Kitchener v. Servisair USA Incorporated et al

Filing 28

IT IS ORDERED DENYING plaintiff's Motion to Amend Complaint and Caption 9 . (See attached PDF for details) Signed by Senior Judge Frederick J Martone on 4/17/13.(JAMA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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Servisair USA Inc.; British Airways PLC)
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Inc.,
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Defendants.
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Erica Kitchener,

No. CV-13-00049-PHX-FJM
ORDER

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The court has before it plaintiff's motion to amend (doc. 9), defendant Servisair USA

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Inc.’s (“Servisair”) response (doc. 18), and defendant British Airways PLC Inc.’s (“British

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Airways”) joinder to Servisair’s response (doc. 21). Plaintiff did not reply, and the time for

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doing so has expired.

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On September 15, 2011, while operating a vehicle at Phoenix Sky Harbor Airport,

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plaintiff suffered injuries resulting from a collision with wheel blocks. Plaintiff filed this

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action in the Superior Court of Arizona in Maricopa County naming as defendants, Servisair,

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British Airways, John Does I-X and Jane Does I-X, ABC Partnerships I-X, and XYZ

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Corporations I-X (doc. 1-1). Servisair timely removed the action to this court pursuant to 28

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U.S.C. § 1332. Plaintiff now seeks to amend the complaint to add “Unknown Named

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Employee of Servisair USA Inc.” (“Unknown Employee”), a citizen of Arizona, as an

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additional defendant. Defendants oppose the motion on the ground that plaintiff is joining

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Unknown Employee in bad faith solely to destroy diversity jurisdiction. Neither party

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disputes that adding Unknown Employee would destroy diversity jurisdiction.

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Where plaintiff seeks to join additional defendants whose joinder would destroy

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subject matter jurisdiction, we consider the following factors: (1) whether the party sought

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to be joined is a necessary party under Rule 19(a), Fed. R. Civ. P.; (2) the plaintiff's motive

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for seeking joinder; (3) the delay adding the new defendant; (4) whether, if joinder is denied,

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the statute of limitations would bar an action against the new defendant in state court; (5) the

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apparent validity of the claim; and (6) any prejudice to the plaintiff if the amendment is

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denied. Huffman v. American Family Mut. Ins. Co., 2011 WL 814957, *1 (D. Ariz. 2011).

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Here, plaintiff alleges that Unknown Employee is an employee of Servisair who

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performed negligent acts within the course and scope of his employment. Proposed

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Amended Complaint ¶¶ 4-6. Plaintiff’s claim against Unknown Employee appears valid, and

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the motion to amend was timely filed. On balance, however, the factors favor denying

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amendment. The Unknown Employee is not a necessary party in this action because

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Servisair is liable for its employee’s torts under respondeat superior, and complete relief can

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be afforded among the existing parties. Because plaintiff has not refuted defendants’

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argument that plaintiff’s motive is solely to destroy diversity jurisdiction, her motive is

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suspect. Moreover, the statute of limitations does not preclude any state law claim against

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Unknown Employee. Finally, plaintiff is not prejudiced if the amendment is denied. If

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plaintiff’s claim against defendants is valid, she will prevail regardless of whether Unknown

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Employee is joined as a defendant. Moreover, if she prevails, plaintiff will be able to recover

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from defendants more easily than she could from an employee individually. Therefore, IT

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IS ORDERED DENYING plaintiff’s motion to amend (doc. 9).

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DATED this 17th day of April, 2013.

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