Dad's Enterprises, Inc. v. Sodexo Construction, Inc. et al
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.,
SODEXO CONSTRUCTION, INC.,
CIVIL ACTION NO.
OPINION AND ORDER
Plaintiff Dad’s Enterprises, Inc., brought this suit
various state-law claims.
According to the complaint,
Sodexo contracted with Tuskegee University to construct a
subcontract to perform some of the necessary work for
The complaint alleges, in essence, that Sodexo
and the other original defendants did not pay pursuant to
Sodexo removed this case from state to federal court
See 28 U.S.C. §§ 1332, 1441.
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.
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
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
significantly injured if amendment is not allowed, and any
other factors bearing on the equities.”
F.2d at 1182.
Applying the considerations articulated in Tillman and
Hensgens, the court concludes that the new defendants
should be added.
It appears that Dad’s desires to pursue
There is no credible evidence that Dad’s
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.
that these developments and other intervening events led
it to add Tuskegee and the other new defendants into the
satisfaction why that is not so.
Finally, the court is
not persuaded that Sodexo will suffer prejudice if the new
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
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
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