Henderson v. South Haven Health and Rehabilitation et al

Filing 37

MEMORANDUM OPINION AND ORDER: For the reasons discussed, it is hereby ORDERED as follows: 1. The Plaintiffs Motion for Leave to Amend (Doc. # 29 ) is GRANTED. 2. Because the addition of Dr. Gupta and Dr. Patil destroys diversity jurisdiction in th is case, this case is REMANDED to the Circuit Court of Montgomery County, Alabama, pursuant to 28 U.S.C. 1447(e). 3. The Clerk is DIRECTED to take appropriate steps to effect the remand. Signed by Honorable Judge W. Harold Albritton, III on 11/28/2017. (kh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
GLORIA ELIZABETH HENDERSON,
Plaintiff,
v.
SSC MONTGOMERY SOUTH HAVEN
OPERATING CO., LLC etc., et al.,
Defendants.

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CIVIL ACTION NO. 2:17cv98-WHA
(wo)

MEMORANDUM OPINION AND ORDER
I.

FACTS AND PROCEDURAL HISTORY

This cause is before the court on the Plaintiff’s Motion for Leave to Amend (Doc. #29).
The Plaintiff, Gloria Elizabeth Henderson (“Henderson”), originally filed her Complaint
in the Circuit Court of Montgomery County, Alabama. The case was removed to this court on the
basis of diversity jurisdiction on February 17, 2017. A Motion to Remand was filed by
Henderson. The Motion to Remand was denied by this court on April 27, 2017 because the
named non-diverse defendant was not a proper defendant in the case. (Doc. #10). On May 11,
2017, Henderson filed an Amended Complaint naming only SSC Montgomery Haven Operating
Co., LLC, a diverse defendant (“South Haven”), as a defendant in the case. (Doc. #14). In
response to an Order from the court, South Haven answered the Amended Complaint, and
asserted affirmative defenses. (Doc. #18). A Uniform Scheduling Order was entered on June 19,
2017. (Doc. #26).
Henderson now seeks to amend the Complaint again to add as defendants two persons,
Dr. Vikas Gupta and Dr. Saurabh Patil, whom she alleges in the proposed Amended Complaint

are residents of the State of Alabama and who were her treating physicians. For reasons to be
discussed, Henderson’s Motion is due to be GRANTED.

II. MOTION TO AMEND STANDARD
Under 28 U.S.C. § 1447(e), “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.” In determining whether to allow the
amendment, the court should examine the following factors: (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. Hensgens v. Deere
and Co., 833 F.2d 1179, 1182 (5th Cir. 1987), cert. denied, 493 U.S. 851 (1989).1

III. DISCUSSION
In analyzing whether to allow Dr. Gupta and Dr. Patil to be joined, thereby necessitating
remand, or to deny Henderson’s request to join them as Defendants, this court will apply the
Hensgens analytical factors outlined above.
As to the first Hensgens factor, the extent to which the purpose of the amendment is to
defeat diversity, South Haven argues that the new amendment does not add any facts, but only
seeks to add two parties, and so is only for the purpose of defeating diversity.

