1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3 * * *
4 Aerick Elijah McCoy-Hill, Case No. 2:25-cv-00568-CDS-BNW
5 Plaintiff, ORDER 6 v.
7 Smith’s Food & Drug Centers, Inc., et al.,
8 Defendants.
9 10 Before this Court is Plaintiff’s motion for leave to amend. ECF No. 15. Defendant 11 opposed and Plaintiff replied. ECF Nos. 19 and 20. This Court set a hearing for July 29, 2025. 12 ECF No. 22. The parties requested, by way of stipulation, to continue the hearing to a later date. 13 ECF No. 23. As explained in more detail below, this Court will deny the motion without 14 prejudice as (1) a motion to dismiss is pending arguing the store manager (irrespective of his or 15 her identity) is not a proper defendant, and (2) in the event the motion to dismiss is denied, 16 Plaintiff will need to obtain the correct identity and citizenship of the additional plaintiff which, 17 in turn, will determine whether this Court needs to analyze leave to amend under 28 U.S.C. § 18 1447(e) or Rule 15. Lastly, the stipulation to continue the hearing is denied as moot. 19 I. BACKGROUND 20 This case involves the slip and fall of Plaintiff at a Smith’s store. Plaintiff filed a 21 Complaint alleging Negligence and Negligent Hiring, Training, Retention and Supervision. 22 Plaintiff named the following defendants: Smith’s Food and Drug Centers, Doe Manager, and 23 unknown Doe and Roe defendants. Plaintiff now seeks to amend the complaint, pursuant to Rule 24 15, to substitute “Alvin Avila” in place of the previously named “Doe Manager” as a defendant. 25 Defendant opposes the amendment and argues, in relevant part, that (1) Alvin Avila was not the 26 store manager at the time of the incident and (2) that Plaintiff is attempting to add the store 27 manager in order to destroy subject-matter jurisdiction and remand the case to state court. In his 1 store manager and (2) cites several cases for the proposition that he should be able to join Alvin 2 Avila—or the correct manager during the time of the incident—even if the joinder destroys 3 subject-matter jurisdiction and results in remanding the case to state court. 4 II. DISCUSSION 5 “There is a split in authorities, unresolved by the Ninth Circuit, on what standard governs 6 the Court’s decision whether to permit joinder of” defendants that would destroy diversity, Rule 7 15 or 28 U.S.C. § 1447(e). McGrath v. Home Depot USA, Inc., 298 F.R.D. 601, 606 (S.D. Cal. 8 2014); see also Magana v. Archer Daniels Midland Co., No. 120CV00578NONESKO, 2021 WL 9 1375466, at *1 (E.D. Cal. Apr. 12, 2021) (acknowledging that the Ninth Circuit has yet to resolve 10 what standard governs this situation); Armstrong v. FCA US LLC, No. 119CV01275DADSAB, 11 2020 WL 6559232, at *3, n.3 (E.D. Cal. Nov. 9, 2020) (recognizing split). 12 Under Rule 15, a party may amend its pleading once “as a matter of course” within 13 twenty-one days of serving it, or within twenty-one days after service of a responsive pleading or 14 motion under Rule 12(b), (e), or (f). Fed. R. Civ. P. 15(a)(1). Otherwise, “a party may amend its 15 pleading only with the opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 16 15(a)(2). “The court considers five factors [under Rule 15] in assessing the propriety of leave to 17 amend—bad faith, undue delay, prejudice to the opposing party, futility of amendment, and 18 whether the plaintiff has previously amended the complaint.” United States v. Corinthian Colls., 19 655 F.3d 984, 995 (9th Cir. 2011). These factors, however, are not equally weighted. United 20 States v. Webb, 655 F.2d 977, 980 (9th Cir. 1981). “The court should freely give leave when 21 justice so requires.” Fed. R. Civ. P. 15(a)(2). “The standard for granting leave to amend is 22 generous.” Corinthian Colls., 655 F.3d at 995. And “the nonmovant bears the burden of showing 23 why amendment should not be granted.” Senza-Gel Corp. v. Seiffhart, 803 F.2d 661, 666 (Fed. 24 Cir. 1986). 25 Under 28 U.S.C. § 1447(e), “[i]f after removal the plaintiff seeks to join additional 26 defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, 27 or permit joinder and remand the action to the State court.” “The language of § 1447(e) is 1 couched in permissive terms and it clearly gives the district court the discretion to deny joinder.” 2 Newcombe v. Adolf Coors Co., 157 F.3d 686, 691 (9th Cir. 1998). 