VIRGINIA EMERSON HOPKINS, District Judge.
Plaintiff Ebony Lawson ("Ms. Lawson") initiated this personal injury action in the Circuit Court of Jefferson County against Defendant Wal-Mart Stores East, L.P. ("Wal-Mart") on July 10, 2017.
On November 29, 2017, Ms. Lawson filed a Motion To Remand (doc. 4) (the "Remand Motion") due to the fact that she had attempted to amend her complaint to include a non-diverse Wal-Mart Store Manager, David Roberts ("Mr. Roberts"), as a second Defendant. Ms. Lawson attached a copy of her amended complaint (filed in state court) to her Remand Motion. (Doc. 4-1). Ms. Lawson's initial efforts to add Mr. Roberts to her case took place at 5:27 p.m. (doc. 4-1 at 2)
Wal-Mart opposed Ms. Lawson's Remand Motion on December 17, 2017. (Doc. 6). Ms. Lawson did not file a reply in support of her Remand Motion.
On January 4, 2018, Ms. Lawson filed an amended complaint in this Court that, once again, purports to add Mr. Roberts as a Co-Defendant. (See Doc. 11 at 2 ¶ 2 (suing Mr. Roberts "in his individual capacity and in his capacity as the agent and/or Store Manager at Wal-Mart Store No. 1158")). Wal-Mart anticipated that Ms. Lawson might take this step post-removal in its opposition to her Remand Motion. (See Doc. 6 at 4 ¶ 8 ("[I]n the event Plaintiff refiles the pleading in federal court, the question of whether the case should be remanded [due to the addition of a non-diverse defendant] after proper removal falls under 28 U.S.C. § 1447(e).")); (see also id. at 8 ¶ 17 ("Under the scrutiny of Hensgens any purported amendment to the Complaint to add a non-diverse defendant is due to be stricken.")); Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir. 1987) (setting out several equitable factors for a district court to consider when a plaintiff seeks to add a non-diverse defendant post-removal).
Section 1447(e) provides:
28 U.S.C. § 1447(e); see, e.g., Milburn v. Copart of Connecticut, Inc., No. 2:05-CV-1661-VEH, (Doc. 31 at 4-5) (N.D. Ala. June 21, 2006) (citing § 1447(e) as "applicable to identification of fictitious defendants subsequent to removal"); Alvis v. K-Mart Corp., No. 4:11-CV-1773-VEH, (Doc. 11 at 7) (N.D. Ala. Sept. 29, 2011) (granting motion for leave to amend given prior fictitious-party description and citing § 1447(e) as basis for remanding action); Teague v. Gas Fired Products, Inc., No. 1:16-CV-0581-VEH, (Doc. 31 at 4-5) (N.D. Ala. Dec. 20, 2016) (allowing joinder of non-diverse defendant and remanding pursuant to § 1447(e)).
Based upon the foregoing procedural history, on January 10, 2018, the Court treated Wal-Mart's opposition (doc. 6) to Ms. Lawson's Remand Motion as a Motion To Strike ("Strike Motion") her amended complaint (doc. 11) filed post-removal. (Doc. 12 at 3). The Court also ordered the parties to provide further briefing as to whether it should deny the joinder of Mr. Roberts, or permit his addition and remand the action.
The deadline for Ms. Lawson to oppose the Strike Motion ran on January 24, 2018, and she filed nothing.
In its Strike Motion, Wal-Mart contends that this Court should utilize the Fifth Circuit's equitable framework from Hensgens when evaluating the parties' disputed post-removal joinder issue. See also Hawthorne Land Co. v. Occidental Chem. Corp., 431 F.3d 221, 227 (5th Cir. 2005) (citing to Hensgens and finding no abuse of discretion in the district court's conclusion that "the manifest purpose of plaintiffs' actions was to defeat federal jurisdiction" when attempting to join a non-diverse defendant "years after the petition was originally filed").
However, the applicability of Hensgens is not without uncertainty. Wal-Mart points to no binding Eleventh Circuit authority that has ever mentioned Hensgens, much less formally adopted it. Likewise, the undersigned's research has revealed no Eleventh Circuit opinion dealing with Hensgens. Thus, this Court may, but is under no obligation to, follow Hensgens.
