Bruce v. Golden Corral Corporation (CONSENT)

Filing 17

MEMORANDUM OPINION AND ORDER: it is ORDERED as follows: 1) Dft Golden Corral's 4 motion to dismiss is DENIED; and 2) Plf Bruce's 7 & 14 motions for leave to amend are DENIED. Signed by Honorable Judge Gray M. Borden on 12/5/2016. (Attachments: # 1 Civil Appeals Checklist) (wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
JOYCE BRUCE,

)
)
Plaintiff,
)
)
v.
)
)
GOLDEN CORRAL CORPORATION, )
)
Defendant.
)

CASE NO. 2:16-cv-722-GMB

MEMORANDUM OPINION AND ORDER
Before the court is a Motion to Dismiss (Doc. 4) filed by Defendant Golden Corral
Corporation (“Golden Corral”) and two Motions for Leave to File Amended Complaints
filed by Plaintiff Joyce Bruce (Docs. 7 & 14). For the reasons that follow, the court finds
that the motions are due to be denied.
I. PROCEDURAL HISTORY
Plaintiff Joyce Bruce maintains that she slipped and fell at a Golden Corral
restaurant in Montgomery, Alabama on August 3, 2014, and that she sustained severe
personal injuries as a result. On August 3, 2016, the last day that Bruce could timely file
a personal injury claim,1 she filed a lawsuit against Golden Corral and other fictitious
parties in the Circuit Court of Montgomery County, Alabama, asserting claims for
negligent failure to maintain, negligent failure to inspect, negligent failure to warn, and
wantonness. Doc. 1-1.

1

The statute of limitations for personal injury claims in Alabama is two years. See Ala. Code § 6-2-38(1).

On September 1, 2016, Golden Corral timely removed Bruce’s lawsuit on the basis
of diversity jurisdiction. Doc. 1. That same day, Golden Corral moved to dismiss Bruce’s
complaint, arguing that it neither owns nor operates the restaurant in question. Doc. 4. In
response to Golden Corral’s motion to dismiss, Bruce argued that counsel’s mere
statements that Golden Corral did not own or operate the restaurant in question, without
submitting any evidentiary support for this statement, was not a sufficient basis to dismiss
Bruce’s complaint under Federal Rule of Civil Procedure 12(b)(6). Doc. 9. Bruce also
filed a motion to amend her complaint to assert her claims against two additional
defendants, Alisha Lawny and ELJ Dining, LLC (“ELJ Dining”). Doc. 7. The proposed
amended complaint attached to Bruce’s motion, however, did not allege the citizenship of
either Lawny or EJR Dining, which left the court unable to determine what effect, if any,
the proposed amendment would have on its subject matter jurisdiction. As a result, on
September 23, 2016, the court ordered Bruce to file a revised motion to amend along with
a revised proposed amended complaint that properly alleged the citizenship of each party2
for purposes of diversity jurisdiction no later than September 30, 2016. Doc. 10.
Bruce did not comply with the court’s September 23, 2016 order. In fact, it was not
until the court ordered Bruce a second time to file a revised motion to amend that she
complied. Even then, Bruce’s response did not correct the jurisdictional deficiencies
outlined in the court’s September 23, 2016 order. Indeed, Bruce’s second proposed
2

Bruce also fails to allege properly her own citizenship as well as the citizenship of Golden Corral in her
first and second proposed amended complaints. See Docs. 7 & 14. However, since Golden Corral’s notice
of removal sufficiently alleges its own citizenship as well as the citizenship of Bruce, and because these
allegations are uncontroverted, the court will consider their citizenships established for purposes of
diversity jurisdiction.

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amended complaint removes Alisha Lawny and ELJ Dining as defendants, maintains
Bruce’s claims against Golden Corral, and adds CPB Foods LLC (“CPB Foods”) as a
defendant,3 but Bruce again fails to allege the citizenship of CPB Foods properly for
purposes of diversity jurisdiction. Doc. 14.
Golden Corral did not address Bruce’s argument that counsel’s statement that
Golden Corral did not own or operate the restaurant in question was an insufficient basis
to dismiss her complaint under Rule 12(b)(6). Instead, on November 7, 2016, Golden
Corral responded to Bruce’s second motion for leave to amend by arguing that the motion
should be denied because Bruce sought to amend her complaint to add a new defendant
instead of filing a motion to substitute CPB Foods for Golden Corral as the proper
defendant. Doc. 16.
II. DISCUSSION
A.

Bruce’s Motions to Amend
As the court explained in its September 23, 2016 order, when a plaintiff moves to

amend after removal, 28 U.S.C. § 1447(e) applies instead of Rule 15(a) of the Federal
Rules of Civil Procedure. See Ingram v. CSX Transp., Inc., 146 F.3d 858, 862 (11th Cir.
1998); Kaplan v. Divosta Homes, L.P., 2007 WL 1427916, at *2 (M.D. Fla. May 14, 2007).
Section 1447(e) states: “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.” Under § 1447(e), the court has

3

Bruce asserts the same claims against CPB Foods as she does against Golden Corral in her second
proposed amended complaint. Doc. 14.

