United States District Court, N.D. Alabama, Northeastern Division
FREDERICK L. O'DELL, Plaintiff,
WAL-MART STORES EAST, L.P., et al., Defendants
N. JOHNSON, JR. UNITED STATES MAGISTRATE JUDGE
civil action proceeds before the court on Plaintiff Frederick
L. O'Dell's Motion to Remand (Doc. 14), Defendant
Wal-Mart Stores East, L.P.'s (“Wal-Mart”)
Motion to Strike O'Dell's Amended Complaint (Doc.
16), and O'Dell's Motion for Leave to Amend
Complaint. (Doc. 17). Based upon the following discussion,
the court DENIES O'Dell's Motion to
Remand, GRANTS Wal-Mart's Motion to
Strike, and DENIES O'Dell's Motion
for Leave to Amend Complaint.
September 17, 2018, O'Dell filed a complaint in the
Circuit Court of Madison County, Alabama. (Doc. 1-1 at 2-8).
The complaint alleged state law claims against defendants
“Walmart Stores, Inc.”, “Wal-Mart Stores
East, L.P.”, and “Fictitious Defendants
1-18.” (Id.) O'Dell's claims stem from
an accident in the parking lot of Wal-Mart Store #661 in
Athens, Alabama, where a vehicle allegedly driven by a
Wal-Mart employee struck him. (Doc. 1-1 at 5-8). Based on
these pleaded facts, O'Dell asserted claims of
negligence/wantonness; respondeat superior; negligent/wanton
hiring, training, supervision and/or retention;
negligent/wanton maintenance operation, service and/or
repair; and negligent/wanton entrustment. (Id.) In
each of the five counts of the complaint, O'Dell demanded
the same relief: “Plaintiff demands judgment against
[Defendants Walmart Stores, Inc. and Wal-Mart Stores East,
L.P.] and/or fictitious party Defendants listed and described
in the caption hereinabove, for general and compensatory
damages that the court may determine, together with interest
from the date of the injury plus the costs of this
with the summons and complaint, O'Dell contemporaneously
served Consolidated Discovery Requests on both named
Defendants. (Doc. 1-1 at 10-24). Plaintiff included in the
requests an interrogatory requiring Defendants to
“[s]tate the full name and address of Your
Driver.” (Doc. 1-1 at 13, 21).
October 25, 2018, Wal-Mart Stores East, L.P. (according to
Defendant, Walmart Stores, Inc., does not exist) filed a
timely notice of removal. Wal-Mart relied on 28 U.S.C. §
for federal subject-matter jurisdiction, alleging that
O'Dell is a legal resident of Alabama and Wal-Mart is a
limited-liability partnership organized under the laws of
Delaware with its principal place of business in Arkansas.
(Doc. 1 at 5). Wal-Mart also asserted that the nature of the
claims alleged plainly satisfied the $75, 000.00 minimum
amount in controversy.
the parties convened a Rule 26(f) Planning Meeting, they
released a report to the court on November 27, 2018. (Doc.
9). The court issued a Rule 16 Scheduling Order, which
contained crucial deadlines pursuant to the parties'
stipulation. (Doc. 10). The Scheduling Order contained the
Pleadings and Parties: No causes of action,
defenses, or parties may be added by plaintiff(s) after
January 25, 2019. [ . . . ] Unless the party's pleading
may be amended as a matter of course pursuant to Fed.R.Civ.P.
15 (a), the party must file a Motion for Leave to Amend. Such
Motion for Leave to Amend shall state, specifically, those
matters the party wishes to add or delete and shall contain,
attached as an exhibit, the complete and executed Amended
Complaint or Amended Answer, which is suitable for filing.
The Motion for Leave to Amend, with the attached amended
pleading, shall be served in accordance with Fed.R.Civ.P. 5.
(Doc. 10 at 1).
January 21, 2019, O'Dell filed an amended complaint
without seeking leave to do so. (Doc. 13). In his amended
complaint, O'Dell added Ronald McGill as a defendant,
alleging that McGill is the Wal-Mart employee who struck
O'Dell while driving a vehicle in service of Wal-Mart.
(Doc. 13 at 2). The amended complaint also specified that
McGill is a citizen of the state of Alabama. (Id.)
same day that O'Dell filed his amended complaint, he
filed a Motion to Remand. (Doc. 14). In his Motion,
O'Dell alleges that identification of McGill as the
Wal-Mart employee driving the vehicle that struck him
destroys complete diversity of citizenship in this action, as
both O'Dell and McGill hail from Alabama. Wal-Mart filed
a response to O'Dell's motion on February 7, 2019,
which also included a motion to strike O'Dell's
amended complaint. (Doc. 16). Wal-Mart contends the court
should 1) strike O'Dell's amended complaint because
he failed to follow the procedure laid out in the court's
Scheduling Order, or 2) in the alternative, exercise its
discretion under 28 U.S.C. § 1447(e) to disallow the
amendment because it will destroy the court's diversity
February 14, 2019, O'Dell filed his reply to
Wal-Mart's response, which also included a Motion for
Leave to Amend Complaint. (Doc. 17).
O'Dell seeks leave of the court to file an amended
complaint adding Ronald McGill as an individual defendant.
Because McGill resides in Alabama, the amendment would
destroy the court's diversity subject-matter
jurisdiction. In such circumstances in which joinder would
destroy diversity jurisdiction, the court retains discretion
to withhold joinder pursuant to 28 U.S.C. § 1447(e).
Title 28 U.S.C. § 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 ...