Additionally, Hensgens "pre-dates the enactment of § 1447(e)[.]" Sexton v. G&K Servs., Inc., 51 F.Supp.2d 1311, 1312 n.1 (M.D. Ala. 1999); see also Judicial Improvements and Access to Justice Act of 1988, Pub. L. No. 100-702, 102 Stat. 4642, Title X, § 1016(c)(2) (Nov. 19, 1988) (adding new subsection "(e)" to § 1447). Consequently, at least one district court has speculated about Hensgens's continued viability
At the same time, this Court, see Milburn, (doc. 31 at 5 n.3 (concluding that the purpose of "amendment was not to defeat jurisdiction")) and Teague, (doc. 31 at 5 (same)), as well as other district courts within the Eleventh Circuit, see, e.g., Sexton, 51 F. Supp. 2d at 1312 (setting out Hensgens factors); Smith v. White Consol. Indust., Inc., 229 F.Supp.2d 1275, 1279 (N.D. Ala. 2002) ("Under the analysis of Le Duc and Hensgens, this court can properly revisit the requisite joinder analysis and determine whether joinder of Greene was proper."), have looked to Hensgens for guidance when exercising discretion under § 1447(e). Other times, such as this Court in Alvis, the propriety of allowing a plaintiff to join a non-diverse defendant post-removal has been determined
In Ingram v. CSX Transp., Inc., 146 F.3d 858 (11th Cir. 1998), the Eleventh Circuit provided some insight into how to apply § 1447(e).
Ingram, 146 F.3d at 862 (emphasis added) (footnote omitted); see also id. ("The district court chose to permit the diversity-destroying joinder and, as a result, it should have remanded this action to Alabama circuit court.").
Thus, in Ingram, the Eleventh Circuit makes it clear that retaining jurisdiction over a non-diverse defendant post-removal is not a discretionary option for the district court.
Concerning the first factor, Wal-Mart contends that the timing of Ms. Lawson's amended complaint (filed post-removal) makes it "clearly evident" that defeating diversity jurisdiction is her amended pleading's purpose. (Doc. 6 at 6 ¶ 13). More specifically, Wal-Mart represents that Ms. Lawson's counsel was made aware of Mr. Roberts's name verbally as early as September 22, 2017, and subsequently in writing on October 9, 2017. Id. Nonetheless, Ms. Lawson never sought to add Mr. Roberts until after she received notice of her lawsuit's removal to federal court on November 9, 2017.
Ms. Lawson has not disputed having notice of Mr. Roberts's position as the Wal-Mart Store Manager in September 2017. She also has not offered any explanation in her Remand Motion (or other filing) why she did not seek to add him as a defendant before Wal-Mart removed her lawsuit on November 9, 2017. (See generally Doc. 4).
Therefore, Ms. Lawson's case differs significantly from Milburn and Teague. More specifically, the record in each of those cases shows that it was information acquired by the plaintiff(s)
The second factor-whether Ms. Lawson was dilatory in asking for the amendment-only slightly favors granting the Strike Motion. Certainly, Ms. Lawson missed the opportunity to amend her complaint in state court before it was removed on November 9, 2017. Further, Ms. Lawson's failure to amend shortly after confirming with Wal-Mart Mr. Roberts's identity hints to his lack of importance as a separately named party in her lawsuit. Cf. Sexton, 51 F. Supp. 2d at 1314 ("Instead, the Plaintiff could have ascertained the identity of Mailon Boyd prior to filing suit and prior to removal of this case, merely by looking at the contract, if including him as a defendant had actually been important to his case.").
Nonetheless, she filed her amended complaint in this Court within 60 days from Wal-Mart's removal and while her Remand Motion was still pending. Further, Ms. Lawson's amended complaint is filed within 6 months of her initial complaint. Compare Hawthorne, 431 F.3d at 227 (seeking to add non-diverse defendant "years after the petition was originally filed"), with Matak, 2009 WL 10677578, at *1 ("Although the better practice would be to simply add the non-diverse party to the original petition, they have done so now,
The third factor is whether Ms. Lawson will be
Further, Ms. Lawson has not identified any other significant injury for this Court to consider in exercising its discretion under § 1447(e). Thus, the Court concludes that the third factor favors granting the Strike Motion.
Hensgens's fourth factor permits the Court to consider anything else "bearing on the equities." 833 F.2d at 1182. Here, Ms. Lawson did not file any reply brief in support of her Remand Motion as permitted by Appendix III of the Court's Uniform Initial Order. (Doc. 2 at 22 ¶ B.3). She also did not respond to the Strike Motion as specifically ordered by the Court. (Doc. 12 at 3). While those omissions do not automatically translate into granting the joinder and jurisdictional relief requested by Wal-Mart,
Therefore, consistent with the Hensgens framework and the Court's discretion under § 1447(e), Wal-Mart's Strike Motion is
Hensgens, 833 F.2d at 1182.