Case: 18-10129 Date Filed: 11/02/2018 Page: 1 of 10
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-10129 Non-Argument Calendar ________________________
D.C. Docket No. 2:17-cv-00019-LGW-RSB
PATRICIA D. DEVER,
Plaintiff - Appellant,
versus
FAMILY DOLLAR STORES OF GEORGIA, LLC, DARRYL MARTIN, Individually and as Employee and Agent of Family Dollar Stores, LLC,
Defendants - Appellees.
________________________
Appeal from the United States District Court for the Southern District of Georgia ________________________
(November 2, 2018) Case: 18-10129 Date Filed: 11/02/2018 Page: 2 of 10
Before WILSON, JILL PRYOR and JULIE CARNES, Circuit Judges.
PER CURIAM:
This appeal presents the question of whether the district court abused its
discretion in denying plaintiff Patricia Dever’s motion to add Deon Manning as a
defendant—after defendant Family Dollar Stores of Georgia, LLC, removed the
case to federal court—when Manning’s joinder would destroy diversity and
deprive the district court of subject matter jurisdiction. After considering the
specific facts of this case, we conclude that the district court made a clear error of
judgment and abused its discretion in denying Dever’s motion. We thus vacate
and remand for further proceedings.
I. FACTUAL BACKGROUND
Dever was shopping at a Family Dollar store when she fell and was injured.
In state court, she sued Family Dollar and Darryl Martin, a Georgia citizen, who
she alleged was responsible for the store’s premises at the time of her fall. Family
Dollar removed the case to federal district court, claiming that Martin had been
fraudulently joined as a defendant because he began working for Family Dollar
after Dever was injured. Family Dollar contended that if Martin’s citizenship was
ignored, there was complete diversity because Dever was a citizen of Georgia and
Family Dollar was a limited liability corporation organized under Virginia law
2 Case: 18-10129 Date Filed: 11/02/2018 Page: 3 of 10
with one member, a corporation that was organized under Delaware law with its
principal place of business in North Carolina.
After Family Dollar removed the case to federal court, Dever learned from
Family Dollar’s counsel that Manning had been the store manager and thus was
responsible for the premises at the time of her fall. Dever then filed a motion for
substitution of a party, asking the district court to allow her to replace Martin with
Manning as the individual defendant, and to remand the case. Family Dollar
opposed this request, arguing that district court should not allow Dever to add
Manning, whose joinder would destroy diversity, after Family Dollar removed the
case.
The district court denied Dever’s motion to join Manning as a defendant.
The district court explained that 28 U.S.C. § 1447(e) provides that when, after
removal, a plaintiff seeks to add an additional defendant whose joinder would
deprive the court of subject matter jurisdiction, the district court has discretion to
permit joinder and remand the action to state court or to deny joiner. In deciding
not to exercise its discretion to allow Dever to join Manning, the district court
found that Dever sought to add a nondiverse defendant after Family Dollar
removed the case, which suggested that her motivation was to defeat federal
jurisdiction. The district court did not consider or address the fact that Dever had
3 Case: 18-10129 Date Filed: 11/02/2018 Page: 4 of 10
sought to sue the store manager in her original complaint, although she mistakenly
identified him as Martin.
After Dever’s motion for substitution and to remand was denied, Family
Dollar moved for summary judgment, arguing that Dever had failed to establish
that it was liable under Georgia law as the premises owner. [DE 27-1.] The
district court agreed and granted summary judgment to Family Dollar. [DE
32.] This is Dever’s appeal.
II. STANDARD OF REVIEW
We review for abuse of discretion a district court’s decision not to allow a
plaintiff after removal to join a defendant whose joinder would destroy diversity
and deprive the court of subject matter jurisdiction. See 28 U.S.C. § 1447(e);
Ingram v. CSX Transp., Inc., 146 F.3d 858, 862 (11th Cir. 1998). “By definition,
the abuse of discretion standard allows a range of choice for the district court, so
long as that choice does not constitute a clear error of judgment.” Statewide
Detective Agency v. Miller, 115 F.3d 904, 906 (11th Cir. 1997) (alteration adopted)
(internal quotation marks omitted). But “[a] district court abuses its discretion
when its factual findings are clearly erroneous, when it follows improper
procedures, when it applies the incorrect legal standard, or when it applies the law