3 The Court believes that the proper analysis of a motion to amend that would add 4 defendants and destroy subject-matter jurisdiction is under 28 U.S.C. § 1447(e). While district 5 courts in the Ninth Circuit have gone both ways, the Ninth Circuit's decision in Newcombe, 157 6 F.3d at 691, suggests that the proper analysis is under Section 1447(e). In Newcombe, after the 7 case was removed, the plaintiff sought to add a defendant that would destroy diversity. See id. 8 The district court denied the motion and the Ninth Circuit affirmed. See id. The Ninth Circuit 9 cited Section 1447(e) (not Rule 15) and explained that 10 [t]he district court considered the potential prejudice to Newcombe, balanced the equities, and determined that no injustice would occur. The district court, after stating that it was 11 aware of its discretion under § 1447(e), concluded that Cassidy was not a crucial defendant in this case because Newcombe only sought (1) an injunction, which could only 12 be enforced against the other defendants, and (2) money damages, which could be fully satisfied by the other defendants. In addition, the district court concluded that Newcombe 13 would not suffer undue prejudice due to Cassidy's absence as a party because he could subpoena Cassidy to testify at trial, and if he so chose, he could still proceed separately 14 against Cassidy in state court. We agree with these conclusions and therefore conclude that the district court did not abuse its discretion in denying Newcombe’s motion to 15 remand. 16 Id. 17 In two unpublished decisions issued since Newcombe, the Ninth Circuit has continued to 18 apply Section 1447(e) in situations such as this (and not applied Rule 15). See 3WL, LLC v. 19 Master Prot., LP, 851 F. App’x 4, 7 (9th Cir. 2021) (applying Section 1447(e) and reasoning that 20 “[b]ecause ‘[t]he language of § 1447(e) is couched in permissive terms and it clearly gives the 21 district court the discretion to deny joinder,’ this court has upheld such denials where the district 22 court ‘considered the potential prejudice to [the plaintiff], balanced the equities, and determined 23 that no injustice would occur.’”) (citing Newcombe); Kwasniewski v. Sanofi-Aventis U.S., LLC, 24 637 F. App’x 405, 407 (9th Cir. 2016) (“Plaintiffs sought leave to amend the complaint . . .
Free access — add to your briefcase to read the full text and ask questions with AI
1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3 * * *
4 Aerick Elijah McCoy-Hill, Case No. 2:25-cv-00568-CDS-BNW
5 Plaintiff, ORDER 6 v.
7 Smith’s Food & Drug Centers, Inc., et al.,
8 Defendants.
9 10 Before this Court is Plaintiff’s motion for leave to amend. ECF No. 15. Defendant 11 opposed and Plaintiff replied. ECF Nos. 19 and 20. This Court set a hearing for July 29, 2025. 12 ECF No. 22. The parties requested, by way of stipulation, to continue the hearing to a later date. 13 ECF No. 23. As explained in more detail below, this Court will deny the motion without 14 prejudice as (1) a motion to dismiss is pending arguing the store manager (irrespective of his or 15 her identity) is not a proper defendant, and (2) in the event the motion to dismiss is denied, 16 Plaintiff will need to obtain the correct identity and citizenship of the additional plaintiff which, 17 in turn, will determine whether this Court needs to analyze leave to amend under 28 U.S.C. § 18 1447(e) or Rule 15. Lastly, the stipulation to continue the hearing is denied as moot. 19 I. BACKGROUND 20 This case involves the slip and fall of Plaintiff at a Smith’s store. Plaintiff filed a 21 Complaint alleging Negligence and Negligent Hiring, Training, Retention and Supervision. 22 Plaintiff named the following defendants: Smith’s Food and Drug Centers, Doe Manager, and 23 unknown Doe and Roe defendants. Plaintiff now seeks to amend the complaint, pursuant to Rule 24 15, to substitute “Alvin Avila” in place of the previously named “Doe Manager” as a defendant. 25 Defendant opposes the amendment and argues, in relevant part, that (1) Alvin Avila was not the 26 store manager at the time of the incident and (2) that Plaintiff is attempting to add the store 27 manager in order to destroy subject-matter jurisdiction and remand the case to state court. In his 1 store manager and (2) cites several cases for the proposition that he should be able to join Alvin 2 Avila—or the correct manager during the time of the incident—even if the joinder destroys 3 subject-matter jurisdiction and results in remanding the case to state court. 4 II. DISCUSSION 5 “There is a split in authorities, unresolved by the Ninth Circuit, on what standard governs 6 the Court’s decision whether to permit joinder of” defendants that would destroy diversity, Rule 7 15 or 28 U.S.C. § 1447(e). McGrath v. Home Depot USA, Inc., 298 F.R.D. 601, 606 (S.D. Cal. 8 2014); see also Magana v. Archer Daniels Midland Co., No. 120CV00578NONESKO, 2021 WL 9 1375466, at *1 (E.D. Cal. Apr. 12, 2021) (acknowledging that the Ninth Circuit has yet to resolve 10 what standard governs this situation); Armstrong v. FCA US LLC, No. 119CV01275DADSAB, 11 2020 WL 6559232, at *3, n.3 (E.D. Cal. Nov. 9, 2020) (recognizing split). 