Smith v. Comcast Corporation, et al

Filing 96

ORDER denying 64 Motion for Leave to File Second Amended Complaint. Signed by District Judge William H. Steele on 7/17/2018. Copy mailed to Plaintiff. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MICHAEL HENRY SMITH,
Plaintiff,
v.
COMCAST CORPORATION, et al.,
Defendants.

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) CIVIL ACTION 17-0456-WS-M
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ORDER

This matter is before the Court on the plaintiff’s motion to amend the
complaint. (Doc. 64). Because the plaintiff has previously filed an amended
complaint, (Doc. 40), the Court construes the motion as one for leave to file a
second amended complaint. Several defendants have filed responses in opposition
to the motion, (Docs. 75, 77, 78), the plaintiff has filed a reply in support, (Doc.
81), and the motion is ripe for resolution.
The plaintiff’s original complaint was filed in Alabama state court, where
fictitious party practice is recognized. The complaint lists as defendants “two
Comcast area supervis[o]rs which arrived together at my home to physically
intimidate me.” (Doc. 1-1 at 6). The first amended complaint retains this
language. (Doc. 40 at 1). The purpose of the plaintiff’s motion is to identify one
of these fictitious defendants by name. The parties agree that this individual is an
Alabama citizen and that allowance of the amendment would require remand
pursuant to 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.” 28 U.S.C. § 1447(e). If
joinder is allowed, remand is mandatory. Ingram v. CSX Transportation, Inc., 146

F.3d 858, 862 (11th Cir. 1998). The parties agree that the Court’s decision whether
to allow joinder under Section 1447(e) is to be guided by the following factors:
“(1) the extent to which the amendment’s purpose is to defeat federal jurisdiction;
(2) whether the plaintiff was dilatory in seeking the amendment; (3) whether the
plaintiff would be significantly injured if the amendment were disallowed; and (4)
other equitable considerations.” Adams v. International Paper Co., 2017 WL
1828908 at *3 (S.D. Ala. 2017).
The parties devote most of their attention to an exploration of these factors,
but the Court finds it unnecessary to consider them. As the Helmsman defendants
point out, (Doc. 75 at 6), amendment may be denied under Rule 15 when
amendment would be futile. E.g., Haynes v. McCalla Raymer, LLC, 793 F.3d
1246, 1250 (11th Cir. 2016). “This court has found that denial of leave to amend is
justified by futility when the complaint as amended is still subject to dismissal.”
Hall v. United Insurance Co. of America, 367 F.3d 1255, 1263 (11th Cir. 2004)
(internal quotes omitted). The Helmsman defendants assert that “amendment is
futile under Rule 15,” (Doc. 75 at 6), and the Court agrees.1
As noted, the purpose of the plaintiff’s proposed amendment is to identify a
fictitious defendant by name. If the amended complaint fails to state a claim
against this defendant on which relief can be granted, then a second amended
complaint naming the fictitious defendant will still be subject to dismissal for the
same reason, rendering the proposed amendment futile.
1

This Court and many others have stated broadly that, when a plaintiff seeks
leave to amend in order to add a non-diverse defendant, the “analysis is informed not by
the liberal amendment principles of Rule 15(a)(2), but instead by the discretionary
provisions of” Section 1447(e). Adams v. International Paper Co., 2017 WL 1828908 at
*3 (S.D. Ala. 2017). What these statements mean is that, because Section 1447(e) adds a
layer of analysis not required under Rule 15, when that section is implicated a court may
not grant leave to amend without ensuring that this analysis favors amendment. They do
not mean that a court should ignore Rule 15 when amendment is contra-indicated under
that rule. Thus, for example, Chief Judge Blackburn denied amendment as futile under
Rule 15 without considering the Section 1447(e) factors, since “consideration of these
factors assumes a viable claim against a resident defendant.” Foster v. State Auto
Property and Casualty Co., 2010 WL 11561711 at *3 (N.D. Ala. 2010).
2

The only conduct in which the fictitious defendants are alleged to have
engaged is a visit to the plaintiff’s home, which is made the subject of Count I of
the amended complaint. (Doc. 40 at 4). The Court has granted the motion of
Comcast Corporation to dismiss Count I because the conduct alleged falls well
short of that which will support a claim for outrageous conduct under Alabama
law. (Doc. 94 at 7-10). Were the plaintiff’s proposed amendment allowed, Count
I would be immediately subject to dismissal a second time. The proposed
amendment is thus futile.
The amended complaint indiscriminately lumps in the two fictitious
defendants with the “Comcast defendants.” (Doc. 40 at 2). The “Comcast
defendants” are the subject of Counts VI and VIII, which allege fraudulent billing
and fraudulent falsification of records. (Id. at 6, 7). It is obvious from the factual
allegations of the amended complaint that the fictitious defendants (who are area
supervisors) had nothing to do with this conduct. Even if a contrary position were
tenable, the Court has dismissed these counts for failure to plead fraud with
particularity, (Doc. 94 at 12-13, 15), and they would again be immediately subject
to dismissal were amendment allowed.
Counts II, III, V and VII are pleaded broadly against “the defendants.”
(Doc. 40 at 4-6). It is clear that the fictitious defendants had nothing to do with
the conduct made the basis of those counts (other than their visit to the plaintiff’s
home, which forms part of the conduct under Count VII). At any rate, the Court
has dismissed these counts for failure to state a claim on which relief can be
granted, (Doc. 93 at 5-9, 11; Doc. 94 at 13-14), and they would again be
immediately subject to dismissal were amendment allowed.
Because the proposed amendment would be futile, the plaintiff’s motion for
leave to file a second amended complaint is denied.
DONE and ORDERED this 17th day of July, 2018.
s/ WILLIAM H. STEELE
UNITED STATES DISTRICT JUDGE

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