in an unreasonable or incorrect manner.” Wreal, LLC v. Amazon.com, Inc.,
840 F.3d 1244, 1247 (11th Cir. 2016).
4 Case: 18-10129 Date Filed: 11/02/2018 Page: 5 of 10
III. LEGAL ANALYSIS
Dever challenges two of the district court’s rulings on appeal: (1) the denial
of her motion for substitution of a party and to remand and (2) the grant of Family
Dollar’s motion for summary judgment. 1 We conclude that the district court
abused its discretion in denying Dever’s motion for substitution because the court
made a clear error of judgment when it found that Dever sought to add a
nondiverse defendant—the store manager—for the first time after removal. We
remand so that the district court may exercise its discretion to decide whether to
allow Manning to be joined as a defendant in light of the fact that Dever sought to
sue the store manager before removal but identified the wrong person in her
original complaint. Because the district court’s decision will control whether
subject matter jurisdiction exists, we do not reach the issue of whether the district
court erred in granting summary judgment to Family Dollar.
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.
28 U.S.C. § 1441(a). But a removed 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.” Id. § 1447(c).
1 In general, only a final order is appealable. Barfield v. Brierton, 883 F.2d 923, 930 (11th Cir. 1989). But “the appeal from a final judgment draws in question all prior non-final orders and rulings which produced the judgment.” Id. We thus may review the district court’s order denying the motion for substitution and to remand. 5 Case: 18-10129 Date Filed: 11/02/2018 Page: 6 of 10
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Case: 18-10129 Date Filed: 11/02/2018 Page: 1 of 10
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-10129 Non-Argument Calendar ________________________
D.C. Docket No. 2:17-cv-00019-LGW-RSB
PATRICIA D. DEVER,
Plaintiff - Appellant,
versus
FAMILY DOLLAR STORES OF GEORGIA, LLC, DARRYL MARTIN, Individually and as Employee and Agent of Family Dollar Stores, LLC,
Defendants - Appellees.
________________________
Appeal from the United States District Court for the Southern District of Georgia ________________________
(November 2, 2018) Case: 18-10129 Date Filed: 11/02/2018 Page: 2 of 10
Before WILSON, JILL PRYOR and JULIE CARNES, Circuit Judges.
PER CURIAM:
This appeal presents the question of whether the district court abused its
discretion in denying plaintiff Patricia Dever’s motion to add Deon Manning as a
defendant—after defendant Family Dollar Stores of Georgia, LLC, removed the
case to federal court—when Manning’s joinder would destroy diversity and
deprive the district court of subject matter jurisdiction. After considering the
specific facts of this case, we conclude that the district court made a clear error of
judgment and abused its discretion in denying Dever’s motion. We thus vacate
and remand for further proceedings.
I. FACTUAL BACKGROUND
Dever was shopping at a Family Dollar store when she fell and was injured.
In state court, she sued Family Dollar and Darryl Martin, a Georgia citizen, who
she alleged was responsible for the store’s premises at the time of her fall. Family
Dollar removed the case to federal district court, claiming that Martin had been
fraudulently joined as a defendant because he began working for Family Dollar
after Dever was injured. Family Dollar contended that if Martin’s citizenship was
ignored, there was complete diversity because Dever was a citizen of Georgia and
Family Dollar was a limited liability corporation organized under Virginia law
2 Case: 18-10129 Date Filed: 11/02/2018 Page: 3 of 10
with one member, a corporation that was organized under Delaware law with its
principal place of business in North Carolina.
After Family Dollar removed the case to federal court, Dever learned from
Family Dollar’s counsel that Manning had been the store manager and thus was
responsible for the premises at the time of her fall. Dever then filed a motion for
substitution of a party, asking the district court to allow her to replace Martin with
Manning as the individual defendant, and to remand the case. Family Dollar
opposed this request, arguing that district court should not allow Dever to add
Manning, whose joinder would destroy diversity, after Family Dollar removed the
case.
The district court denied Dever’s motion to join Manning as a defendant.
The district court explained that 28 U.S.C. § 1447(e) provides that when, after
removal, a plaintiff seeks to add an additional defendant whose joinder would
deprive the court of subject matter jurisdiction, the district court has discretion to
permit joinder and remand the action to state court or to deny joiner. In deciding
not to exercise its discretion to allow Dever to join Manning, the district court
found that Dever sought to add a nondiverse defendant after Family Dollar
removed the case, which suggested that her motivation was to defeat federal
jurisdiction. The district court did not consider or address the fact that Dever had
3 Case: 18-10129 Date Filed: 11/02/2018 Page: 4 of 10
sought to sue the store manager in her original complaint, although she mistakenly
identified him as Martin.
