Thornton v. McCarthy Building Companies, Inc.

Filing 19

OPINION and ORDER: The Court GRANTS Plaintiff's Motion to Add Defendant Party (Dkt. 7 ) and Plaintiff's Motion to Remand (Dkt. 8 ). Emory Healthcare Services Management, LLC, and affiliates shall be added as a defendant. The Court REMANDS this action to the State Court of Gwinnett County, Georgia. Signed by Judge Michael L. Brown on 11/17/2020. (jta)

Case 1:20-cv-01257-MLB Document 19 Filed 11/17/20 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
Shawntae Thornton,
Plaintiff,

Case No. 1:20-cv-01257
Michael L. Brown
United States District Judge

v.
McCarthy Building Companies,
Inc.,
Defendant.
________________________________/

OPINION & ORDER
Plaintiff Shawntae Thornton seeks to add a defendant party and
remand to state court under 28 U.S.C. § 1447(e). (Dkts. 7; 8.) Defendant
McCarthy Building Companies, Inc., opposes Plaintiff’s motions. (Dkt.
10.)

The Court grants Plaintiff’s Motion to Add Defendant Party.

Because this Court lacks jurisdiction as a result of the joinder, it grants
Plaintiff’s Motion to Remand.
I.

Background
On June 29, 2018, Plaintiff underwent a surgical procedure at

Emory University Hospital. (Dkt. 8-3 at 3.) On July 1, 2018, a nurse

Case 1:20-cv-01257-MLB Document 19 Filed 11/17/20 Page 2 of 8

assisted Plaintiff, still in the hospital recovering from the procedure, to
the restroom to take a shower. (Id.) Plaintiff sat on the shower seat,
which then collapsed. (Id.) Because of this accident, Plaintiff suffered
injuries, and her healing process from the procedure was exacerbated.
(Id. at 4.)
On January 13, 2020, Plaintiff sued Defendant in state court. (Dkt.
7-1 at 1.) On February 13, 2020, Plaintiff filed a motion to add defendant
party, Emory Healthcare Services Management, L.L.C., and affiliates
(Emory). (Id. at 2.) Then, on March 19, 2020, Defendant removed the
action to federal court. (Id.)
On April 13, 2020, Plaintiff filed a motion to add defendant party
(Emory) and a motion to remand. (Dkts. 7; 8.) On April 20, 2020,
Defendant filed a response opposing Plaintiff’s motion to remand. (Dkt.
10.) The issue before the Court is whether Emory should be added as a
defendant. If so, diversity jurisdiction would be destroyed,1 and the
action must be remanded to state court.

Diversity jurisdiction requires complete diversity — “[t]hat is, diversity
jurisdiction does not exist unless each defendant is a citizen of a different
state from each plaintiff.” Owen Equip. & Erection Co. v. Kroger, 437
U.S. 365, 373 (1978) (emphasis in original). Here, Plaintiff resides in

1

2

Case 1:20-cv-01257-MLB Document 19 Filed 11/17/20 Page 3 of 8

II.

Standard of Review
Under 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.” When a plaintiff seeks to amend her
complaint to add a defendant such that the court would no longer have
diversity jurisdiction, the court should scrutinize that amendment more
closely than an ordinary amendment. Dever v. Family Dollar Stores of
Ga., L.L.C., 755 F. App’x 866, 869 (11th Cir. 2018) (citing Hensgens v.
Deere & Co., 833 F.2d 1179, 1182 (5th Cir. 1987)).
III. Discussion
In deciding whether joinder of a nondiverse defendant is
appropriate, courts consider four factors: (1) the extent to which the
purpose of the amendment is to defeat federal jurisdiction, (2) whether
the plaintiff has been dilatory in asking for amendment, (3) whether the
plaintiff will be significantly injured if amendment is not allowed, and

Georgia. (Dkt. 1 ¶ 6.) Defendant is a Missouri corporation with its
principal place of business in Missouri. (Id. ¶ 7.) Emory is a Georgia
corporation with its principal place of business in Georgia. (Dkt. 8-1 at
3–4.)
3

Case 1:20-cv-01257-MLB Document 19 Filed 11/17/20 Page 4 of 8

(4) any other factors bearing on the equities. Dever, 755 F. App’x at 869
(citing Hensgens, 833 F.2d at 1182). The court has broad discretion in
weighing these factors. Id. And, “[b]ecause the court’s decision will
determine the continuance of its jurisdiction, the addition of a nondiverse
party must not be permitted without consideration of the original
defendant’s interest in the choice of forum.” Hensgens, 833 F.2d at 1182.
A.

Plaintiff’s Purpose

The first factor the Court should analyze is the extent to which the
purpose of the amendment is to defeat federal jurisdiction. Most cases in
which an improper purpose exists involve the plaintiff seeking to add a
defendant party for the first time after removal in order to destroy subject
matter jurisdiction. See, e.g., Ortiz v. Ross Dress for Less, Inc., No. 1960443-CIV, 2019 WL 5291043, at *4 (S.D. Fla. May 2, 2019) (“The timing
of the proposed amended pleading, filed only after the Plaintiff knew that
the case had been removed, strongly suggests that the Plaintiff is seeking
to avoid federal court by adding the store manager, which weighs against
permitting the amendment.”). That is not the case here. Plaintiff filed a
motion to add Emory in state court nearly one month before Defendant
filed a notice of removal.

