Barnes v. LQ Management, L.L.C.
OPINION AND ORDER directing as follows: (1) plaintiff Donnell Barnes's 4 MOTION to Remand is DENIED; (2) defendant LQ Management, L.L.C.'s 12 objection to the allowance of the amended complaint is overruled. Signed by Honorable Judge Myron H. Thompson on 12/26/12. (Attachments: # 1 civil appeals checklist)(djy, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
LQ MANAGEMENT, L.L.C.,
etc., et al.,
CIVIL ACTION NO.
OPINION AND ORDER
Plaintiff Donnell Barnes charges that he was injured
as a proximate result of staying at one of defendant LQ
Barnes brings state-law claims of negligence, wantonness,
product liability, respondeat superior, and negligent and
Management and several other defendants.
LQ Management removed this case from state to federal
See 28 U.S.C. § 1332, 1441.
This lawsuit is now before
the court on Barnes’s motion to remand the case to state
court and LQ Management’s objection to allowance of the
amendment to Barnes’s complaint.
Barnes amended his
complaint after removal to substitute Albert Young, Irene
Boswell, John Foshee, Kenya Kirk, Romeo Lowe and Stephen
Hopkins in place of fictitious defendants.
that will be discussed, the court will deny Barnes’s
objection to the allowance of the amendment to Barnes’s
Barnes, an Illinois citizen, traveled to Montgomery
to bring his son to a “new-student orientation” at a
Because he was recovering from knee
surgery, Barnes rented a handicapped room from La Quinta
Inns & Suites, a local hotel owned and operated by LQ
While Barnes was showering, the showerhead
fell and struck his injured knee.
Barnes alleges that
Barnes filed suit in an Alabama state court.
names as defendants LQ Management along with numerous
fictitious entities, a proper practice in state court.
Ala. R. Civ. P. § 9(h).
Barnes sought the names and
Before responding in full to the
discovery request, LQ Management removed the case to this
At that time, the complaint still listed
the fictitious defendants.
After removal and upon threat of a motion to compel,
Barnes then filed a motion for leave to
amend his complaint and substitute employees for the
The court allowed the amendment,
albeit with leave to LQ Management to file an objection
to the allowance of the amendment.
Barnes filed a motion
to remand the case to state court, and LQ Management
filed an objection to the allowance of the amendment.
Motion to Remand
LQ Management removed this case to federal court
pursuant to 28 U.S.C. § 1441.
That statute allows,
generally, for the removal from state court to federal
court of any civil action over which the federal courts
have original jurisdiction. LQ Management sought removal
on the basis of diversity jurisdiction, 28 U.S.C. § 1332,
as the company is a citizen of both Texas and Delaware,
and Barnes of Illinois.
Barnes concedes that diversity
jurisdiction was proper when this case was removed, for
he and LQ Management are from different States.
contends, however, that that jurisdiction was destroyed
when he substituted Alabama citizens (Young, Boswell,
First, the substitution of the Alabama citizens as
Because Barnes is a citizen of Illinois, his citizenship
is diverse from that of the Alabama defendants.
Barnes’s assertions, subpart
(b)(2) of 28 U.S.C. § 1441 did not make this removal
otherwise removable solely on the basis of jurisdiction
under section 1332(a)
[diversity jurisdiction] of this
interest properly joined and served as defendants is a
citizen of the State in which such action is brought.”
28 U.S.C. § 1441(b)(2).
This subpart is inapplicable for
First, the subpart applies only if the
defendant has been “properly joined and served.”
assuming that the Alabama defendants had been properly
joined (previously as fictitious parties), they had not
been properly served.
Second, another subpart in this
removal statute, subpart (b)(1) of 28 U.S.C. § 1441,
specifically cautions that “the citizenship of defendants
sued under fictitious names shall be disregarded” in
diversity jurisdiction is proper.
Thus, because subpart
(b)(1) directs that the citizenship of fictitious parties
defendants (who were fictitious at the time of removal)
is properly disregard.
Barnes seems to be under the mistaken impression that
In his reply, he takes the position that,
Terming these defendants “non-diverse,” he thus asks the
court to remand “in accordance with 28 U.S.C. § 1447(e).”
Pl. Br. (Doc. No. 20) at 4 & 17.
28 U.S.C. § 1447(e) provides that, if a federal court
allows a post-removal joinder that destroys the court’s
subject-matter jurisdiction, the court must then remand
jurisdiction. Because Barnes believes that his inclusion
diversity jurisdiction, he also believes their inclusion
warrants remand “automatically” pursuant to this statute.*
Pl. Br. (Doc. No. 20) at 4.
defendant who resides in the forum state is ipso facto
Diverse parties are today what they have
always been: “citizens of different States.”
