Lamar v. Associates Asset Recovery, LLC et al
OPINION AND ORDER GRANTING Plaintiff's 12 Motion to Add Party, 12 Motion to Amend, and 16 Motion to Amend. The Court DIRECTS the Clerk to file Plaintiff's amended complaint located at Document 16-1 on the docket. The Court DENI ES AS MOOT Defendants' 7 Motion to Dismiss. Allowing the joinder of Marvin L. Thompson, Maria Williamson, and Alan Stevenson will destroy subject matter jurisdiction. Therefore, remand is required. The Court REMANDS this action to the State Court of Cobb County, Georgia. Signed by Judge Michael L. Brown on 10/7/21. (jpa)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
Ladarius Lamar, individually and
acting as the parent of Juvenile
Case No. 1:21-cv-2166-MLB
Associates Asset Recovery, LLC
and Westlake Portfolio
OPINION & ORDER
On behalf of himself and his minor son, Plaintiff Ladarius Lamar
sued Defendants Associates Asset Recovery, LLC (“AAR”) and Westlake
Portfolio Management. (Dkt. 1-1 at 2–7.) Defendants move to dismiss,
and Plaintiff moves to add parties, substitute a party, and correct a
misnomer. (Dkts. 7; 12; 16.) The Court grants Plaintiff’s motion, denies
Defendants’ motion as moot in the light of the amended complaint, and
remands this action to the State Court of Cobb County, Georgia.
On November 19, 2020, Plaintiff entered a Jet Food Store while his
two-year-old son slept in the back seat of Plaintiff’s car. (Dkt. 1-1 at 3.)
Upon exiting the store, Plaintiff saw his car being towed away with his
son still inside. (Id.) Plaintiff pursued the tow truck on foot, but the tow
truck did not stop. (Id.) An unidentified person at the store offered to
help Plaintiff, and they pursued the tow truck in that person’s car. (Id.
at 4.) During the pursuit, the tow truck weaved in and out of traffic and
drove erratically. (Id.) Plaintiff caught up to the tow truck at a four way
stop and blocked the tow truck in with the car. (Id.) The tow truck
whipped around the parked car and fled. (Id.) Plaintiff called 911 for
emergency assistance. (Id.) The responding officers stopped the tow
truck and returned Plaintiff’s son. (Id.) Plaintiff’s car was financed
through Westlake. (Id. at 3.) He alleges AAR, at the request of Westlake,
wrongfully repossessed Plaintiff’s car. (Id. at 4–5.)
In the State Court of Cobb County, Georgia, Plaintiff sued AAR and
Westlake for wrongful repossession; intentional infliction of emotional
distress; false imprisonment; negligent hiring, retention, training, and
supervision; and punitive damages. (Id. at 2–7.) AAR and Westlake
removed the case to this Court and moved to dismiss. (Dkts. 1; 7.)
Plaintiff seeks to (1) add Marvin L. Thompson, Maria Williamson, and
repossession) as defendants; (2) change the capacity of Plaintiff from
“Ladarius Lamar, individually and acting as parent of Juvenile Child” to
“Ladarius Lamar, individually and as parent of L.L., a minor”; (3) correct
Westlake’s name; and (4) add agency language to clarify part of the
complaint. (Dkts. 12; 16.)1 Defendants object to the first request. (Dkt.
Adding Thompson, Williamson, and Stevenson
Williamson, and Stevenson) who participated in the repossession of
On June 10, 2021, Plaintiff filed a motion for leave to add parties,
substitute a party, and correct a misnomer. (Dkt. 12.) On June 23, 2021,
Plaintiff filed an amended motion, which seeks the same relief as the
original motion with one exception. (Dkt. 16 at 1–2.) The original motion
sought to substitute the full name of Plaintiff’s minor child in the place
of “Juvenile Child.” The amended motion, however, moves to substitute
the initials of his minor child (rather than the child’s full name) in order
to comply with this Court’s Standing Order 19-01, which provides that
only the initials of a minor child should be used.
Plaintiff’s car as defendants. (Dkt. 12 at 3–7.) Defendants argue this
request should be denied because Plaintiff is trying to destroy diversity
(Dkt. 20 at 4.)
Plaintiff admits the joinder of these
employees will destroy complete diversity of citizenship. (Dkt. 12 at 3.)
Plaintiff is a citizen of Georgia (Dkt. 1 ¶ 7), and the employees are citizens
of Georgia (Dkts. 26; 27; 28).
