Smith v. Dollar General Corporation
MEMORANDUM OPINION AND ORDER- Pltf's combined motion to amend the complaint and remand this matter to state court (Doc 13 ) is GRANTED; Because amendment destroys the only applicable basis of federal subject matter jurisdiction, the Clerk is DIRECTED to REMAND this matter to the Circuit Court of Calhoun County, Alabama. Signed by Magistrate Judge Staci G Cornelius on 8/15/17. (MRR, )
2017 Aug-15 AM 08:56
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SAKEENA RENA SMITH,
Case No.: 1:16-cv-1673-SGC
MEMORANDUM OPINION AND ORDER
Presently pending is the combined motion to amend the complaint and
remand this matter to state court filed by the plaintiff, Sakeena Rena Smith. (Doc.
13). The defendant, Dolgencorp, LLC,1 has responded (Doc. 14), and Smith has
replied (Doc. 15). The parties have unanimously consented to magistrate judge
jurisdiction pursuant to 28 U.S.C § 636(c). (Doc. 9). For the reasons that follow,
Smith's motion to amend is due to be granted, and this matter is due to be
FACTS AND PROCEDURAL HISTORY
This matter concerns a July 18, 2016 incident in which Smith was physically
assaulted. (See generally Doc. 1-1). Smith filed her complaint in the Circuit Court
of Calhoun County, Alabama, on September 9, 2016, asserting claims under
Dolgencorp was incorrectly named in the complaint as "Dollar General Corporation." (Doc. 1
at 1). This order refers to the defendant as "Dolgencorp."
Alabama law for assault, battery, and negligent hiring, supervision, and training
against Dolgencorp and nine fictitious parties.
(Id. at 2-5).
identifies fictitious parties A, B, and C as including the individuals that assaulted,
battered, and injured Smith. (Id.). The complaint notes Smith was unaware of the
fictitious parties' identities and states that the parties would be substituted under
Rule 9(h) of the Alabama Rules of Civil Procedure. (Id. at 5).
On October 12, 2016, Dolgencorp timely removed to this court on the basis
of diversity jurisdiction. (Doc. 1). The notice of removal sufficiently alleges
complete diversity of citizenship between the named parties, disregarding the
citizenship of fictitious parties.
(Id. at 3-4).2
The notice of removal also
sufficiently alleges the amount in controversy is satisfied due to the complaint's
allegations, the claims asserted, the availability of punitive damages, and the
parties' settlement negotiations. (Id. at 4-5).
Following removal and the parties' consent to magistrate judge jurisdiction,
the court entered a Scheduling Order providing a February 13, 2017 deadline to
add parties. (Doc. 12). On January 20, 2017, the plaintiff filed the instant motion,
seeking leave to amend the complaint and requesting remand to state court. As to
amendment, the motion notes that Dolgencorp's initial disclosures revealed the
Smith is a citizen of Alabama. (Doc. 1 at 3). Dolgencorp is an LLC, the sole member of which
is a corporation organized under Tennessee law, with its principal place of business in
Tennessee. (Doc. 1 at 2). Accordingly, Dolgencorp is a Tennessee citizen for purposes of
federal diversity jurisdiction.
identity of the fictitious parties that assaulted her; they are identified as two
Dolgencorp employees—Martin Sauceda and Kelley Cheshire. (Doc. 13 at 4; see
id. at 13-19).
The motion further notes that Dolgencorp's initial disclosures
represented Smith's first opportunity to learn the individual defendants' identities
because, soon after the assault, Dolgencorp prohibited Smith and her counsel from
communicating with the business or its employees. (Id. at 3).
As to remand, Smith argues that because the newly-named defendants are
Alabama citizens, complete diversity is lacking and this matter is due to be
remanded. (Doc. 13 at 7). Smith's motion invokes 28 U.S.C. § 1447(e), under
which the court has discretion to allow joinder of new parties. Dolgencorp's
response and Smith's reply primarily focus on whether joinder and remand under §
1447(e) are appropriate here. (Docs. 14, 15).
