T. MICHAEL PUTNAM, Magistrate Judge.
This cause is before the court on the plaintiff's motion to remand the action to the Circuit Court of Tuscaloosa County, from which it was removed on November 10, 2016. (Doc. 1). Plaintiff filed an amended complaint on November 17, 2016, followed by her motion to remand (Doc. 5). The parties consented to the undersigned magistrate judge's dispositive authority under 28 U.S.C. § 636(c) on January 3, 2017. (Doc. 16).
On October 10, 2016, the plaintiff filed her original complaint in the Circuit Court of Tuscaloosa County, Alabama (Doc. 1-4), naming as defendants "CVS Pharmacy Store #3004" and "Fictitious Defendants 1-10." In it, she alleged that she presented a written prescription to the pharmacy on April 1, 2016, and, unbeknownst to her, the pharmacy incorrectly filled the prescription with the wrong medication (Bupropion). After taking the wrong medication for over a month, the plaintiff returned to the pharmacy on May 7, 2016, to have it re-filled, and once again, the wrong medication was given to her. After experiencing unexpected side effects, the plaintiff returned to her doctor, who informed her that the wrong medication had been used to fill the prescription. Based on these pleaded facts, the plaintiff alleged claims for negligence, wantonness, negligent/wanton training and supervision, and negligent/wanton failure to warn. In each of the four counts of the complaint, the plaintiff demanded the same relief: "Plaintiff demands judgment against all Defendants and Fictitious Defendants jointly and severally, in a sum of compensatory and/or punitive damages not in excess of the jurisdictional limits of this Court which will fairly and adequately compensate Plaintiff for the above described damages and injuries, together with interest from the date of the incident and the costs of the proceeding."
On November 10, 2016, Alabama CVS Pharmacy LLC ("Alabama CVS") filed a notice of removal, alleging that such is the true legal name of the defendant (instead of CVS Pharmacy Store #3004). Alabama CVS offered the affidavit of Thomas Moffatt to establish that CVS Pharmacy Store #3004 is owned by Alabama CVS Pharmacy LLC, and that the only member of the defendant LLC is an entity known as CVS Pharmacy, Inc., which is incorporated in Rhode Island and has its principal place of business there. The defendant also asserted that the combination of the nature of the claims alleged and the plaintiff's demand for punitive damages plainly met the $75,000.00 minimum amount in controversy. The defendant relies on 28 U.S.C. § 1332 for federal subject-matter jurisdiction.
A week later, on November 17, 2017, the plaintiff filed an amended complaint without seeking leave to do so. (Doc. 4). In her First Amended Complaint, she substituted Alabama CVS Pharmacy LLC for the previously named CVS Pharmacy Store #3004, and she named Stephanie M. Hoffer as a defendant, alleging that Hoffer is the pharmacist who incorrectly filled the prescription.
The motions have been fully briefed and are ready for disposition.
The issue boils down to whether the plaintiff should be allowed to amend the complaint to name Hoffer as a defendant in this action.
As stated, the principal question is whether the plaintiff's First Amended Complaint should be allowed where doing so will destroy complete diversity between the parties and require remand of the case to state court. At the outset, the plaintiff argues that 28 U.S.C. 1447(e) does not apply because the amendment does not "add" or "join" a new defendant, but, rather, substitutes the true name of Stephanie Hoffer for one of the fictitiously named defendants in the original complaint. She points out that § 1447(e) reads:
Plaintiff contends she is not "join[ing] additional defendants," but merely identifying correctly the true name of a defendant pleaded in the original complaint, namely one of the Fictitious Defendants.
There is some limited Eleventh Circuit authority for such an argument. In Ingram v. CSX Transportation, Inc., 146 F.3d 858 (11th Cir. 1998), the plaintiff filed suit in Alabama circuit court against CSX for injuries she suffered in a railroad-crossing accident. The crossing was owned by the City of Albertville, Alabama, who was not named as a defendant in the original complaint. Because of the diversity of citizenship between the plaintiff and CSX, the railroad removed the action to the federal district court. After the removal, the plaintiff moved for leave to amend the complaint to add the City as an additional defendant. The district court granted the motion, but only upon the express understanding that doing so would not divest the court of the subject-matter jurisdiction that existed at the time of removal. After the district court granted summary judgment to both defendants, the plaintiff appealed, arguing that the court lacked subject-matter jurisdiction because her own amended complaint adding the City destroyed diversity and required a remand to state court. In response, the defendants argued that because diversity existed when the case was removed, the court did not lose jurisdiction by allowing the post-removal amendment.