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.” Accordingly, in such a situation, courts
have “only two options: (1) deny joiner; or (2) permit joinder and remand
[the] case to state court.” Ingram v. CSX Transp., Inc., 146 F.3d 858, 862
(11th Cir. 1998). 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 (4)
any other factors bearing on the equities. Dever v. Fam. Dollar Stores of
Ga., LLC, 755 F. App’x 866, 869 (11th Cir. 2018) (per curiam) (citing
Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir. 1987)). 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.
The first factor is the extent to which the purpose of the amendment
is to defeat federal jurisdiction. Defendants argue Plaintiff was aware
the employees were involved in the repossession of his car “well before”
he filed suit in state court because Plaintiff saw his car being towed away
and protested the towing of his car. (Dkt. 20 at 7.) While it is true
Plaintiff knew AAR employees were involved in the repossession, he did
not know the identity of those employees until recently. When discovery
interrogatories: “Please IDENTIFY all persons who are known or are
claimed by you to have knowledge of the incident which forms the basis
of the complaint. Specifically, please identify all persons involved in the
repossession of the subject vehicle including but not limited to spotters
and/or tow truck drivers.” (Dkt. 12 at 4; see Dkt. 12-2 at 3.) On June 8,
2021, AAR responded to this interrogatory by identifying “Police Officer
Aaron Brown; Unknown Witness; Spotter, Maria Williamson; Tow Truck
Driver, Alan Stevenson; AAR Employee and Branch Manager, Lee
Thompson; Brandy Hayes, Compliance Manager.” (Dkt. 12 at 5; see Dkt.
12-2 at 3.) Plaintiff then filed the instant motion two days later. (Dkt.
Plaintiff says he intended “all along” to add these employees
following the disclosure of their names and addresses in discovery. (Id.
at 4.) The Court finds Plaintiff’s purpose was not to defeat diversity
jurisdiction. This factor favors permitting the amendment.
The second factor is whether Plaintiff was dilatory in asking for
joinder. This action was initiated on April 8, 2021 and removed on May
24, 2021. (Dkt. 1.) Plaintiff moved to add these employees on June 10,
2021—only two months after filing suit, less than three weeks after
removal, and only two days after learning the identity of the employees.
Such conduct cannot be described as dilatory. See, e.g., Quattlebaum v.
Fed. Express Corp., No. 1:19-cv-210-ALB, 2019 WL 2518337, at *3 (M.D.
Ala. June 18, 2019) (finding two months after removal was not dilatory);
Dever v. Fam. Dollar Stores of Ga., LLC, No. 2:17-cv-19, 2018 WL
6323078, at *3 (S.D. Ga. Dec. 3, 2018) (finding a month and a half after
removal was not dilatory); Starnes Davis Florie, LLP v. GOS Operator,
LLC, No. 12-0387-WS-N, 2012 WL 3870413, at *4 n.10 (S.D. Ala. Sept. 5,
2012) (finding about a month after removal was not dilatory); Jarriel v.
Gen. Motors Corp., 835 F. Supp. 639, 641 (N.D. Ga. 1993) (finding the
plaintiff was not dilatory where “he moved to add [the non-diverse
defendant] approximately two (2) months after he filed the original suit”).
But see Turner v. Wal-Mart Stores E., LP, 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 discovery ended was dilatory). This
factor strongly favors permitting the amendment.
Harm to Plaintiff
The third factor is whether Plaintiff will be significantly injured if
joinder is not allowed. Defendants do not address this factor. (See Dkt.
20.) Plaintiff contends he will be significantly injured if he is not allowed
to join the employees as defendants because “their misconduct is at the
heart of the incident”: Stevenson was the tow truck driver, Thompson
was with Stevenson, and Williamson was the spotter. (Dkt. 12 at 6.)
Plaintiff adds that his claims against these employees are based entirely
on state law, so if he is not permitted to add the employees as defendants,
he would be forced to file a separate action against them in state court.
(Id.) That action, he contends, would be duplicative of this federal court
action and would cause a waste of Plaintiff’s resources and judicial
resources. (Id.) The Court agrees. If the Court were to deny amendment,
Plaintiff could still proceed against Defendants in this Court and could
pursue a claim against the employees in state court.