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This analysis is still relevant even though Hensgens pre-dates § 1447 (e). See Sexton v. G & K
Services, Inc., 51 F. Supp. 2d 1311, 1312 n.1 (M.D. Ala. 1999).
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In response, Henderson argues that she has a viable claim against the doctors and it was
always her intent to name the treating physicians in this case, as evidenced by her naming them
as fictitious parties in her original complaint in state court. (Doc. #1-1).
As Henderson points out, cases applying the Hensgens factors have found significance in
the fact that a fictitious party was originally named. See Smith v. Catosouth, LLC, 432 F. Supp.
2d 679, 681 (S.D. Miss. 2006) (citing a case for the proposition that “the fact that a plaintiff has
included a defendant as a fictitious defendant in his state court pleading would tend to belie an
inference that the plaintiff's motivation for seeking to amend post-removal to substitute a real
party for the one previously identified only as a fictitious party is to defeat diversity
jurisdiction.”). Cases also consider the strength of the claim against the individual sought to be
added as part of the determination of whether the amendment is sought to defeat jurisdiction. See
Smith v. White Consolidated Industries, Inc., 229 F. Supp. 2d 1275, 1281 (N.D. Ala. 2002).
In this case, Henderson has alleged theories of liability against treating physicians and
there is no reason to conclude that such theories lack viability. Henderson has sought to add
these defendants after having initially named fictitious defendants when the complaint was filed
in state court. The court finds, therefore, that the first Hensgens factor weighs in favor of
allowing the amendment. See Smith, 432 F. Supp. 2d at 681.
With regard to the second Hensgens factor, South Haven argues that Henderson could
have named the doctors much earlier, because the records were provided to counsel for
Henderson in May of 2017. South Haven points out that Dr. Gupta is identified as the attending
physician on page 1 of a facility chart and on other pages of the chart and that Dr. Patil is also
referenced on various pages of the records. South Haven cites cases for the proposition that
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adding non-diverse defendants after the case is removed when the identity was known at an
earlier time indicates that the purpose of the amendment is to defeat diversity, and argues that
waiting until the end of the period allowed for amendment means that Henderson has been
dilatory.
Henderson acknowledges that she had the records referred to by South Haven in May, but
she also points out that there were 1,262 pages of records, and that Dr. Gupta and Dr. Patil were
not disclosed by South Haven as individuals having information regarding the facts of this matter
until July 2017. Henderson argues that she was not in possession of documents necessary to
identify the doctors at the time she filed her Motion to Remand. Finally, Henderson points out
that her motion was well within the time allowed by the Scheduling Order to file an amendment
to the Complaint, which was within the time agreed to by the Defendant in the Report of Parties'
Planning Meeting to join additional parties. (Doc. #26, Section 4; Doc. #25 at ¶6(c)).
The record before the court indicates that although Henderson did not file her motion to
add the doctors immediately upon receiving documents including their identities, she did not
receive the records until after removal and after she initially amended her Complaint, and her
request to amend to add the doctors is within the time allowed for amendment under the
Scheduling Order as previously agreed to by the Defendant. Therefore, the court concludes that
the second Hensgens factor weighs in favor of Henderson’s amendment. See Jones v. Rent-ACenter East, Inc., 356 F. Supp. 2d 1273, 1276 (M.D. Ala. 2005) (considering that the motions
were filed within the time allowed by the Scheduling Order as weighing in favor of amendment).
The third Hensgens factor is whether the plaintiff will be significantly injured if the
amendment is not allowed. In analyzing this factor, courts generally attempt to determine
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whether a plaintiff will be “able to obtain full relief” in the absence of the amendment. Sexton v.
G& K Services, Inc., 51 F. Supp. 2d 1311, 1314 (M.D. Ala. 1999).
As South Haven points out, in Bevels v. American States Ins. Co., 100 F. Supp. 2d 1309,
1314 (M.D. Ala. 2000), this court reasoned that plaintiffs would not be significantly injured by
denial of an amendment to add non-diverse parties where the plaintiffs could obtain a judgment
against an insurance company without the presence of its agent in the case and discovery would
allow the plaintiffs access to the same information with or without the agent in the case. South
Haven argues that Henderson can obtain a judgment against South Haven and obtain discovery
regarding the doctors without the doctors being named as Defendants.
Henderson responds that South Haven has asserted an affirmative defense in its Answer
to the Amended Complaint that it “denies that it employed at all or negligently hired, employed
trained or supervised any agents or servants involved in the care and treatment of Gloria
Henderson.” (Doc. #18 at p. 5).
The existence of respondeat superior liability has been found to be significant in other
cases applying Hensgens factors. See, e.g., Sides v. Sodexo, Inc., No. 2:16cv675, 2017 WL
2702248, at *2 and n.3 (M.D. Ala. June 22, 2017)(analyzing whether full relief was available
and noting that diverse defendant conceded that the non-diverse individual the plaintiff sought to
add was its employee and working within the line and scope of her employment).
In Jones, this court concluded that an affirmative defense that the conduct complained of
was not within the line and scope of the individual’s employment made it unclear that the
plaintiffs would be able to obtain complete relief without the presence of the individuals in the
case. 356 F. Supp. 2d at 1277.
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Given the affirmative defense in the Answer to the Amended Complaint in this case,
which indicates that South Haven does not concede that the treating doctors were acting as its
agents or employees, the court finds that the third Hensgens factor weighs in favor of allowing
the amendment. Id.
The next step in the Hensgens analysis is to consider any other factors bearing on the
equities. In balancing the equities, this court previously has concluded that it should give
consideration to the defendant’s right to choose the federal forum. See Bevels, 100 F. Supp. at
1313. This court has also reasoned, however, that maintaining a separate suit against individuals
in state court can pose an expense that weighs in favor of allowing an amendment to add the
individuals. See Jones, 356 F. Supp. 2d at 1277.
Considering all of the information before it, including that the first three Hensgens factors
weigh in favor of amendment, the court finds that the equities weigh in Henderson’s favor in this
case, and the amendment to add Dr. Gupta and Dr. Patil will be allowed.

IV. CONCLUSION
For the reasons discussed, it is hereby ORDERED as follows:
1. The Plaintiff’s Motion for Leave to Amend (Doc. #29) is GRANTED.
2. Because the addition of Dr. Gupta and Dr. Patil destroys diversity jurisdiction in this
case, this case is REMANDED to the Circuit Court of Montgomery County,
Alabama, pursuant to 28 U.S.C. § 1447(e).
3. The Clerk is DIRECTED to take appropriate steps to effect the remand.

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Done this 28th day of November, 2017.
__/s/ W. Harold Albritton______________
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE

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