United States District Court, N.D. Georgia, Atlanta Division
RICHARD W. STORY United States District Judge.
matter is before the Court on Plaintiff Shaeron Gray's
Motion to Remand  and Defendants Bank of America, N.A.
and Rodica Grigoras's Motion to Dismiss  and Motion
to Reconsider or, in the Alternative, to Dismiss Defendant
Rodica Grigoras as Improperly Joined . After considering
the entire record, the Court enters the following Order.
case arises out of a dispute over the ownership of a joint
business checking account between Plaintiff Shaeron Burnette
Gray and Defendants Bank of America, N.A.
(“BANA”) and Rodica Grigoras. Plaintiff is the
sole surviving co-signer of that account. (First Am. Compl.,
Dkt.  ¶ 17.) BANA is a foreign corporation
registered to do business in the State of Georgia.
(Id. ¶ 1.) Ms. Grigoras is an employee of BANA,
and resides in Georgia. (Id. ¶¶ 3, 8.)
20, 1992, Bobby M. Burnette (“Decedent”), the
father of Plaintiff, opened a business account
(“Account”) with Bank South, which was later
acquired by BANA. (Id. ¶¶ 5-6, 10.) Ms.
Grigoras, employed with BANA as a Senior Personal Banker,
began working with Decedent on the Account in 2008.
(Id. ¶¶ 8-9.) On March 15, 2011,
apparently wishing to make Plaintiff a co-owner of the
Account, Decedent added Plaintiff to his signature card upon
Ms. Grigoras's advice. (Id. ¶¶ 10-13.)
The signature card indicated the Account was “governed
by . . . the Deposit Agreement and Disclosures, ” among
other documents. (2011 Signature Card, Dkt. [11-2].) BANA and
Decedent entered into one deposit agreement in 2011 when
adding Plaintiff to the signature card, (id.);
Plaintiff and BANA entered into another deposit agreement in
2013 when Plaintiff added her husband to the signature card
on October 25, 2013. (2013 Signature Card, Dkt. [18-4].)
died on September 3, 2013. (First Am. Compl., ¶ 15.)
Soon after, Plaintiff notified Ms. Grigoras that her father
had died. (Id. ¶ 16.) Ms. Grigoras then
informed Plaintiff that Plaintiff was the sole surviving
owner of the Account. (Id. ¶ 17.) Assuming sole
ownership, Plaintiff withdrew $163, 000 from the Account with
Ms. Grigoras's help. (Id. ¶ 19.)
April 11, 2014, individuals alleging to be heirs and
beneficiaries of Decedent sued Plaintiff in the Superior
Court of Gwinnett County seeking to recover funds withdrawn
from the Account. (Id. ¶ 21.) Plaintiff then
deposed Ms. Grigoras, who gave testimony individually and on
behalf of BANA. (Id. ¶¶ 23-26.) On cross
motions for summary judgment, the Superior Court of Gwinnett
County found that the Account was owned by Decedent's
estate, not Plaintiff. (Id. ¶ 28.) As a result,
Plaintiff was liable to remit the $163, 000 she withdrew.
(Id. ¶ 30.)
February 8, 2016, Plaintiff filed suit in the State Court of
Fulton County against BANA asserting a single count of negligence
and seeking damages caused by Plaintiff's reliance on Ms.
Grigoras's advice as to her ownership of the Account.
(See generally Compl., Dkt. [1-1].) BANA then
removed the case to this Court asserting diversity
jurisdiction. (See Notice of Removal, Dkt. .)
after removal, Plaintiff filed a Motion to Amend Complaint
. On April 28, 2016, the Court issued an Order noting that
Plaintiff was entitled to amend her Complaint as a matter of
course and authorizing her to proceed on the First Amended
Complaint. (Apr. 28, 2016 Order, Dkt. .) In the First
Amended Complaint, Plaintiff asserts negligent
misrepresentation and breach of contract against BANA. (First
Am. Compl., Dkt.  ¶¶ 31-45.) She also adds Ms.
Grigoras as a Defendant, and includes her in the negligent
misrepresentation claim. (Id. ¶¶ 31-37.)
10, 2016, Plaintiff filed a Motion for Remand  because,
with the addition of Ms. Grigoras, complete diversity was
destroyed. (Pl.'s Mot. for Remand, Dkt.  at 2.) In
response, Defendants filed a Motion to Reconsider ,
asking the Court to vacate its April 28, 2016 Order allowing
Plaintiff to amend as a matter of course and denying
Plaintiff's Motion to Amend  as moot. Defendants also
filed a Motion to Dismiss Plaintiff's Amended Complaint
, arguing that it fails to state a claim.
Defendants' Motion to Reconsider 
their Motion to Reconsider , Defendants seek two separate
avenues of relief. First, they ask the Court to vacate its
April 28, 2016 Order allowing Plaintiff to add Ms. Grigoras
as a Defendant through amendment as a matter of course.
Alternatively, Defendants seek the dismissal of Ms. Grigoras
under Federal Rule of Civil Procedure (“Rule”) 21
for misjoinder. Because the Court ultimately finds that Ms.
Grigoras is misjoined, it will only analyze Defendants'
Rule 21 argument.
says that “[m]isjoinder of parties is not a ground for
dismissing an action. On motion or on its own, the court may
at any time, on just terms, add or drop a party. The court
may also sever any claim against a party.” District
courts may use Rule 21 to preserve diversity jurisdiction by
dismissing a non-diverse party. Barnes v. Tidewater
Transit Co., Inc., No. 1:13-cv-00537-JEC, 2014 WL
1092288, at *3 (N.D.Ga. Mar. 18, 2014). Indeed, “it is
well settled that Rule 21 invests district courts with
authority to allow a dispensable nondiverse party to be
dropped at any time, even after judgment has been
rendered.” Grupo Dataflux v. Atlas Global Grp.,
L.P., 541 U.S. 567, 572-73 (2004). The essential
inquiry, however, is whether the non-diverse party is
indispensable. Id. at 572. That inquiry is guided by
Rule 19, which sets out two steps for deciding whether a
party must be joined as indispensable. First, the court must
decide if the party is “necessary” under Rule
19(a)(1). Winn-Dixie Stores, Inc. v. Dolgencorp,
LLC, 746 F.3d 1008, 1039 (11th Cir. 2014). Then, if the
party is “necessary, ” “but cannot be
joined-i.e., because they are non-diverse-Rule 19(b) provides
a list of factors to ‘determine whether, in equity and
good conscience, the action should proceed among the existing
parties or should be dismissed.'” Molinas Valle
Del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1344 (11th
Cir. 2011) (quoting Fed.R.Civ.P. 19(b)).
that Ms. Girgoras is a “necessary” party, the
Court finds that she is not indispensable under Rule 19(b).
That Rule says:
If a person who is required to be joined if feasible cannot
be joined, the court must determine whether, in equity and
good conscience, the action should proceed among the existing
parties or should be ...