O'Dell v. Wal-Mart Stores East, L.P.

          MEMORANDUM OPINION

          HERMAN N. JOHNSON, JR. UNITED STATES MAGISTRATE JUDGE

         This 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.

         Background

         On 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 action.” (Id.)

         Along 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.”^[1] (Doc. 1-1 at 13, 21).

         On 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. § 1332^[2] 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.^[3]

         After 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 following limitations:

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).

         On 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.)

         On the 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 jurisdiction.

         On 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).

         Discussion

          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 ...