United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
VIRGINIA EMERSON HOPKINS United States District Judge.
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. (Doc. 1 at 2
¶ 5); (Doc. 1-4 at 1). 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).
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) on the same day as, but, nonetheless,
after Wal-Mart's removal to this Court at 4:26
p.m. (Doc. 1 at 1).
opposed Ms. Lawson's Remand Motion on December 17, 2017.
(Doc. 6). Ms. Lawson did not file a reply in support of her
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).
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)).
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. Id.
deadline for Ms. Lawson to oppose the Strike Motion ran on
January 24, 2018, and she filed nothing. For the reasons
discussed below the Strike Motion is GRANTED
and the Remand Motion is DENIED and/or
TERMED as MOOT.
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
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.
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); 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).
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 § 1447(e). Other times, such ...