Barnes is a citizen of Illinois, and the
* Actually, Barnes cites 28 U.S.C. § 1441(e) instead
of § 1447(e). The court presumes Barnes to invoke the
latter statute, as the former applies solely to cases in
which “at least 75 natural persons have died in [an]
accident at a discrete location.”
28 U.S.C. § 1369.
Plainly, such was not the case here. Unfortunately, the
plaintiff is not alone in incorrectly citing the
governing statutes. LQ Management refers the court to
“Section 1442(b)(2)” for the source of the “forum
defendant rule” it seeks to avoid.
1442(b)(2)” addresses “Federal officers or agencies sued
or prosecuted.” The court does not raise these errors to
embarrass the parties, but in the hope of putting a stop
to such oversights at an early stage of the litigation.
newly added defendants are citizens of Alabama.
diversity jurisdiction is not destroyed by the Alabama
defendants in this litigation.
inclusion in this
litigation is, therefore, not a basis for remand.
Objection to Amendment of the Complaint
defendants named in his original state-court complaint.
LQ Management objects to this amendment on the ground
that “[f]ictitious parties are not permitted in Federal
Def. Br. (Doc. No. 12) at ¶ 9.
cites no authority for this proposition, but asserts that
“Plaintiff’s counsel is well aware of this.”
concludes that Barnes’s amendment is due to be disallowed
because “the statute of limitations has passed.... [and]
Fed. R. Civ. P. 15 does not permit the relation back of
an amendment adding a new party.”
While Federal Rules of Civil Procedure do not employ
fictitious-defendant practice, a federal court hearing a
case on diversity jurisdiction applies state law.
R. Co. v. Tompkins, 304 U.S. 64 (1938).
“When a party is ignorant of the name of
an opposing party and so alleges in the
party’s pleading, the opposing party may
be designated by any name, and when that
party’s true name is discovered, the
proceedings in the action may be amended
by substituting the true name.”
Ala. R. Civ. P. § 9(h).
Furthermore, federal courts
sitting in diversity “apply relation-back rules of state
law where, as here, state law provides the statute of
limitations for the action.”
Saxton v. ACF Industries,
Inc., 254 F.3d 959, 963 (11th Cir. 2011) (en banc)
amendment to relate back to the original pleading date
when “the law that provides the applicable statute of
limitations allows relation back”); see also Guaranty
Trust Co. of N.Y. v. York, 326 U.S. 99 (1945) (federal
courts sitting in diversity apply state law on statutes
In Saxton v. ACF Industries, Inc., the Eleventh
Circuit Court of Appeals specifically held that federal
courts sitting in diversity should apply Alabama’s law on
the relation-back of fictitiously named defendants.
diversity suits in Alabama have allowed plaintiffs to
proceed with complaints naming fictitious defendants.
Harris v. Beaulieu Group, LLC, 394 F.Supp. 2d 1348, 1356
(M.D. Ala. 2005) (DeMent, J.); Gaines v. Choctaw County
In Gaines v. Choctaw County, the court
reasoned that, as “the practice [of using fictitious
parties] plays an important part in some states in the
tolling of the statute of limitations ... an absolute
rule against its use in federal court actions seems
unwise and might violate the federal court’s obligation
to apply the rules of decision of the forum state.”
F.Supp. 2d at 1166 (quoting Charles A. Wright, Arthur R.
Procedure § 3642 (3d ed. 1998)).
It found this principle
“especially true in cases removed from Alabama state
fictitious parties may have a bearing [on] principles of
In this case, LQ Management argues that the Alabama
defendants should not be substituted for the fictitious
defendants because the applicable statute of limitations
now bars the claims raised against them.
to substitute these defendants for the fictitious ones in
In any event, Barnes has complied
with Alabama’s requirements for substituting a fictitious
defendant with his or her true identity.
Ala. R. Civ. P.
The court will thus allow the amendment he
However, at the present juncture, the court is not
substituting the Alabama defendants does, in fact, relate
back to the original pleading.
Accordingly, this opinion
does not pass judgment on whether Barnes has satisfied
the requirements under Alabama law for relating back an
amendment that substitutes an actual defendant for a
See Saxton, 254 F.3d at 965 (citing
Jones v. Resorcon, Inc., 604 So.2d 370, 372-73 (Ala.
Accordingly, it is ORDERED as follows:
(1) Plaintiff Donnell Barnes’s motion to remand (doc.
no. 4) is denied.
(2) Defendant LQ Management, L.L.C.’s objection to
the allowance of the amended complaint (doc. no. 12) is
DONE, this the 26th day of December, 2012.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDG
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