After Dever’s motion for substitution and to remand was denied, Family
Dollar moved for summary judgment, arguing that Dever had failed to establish
that it was liable under Georgia law as the premises owner. [DE 27-1.] The
district court agreed and granted summary judgment to Family Dollar. [DE
32.] This is Dever’s appeal.
II. STANDARD OF REVIEW
We review for abuse of discretion a district court’s decision not to allow a
plaintiff after removal to join a defendant whose joinder would destroy diversity
and deprive the court of subject matter jurisdiction. See 28 U.S.C. § 1447(e);
Ingram v. CSX Transp., Inc., 146 F.3d 858, 862 (11th Cir. 1998). “By definition,
the abuse of discretion standard allows a range of choice for the district court, so
long as that choice does not constitute a clear error of judgment.” Statewide
Detective Agency v. Miller, 115 F.3d 904, 906 (11th Cir. 1997) (alteration adopted)
(internal quotation marks omitted). But “[a] district court abuses its discretion
when its factual findings are clearly erroneous, when it follows improper
procedures, when it applies the incorrect legal standard, or when it applies the law
in an unreasonable or incorrect manner.” Wreal, LLC v. Amazon.com, Inc.,
840 F.3d 1244, 1247 (11th Cir. 2016).
4 Case: 18-10129 Date Filed: 11/02/2018 Page: 5 of 10
III. LEGAL ANALYSIS
Dever challenges two of the district court’s rulings on appeal: (1) the denial
of her motion for substitution of a party and to remand and (2) the grant of Family
Dollar’s motion for summary judgment. 1 We conclude that the district court
abused its discretion in denying Dever’s motion for substitution because the court
made a clear error of judgment when it found that Dever sought to add a
nondiverse defendant—the store manager—for the first time after removal. We
remand so that the district court may exercise its discretion to decide whether to
allow Manning to be joined as a defendant in light of the fact that Dever sought to
sue the store manager before removal but identified the wrong person in her
original complaint. Because the district court’s decision will control whether
subject matter jurisdiction exists, we do not reach the issue of whether the district
court erred in granting summary judgment to Family Dollar.
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.
28 U.S.C. § 1441(a). But a removed 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.” Id. § 1447(c).
1 In general, only a final order is appealable. Barfield v. Brierton, 883 F.2d 923, 930 (11th Cir. 1989). But “the appeal from a final judgment draws in question all prior non-final orders and rulings which produced the judgment.” Id. We thus may review the district court’s order denying the motion for substitution and to remand. 5 Case: 18-10129 Date Filed: 11/02/2018 Page: 6 of 10
Family Dollar contends that it was authorized to remove this case because
there was diversity jurisdiction. See id. § 1332(a)(1). We accept that when Family
Dollar removed the case, complete diversity existed.2 The twist here is that after
Family Dollar removed the case, Dever sought to amend her complaint to add
Manning as a defendant, which would destroy diversity jurisdiction. Congress has
given district courts broad discretion to decide whether, after removal, to permit
joinder of a new defendant who would destroy diversity: “[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.” Id. § 1447(e); see Ingram, 146 F.3d at 862.
We have not previously addressed how a district court should decide
whether to permit or deny joinder of a nondiverse defendant after removal. In
most cases the Federal Rules of Civil Procedure liberally allow a plaintiff to join a
new defendant. Rule 15(a) of the Federal Rules of Civil Procedure provides that
courts “should freely give leave” to amend “when justice so requires,” and Rule 20
permits joinder of proper parties. Fed. R. Civ. P. 15(a), 20. But a district court
must scrutinize more closely an amended pleading that would name a new
2 It was appropriate for the district court to ignore Martin’s citizenship in determining whether complete diversity existed because there was no possibility that Dever could establish a cause of action against him given the parties’ agreement that he began working for Family Dollar after Dever was injured. See Cabalceta v. Standard Fruit Co., 883 F.2d 1553, 1561-62 (11th Cir. 1989). 6 Case: 18-10129 Date Filed: 11/02/2018 Page: 7 of 10
nondiverse defendant in a removed case because justice requires that the district
court also balance the defendant’s interests in maintaining the federal forum. See
Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir. 1987) (“[T]he addition of
a nondiverse party must not be permitted without consideration of the original
defendant’s interest in the choice of forum.”); accord Schur v. L.A. Weight Loss
Ctrs., Inc., 577 F.3d 752, 759 (7th Cir. 2009); Bailey v. Bayer CropScience L.P.,
563 F.3d 302, 309 (8th Cir. 2009); Mayes v. Rapoport, 198 F.3d 457, 462-63 (4th
Cir. 1999).