Addressing these arguments, the court of appeals wrote:
Ingram v. CSX Transp., Inc., 146 F.3d 858, 861-62 (11th Cir. 1998) (internal footnotes omitted).
Although the instant case is not on all fours with Ingram, the case is instructive. Ingram read the language of § 1447(e) narrowly to apply to situations where a "new" defendant is being added or "joined" in the case. It notes that where a new defendant is substituted for an original defendant, § 1447(e) does not apply, but, instead, the rule in Freeport-McMoRan is used. Ultimately, the court of appeals concluded that the addition of the City of Albertville by amendment constituted the joining of a new defendant, not the substitution of an original defendant, thus triggering § 1447(e).
Ingram does not involve fictitious defendants, and it gives no clear direction concerning amendments changing the name of an original fictitious defendant to the defendant's true name. It is arguable, however, that changing the name of a fictitious defendant to the defendant's true name is comparable to a mere substitution. Fictitious or "John Doe" names are used for defendants whose existence and potential liability are known, but whose true identity is not known at the time of the filing. Fictitious party practice under Alabama state rules allows a plaintiff to sue a defendant under a fictitious name if the defendant is adequately described to make clear that a real defendant exists, but whose true identity is not known. This allows for the tolling of the statute of limitation until the true identity can be discovered with due diligence and the name of the fictitious party changed to the true identity. The Alabama Supreme Court has explained:
Ex parte Lucas, 212 So.3d 921, 926-27 (Ala. 2016) (quoting Weber v. Freeman, 3 So.3d 825, 832 (Ala. 2008)). Thus, under this practice, the fictitiously named defendant is a real defendant, not merely a hypothetical one, and the substitution of the true name of the defendant does not change the parties or "add" or "join" a new party, it merely corrects the identification of an original defendant sued under a fictitious name.
Viewed in the light cast by Ingram, the substitution of the true identity of a fictitiously named defendant seems comparable to the mere substitution of a party discussed in Freeport-McMoRan, rather than the adding or joinder of a new party. If so, an amendment to correct the name of a fictitiously-named defendant does not trigger the application § 1447(e), because all that occurs is an amendment to correct a misnomer, not the joinder of a new defendant.
14B Wright, Miller et al., FEDERAL PRACTICE AND PROCEDURE, § 3723 at 779 (West 2009) (citing Casas Office Mach., Inc., v. Mita Copystar America, Inc., 42 F.3d 668 (1
Marshall v. CSX Transp. Co., 916 F.Supp. 1150, 1152 (M.D. Ala. 1995).
In the instant case, the plaintiff argues that she has done nothing more than amend the complaint to substitute the real name of the pharmacist who mis-filled her prescriptions for one of the "Fictitious Defendants 1-10." Because this does not "add" or "join" a new party, but merely corrects the misnomer of a fictitiously-named defendant, § 1447(e) does not apply and the court must remand the case because true diversity of citizenship never existed. The court is dubious, however, that she has adequately described the fictitious defendants in a way that makes clear that she intended to sue a real, but unknown, defendant. While the caption of her state-court complaint refers to "Fictitious Defendants 1-10" as "those entities or individuals who may be liable for the damages pled herein," she does not otherwise refer to them or describe them in the text of the complaint. (
Because the plaintiff has not pleaded fictitious defendants properly under the Alabama rules, the amendment to add defendant Hoffer cannot be regarded as a mere substitution of a proper name for a fictitiously named defendant. It is an addition or joinder of a new defendant. Accordingly, the court must determine under § 1447(e) whether to allow the amendment and remand the case or to strike the amendment. This exercise is a balancing of the equities, within the sound discretion of the court. As one district court has described the process:
Small v. Ford Motor Co., 923 F.Supp.2d 1354, 1356-57 (S.D. Fla. 2013).
