Nelson v. Boston Market Corporation et al

Filing 11

ORDER granting 7 Motion for Leave to File amended complaint; proposed amended complaint 7 is deemed filed; granting 8 Motion to Remand to State Court. The Clerk is directed to remand this case to state court and then to close this case. Signed by Judge Susan C Bucklew on 1/30/2017. (JD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ANN NELSON,
Plaintiff,
v.

Case No. 8:16-cv-3355-T-24 TBM

BOSTON MARKET CORPORATION
and JOHN DOE,
Defendants.
______________________________/
ORDER
This cause comes before the Court on two motions: (1) Plaintiff’s Motion for Leave to
Amend the Complaint (Doc. No. 7), which Defendant opposes (Doc. No. 10); and (2) Plaintiff’s
Motion to Remand (Doc. No. 8), which Defendant opposes (Doc. No. 9). As explained below,
both motions are granted.
I. Background
On October 28, 2016, Plaintiff Ann Nelson filed suit in state court against Defendant
Boston Market Corporation (“Boston Market”) and its store manager, Defendant John Doe.
Plaintiff asserted negligence claims against both Defendants for allowing the dangerous
condition of the restaurant’s floor, on which Plaintiff fell. Plaintiff also asserted a vicarious
liability claim against Boston Market for its store manager’s negligence.
On December 7, 2016, Boston Market removed the case to this Court on the basis of
diversity jurisdiction. Thereafter, on January 6, 2017, Plaintiff filed the instant motions to
amend and for remand.

II. Motions to Amend and Remand
Plaintiff seeks to amend her complaint to identify the defendant store manager as being
Rob Razdrich. In both the original complaint and the proposed amended complaint, Plaintiff
alleges that the store manager is a Florida resident. Therefore, in addition to seeking to amend
the complaint to properly identify Razdrich as the defendant store manager, she also seeks to
remand this case to state court because diversity jurisdiction is lacking.
Pursuant to 28 U.S.C. § 1447(e), “[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.” Because the addition of Razdrich
would destroy diversity jurisdiction in this case, Boston Market argues that this Court should
scrutinize the motion to amend and consider the factors set forth in Hensgens v. Deere & Co.,
833 F.2d 1179 (5th Cir. 1987). In Hensgens, the court stated the following:
[T]he addition of a nondiverse party must not be permitted without
consideration of the original defendant's interest in the choice of
forum. The district court, when faced with an amended pleading
naming a new nondiverse defendant in a removed case, should
scrutinize that amendment more closely than an ordinary amendment.
. . . [J]ustice requires that the district court consider a number of
factors to balance the defendant's interests in maintaining the federal
forum with the competing interests of not having parallel lawsuits.
For example, the court should consider the extent to which the
purpose of the amendment is to defeat federal jurisdiction, whether
plaintiff has been dilatory in asking for amendment, whether plaintiff
will be significantly injured if amendment is not allowed, and any
other factors bearing on the equities. The district court, with input
from the defendant, should then balance the equities and decide
whether amendment should be permitted. If it permits the
amendment of the nondiverse defendant, it then must remand to the
state court.
Id. at 1182. As explained below, after consideration of the Hensgens factors, the Court finds that