As explained below, the undersigned is not convinced § 1447(e) governs
resolution of the instant motion. However, regardless of the standard applied, the
motion to amend is due to be granted, and this matter is due to be remanded to
Pursuant to § 1447, “[i]f 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). Where a party seeks to add new parties that would destroy
diversity jurisdiction, judges sitting in this district have noted that the court "should
scrutinize the amendment more closely than an ordinary amendment and deny
leave to amend unless strong equities support amendment." Smith v. White Consol.
Indus., Inc., 229 F. Supp. 2d 1275, 1281 (N.D. Ala. 2002) (quotation marks
omitted). Courts undertaking this inquiry, which balances the defendant's interest
in securing a federal forum with the preference against parallel litigation, "should
consider: (1) the extent to which the purpose of the amendment is to defeat federal
jurisdiction, (2) whether plaintiff has been dilatory in asking for amendment, (3)
whether plaintiff will be significantly injured if amendment is not allowed, and (4)
any other factors bearing on the equities." Taylor v. Alabama CVS Pharmacy,
LLC, No. 16-1827-TMP, 2017 WL 3009695, at *7 (N.D. Ala. July 14, 2017)
(quoting Small v. Ford Motor Co, 923 F. Supp. 2d 1354, 1356-57 (S.D. Fla.
Again, the court is not convinced § 1447(e) governs the instant motion. The
§ 1447(e) analysis only applies where a plaintiff seeks to join a new defendant, not
where a plaintiff merely substitutes a defendant for one previously named. See
Ingram v. CSX Transp., Inc., 146 F.3d 858, 861-62 (11th Cir. 1998).
undersigned agrees with a recent decision issued in this district in which the court
concluded that the identification of a fictitious party is more akin to a substitution
of a party, rather than the addition of a new party. Taylor, 2017 WL 3009695 at *
There, Judge Putnam reasoned that an amendment to name a previously
unknown fictitious party "does not trigger the application of § 1447(e), because all
that occurs is an amendment to correct a misnomer, not the joinder of a new
As noted in Taylor, other district courts within the Eleventh Circuit have
found that "substitution of a proper non-diverse fictitious party requires remand."
Id. at 5-6. In a decision from the Middle District of Alabama, the court held:
As noted via footnote in Taylor:
It is frequently argued that fictitious-party practice is not recognized in federal court, but
this is only partially correct. When a federal court is sitting in diversity jurisdiction, Fed. R.
Civ. P. 15(c)(1) allows the court to apply state relation-back rules. See Saxton v. ACF Indus.,
Inc., 254 F.3d 959, 963 (11th Cir. 2001); see also Pompey v. Lumpkin, 321 F. Supp. 2d 1254,
1258 (M.D. Ala. 2004), aff'd sub nom. Pompey v. Fulmer, 127 Fed. Appx. 473 (11th Cir.
2005). Also, separate and apart from application of state rules, relation back can be based on
Rule 15(c)(1)(B) and (C), particularly in non-diversity, federal-question cases. While there is
no federal analogue to Ala. R. Civ. P. 9(h), Rule 15(c)(1)(C) of the Federal Rules of Civil
Procedure plainly provides for relation-back of amendments that do nothing more than
correct a mis-naming of a party. Under the federal rule, an amendment relates back to the
date of the original pleading being amended if
the amendment changes the party or the naming of the party against whom a claim is
asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m)
for serving the summons and complaint, the party to be brought in by amendment:
(i) received such notice of the action that it will not be prejudiced in defending on the
(ii) knew or should have known that the action would have been brought against it,
but for a mistake concerning the proper party's identity.
Thus, it is entirely possible that the correct true name of a defendant fictitiously named in a
state-court complaint can be substituted by amendment after the case is removed to federal
court, with the amendment relating back to the date of the filing of the original complaint.
