Dad's Enterprises, Inc. v. Sodexo Construction, Inc. et al

Filing 36

OPINION AND ORDER: it is the ORDER, JUDGMENT, and DECREE of the court as follows: (1) The 31 responsive brief filed by dft Sodexo Construction, Inc., in opposition to the motion to amend filed by plf Dad's Enterprises, Inc., is treated as an o bjection to the court's 30 order granting the motion to amend; (2) Dft Sodexo Construction, Inc.'s 31 objection is overruled; (3) Pursuant to 28 USC § 1447(e), this lawsuit is remanded to the Circuit Court of Macon County, Alabama, for want of removal jurisdiction based on diversity of citizenship; DIRECTING the clerk to take appropriate steps to effect the remand; This case is closed in this court; copy mailed with certified docket sheet to Circuit Clerk. Signed by Honorable Judge Myron H. Thompson on 7/3/2014. (furn: calendar, ag)(term: PTC for 10/31/2014; Jury Trial for 12/01/2014) (Attachments: # 1 Civil Appeals Checklist) (wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, EASTERN DIVISION

DAD’S ENTERPRISES, INC.,
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
SODEXO CONSTRUCTION, INC.,
et al.,
Defendants.

CIVIL ACTION NO.
3:13cv568-MHT
(WO)

OPINION AND ORDER
Plaintiff Dad’s Enterprises, Inc., brought this suit
in

Alabama

Construction,

state
Inc.,

court
and

against

other

various state-law claims.

defendantSodexo

defendants,

asserting

According to the complaint,

Sodexo contracted with Tuskegee University to construct a
new

dormitory,

and

Dad’s

in

turn

entered

into

a

subcontract to perform some of the necessary work for
Sodexo.

The complaint alleges, in essence, that Sodexo

and the other original defendants did not pay pursuant to
the subcontract.

Sodexo removed this case from state to federal court
on

August

8,

jurisdiction.

2013,

based

on

diversity-of-citizenship

See 28 U.S.C. §§ 1332, 1441.

Sodexo filed

a third-party complaint against Tuskegee on January 13,
2014, and, on March 18, 2014, stipulated to the dismissal
of the third-party complaint.

On May 30, 2014, Dad’s

filed a motion to amend its complaint to add three new
defendants, including Tuskegee, and the court granted that
motion on June 9, 2014, albeit with leave to a nonmovement to file an objection afterward.
Thereafter, Sodexo filed a response opposing Dad’s
motion to amend; because the court had already granted the
motion, it will treat Sodexo’s response as an objection to
the court’s order.

The parties agree that, if the new

defendants are added, diversity-of-citizenship will be
destroyed because Dad’s and the three new defendants,
including Tuskegee, are all citizens of Alabama.

2

Under 28 U.S.C. § 1447(e), a district court has
discretion in deciding whether to permit joinder of a
diversity-destroying defendant. This subsection provides:
“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 State court.”
28 U.S.C. § 1447(e).
In determining whether joinder is appropriate under
§ 1447(e), the court balances the equities involved.
Tillman v. CSX Transp., Inc., 929 F.2d 1023, 1029 (5th
Cir. 1991); Hensgens v. Deere & Co., 833 F.2d 1179, 1182
(5th Cir. 1987).

“[T]he court should consider the extent

to which the purpose of the amendment is to defeat federal
jurisdiction,
asking

for

whether

plaintiff

amendment,

whether

has

been

dilatory

plaintiff

will

in
be

significantly injured if amendment is not allowed, and any
other factors bearing on the equities.”
F.2d at 1182.

3

Hensgens, 833

Applying the considerations articulated in Tillman and
Hensgens, the court concludes that the new defendants
should be added.
proper

claims

defendants.
seeks

to

It appears that Dad’s desires to pursue
against

Tuskegee

and

the

other

new

There is no credible evidence that Dad’s

add

the

jurisdiction.

new

defendants

to

defeat

federal

While Dad’s filed its motion to amend some

nine months after removal, circumstances have changed in
the interim: Sodexo first filed a third-party suit against
Tuskegee, and then dismissed that suit with prejudice,
apparently through a settlement agreement.

Dad’s argued

that these developments and other intervening events led
it to add Tuskegee and the other new defendants into the
case,

and

Sodexo

has

not

explained

satisfaction why that is not so.

to

the

court’s

Finally, the court is

not persuaded that Sodexo will suffer prejudice if the new
defendants
choice,

are

and

added

the

apart

court

from

finds

4

losing

that

the

its

forum

of

interests

of

efficiency would be best served if all the claims against
all the defendants are tried by the same factfinder.

***

Accordingly, it is the ORDER, JUDGMENT, and DECREE of
the court as follows:
(1) The responsive brief (Doc. No. 31) filed by
defendant Sodexo Construction, Inc., in opposition to the
motion to amend filed by plaintiff Dad’s Enterprises,
Inc., is treated as an objection to the court’s order
(Doc. No. 30) granting the motion to amend.
(2) Defendant Sodexo Construction, Inc.’s objection
(Doc. No. 31) is overruled.
(3) Pursuant to 28 U.S.C. § 1447(e), this lawsuit is
remanded to the Circuit Court of Macon County, Alabama,
for want of removal jurisdiction based on diversity of
citizenship.

5

The clerk of the court is DIRECTED to take appropriate
steps to effect the remand.
This case is closed in this court.
DONE, this the 3rd day of July, 2014.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE