United States District Court, S.D. Georgia, Statesboro Division
Christopher L. Ray United States Magistrate Judge.
the Court is the plaintiff's Motion to Amend the
Complaint to Add Parties or Substitute, doc. 15, and the
parties Consent Motion to Substitute Party and Amend the
Pleadings, doc. 16. For the following reasons,
plaintiff's motion, doc. 15, is DENIED
with leave to refile and the consent motion, doc. 16, is
GRANTED. The Clerk of Court is
DIRECTED to update the caption to reflect
the substitution of American Multi-Cinema, Inc. for American
Multi-Cinema, Inc., d/b/a AMC Classic Statesboro 12.
case was removed to this Court on May 29, 2019. Doc. 1. In
brief, plaintiff Cecil Kelly was attending a movie when his
seat collapsed beneath him causing injuries. Doc. 1-1 at 4.
Mr. Kelly, sued the theater, three unnamed corporations,
Jordan Kass-the theater's manager-, three John Does, and
three Jane Does. Id. at 3. He brought claims for
premises liability and negligence. Id. at 5. Renee
Kelly-Cecil Kelly's wife-alleges loss of consortium.
Id. at 6.
based their removal on the allegation that Jordan Kass-a
citizen and resident of Bulloch County-was fraudulently
joined. Doc. 4-1 at 8. They subsequently moved to dismiss
defendant Kass on this basis. Doc. 4. Plaintiffs then moved
to remand. Doc. 9. While they acknowledged that defendant
Kass was not the manager of the cinema on the date of the
accident, they alleged that other citizens of the state of
Georgia were. Id. at 2. Plaintiffs indicated in
their Motion to Remand that they would seek to amend the
complaint to add these other, at-that-time unnamed,
individuals. Id. While the motion to remand and the
motion to dismiss are not referred to the undersigned,
plaintiff's attempt at amendment is.
seek to amend this complaint to add Destiny Paulk and Jessica
Mae Smith as these individuals were responsible for the
maintenance of the theater, seating of its invitees, and
inspection of the theater for potential hazards. Doc. 15 at
2. Plaintiffs do not identify the theories under which they
would sue these individuals. Defendants argue in opposition
that there is no basis for liability against either Ms. Paulk
or Ms. Smith. Doc. 17 at 6.
initial matter, the motion to amend to name the proper party,
doc. 16, is GRANTED as unopposed. However,
whether the plaintiff's motion to amend to add additional
parties should be granted is less clear. This case is
complicated by the fact that plaintiffs are attempting to
amend the complaint, in part, to support remand. Generally, a
request to add a party would be subject to the requirements
of Rule 15(a), which allows a party to amend after being
served with responsive pleadings, only with written consent
or the Court's leave. Such leave should be freely given
“when justice so requires.” Fed.R.Civ.P.
15(a)(2). However, “[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). That decision is left to the discretion of the 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. 2013).
amendment and the addition of the proposed parties would
ultimately require remand, the request is 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) (citations omitted); Liberacki v. Kroger
Co., 2013 WL 12061882, * 2 (N.D.Ga. April 18, 2013)
(“Courts have regularly held that the liberal amendment
standard in Rule 15 must yield to the more specific rule
governing joinder after removal in Section 1447(e).”
(quoting Fayne v. Green Tree Serv., LLC, 2012 WL
12839545, *3 (N.D.Ga. July 25, 2012)). Determining whether
the amendment to join a non-diverse defendant should be
permitted requires the Court to balance the equities
involved. Jarriel v. Gen. Motors Corp., 835 F.Supp
639, 641 (N.D.Ga. 1993). As a result, this district has
adopted the Fifth Circuit's factor analysis.
“Factors to be considered are: (1) whether the
plaintiff would be significantly injured if the amendment
were not permitted, (2) the extent to which the purpose of
the amendment is to defeat federal jurisdiction, (3) whether
the plaintiff has been dilatory in seeking amendment, and (4)
any other factors bearing on the equities.” Clement
v. CSX Transp., Inc., 2007 WL 1098784, at *2 (S.D. Ga.
Apr. 9, 2007) (citing Hensgens, 833 F.2d at 1182).
attempted to file a complaint against the theater's
manager, but misidentified the manager at issue. The attempt
may be enough to save plaintiff's amendment. See
Denver v. Family Dollar Stores of Georgia, LLC, 775
Fed.Appx. 866 (11th Cir. 2018). Nevertheless, neither
plaintiffs nor defendants addressed the proper standard in
their briefs. See doc. 15, doc. 16. Both parties
relied on Fed.R.Civ.P. 15 rather than the more stringent
standard articulated in 28 U.S.C. § 1447(e). As a
result, the Court lacks briefing on any of the factors
involved in the analysis. Accordingly, the Court will
DENY plaintiff's motion with leave to
refile. Doc. 15. If plaintiffs wish to amend, they shall have
fourteen days from the date of this order to file a second
motion applying the appropriate standard. Defendants shall
have fourteen days to respond.
foregoing reasons, plaintiffs motion, doc. 15, is
DENIED with leave to refile and the consent
motion, doc. 16, is GRANTED. The Clerk of
Court is DIRECTED to update the caption to
reflect the substitution of American Multi-Cinema, Inc. for
American Multi-Cinema, Inc., d/b/a AMC Classic Statesboro 12.