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, LLC v. Clarion Mortg. Cap.,
Inc., No. 07-00798-CG-C, 2008 WL 1756369, at *3 (S.D. Ala. Apr. 11,
2008)). Thus, while Plaintiff may not be “significantly injured” if the
Court denies his motion, he would still 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.
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, as the Court gives consideration to the defendant’s right
to choose the federal forum. Hensgens, 833 F.2d at 1182. Defendants’
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 strongly weigh in
favor of allowing the amendment. And more generally, this is not a case
in which Plaintiff has engaged in inequitable conduct.
There is no
indication that he has been manipulative, deceptive, or dilatory in any
The Court concludes that, under the four factors, the balance of the
equities favors amendment.
Changing Plaintiff’s Capacity
Plaintiff moves the Court to change the capacity of Plaintiff from
“Ladarius Lamar, individually and acting as parent of Juvenile Child” to
“Ladarius Lamar, individually and as parent of L.L., a minor.” (Dkt. 16
at 1.) Defendants do not oppose this request. (Dkt. 20.) The Court grants
Correcting Westlake’s Name
Plaintiff seeks to correct Westlake’s name from Westlake Portfolio
Management to Westlake Portfolio Management, LLC.2 (Dkt. 12 at 1.)
Defendants do not oppose this request.
routinely allowed a plaintiff to correct his pleadings under Rule 15 to
designate a defendant’s name properly, provided that the defendant has
notice of the proceedings and knows or should know that the action was
being brought against it.” Pears v. Mobile Cnty., 645 F. Supp. 2d 1062,
1083 (S.D. Ala. 2009) (collecting cases).
There is no disputing that
Westlake is aware of this lawsuit—it has been actively engaged in this
lawsuit by filing a notice of removal, answer, motion to dismiss, and
response to Plaintiff’s motion. (Dkts. 1; 5; 7; 20.) Westlake has also
repeatedly emphasized that it is improperly named. (Dkts. 5 at 1; 7 at
In his motion, Plaintiff technically asks to correct Westlake’s name to
“Westlake Portfolio, LLC.” (Dkt. 12 at 1.) Because Plaintiff’s proposed
amended complaint uses “Westlake Portfolio Management, LLC” (Dkt.
12-3), and Defendants say Westlake’s correct name is “Westlake Portfolio
Management, LLC” (Dkt. 20 at 1), the Court assumes “Westlake
Portfolio, LLC” is a typographical error.
1.) Plaintiff may amend the complaint to cure the misnomer. See, e.g.,
SIS, LLC v. Stoneridge Software, Inc., No. 1:17-CV-01816-ELR, 2018 WL
10582334, at *2 (N.D. Ga. July 17, 2018) (granting the plaintiff’s request
to correct the defendant’s name from Stoneridge Software, Inc. to
Stoneridge Holdings, Inc. because the defendant did not oppose the
amendment and referred to itself using the latter name at the beginning
of its brief).
Adding Agency Language
Because Defendants raised issues of agency in their motion to
dismiss, Plaintiff seeks to add agency language to the complaint to clarify
paragraphs 28–31. (Dkt. 12 at 7.) According to Plaintiff, his original
complaint “clearly puts Defendants on notice of the agency issue between
Westlake and AAR and its employees,” but Plaintiff wishes to clarify it
further and “set forth the relationships between the corporate
defendants and AAR employees.” (Id.) Defendants do not oppose this
request. (See generally Dkt. 20.) The Court grants Plaintiff’s request to
add agency language.
The Court concludes that, under the four factors, the balance of the
equities favors amendment. The Court GRANTS Plaintiff’s Motion for
Leave to Add Parties, Substitute a Party, and Correct a Misnomer (Dkts.
The Court DIRECTS the Clerk to file Plaintiff’s amended
complaint located at Document 16-1 on the docket.
The Court DENIES AS MOOT Defendants’ motion to dismiss (Dkt
Allowing the joinder of Marvin L. Thompson, Maria Williamson,
and Alan Stevenson will destroy subject matter jurisdiction. Therefore,
remand is required. The Court REMANDS this action to the State Court
of Cobb County, Georgia.
SO ORDERED this 7th day of October, 2021.
MICH"K E L L. B R O W N
“An amended complaint supersedes the original complaint, and thus
renders moot a motion to dismiss the original complaint.” S. Pilot Ins.
Co. v. CECS, Inc., 15 F. Supp. 3d 1284, 1287 n.1 (N.D. Ga. 2013).
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