to her case took place at 5:27 p.m. (doc. 4-1 at 2)[3] on the same day as, but, nonetheless, after Wal-Mart's removal to this Court at 4:26 p.m. (Doc. 1 at 1).

         Wal-Mart opposed Ms. Lawson's Remand Motion on December 17, 2017. (Doc. 6). Ms. Lawson did not file a reply in support of her Remand Motion.

         On January 4, 2018, Ms. Lawson filed an amended complaint in this Court that, once again, purports to add Mr. Roberts as a Co-Defendant. (See Doc. 11 at 2 ¶ 2 (suing Mr. Roberts “in his individual capacity and in his capacity as the agent and/or Store Manager at Wal-Mart Store No. 1158”)). Wal-Mart anticipated that Ms. Lawson might take this step post-removal in its opposition to her Remand Motion. (See Doc. 6 at 4 ¶ 8 (“[I]n the event Plaintiff refiles the pleading in federal court, the question of whether the case should be remanded [due to the addition of a non-diverse defendant] after proper removal falls under 28 U.S.C. § 1447(e).”)); (see also Id. at 8 ¶ 17 (“Under the scrutiny of Hensgens any purported amendment to the Complaint to add a non-diverse defendant is due to be stricken.”)); Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir. 1987) (setting out several equitable factors for a district court to consider when a plaintiff seeks to add a non-diverse defendant post- removal).[4]

         Section 1447(e) provides:

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); see, e.g., Milburn v. Copart of Connecticut, Inc., No. 2:05-CV-1661-VEH, (Doc. 31 at 4-5) (N.D. Ala. June 21, 2006) (citing § 1447(e) as “applicable to identification of fictitious defendants subsequent to removal”); Alvis v. K-Mart Corp., No. 4:11-CV-1773-VEH, (Doc. 11 at 7) (N.D. Ala. Sept. 29, 2011) (granting motion for leave to amend given prior fictitious-party description and citing § 1447(e) as basis for remanding action); Teague v. Gas Fired Products, Inc., No. 1:16-CV-0581-VEH, (Doc. 31 at 4-5) (N.D. Ala. Dec. 20, 2016) (allowing joinder of non-diverse defendant and remanding pursuant to § 1447(e)).

         Based upon the foregoing procedural history, on January 10, 2018, the Court treated Wal-Mart's opposition (doc. 6) to Ms. Lawson's Remand Motion as a Motion To Strike (“Strike Motion”) her amended complaint (doc. 11) filed post-removal. (Doc. 12 at 3). The Court also ordered the parties to provide further briefing as to whether it should deny the joinder of Mr. Roberts, or permit his addition and remand the action.[5] Id.

         The deadline for Ms. Lawson to oppose the Strike Motion ran on January 24, 2018, and she filed nothing.[6] For the reasons discussed below the Strike Motion is GRANTED and the Remand Motion is DENIED and/or TERMED as MOOT.

         In its Strike Motion, Wal-Mart contends that this Court should utilize the Fifth Circuit's equitable framework from Hensgens when evaluating the parties' disputed post-removal joinder issue. See also Hawthorne Land Co. v. Occidental Chem. Corp., 431 F.3d 221, 227 (5th Cir. 2005) (citing to Hensgens and finding no abuse of discretion in the district court's conclusion that “the manifest purpose of plaintiffs' actions was to defeat federal jurisdiction” when attempting to join a non-diverse defendant “years after the petition was originally filed”).

         However, the applicability of Hensgens is not without uncertainty. Wal-Mart points to no binding Eleventh Circuit authority that has ever mentioned Hensgens, much less formally adopted it. Likewise, the undersigned's research has revealed no Eleventh Circuit opinion dealing with Hensgens. Thus, this Court may, but is under no obligation to, follow Hensgens.

         Additionally, Hensgens “pre-dates the enactment of § 1447(e)[.]” Sexton v. G&K Servs., Inc., 51 F.Supp.2d 1311, 1312 n.1 (M.D. Ala. 1999); see also Judicial Improvements and Access to Justice Act of 1988, Pub. L. No. 100-702, 102 Stat. 4642, Title X, § 1016(c)(2) (Nov. 19, 1988) (adding new subsection “(e)” to § 1447). Consequently, at least one district court has speculated about Hensgens's continued viability even within the Fifth Circuit. See Matak v. Genie Industires, Inc., No. 1:09-CV-426-TH, 2009 WL 10677578, at *1 (E.D. Tex. July 7, 2009) (“Hensgens was decided prior to adoption of 28 U.S.C. § 1447(e), which grants complete discretion to the district court.”) (emphasis added);[7] cf. also Id. (“Hensgens is apparently still good law in the Fifth Circuit, though sparsely cited.”); id. at *2 (remanding pursuant to § 1447(e) in light of its decision to allow diversity-destroying joinder or, alternatively, remanding under Hensgens).

         At the same time, this Court, see Milburn, (doc. 31 at 5 n.3 (concluding that the purpose of “amendment was not to defeat jurisdiction”)) and Teague, (doc. 31 at 5 (same)), as well as other district courts within the Eleventh Circuit, see, e.g., Sexton, 51 F.Supp.2d at 1312 (setting out Hensgens factors); Smith v. White Consol. Indust., Inc., 229 F.Supp.2d 1275, 1279 (N.D. Ala. 2002) (“Under the analysis of Le Duc and Hensgens, this court can properly revisit the requisite joinder analysis and determine whether joinder of Greene was proper.”), have looked to Hensgens for guidance when exercising discretion under ยง 1447(e). Other times, such ...


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