McCants v. BASF Corp.

          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 (11^th 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 ...