The first factor to consider is whether the amendment is offered solely for the purpose of defeating jurisdiction. Underlying this factor are such questions as whether the claim against the proposed defendant is relatively strong or weak on the merits, and whether the plaintiff knew or should have known of the defendant before removal. See, e.g. Smith v. White Consol. Indus., Inc., 229 F.Supp.2d 1275, 1281-82 (N.D. Ala. 2002). Examining these questions, it is, of course, impossible to predict whether the plaintiff will prevail against defendant Hoffer, but it is clear that Hoffer is not a marginal or nominal defendant. Plaintiff alleges she is the pharmacist who erroneously filled her prescriptions. As such, she is central to the merits of the plaintiff's case, and assuming she made the error alleged by plaintiff (filled the plaintiff's prescription with a medication other than as called for by the prescription), the plaintiff has a strong claim against her.
Likewise, it seems unlikely that the plaintiff knew Hoffer's identity at the time she filed suit. Although the defendant argues that the plaintiff could have seen the pharmacist's name on the label of her prescription, no evidence of that fact has been offered. The defendant has not submitted a copy of the label to confirm that it bears the pharmacists name, or that the plaintiff had available to her other ways of ascertaining the name prior to filing suit.
The court also is unconvinced that the timing of the amendment implies that it was offered solely to destroy diversity jurisdiction. Defendant cites cases holding that "the fact that a plaintiff attempted to add a non-diverse defendant only after the case was removed, even though he knew or should have ascertained the identity of the defendant at an earlier time, strongly indicates that the purpose of the plaintiff's amendment is to defeat federal jurisdiction." Smith v. White Consol. Indus., Inc., 229 F.Supp.2d 1275, 1280 (N.D. Ala. 2002). But this notion is paradoxical. If the plaintiff truly wanted only to defeat diversity jurisdiction and secure a remand, the surest way to do so would have been to include the non-diverse defendant in the original complaint, to defeat removal before it began. If, as the defendant contends, the plaintiff knew the identity of the non-diverse defendant at the time she filed the complaint, the safest way for her to prevent removal was simply to name the non-diverse defendant in the original complaint, not wait until after removal and hope to thread the § 1447(e) needle. In doing so, a savvy plaintiff could prevent removal and never run the risk of the balancing act required by § 1447(e). Rather, to this court's mind, and at least in the circumstances of this case, the fact that the new defendant was offered in a risky post-removal amendment suggests that the plaintiff did not know the defendant's identity at the time the complaint was filed. There simply is no evidence that the plaintiff in this case knew Hoffer's identity and withheld it as a risky hole card against removal.
The plaintiff has not been dilatory in seeking the amendment to add Hoffer. The amendment was offered a mere seven days after the case was removed and only slightly more than a month after the complaint was originally filed in state court. Indeed, according to the complaint, plaintiff only discovered the medication error after consulting with her doctor sometime after May 7, 2016, and she filed her lawsuit on October 10, 2016. Plaintiff was not dilatory in attempting to join Hoffer either before the law suit was filed or after it was removed.
While it is true that the defendant's right to seek a federal forum by removal must be weighed, so too the plaintiff's interest in avoiding duplicate litigation in separate fora. If the court were to strike the amendment adding Hoffer, the plaintiff would continue to litigate in this court over the question whether Hoffer negligently or wantonly mis-filled her prescription (for which Alabama CVS would be vicariously liable), while also litigating a new law suit in the Circuit Court of Tuscaloosa County over whether Hoffer negligently or wantonly mis-filled her prescription. The exact same factual and legal questions would be contested unnecessarily in two separate fora, wasting precious judicial resources and increasing the cost of the litigation for all parties. Plaintiff will be injured if the amendment is not allowed because she would have to file a new suit and bear the separate costs of litigation to pursue her claim against Hoffer.
Finally, other equities bearing on the amendment include the fact that not much has occurred in this case. Little effort will have been wasted in this case if it is returned to state court, whereas failing to remand it will result in double litigation. Other than losing a federal forum, Alabama CVS will not be harmed by a remand.
Accordingly, the defendant's motion to strike the amended complaint (Doc. 9) is DENIED, and the plaintiff's motion to remand (Doc. 5) the action to the Circuit Court of Tuscaloosa County, Alabama, is GRANTED, and the Clerk is DIRECTED to REMAND the action to the state court from whence it was removed.
Thus, it is entirely possible that the correct true name of a defendant fictitiously named in a state-court complaint can be substituted by amendment after the case is removed to federal court, with the amendment relating back to the date of the filing of the original complaint.
