Fletcher et al v. Cooper Tire & Rubber Company et al
OPINION AND ORDER that the motion to amend 34 filed by plaintiffs administratrix of the estate of Frank Carter, Kwamika Fletcher, and Rosita Boyd is denied. Signed by Honorable Judge Myron H. Thompson on 7/25/2013. (Attachments: # 1 Civil Appeals Checklist)(jg, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
administratrix of the
estate of Frank Carter,
deceased; KWAMIKA FLETCHER, )
BOYD, individually; and
SHERYL SMITH, administrator )
of the estate of Tara
COOPER TIRE & RUBBER
COMPANY, a foreign
CIVIL ACTION NO.
OPINION AND ORDER
Charging defendant Cooper Tire & Rubber Company with
manufacturing a defective tire that resulted in a one-car
accident, the plaintiffs (administratrix of the estate of
initially filed this lawsuit in state court.1 Pursuant to
There is an additional plaintiff in this case,
28 U.S.C. § 1441, Cooper Tire removed this lawsuit from
state to federal court, asserting diversity jurisdiction
under 28 U.S.C. § 1332.
The case is now before this
court on the plaintiffs’ motion to amend their complaint
to add a defendant.
installed the wrong-size tire on their car.
They seek to add as a defendant King
citizen of Alabama, with the result that, if King Tire
destroyed and the case will be remanded to state court.2
Sheryl Smith, administrator of the estate of Tara Denita
Sanders. She, however, has not joined the motion of the
other plaintiffs that is currently before the court.
2. Whether the plaintiffs are correct is unclear.
The plaintiffs refer to King Tire Service as “an Alabama
business entity” but do not specify whether it is a
corporation, partnership, limited-liability company, or
other form of organization. Pls.’ Mot. to Amend (Doc.
No. 34) at 2. The court cannot discern from the current
record whether King Tire Service is in fact, as the
plaintiffs contend, a citizen of Alabama.
Under 28 U.S.C. § 1447(e), a district court has
discretion in deciding whether to permit joinder of a
“If after removal the plaintiff seeks to
join additional defendants whose joinder
joinder, or permit joinder and remand
the action to State court.”
28 U.S.C. § 1447(e).
In determining whether joinder is appropriate under
§ 1447(e), the court balances the equities involved.
Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir.
1987), cert. denied, 493 U.S. 851 (1989).
should consider the extent to which the purpose of the
amendment is to defeat federal jurisdiction, whether
plaintiff has been dilatory in asking for amendment,
amendment is not allowed, and any other factors bearing
on the equities.”
As for the first factor, the extent to which the
jurisdiction, the circumstances of this case make it
apparent that that is precisely the purpose.
plaintiffs first filed this case in state court, they
named as defendants both Cooper Tire, an out-of-state
attempting to defeat the ability of Cooper Tire to have
this case litigated in federal, rather than state, court.
See Strawbridge v. Curtiss, 7 U.S. 267 (1806) (under the
rule of “complete diversity,” no plaintiff may be a
citizen of the same State as any defendant).
removed the case to this court anyway, arguing that the
defendants, that is, had sued them for the purpose of
defeating diversity jurisdiction and without any serious
intent in actually pursuing claims against them.
court agreed, finding that, even though the case had been
proceeding for approximately a year and was weeks away
from trial, the plaintiffs had essentially no admissible
Additionally, the court took particular
notice of the fact that one of the plaintiffs was not
even aware that her attorneys had caused her to sue
defendants other than Cooper Tire and all three could not
explain why they had.
The plaintiffs, in short, were
surprised and confused that they had sued the in-state
Those circumstances and others made the
fraudulent joinder obvious.
Several weeks after this court found the plaintiffs
to have fraudulently joined in-state defendants for the
plaintiffs moved the court to reconsider its opinion and
A mere two days later, the plaintiffs filed the
motion now before the court, to add a new defendant to
this case who, apparently by mere happenstance, would
Today the court is granting the motion to
reconsider to the extent that the court vacates the
initial opinion and order and issues new ones still
embodying substantially the same reasoning.
destroy this court’s diversity jurisdiction.
alone is arguably enough to find that the plaintiffs’
purpose is to defeat federal jurisdiction, but there is
eleventh-hour amendment is not credible.
Their story is
as follows: The car accident at issue in this case
occurred in November 2011 and this lawsuit was filed in
Almost a year later, in February 2013,
whether the tires on the car were the proper size for
questions, that was the first time it had occurred to the
lawyers who often litigate claims involving allegedly
properly using the tires would be an issue in this case.
attorneys then set about researching whether the tires
were actually the right size for the car, and, upon
discovering that they were not, they then moved forthwith
to amend the complaint.
The issue of whether the tires
were used properly would be obvious to any attorney with
passing familiarity with products-defect law, especially
experienced counsel like the attorneys litigating this
See, e.g., Atkins v. Am. Motors Corp., 335 So. 2d
134, 140 (Ala. 1976) (manufacturer can be held liable for
“placing a product on the market which will cause harm
when used according to its intended purpose”).
attorneys’ story is not believable on its face, and that
is true even when disregarding the fraudulent-joinder
decision that immediately preceded this motion.
Moreover, there are indications in the record that
the plaintiffs anticipated this issue long before they
say they did.
For one, in their initial state-court
complaint, they named as a fictitious defendant (which
installed ... [the] tire involved.”
Compl. (Doc. No. 1-
“That entity” would be the same one the plaintiffs
now move to add as a defendant, contending that that
entity negligently installed tires of the wrong size.
products involved in this case.”
Answer (Doc. No. 1-9)
The second factor for this court to consider is
whether the plaintiffs have been dilatory in asking for
For the reasons that have been explained,
they have been.
The plaintiffs have shown no credible
reason why they could not have asserted this claim in
March 2012, over one year ago, when this lawsuit was
The third factor is whether the plaintiffs will be
significantly injured if their desired amendment is not
They will not be.
According to the plaintiffs,
the statute of limitations has not yet run on the new
Therefore, the plaintiffs still have ample time
to file a lawsuit asserting the claim in state court,
their desired forum.
The only injury the plaintiffs
assert is that litigating the two cases in separate
however, is their own fault.
No other injury has been
The final factor is whether there are any other
factors bearing on the equities.
The court finds none.
Accordingly, it is ORDERED that the motion to amend
(Doc. No. 34) filed by plaintiffs administratrix of the
estate of Frank Carter, Kwamika Fletcher, and Rosita Boyd
DONE, this the 25th day of July, 2013.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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