United States District Court, S.D. Alabama, Southern Division
MARCUS MCCANTS, a Personal Representative and Administrator of the Estate of KAREY PETTWAY, deceased, Plaintiff,
v.
BASF CORPORATION, Defendant.
ORDER
JEFFREY U. BEAVERSTOCK UNITED STATES DISTRICT JUDGE
Now
before the Court is Plaintiff's Motion for Leave to Amend
the Complaint (“Motion”). (Doc. 81). Defendant
BASF Corporation (“Defendant”) filed an
opposition to the Motion (Doc. 87), and Plaintiff filed a
reply (Doc. 89). The Motion is ripe for disposition. The
Court concludes that Plaintiff's Motion is due to be
GRANTED for the reasons set out below.
I.
BACKGROUND
This
action was commenced in the Circuit Court of Mobile County,
Alabama, arising out of the death of Karey
Pettway.[1] (Doc. 1, Exhibit A). Mr. Pettway was
killed while working at the BASF facility in McIntosh,
Alabama pursuant to a contract between BASF and Mr.
Pettway's employer, Remedial Services, Inc.
(“RSI”). He sustained fatal injuries on November
7, 2017 while he and other RSI employees were engaged in the
demolition of a “formulations building” at
Defendant's facility.
Plaintiff
Marcus McCants, as Personal Representative and Administrator
of the Estate of Mr. Pettway, asserted claims against
Defendant, Defendant's site manager Jason Slinkard, and
numerous fictitious defendants described as follows:
1 - 20: the person(s), firm(s) or corporation(s) who
designed, manufactured, assembled, tested, inspected,
installed, serviced, maintained, operated and/or controlled
the industrial plant and/or machinery that contributed to
injuring Karey Pettway at the times made the basis of this
suit;
21 - 40: the person(s), firm(s) or corporation(s) who was or
were the principal, master, or employer of the individuals
who designed, manufactured, assembled, tested, inspected,
installed, serviced, maintained, operated and/or controlled
the industrial plant and/or machinery that contributed to
injuring Karey Pettway at the times made the basis of this
suit;
41 - 60: the person(s), firm(s) or corporation(s) who
negligently and/or wantonly trained, educated, supervised
and/or monitored those person(s), firm(s) or corporation(s)
who designed, manufactured, assembled, tested, inspected,
installed, serviced, maintained, operated and/or controlled
the industrial plant and/or machinery that contributed to
injuring Karey Pettway at the times made the basis of this
suit;
61 - 80: the person(s), firm(s) or corporation(s) responsible
for and who did in fact assist or contribute in any way to
the tortious conduct made the basis of this suit; all of
whose true names and legal identities are otherwise unknown
to the Plaintiff but who will be substituted by amendment
when ascertained, separately and severally.
(Doc. 1, Exhibit A). Plaintiff LaToya McCants asserted a
claim against RSI under the Alabama Workers Compensation Act
as Mr. Pettway's partially dependent child.
On
February 8, 2018, Defendant filed its Notice of Removal and
Answer in this Court. (Doc. 1). Defendant, a citizen of
Delaware and New Jersey, alleged complete diversity between
it and Plaintiffs, who are Alabama citizens.[2] Defendant alleged
that Defendants Slinkard and RSI, both Alabama citizens, had
been fraudulently joined and that their citizenships were to
be disregarded in assessing diversity jurisdiction. Defendant
also argued that Plaintiff LaToya McCants' claim against
RSI was mis-joined and therefore due to be severed and
remanded.
On
March 8, 2018, Plaintiffs filed a motion to remand, arguing
that Defendant Slinkard had not been fraudulently joined and
that his Alabama citizenship destroyed diversity. (Doc. 15).
The Magistrate Judge disagreed and entered a Report and
Recommendation on May 30, 2018 that Plaintiffs' motion to
remand be denied. (Doc. 39). Plaintiffs filed objections to
the Report and Recommendation, followed by Defendant's
response and Plaintiffs' reply. (Docs. 40, 44 and 45).
This
action was transferred to the undersigned's docket on
August 13, 2018. On February 12, 2019, Plaintiffs filed a
motion for hearing, which the Court conducted on March 15,
2019. By order dated March 20, 2019 (Doc. 51), the Court
partially adopted the Report and Recommendation and denied
Plaintiff's motion to remand. The Court determined that
Defendant Slinkard had been fraudulently joined and dismissed
the claims against him. Plaintiff LaToya McCants' claim
against RSI was severed and remanded. This action has since
proceeded solely on Plaintiff Marcus McCants' claims
against Defendant.
Pursuant
to a scheduling order entered on April 25, 2019 (Doc. 58),
the parties served initial disclosures on May 15, 2019.
(Docs. 66 and 67). Plaintiff had also propounded discovery to
Defendant with the Complaint filed in January 2018, which
requested information concerning Hargrove Engineers &
Contractors and/or Hargrove & Associates, Inc. and the
work being performed at Defendant's facility the time of
Mr. Pettway's fatal injury. Defendant had not answered
Plaintiff's discovery by the time it served its initial
disclosures in May 2019.
On June
10, 2019, Plaintiff filed the subject Motion seeking to join
Hargrove & Associates, Inc. (“Hargrove”) as a
defendant. (Doc. 81). Hargrove is an Alabama corporation. Its
joinder would destroy the Court's subject matter
jurisdiction of this action.
II.
ANALYSIS
A.
28 U.S.C. § 1447(e) governs Plaintiff's
Motion:
As the
joinder of Hargrove would deprive the Court of diversity
jurisdiction, the parties correctly note that 28 U.S.C.
§ 1447(e), not Rule 15(a), governs Plaintiff's
Motion. LaFitte v. Allstate Ins. Co., 2008 WL
11411824 at *2 (S.D. Ala. February 6, 2008)(“where a
plaintiff seeks to amend the complaint to assert claims
against new defendants who would destroy the court's
subject matter jurisdiction, the court … must apply
the standard detailed in 28 U.S.C. § 1447(e)”
rather than Rule 15(a)). See also, Mask v.
Strategic Rest. Acquisition Co., 2017 U.S. Dist. LEXIS
193838 at * 4 (S.D. Ala. November, 21, 2017) (citing
Starnes Davis Florie, LLP v. GOS Operator,LLC, 2012 U.S. Dist. LEXIS 126701 (S.D. Ala.
September 5, 2012)(citing Ingram v. CSX Transp.,
Inc., 146 F.3d 858, 862 (11th Cir. 1998)).
Section 1447(e) states that 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.” The Court therefore must either (1) deny
joinder of Hargrove and retain jurisdiction, or (2) permit
joinder of Hargrove and remand the action to the Mobile
County Circuit Court. The determination of which option is
more appropriate is left to this ...