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, UNITED STATES DISTRICT COURT.
before the Court on remand from the Eleventh Circuit 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) is hereby
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.
November 2, 2018, the Eleventh Circuit vacated this
Court's previous order denying Dever's Motion to
Substitute and Remand and this Court's order granting
summary judgment for Family Dollar in this case. Dkt. No. 42.
The Eleventh Circuit remanded this case back to this Court
for further proceedings consistent with the circuit
court's opinion. Id. Specifically, the Eleventh
Circuit remanded this case so that this Court may
"consider whether to allow Dever to substitute Manning
as a party defendant in light of the fact that she sought to
bring a claim against the store manager in her original
complaint but was mistaken as to his identity."
Id. at 9. Therefore, this Court has reviewed the
parties' briefs in support of and in opposition to this
motion again in light of the Eleventh Circuit's ruling
and has made a new decision in consideration of that ruling.
Upon reconsideration on Plaintiff's motion, this Court
will grant the motion to add Manning as a substituted party
in this case.
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 Eleventh Circuit
adopted these factors in its unpublished opinion in this
case. Dkt. No. 42 at 7; Dever v. Family Dollar Stores of
Georgia, LLC, No. 18-10129, 2018 WL 5778189, at *3 (11th
Cir. Nov. 2, 2018).
first factor in this analysis requires the Court to discern
the purpose of the amendment and to determine the extent to
which that purpose is to defeat federal jurisdiction. On the
one hand, other district courts in this circuit have held
that where a plaintiff seeks to add a non-diverse defendant
immediately after removal but before discovery, such action
suggests that the "specific purpose" of the
amendment is to destroy 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 ...