United States District Court, S.D. Georgia, Brunswick Division
PATRICIA D. DEVER, Plaintiff,
FAMILY DOLLAR STORES OF GEORGIA, LLC and DARRYL MARTIN, individually and as Agent of Family Dollar Stores of Georgia, LLC, Defendants.
LISA GODBEY WOOD, JUDGE.
before the Court is Plaintiff Patricia Dever's
("Plaintiff") Motion to Substitute and Remand (Dkt.
No. 15). For the reasons set forth below, Plaintiff's
Motion (Dkt. No. 15) will be DENIED.
alleges that she slipped and fell at Defendant Family Dollar
Stores of Georgia, LLC's ("Family Dollar")
Brunswick, Georgia facility as a result of Defendant Darryl
Martin's ("Martin") failure to keep the store
safe. Dkt. No. 1. Plaintiff seeks to substitute a party and
remand this action back to state court for lack of diversity.
Dkt. No. 5. Specifically, Plaintiff seeks to substitute
Martin for store-manager Deon Manning ("Manning").
Id. Plaintiff asserts that she mistakenly named
Martin rather than Manning, in that Martin did not work at
Family Dollar at the time of the incident.
28 U.S.C. § 1441(a), a defendant in a case originally
filed in state court may remove the case to federal district
court if the district court could have exercised original
jurisdiction. Under 28 U.S.C. § 1447(c), however, the
case must be remanded to state court "[i]f at any time
before final judgment it appears that the district court
lacks subject matter jurisdiction."
to 28 U.S.C. § 1447(e), "[i]f 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." 28 U.S.C. § 1447(e); see also Ingram v.
CSX Transp., Inc., 146 F.3d 858, 862 (11th Cir. 1998).
The decision is committed to the sound discretion of the
district court. Mayes v. Rapoport, 198 F.3d 457, 462
(4th Cir. 1999); Hensgens v. Deere & Co., 833
F.2d 1179, 1182 (5th Cir. 1987). "[T]he addition of a
non-diverse party should not be permitted without
consideration of the original defendant's interest in the
choice of the federal forum." Osgood v. Discount
Auto Parts, LLC, 955 F.Supp.2d 1352, 1355 (S.D. Fla.
jurisdiction is based upon diversity, and allowing Plaintiff
to substitute a non-diverse party would ultimately require
remand. For this reason, her motion to amend should be
scrutinized "more closely than a motion to amend under
Rule 15, " and the Court "should deny leave to
amend unless strong equities support the amendment."
Jarriel v. Gen. Mot. Corp., 835 F.Supp. 639, 640-41
(N.D.Ga. 1993) (citing Hensgens, 833 F.2d at 1182);
see also Holiday Isle, LLC, v. Clarion Mortg.
Capital, Inc., Civ. A. No. 07-00798, 2008 WL
1756369, at *2 (S.D. Ala. April 11, 2008); Sexton v. G
& K Serv., Inc., 51 F.Supp.2d 1311, 1313 (M.D. Ala.
1999) ("In balancing the equities, the parties do not
start out on an equal footing. This is because of the diverse
defendant's right to choose between a state or federal
forum."). The court should balance the danger of
parallel federal/state proceedings against the
defendant's interest in retaining the federal forum by
considering the following factors:
the extent to which the purpose of the amendment is to defeat
federal jurisdiction, whether the plaintiff has been dilatory
in asking for the amendment, whether the plaintiff will be
significantly injured if the amendment is not allowed, and
any other factors bearing on the equities.
Hensgens, 833 F.2d at 1182.
the timing and substance of the proposed amendment strongly
supports finding that Plaintiff's motive is to destroy
diversity jurisdiction. Plaintiff seeks to add a non-diverse
defendant immediately after removal but before discovery,
which suggests that the amendment is done with "specific
purpose of destroying diversity jurisdiction." Ibis
Villas at Miami Gardens Condo Ass'n, Inc. v. Aspen
Specialty Ins. Co., 799 F.Supp.2d 1333, 1335 (S.D. Fla.
2011) (citing Mayes, 198 F.3d at 463 ("We
emphasize that the district court was correct to carefully
scrutinize Mayes's attempt to add a nondiverse defendant
after removal. Especially where, as here, a plaintiff seeks
to add a nondiverse defendant immediately after removal but
before any additional discovery has taken place, district
courts should be wary that the amendment sought is for the
specific purpose of avoiding federal jurisdiction."));
see also Vazquez v. Lowe's Home Ctr., Inc., No.
8:06-CV-1885, 2007 WL 128823, at *1 (M.D. Fla. 2007)
("The fact that Plaintiffs seek to add the non-diverse
defendants only after [the Defendant] removed the case to
federal court 'strongly indicates that the purpose of the
[Plaintiff's] amendment is to defeat federal
it is undisputed that Plaintiff s claim against Manning stems
from his claim against Family Dollar. Plaintiff makes no
allegations that Manning acted outside of the scope of his
employment or was employed as an independent contractor.
However, while Manning is unlikely to be personally liable in
this matter, his presence will destroy diversity. As such,
the Court views the purpose of adding Manning to this matter
to primarily be a tactical choice to destroy federal
the Court finds that Plaintiff will not be significantly
prejudiced if Manning is not added to this case. There has
been no showing by Plaintiff that she will not be able to
obtain full relief on her claims in this Court without the
presence of Manning. Plaintiff can obtain a judgment against
Family Dollar without the presence of Manning, discovery will
allow Plaintiff access to the same information with or
without Manning's being in this case, and there has been
no suggestion that Family Dollar would be unable to satisfy a
judgment. Plaintiff is free to sue Manning in state court
should she wish to do so. As a matter of fact, that is
exactly what she did. Dkt. No. 15-2. Therefore, the Court can
discern little to no prejudice to Plaintiff.
the Court can discern no substantive reason for amending this
matter to substitute Manning for Martin, and because
Plaintiff will suffer no discernable prejudice if the Court
maintains jurisdiction over this matter, the ...