Osgood v. Discount Auto Parts, LLC

955 F. Supp. 2d 1352, 2013 WL 3834406, 2013 U.S. Dist. LEXIS 103562
CourtDistrict Court, S.D. Florida
DecidedJuly 24, 2013
DocketCase No. 13-80059-CIV
StatusPublished
Cited by8 cases

This text of 955 F. Supp. 2d 1352 (Osgood v. Discount Auto Parts, LLC) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Osgood v. Discount Auto Parts, LLC, 955 F. Supp. 2d 1352, 2013 WL 3834406, 2013 U.S. Dist. LEXIS 103562 (S.D. Fla. 2013).

Opinion

OPINION AND ORDER

KENNETH A. MARRA, District Judge.

This cause comes before the Court upon Plaintiffs Motion to Amend the Amended Complaint to Add an Additional Party Pursuant to Rule 15 of the Federal Rules of Civil Procedure. (DE 37). The motion is briefed and ripe for review. The Court has reviewed the briefs and the record, and is otherwise advised in the premises.

BACKGROUND

This case arises out of a slip and fall in an automobile parts store on January 27, 2012. Plaintiff Mark Osgood (“Plaintiff’) filed suit in state court on December 11, 2012, and the Defendant automobile parts store removed the case based on diversity of citizenship on January 18, 2013. (DE l).1 Plaintiff is a Florida citizen; the Defendant automobile parts store and Defendant Hellmers, the manager of the auto parts store, are non-Florida citizens.

Plaintiff now moves to amend its complaint claiming only that discovery has confirmed that an employee of the auto parts store was working at the time of the slip and fall “and was actively negligent is [sic] causing Plaintiffs injuries.” (DE 37). The employee is a Florida citizen. The Defendant auto parts store claims that Plaintiffs motion is an attempt to defeat diversity jurisdiction by adding an unnecessary non-diverse defendant who had no role in the accident.

DISCUSSION

As this Court has recently held,

[pursuant 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 [1355]*1355the State court.” 28 U.S.C. § 1447(e). A district court faced with the issue of whether to permit or deny the joinder of a non-diverse party has two options: (1) deny joinder or (2) permit joinder and remand the case to state court. Ingram v. CSX Transportation, 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);2 Seropian v. Wachovia Bank, N.A., No. 10-80397-CIV, 2010 WL 2822195, at *2 (S.D.Fla. July 16, 2010).
Because the Court’s decision will determine the continuance of jurisdiction, the 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. Hensgens, 833 F.2d at 1182. Hence, the district court should scrutinize a motion to amend to join a non-diverse party more closely than a motion to amend under Rule 15 of the Federal Rules of Civil Procedure, id.; see Kleopa v. Prudential Inv. Management, Inc., No. 08-81386-CIV, 2009 WL 2242606, at *2 (S.D.Fla.2009), and should deny leave to amend unless strong equities support the amendment. Smith v. White Consol. Industries, Inc., 229 F.Supp.2d 1275, 1281 (N.D.Ala.2002).
The Court notes that, “[i]n balancing the equities, the parties do not start out on an equal footing.” Sexton v. G & K Services, Inc., 51 F.Supp.2d 1311, 1313 (M.D.Ala.1999). This is because of the diverse defendant’s right to choose between a state or federal forum. Bevels v. American States Ins. Co., 100 F.Supp.2d 1309, 1313 (M.D.Ala.2000). Giving diverse defendants the option of choosing the federal forum is the very purpose of the removal statutes. Id. (citing Hensgens, 833 F.2d at 1181). Just as plaintiffs have the right to choose to sue in state court when complete diversity does not exist, non-resident defendants have the right to remove to and litigate in federal court when diversity of citizenship does exist. Id.
In deciding whether to permit or deny joinder, the district court must balance the defendant’s interests in maintaining the federal forum with the competing interests of not having parallel lawsuits. Hensgens, 833 F.2d at 1182. In applying this balancing test, the district court should consider: (1) the extent to which the purpose of the amendment is to defeat federal jurisdiction, (2) whether plaintiff has been dilatory in asking for amendment, (3) whether plaintiff will be significantly injured if amendment is not allowed, and (4) any other factors bearing on the equities. Id.; Mayes, 198 F.3d at 462; Duckworth v. State Farm Mutual Auto Ins. Co., No. 6:07-cv-2014-Orl-22DAB, 2008 WL 495380, at *1 (M.D.Fla. Feb. 20, 2008); Portis v. Wal-Mart Stores, Inc., No. 07-0557-WS-C, 2007 WL 3086011, at *3 (S.D.Ala. Oct. 19, 2007); Jones v. Rent-A-Center East, Inc., 356 F.Supp.2d 1273, 1275 (M.D.Ala.2005).

Small v. Ford Motor Co., 923 F.Supp.2d 1354, 1356-57 (S.D.Fla.2013).

Here, the timing and substance of the proposed amendment strongly supports a finding that Plaintiffs motivation is to destroy diversity jurisdiction. Notwithstanding Plaintiffs assertion that he has always intended to sue the employee for [1356]*1356his part in causing the accident (DE 44 at 2), Plaintiff fails to explain adequately why he waited until May of 2013 to try to add the employee as a defendant when Plaintiff was aware of the employee’s first name on the day of the accident — January 27, 2012. (DE 8, Attach. 2 ¶ 4: Aff. of Mark Osgood). To be sure, Plaintiff claims that “[u]ntil now, [Plaintiff] lacked sufficient information to [add the employee as a defendant] as [Plaintiff] had neither [the employee’s] full name nor his address.” (DE 44 at 2). But Plaintiff likely could have ascertained the identity of the employee earlier than he did, and Plaintiff’s failure to do so supports the Court’s conclusion that the purpose of this proposed amendment is nothing more than an attempt to defeat diversity.

Plaintiffs counsel’s pre-removal offer to the Defendant store is particularly telling: before the citizenship of the store manager was clear, Plaintiffs counsel offered to drop him as a defendant in the suit and to not add other employees as defendants in exchange for the stores’ agreement to not remove the case to federal court. (DE 43, Attach. 2). This proposal confirms both that Plaintiffs counsel sought to avoid removal and that he did not believe other employees were necessary for Plaintiffs complete relief.

Next, the Court finds that Plaintiff will not be significantly prejudiced if this amendment is not allowed. There has been no showing by Plaintiff that he will not be able to obtain full relief on his claims in this Court without the presence of the employee as a defendant.

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955 F. Supp. 2d 1352, 2013 WL 3834406, 2013 U.S. Dist. LEXIS 103562, Counsel Stack Legal Research, https://law.counselstack.com/opinion/osgood-v-discount-auto-parts-llc-flsd-2013.