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discretion when deciding whether to allow amendment. In so doing, the court typically
analyzes (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. See Bevels v. Am. States Ins. Co., 100 F. Supp.
2d 1309, 1313 (M.D. Ala. 2000).
The problem here is that conducting an analysis of the § 1447(e) factors based on
the record currently before the court would put the proverbial cart before the horse. That
is because an analysis of the § 1447(e) factors presupposes that the joinder of an additional
defendant would destroy the court’s subject matter jurisdiction, but the court does not have
sufficient information to make this threshold determination.

As a limited liability

company, CPB Foods is treated as a citizen of any state where one of its members is a
citizen. See Rolling Greens MHP, L.P. v. Comcast SCH Holidays, L.L.C., 374 F.3d 1020,
1022 (11th Cir. 2004). Bruce’s second proposed amended complaint, however, does not
allege the citizenship of any of CPB Foods’ members,4 and without that information the
court cannot determine its citizenship for purposes of diversity jurisdiction. It follows that
without the information necessary to determine CPB Foods’ citizenship, the court is illequipped to make an informed decision with respect to Bruce’s requested amendment
under § 1447(e).

4

Although Bruce’s second motion for leave to amend does state that CPB Foods has a corporate address in
Kentucky, this allegation is not contained in the proposed second amended complaint and, even if it were,
it is not sufficient to establish CPB Foods’ citizenship for purposes of diversity jurisdiction.

4

The court has given Bruce multiple opportunities to set forth the correct
jurisdictional allegations in her proposed amended complaints, see Docs. 10 & 13, and
Bruce has failed to comply. For these reasons, the court finds that Bruce’s motions for
leave to amend are due to be DENIED.5
B.

Golden Corral’s Motion to Dismiss
Having denied Bruce’s motions for leave to amend her complaint, the court looks

to Bruce’s original complaint when resolving Golden Corral’s motion to dismiss. In her
complaint, Bruce alleges, among other things, that she slipped and fell at Golden Corral’s
“property” in Montgomery, Alabama and that she injured herself as a result. Doc. 1-1. At
the motion to dismiss stage, the court must accept Bruce’s factual allegations as true and
construe them in the light most favorable to her. See Quality Foods de Centro Am., S.A. v.
Latin Am. Agribusiness Dev. Corp., S.A., 711 F.2d 989, 994-95 (11th Cir. 1983). The
allegations in Bruce’s complaint, when accepted as true and taken in the light most
favorable to her, state plausible claims for relief. See Ashcroft v. Iqbal, 556 U.S. 662, 678
(11th Cir. 2009) (“To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.”)
(internal quotation marks omitted). While Golden Corral argues in its motion to dismiss
that it does not own or operate the property in question and that it should therefore be
dismissed from Bruce’s lawsuit, the ownership of the property in question is a fact outside

5

Golden Corral’s argument that Bruce should have moved to substitute CPB Foods for Golden Corral as
the proper defendant, rather than seeking leave to amend to add a new defendant, is misplaced. Federal
Rule of Civil Procedure 25 allows for the substitution of parties only in the event of death, incompetence,
and other circumstances not present here. See Fed. R. Civ. P. 25.

5

the four corners of the complaint, and therefore cannot be considered at this stage of the
proceedings. Moreover, even it could consider this fact,6 the only support Golden Corral
has put before the court on this issue is the argument of its counsel, but statements and
arguments of counsel are not evidence and do not establish facts. See, e.g., United States
v. Smith, 918 F.2d 1551, 1562 (11th Cir. 1990). For these reasons, the court finds that
Golden Corral’s motion to dismiss is due to be DENIED.
III. CONCLUSION
Accordingly, it is ORDERED as follows:
1.

Defendant Golden Corral’s motion to dismiss (Doc. 4) is DENIED; and

2.

Plaintiff Bruce’s motions for leave to amend (Docs. 7 & 14) are DENIED.

DONE this 5th day of December, 2016.
/s/ Gray M. Borden
UNITED STATES MAGISTRATE JUDGE

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On a Rule 12(b)(6) motion to dismiss, the scope of the district court’s review is generally limited to the
four corners of the complaint. Speaker v. U.S. Dep’t of Health & Hum. Servs., Ctrs. for Disease Control &
Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010). There are exceptions to this rule, such as when an
extrinsic document is central to the plaintiff’s claim and its authenticity is not challenged or when a matter
is judicially noticeable, but those exceptions do not apply here. See Tellabs, Inc. v. Makor Issues & Rights,
Ltd., 551 U.S. 308, 322 (2007); SFM Holdings, Ltd. v. Banc of Am. Secs., LLC, 600 F.3d 1334, 1337 (11th
Cir. 2010).

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