Sides v. Sodexo, Inc.

Filing 28

ORDER denying Sides' 23 Motion for Leave to amend, as further set out in order. Signed by Honorable Judge Gray M. Borden on 6/22/17. (djy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
BRENDA SIDES,
Plaintiff,
v.
SODEXO, INC.,
Defendant.

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CASE NO.: 2:16-cv-675-GMB
[WO]

ORDER
Plaintiff Brenda Sides filed this lawsuit in the Circuit Court of Montgomery County,
Alabama on August 3, 2016, naming Sodexo, Inc. (“Sodexo”) as the defendant. On August
16, 2016, Sodexo removed the case to this court on the basis of diversity jurisdiction
pursuant to 28 U.S.C. § 1332. Doc. 1. Now before the court is Sides’ motion for leave to
amend, which seeks leave to add a non-diverse defendant to the lawsuit. Doc. 23. After
reviewing the motion, and for the reasons that follow, the court finds that Sides’ motion is
due to be DENIED.1
I. BACKGROUND
This lawsuit was filed after Sides allegedly slipped and fell while returning to her
husband’s hospital room at Baptist Medical Center South. Doc. 1-1. At the time of the
accident, Sodexo was responsible for the cleaning operations at the hospital. Doc. 1-1.
Sides’ complaint alleges that certain agents, servants, or employees of Sodexo failed to

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Pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73, the parties have consented to the
jurisdiction of the undersigned United States Magistrate Judge. Docs. 13 & 14.

clean the hospital properly, that this failure created a hazardous and dangerous condition,
and that Sodexo failed to warn Sides about this hazardous and dangerous condition. Doc.
1-1. Sodexo is the only named defendant, and Sides asserts purely state-law claims against
it for negligence; wantonness; failure to properly train, maintain, inspect or warn of a
hazardous or dangerous condition; and respondeat superior. Doc. 1-1.
Sodexo removed the case from the Montgomery County Circuit Court to this court
on the basis of diversity jurisdiction. Doc. 1. Sodexo alleges that Sides is a citizen of
Alabama, that Sodexo is a citizen of Delaware, and that the amount in controversy exceeds
$75,000, exclusive of interest and costs. Doc. 1. Sides did not move to remand, and the
court entered a uniform scheduling order, setting January 9, 2017 as the deadline to amend
pleadings. Doc. 15.
On May 16, 2017, more than four months after the deadline to amend passed, Sides
moved to amend the complaint to add Cherylnthia Johnson, a non-diverse party,2 as a
defendant. Doc. 23. On May 26, 2017, Sodexo objected to Sides’ motion and urged the
court to disallow the requested amendment because (1) its sole purpose is to defeat federal
diversity jurisdiction; (2) Sides was dilatory in requesting the amendment; (3) Sides will
not be significantly injured if the amendment is not allowed; and (4) factors bearing on the
equities weigh in favor of disallowing the requested amendment. Doc. 25. In response,
Sides argues that the requested amendment should be allowed because she will be
significantly prejudiced if she cannot join Johnson as a defendant. Doc. 27.

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The proposed amended complaint Sides submitted with her motion to amend alleges that Johnson is an
Alabama citizen. Doc. 23-1.

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II. DISCUSSION
Diversity jurisdiction under 28 U.S.C. § 1332 requires that the amount in
controversy exceed $75,000, exclusive of interest and costs, and that the dispute be
between citizens of different states. 28 U.S.C. § 1332(a)(1). Of course, “[f]ederal courts
are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994). Thus, “[t]hey possess only that power authorized by [the] Constitution
and statute.” Id. A case may be removed to this court from a state court only if it originally
could have been filed in federal court. See 28 U.S.C. § 1441(a); Burns v. Windsor Ins. Co.,
31 F.3d 1092, 1095 (11th Cir. 1994). The party seeking removal bears the burden of
establishing federal jurisdiction with adequate proof. See Friedman v. New York Life Ins.
Co., 410 F.3d 1350, 1353 (11th Cir. 2005). In light of the federal courts’ limited
jurisdiction, “removal statutes are construed narrowly” and “uncertainties are resolved in
favor of remand.” Burns, 31 F.3d at 1095 (citations omitted).
“The existence of federal jurisdiction is tested as of the time of removal.” Ehlen
Floor Covering, Inc. v. Lamb, 660 F.3d 1283, 1287 (11th Cir. 2011). “If 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.” 28 U.S.C. § 1447(e). The granting of leave for a post-removal amendment
that would destroy diversity jurisdiction is determined by:
(1) the extent to which the purpose of the amendment is to defeat federal
jurisdiction, (2) whether the plaintiff has been dilatory in asking for the
amendment, (3) whether the plaintiff will be significantly injured if the
amendment is not allowed, and (4) any other factors bearing on the equities.