12 Under Rule 15, a party may amend its pleading once “as a matter of course” within 13 twenty-one days of serving it, or within twenty-one days after service of a responsive pleading or 14 motion under Rule 12(b), (e), or (f). Fed. R. Civ. P. 15(a)(1). Otherwise, “a party may amend its 15 pleading only with the opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 16 15(a)(2). “The court considers five factors [under Rule 15] in assessing the propriety of leave to 17 amend—bad faith, undue delay, prejudice to the opposing party, futility of amendment, and 18 whether the plaintiff has previously amended the complaint.” United States v. Corinthian Colls., 19 655 F.3d 984, 995 (9th Cir. 2011). These factors, however, are not equally weighted. United 20 States v. Webb, 655 F.2d 977, 980 (9th Cir. 1981). “The court should freely give leave when 21 justice so requires.” Fed. R. Civ. P. 15(a)(2). “The standard for granting leave to amend is 22 generous.” Corinthian Colls., 655 F.3d at 995. And “the nonmovant bears the burden of showing 23 why amendment should not be granted.” Senza-Gel Corp. v. Seiffhart, 803 F.2d 661, 666 (Fed. 24 Cir. 1986). 25 Under 28 U.S.C. § 1447(e), “[i]f after removal the plaintiff seeks to join additional 26 defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, 27 or permit joinder and remand the action to the State court.” “The language of § 1447(e) is 1 couched in permissive terms and it clearly gives the district court the discretion to deny joinder.” 2 Newcombe v. Adolf Coors Co., 157 F.3d 686, 691 (9th Cir. 1998). 3 The Court believes that the proper analysis of a motion to amend that would add 4 defendants and destroy subject-matter jurisdiction is under 28 U.S.C. § 1447(e). While district 5 courts in the Ninth Circuit have gone both ways, the Ninth Circuit's decision in Newcombe, 157 6 F.3d at 691, suggests that the proper analysis is under Section 1447(e). In Newcombe, after the 7 case was removed, the plaintiff sought to add a defendant that would destroy diversity. See id. 8 The district court denied the motion and the Ninth Circuit affirmed. See id. The Ninth Circuit 9 cited Section 1447(e) (not Rule 15) and explained that 10 [t]he district court considered the potential prejudice to Newcombe, balanced the equities, and determined that no injustice would occur. The district court, after stating that it was 11 aware of its discretion under § 1447(e), concluded that Cassidy was not a crucial defendant in this case because Newcombe only sought (1) an injunction, which could only 12 be enforced against the other defendants, and (2) money damages, which could be fully satisfied by the other defendants. In addition, the district court concluded that Newcombe 13 would not suffer undue prejudice due to Cassidy's absence as a party because he could subpoena Cassidy to testify at trial, and if he so chose, he could still proceed separately 14 against Cassidy in state court. We agree with these conclusions and therefore conclude that the district court did not abuse its discretion in denying Newcombe’s motion to 15 remand. 16 Id. 17 In two unpublished decisions issued since Newcombe, the Ninth Circuit has continued to 18 apply Section 1447(e) in situations such as this (and not applied Rule 15). See 3WL, LLC v. 19 Master Prot., LP, 851 F. App’x 4, 7 (9th Cir. 2021) (applying Section 1447(e) and reasoning that 20 “[b]ecause ‘[t]he language of § 1447(e) is couched in permissive terms and it clearly gives the 21 district court the discretion to deny joinder,’ this court has upheld such denials where the district 22 court ‘considered the potential prejudice to [the plaintiff], balanced the equities, and determined 23 that no injustice would occur.’”) (citing Newcombe); Kwasniewski v. Sanofi-Aventis U.S., LLC, 24 637 F. App’x 405, 407 (9th Cir. 2016) (“Plaintiffs sought leave to amend the complaint . . . The 25 district court properly denied the motion because the proposed amendment sought to rejoin 26 diversity-destroying defendants under the analysis required by 28 U.S.C. § 1447(e).”). Based on 27 these published and unpublished Ninth Circuit cases, this Court concludes that it must analyze the ] It appears that at this juncture, Plaintiff has not properly identified who the store manager 2 || was at the time of the incident. Without that information, this Court cannot determine his or her 3 || citizenship, and by extension, whether to analyze this motion under Rule 15 or 28 U.S.C. 4 || § 1447(e).! As a result, this Court will order Plaintiff to propound discovery to obtain this 5 || information within 10 days of this Order and for Defendant to respond within 10 days of being 6 || served with the discovery request. Lastly, this Court believes it is prudent for Plaintiff to wait 7 || until the district court decides the motion to dismiss (which argues that, irrespective of the 8 || citizenship of the store manager, such person should not be joined as a defendant) in order to 9 || determine whether amendment is feasible. 10 |} Ht. CONCLUSION 11 IT IS ORDERED that the Motion for Leave to Amend (ECF No. 15) is DENIED 12 || without prejudice. 13 IT IS FURTHER ORDERED that the Stipulation to extend the hearing (ECF No. 23) is 14 || DENIED as moot. 15 16 DATED: July 25, 2025 17 Ig fF pr la ween □ BRENDA WEKSLER 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 This Court acknowledges Defendant’s Motion to Dismiss in which it argues that, irrespective of 28 || the citizenship of the store manager, such person should not be joined as a defendant.