Taylor, 2017 WL 3009695, at *6 n.5.
It is well-established that the court's diversity jurisdiction is
determined at the time the notice of removal is filed. St. Paul Mercury
Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S. Ct. 586, 590,
82 L.Ed. 845 (1938); See also 14A Wright, Miller and Cooper,
FEDERAL PRACTICE AND PROCEDURE § 3739 at 581 (1985).
Furthermore, under the recently amended removal statute, the
citizenship of defendants sued under fictitious names should be
disregarded for purposes of removal. See 28 U.S.C. § 1441(a).
However, subsequent to this amendment of the removal statute, courts
have found that where a plaintiff's complaint provides a description of
a fictitious defendant in such a way that his or her identity cannot
reasonably be questioned, the court should consider the citizenship of
the fictitious defendant. Lacy v. ABC Ins. Co., No. CIV.A. 95–3122,
1995 WL 688786 at *3 (E.D. La. Nov. 17, 1995); Brown v. TranSouth
Financial Corp., 897 F. Supp. 1398, 1401–02 (M.D. Ala. 1995);
Tompkins v. Lowe's Home Ctr., Inc., 847 F. Supp. 462, 464 (E.D. La.
1994) (citing Green v. Mutual of Omaha, 550 F. Supp. 815, 818 (N.D.
Marshall v. CSX Transp. Co., 916 F. Supp. 1150, 1152 (M.D. Ala. 1995).
Under the foregoing reasoning, § 1447(e) does not apply here. Smith's
complaint identifies fictitious parties A, B, and C as including the individuals who
assaulted her. Although not identified as Dolgencorp employees, the complaint's
inclusion of a claim for negligent supervision suggests that they were. This is a
sufficient description of fictitious parties A, B, and C under Rule 9(h) of the
Alabama Rules of Civil Procedure. See Taylor, 2017 WL 3009695 at *6
("Alabama Rule 9(h) requires a sufficient description of the fictitious defendant to
make clear that it is a real person or entity subject to potential liability.").
Accordingly, under this analysis, the motion to amend is due to be granted, and this
matter is due to be remanded for lack of federal subject-matter jurisdiction.
Moreover, even if the proposed amended complaint's identification of
previously-fictitious parties constitutes a joinder of new parties, analysis under §
1447(e) would weigh in favor of amendment and remand nonetheless. First, the
purpose of the amendment is to identify the fictitious parties described in the
complaint, not merely to defeat federal jurisdiction. As to the second factor, Smith
was not dilatory in seeking leave to amend; she filed the motion more than three
weeks before the expiration of the deadline to add parties. Next, Smith would be
significantly injured if the amendment were not allowed because, absent Sauceda
and Cheshire, all but one of Smith's claims would turn on the application of
respondeat superior liability. A judgment against Dolgencorp here might afford
complete relief to Smith, but that is by no means certain. See Sharp v. Wal-Mart
Stores, Inc., No. 06-0817, 2007 WL 215644, at *4 (S.D. Ala. Jan. 25, 2007).
Finally, judicial economy weighs in favor of remand. If Sauceda and Cheshire
were not added as defendants in this matter, Smith's only avenue for protecting the
full measure of her interests would be to file a parallel lawsuit in state court.
Likewise, while this motion has been pending for some time in this court, "not
much has occurred in this case." Taylor, 2017 WL 3009695 at *9. Accordingly,
under the § 1447(e) analysis, Smith's amendment is due to be allowed, and this
matter is due to be remanded. See id.
For all of the foregoing reasons, Smith's motion is GRANTED. Because
amendment destroys the only applicable basis of federal subject matter jurisdiction,
the Clerk of Court is DIRECTED to REMAND this matter to the Circuit Court of
Calhoun County, Alabama. (Doc. 13).
DONE and ORDRED this 15th day of August, 2017.
STACI G. CORNELIUS
U.S. MAGISTRATE JUDGE
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