In deciding whether to permit a plaintiff to join a nondiverse defendant after
removal, a district court should “consider the extent to which the purpose of the
amendment is to defeat federal jurisdiction, whether [the] plaintiff has been
dilatory in asking for amendment, whether [the] plaintiff will be significantly
injured if amendment is not allowed, and any other factors bearing on the equities.”
Hengens, 833 F.2d at 1182. The district court then must balance the equities and
decide whether the amendment should be permitted. If the court permits the
joinder of the nondiverse defendant, it must remand the case to state court. If it
declines to allow the joinder, the federal court maintains jurisdiction. Id.
In general, a district court has broad discretion in weighing these factors to
decide whether to permit or deny an amendment. See id. We acknowledge that the
district court considered these factors. The problem is that the district court made a
7 Case: 18-10129 Date Filed: 11/02/2018 Page: 8 of 10
clear error in judgment when, in assessing the factors, it found that Dever sought to
add a nondiverse defendant for the first time after Family Dollar removed the case.
The pleadings in this case definitively establish that before Family Dollar removed
the case, Dever sought to sue a nondiverse party—the individual who was working
as the store manager when her fall occurred—but was mistaken in believing that
the manager was Martin. Once Dever learned that Manning, not Martin, was the
store manager on duty when she was injured, she filed the motion for substitution
in order to name the correct individual as a defendant. Importantly, if Dever had
identified Manning in her initial complaint, Family Dollar would have been unable
to remove the case because it would have had no basis for claiming that Manning
was fraudulently joined.
In urging us to affirm the district court, Family Dollar relies on the district
court’s reasoning in Linares v. Home Depot U.S.A., Inc., No. 12-60308-CIV, 2012
WL 1441577 (S.D. Fla. Apr. 26, 2012). In Linares, the plaintiff sued Home Depot
after falling in a store. Id. at *1. After Home Depot removed the case to federal
court, the plaintiff sought to amend the complaint to add an individual employee as
a defendant and to remand the action because the addition of the employee
destroyed diversity jurisdiction. Id. The district court refused to allow the joinder
of the employee, pointing out that the plaintiff only sought to add the nondiverse
defendant after the case was removed. Id. at *2-3. Linares, of course, is not
8 Case: 18-10129 Date Filed: 11/02/2018 Page: 9 of 10
binding. In any event, we are unpersuaded that its reasoning applies here. Unlike
the plaintiff in Linares who attempted to bring a claim against an individual
employee only after the case was removed, Dever sought to bring a claim against
the store manager when she filed her original complaint in state court.
We vacate the district court’s order denying the motion to substitute a party
and remand so that the 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. We leave it to the district court to decide in the first instance whether, in
light of a correct understanding of when Dever originally sought to bring a claim
against the store manager, Manning should be joined as a party. See Advanced
Estimating Sys., Inc. v. Riney, 77 F.3d 1322, 1325 (11th Cir. 1996) (concluding
that the district court abused its discretion by applying the wrong standard in
denying motion; remanding so that the district court could decide the motion under
the correct standard). Given the possibility that the district court may allow Dever
to substitute Manning as a defendant, which would deprive the court of subject
matter jurisdiction and require the case to be remanded to state court, we also
9 Case: 18-10129 Date Filed: 11/02/2018 Page: 10 of 10
vacate the district court’s order granting summary judgment. We express no
opinion on the merits of Family Dollar’s summary judgment motion.3
IV. CONCLUSION
For the reasons set forth above, we vacate the district court’s order denying
Dever’s motion to substitute and remand. We also vacate the district court’s order
granting summary judgment. We remand for further proceedings consistent with
this opinion.
VACATED AND REMANDED.
3 When the case was removed, the parties agreed that it was impossible for Dever to state a claim for relief against Martin. But the district court did not enter an order finding that Martin was fraudulently joined or dismissing the claim against him. Martin then filed a motion for summary judgment, which the district court granted. If, upon remand, the district court denies the motion for substitution and retains jurisdiction over the case, it should consider whether Dever’s claim against Martin should be dismissed. See Florence v. Crescent Res., LLC, 484 F.3d 1293, 1297 (11th Cir. 2007) (explaining that when there is fraudulent joinder “the federal court must dismiss the non-diverse defendant”). 10