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Plaintiff’s motion to amend should be granted.
The first Hensgens factor this Court considers is the extent to which the purpose of the
amendment is to defeat federal jurisdiction. The Court finds that because Plaintiff asserted a
negligence claim against John Doe, the store manager, in the original complaint, it was clear at
all times that Plaintiff intended to pursue a claim against a non-diverse defendant. Plaintiff did
not merely attempt to assert a new claim against a non-diverse defendant after this case was
removed. For this reason, the Court concludes that the purpose of the amendment is not to defeat
federal jurisdiction. See Lacy v. ABC Ins. Co., 1995 WL 688786 (E.D. La. Nov. 17,
1995)(granting motion to amend complaint post-removal in order to correctly identify John Doe
defendants fictitiously named in the original complaint); Mergist v. Wal-Mart Stores, Inc., 2016
WL 3648262 (M.D. La. June 9, 2016), adopted by 2016 WL 3647623 (M.D. La. June 30,
2016)(same); Johnson v. Lincoln Harris, LLC, 2016 WL 2733425 (N.D. Ga. May 10,
2016)(same); Sharp v. Wal-Mart Stores, Inc., 2007 WL 215644 (S.D. Ala. Jan. 25, 2007)(same).
The next Hensgens factor this Court considers is whether plaintiff has been dilatory in
asking for amendment. Plaintiff filed suit in state court on October 28, 2016 and moved to
amend the complaint on January 6, 2017, one month after Defendant removed this case.
Plaintiff’s conduct cannot be described as dilatory.
The next Hensgens factor this Court considers is whether plaintiff will be significantly
injured if amendment is not allowed. The Court finds that Plaintiff will be injured if required to
pursue her claims against Boston Market in this Court while simultaneously pursuing her claim
against Razdrich in state court.
Finally, the Court considers any other factors bearing on the equities, including whether

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Razdrich has been fraudulently joined. In order for this Court to find that Razdrich was
fraudulently joined, the Court must find that there is no possibility Plaintiff can establish a cause
of action against Razdrich. See Pacheco de Perez v. AT&T Company, 139 F.3d 1368, 1380
(11th Cir. 1998)(citations omitted).
In the proposed amended complaint, Plaintiff alleges the following with regards to
Razdrich’s negligence: Razdrich owed a duty of reasonable care to his customers, including
Plaintiff, to provide a reasonably safe environment, to inspect and maintain this environment,
and to request and authorize repairs to this environment, such that his customers would be
protected from reasonably foreseeable injuries. Furthermore, Plaintiff alleges that he breached
these duties by doing the following: (1) failing to prevent reasonably foreseeable injuries and
creating a foreseeable risk of harm to customers by failing to repair or authorize repair of the
floor of the premises; (2) failing to adequately warn Plaintiff of the dangerous conditions that he
knew or should have known of; (3) failing to adequately remedy the dangerous condition of the
flooring or otherwise repair it; (4) failing to properly train his employees in adequately
remedying the flooring and/or failing to properly supervise them in maintaining the same; (5)
failing to properly train his employees in adequately warning customers of the store's dangerous
conditions, such as the flooring, through the proper placement of warning signs, and/or failing to
properly supervise them in maintaining the same; and (6) failing to alert Boston Market of the
store's dangerous condition in order to request and authorize repairs to the flooring. Based on
these allegations, it appears that Plaintiff has an arguable negligence claim against Razdrich. See
White v. Wal-Mart Stores, Inc., 918 So. 2d 357, 358 (Fla. 1st DCA 2006)(reversing motion to
dismiss slip and fall claim against store manager); Hunt v. Target Corp., 2014 WL 1515262, at

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*2 (S.D. Fla. April 18, 2014)(evaluating negligence claim against store manager and finding that
he was not fraudulently joined).
Thus, after consideration of the Hensgens factors, the Court concludes that Plaintiff’s
motion to amend should be granted. The Court is not persuaded by the reasoning on the nonbinding case cited by Boston Market, Rutsky v. Target Corp., 2012 WL 5604620 (S.D. Fla. Nov.
15, 2012). Because granting the amendment destroys diversity jurisdiction, the Court also grants
Plaintiff’s motion to remand.
III. Conclusion
Accordingly, it is ORDERED AND ADJUDGED that:
(1)

(1) Plaintiff’s Motion for Leave to Amend the Complaint (Doc. No. 7) is
GRANTED.

(2)

The proposed First Amended Complaint (Doc. No. 7, p. 3-11) is hereby deemed
filed.

(3)

Plaintiff’s Motion to Remand (Doc. No. 8) is GRANTED.

(4)

The Clerk is directed to remand this case to state court and then to close this case.

DONE AND ORDERED at Tampa, Florida, this 30th day of January, 2017.

Copies to:
Counsel of Record

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