(Dkt. 7-1 at 3.)

4

This indicates Plaintiff’s

Case 1:20-cv-01257-MLB Document 19 Filed 11/17/20 Page 5 of 8

purpose was not to destroy federal jurisdiction. The first factor strongly
favors permitting the amendment.
B.

Timeliness

The second factor is whether Plaintiff was dilatory in asking for
joinder. The Court finds Plaintiff has not been dilatory. Plaintiff filed a
motion to add Emory in state court one month after filing her initial
complaint in state court. (Dkt. 7-1 at 2.) And she again sought to add
Emory in federal court less than one month after Defendant filed a notice
of removal. (Id. at 4.) See, e.g., Quattlebaum v. Fed. Express Corp., No.
1:19-cv-210, 2019 WL 2518337, at *3 (M.D. Ala. June 18, 2019) (finding
two months after removal was not dilatory); Dever v. Family Dollar
Stores of Ga., L.L.C., No. 2:17-cv-19, 2019 WL 6323078, at *3 (S.D. Ga.
Dec. 3, 2018) (finding a month and a half after removal was not dilatory);
Starnes Davis Florie, L.L.P. v. GOS Operator, L.L.C., No. 12-387-WS-N,
2012 WL 3870413, at *4 n.10 (S.D. Ala. Sept. 5, 2012) (finding about a
month after removal was not dilatory). But see Turner v. Wal-Mart Stores
E., L.P., No. 7:11-cv-181, 2012 WL 6048949, at *2 (M.D. Ga. Dec. 5, 2012)
(finding almost eleven months after removal and two months before

5

Case 1:20-cv-01257-MLB Document 19 Filed 11/17/20 Page 6 of 8

discovery ended as dilatory). This factor also strongly favors permitting
the amendment.
C.

Harm to Plaintiff

The third factor is whether Plaintiff will be significantly injured if
joinder is not allowed. In analyzing this, courts generally attempt to
determine whether a plaintiff can be afforded complete relief in the
absence of the amendment.

Dever, 2018 WL 6323078, at *3 (citing

Starnes, 2012 WL 3870413, at *4 n.10). Plaintiff argues she would be
significantly injured if Emory was not added as a defendant because “[i]t
is not clear whether the incident was caused by the Defendant or by
Emory.” (Dkt. 7-1 at 4.) If the Court were to deny Plaintiff’s motion,
Plaintiff could still proceed against Defendant in this Court, and Plaintiff
could pursue a claim against Emory in state court.
But “the redundancy, duplication of effort and expense, and
multiplication of proceedings inherent in such parallel litigation is an
injury to plaintiff that certain courts have deemed sufficient to satisfy
this factor.” Starnes, 2012 WL 3870413, at *4 (citing Holiday Isle, L.L.C.
v. Clarion Mortg. Capital, Inc., No. 07-00798, 2008 WL 1756369, at *3
(S.D. Ala. Apr. 11, 2008)). Thus, while Plaintiff may not be “significantly

6

Case 1:20-cv-01257-MLB Document 19 Filed 11/17/20 Page 7 of 8

injured” if the Court denies her motion, she would nonetheless be forced
to expend the time, effort, and expense necessary to pursue parallel
litigation based on the same facts in two separate judicial fora.
Accordingly, this factor weighs in favor of permitting the amendment.
D.

Other Equitable Considerations

The fourth factor allows the court to consider any other factors
which bear on the equities. In balancing the equities, the parties are not
on equal footing, and the court should give consideration to the
defendant’s right to choose the federal forum. Hensgens, 833 F.2d at
1182. Defendant’s interest in proceeding in federal court weighs against
amendment. But the expense, waste of judicial resources, and risk of
inconsistent outcomes that would result from denying the amendment
and requiring Plaintiff to initiate parallel litigation in state court weigh
in favor of allowing the amendment.
Lastly, Defendant argues it “was never served with, or otherwise
notified of,” Plaintiff’s motion to add Emory in state court. (Dkt. 10 ¶ 3.)
This argument goes to the propriety of removal under § 1446(b). See
Lowery v. Ala. Power Co., 483 F.3d 1184, 1213 (11th Cir. 2007) (“[I]n
assessing the propriety of removal, the court considers the document

7

Case 1:20-cv-01257-MLB Document 19 Filed 11/17/20 Page 8 of 8

received by the defendant from the plaintiff—be it the initial complaint
or a later received paper—and determines whether that document and
the notice of removal unambiguously establish federal jurisdiction.”).
Such an argument is irrelevant to the issue before the Court because no
one disputes that removal was proper on March 19, 2020, as between
Plaintiff and Defendant.
IV.

Conclusion
The Court concludes that, under the four factors, the balance of the

equities favors amendment. Allowing the joinder of Emory, a nondiverse
defendant, will destroy subject matter jurisdiction. Therefore, remand is
required.
The Court GRANTS Plaintiff’s Motion to Add Defendant Party
(Dkt. 7) and Plaintiff’s Motion to Remand (Dkt. 8). “Emory Healthcare
Services Management, LLC, and affiliates” shall be added as a defendant.
The Court REMANDS this action to the State Court of Gwinnett County,
Georgia.
SO ORDERED this 17th day of November, 2020.

8