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Jones v. Rent-A-Ctr. E., Inc., 356 F. Supp. 2d 1273, 1275 (M.D. Ala. 2005) (citing
Hensgens v. Deere and Co., 833 F.2d 1179, 1182 (5th Cir. 1987)). “In making this
determination, a district court must balance competing interests—the danger of parallel
federal and state proceedings and the defendant’s interest in retaining the federal forum.”
Ibis Villas at Miami Gardens Condo Ass’n, Inc. v. Aspen Specialty Ins. Co., 799 F. Supp.
2d 1333, 1334 (S.D. Fla. 2011).
In this case, the first Hensgens factor—the extent to which the purpose of the
amendment is to defeat federal jurisdiction—weighs in favor of denying leave to amend.
Sides argues that she is not attempting to join Johnson as a defendant to destroy federal
jurisdiction but rather because Johnson is an indispensable party since she was the Sodexo
employee responsible for creating the dangerous condition that led to Sides’ accident. Doc.
27. Yet, Sides does not provide the court with any persuasive authority or argument for
the proposition that Johnson is an indispensable party simply because she was the employee
who allegedly created the hazard. Fed. R. Civ. P. 19; see also Davis v. CDA, Inc., 2010
WL 454909, at *2 (M.D. Ala. Feb. 10, 2010) (“The movant bears the burden of establishing
that a party is necessary or indispensable under Rule 19.”). To the contrary, Johnson’s
presence in the lawsuit has no bearing on Sides’ ability to obtain full and complete relief
since Sodexo has already been made a proper defendant to her claims.
Moreover, despite Sides’ protestations, the timing of her motion suggests that her
motivation is to destroy federal diversity jurisdiction. This bears on both the first and the
second Hensgens factor, which asks whether the plaintiff has delayed in seeking the
requested amendment. Sides does not contest that she has been aware of or had all the
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information needed to discover Johnson’s identity and involvement with her accident since
at least November 2016, when Sodexo served its Initial Disclosures. Rather than promptly
moving to amend the complaint to add Johnson as a defendant, Sides admittedly waited
more than five months after receiving Sodexo’s initial disclosures and more than four
months after the deadline to amend had passed to add Johnson as a defendant. Although
Sides has had several opportunities to explain this delay, she has yet to provide the court
with a convincing justification, suggesting that her primary purpose in requesting the
amendment is to strip the court of its diversity jurisdiction so that she may return to a statecourt forum.
The third Hensgens factor measures the harm to the plaintiff if the amendment is
not allowed. Sides argues that she would be highly prejudiced if Johnson is not a party
when the case is presented to a jury because “a jury could determine that [Johnson] was
acting outside the scope of her employment [relieving] Sodexo, Inc. of its liability under
the respondeat superior theory,” and this would be a complete bar to recovery against
Sodexo. Doc. 27 at 3. In essence, Sides wants Johnson to be an individual defendant in the
lawsuit to hedge her recovery in the event her claims against Sodexo fail. The court
concludes that this is not a sufficiently persuasive reason to permit the requested
amendment when Sides could have but did not join Johnson as a defendant before her case
landed in a federal forum and before the deadline to amend the pleadings passed. Indeed,
Sodexo has already conceded that Johnson was its employee and was working within the

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line and scope of her employment at the time of Sides’ accident. Doc. 25.3 Moreover, there
is no allegation that Sodexo cannot fully satisfy any judgment that may be entered against
it or that Johnson’s presence in the lawsuit is necessary to facilitate discovery or the
preparation of Sides’ case.
The fourth and final Hensgens factor asks the court to consider any other factor
bearing on the equities. To this end, Sides argues that no party will be prejudiced if Johnson
becomes a defendant. Leaving aside the potential prejudice to Johnson, this argument
ignores the fact that Johnson’s presence as a defendant will destroy complete diversity and
reverse Sodexo’s choice of a federal forum. “In balancing the equities, the parties do not
start out on equal footing.” Bevels v. Am. States Inc. Co., 100 F. Supp. 2d 1309, 1313 (M.D.
Ala. 2000). Out-of-state defendants have a right under the federal jurisdictional scheme to
seek out a federal forum when the prerequisites for diversity jurisdiction are met. Id. Thus,
courts “should give consideration to [the defendant’s] right to choose the federal forum.”
Jones, 356 F. Supp. 2d at 1277. Sides has made no showing of counterbalancing equities.
The court therefore finds that the equities weigh in Sodexo’s favor, particularly in light of
Sides’ inability to offer a convincing and plausible justification for joining Johnson as a
defendant for any purpose other than destroying federal diversity jurisdiction.
III. CONCLUSION
Accordingly, for the reasons stated above, the court finds that the Hensgens factors
weigh in Sodexo’s favor and against allowing the requested amendment. Therefore, it is

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Specifically, Sodexo acknowledges that “Johnson was a non-managerial employee who is believed to
have mopped the floor in or around the area where Plaintiff fell prior to the subject incident.” Doc. 25.

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ORDERED that Sides’ motion for leave to amend (Doc. 23) is DENIED.
DONE this 22nd day of June, 2017.

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