Dever v. Family Dollar Stores of Georgia, LLC et al

Filing 24

ORDER denying Plaintiff Patricia Dever's 15 Motion to Substitute and Remand. Signed by Judge Lisa G. Wood on 7/20/2017. (csr)

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PATRICIA D.

DEVER,

Plaintiff,
CV 217-19

V.

FAMILY

DOLLAR STORES

GEORGIA,

OF

LLC and

DARRYL MARTIN, individually and
as Agent of Family Dollar
Stores of Georgia, LLC,

Defendants.

ORDER

Pending

before

(^^Plaintif f")
For
15)

the

the

Motion

reasons

set

to

Court

is

Plaintiff

Substitute

forth

below.

and

Patricia

Remand

Plaintiff's

(Dkt.
Motion

Dever's
No.

15).

(Dkt.

No.

will be DENIED.
FACTUAL BACKGROUND

Plaintiff

Family

Dollar

Brunswick,

Martin's

Plaintiff

A0 72A

(Rev. 8/82)

alleges

Stores

Georgia

(^'Martin")

seeks

to

that

of

facility

she

slipped

Georgia,
as

a

and

fell

result

of

Defendant

(^'Family

LLC's

at

Dollar")

Defendant

Darryl

failure to keep the store safe.

Dkt. No.

substitute

this

a

party

and

remand

1.

action

back

to

state

Specifically,

court

for

lack

Plaintiff seeks

manager Deon Manning

of

to

diversity.

Dkt.

No.

substitute Martin for

(^^Manning") .

^d.

5.

store-

Plaintiff asserts that

she mistakenly named Martin rather than Manning,

in that Martin

did not work at Family Dollar at the time of the incident.
DISCUSSION

Under 28 U.S.C. § 1441(a), a defendant in a case originally

filed

in

court

state

if

the

jurisdiction.
be

court may remove
district

court

the

case

could

to

district

exercised

have

federal

original

Under 28 U.S.C. § 1447(c), however, the case must

remanded

to

state

court

^Mi]f

at

any

time

before

final

judgment it appears that the district court lacks subject matter
jurisdiction."
Pursuant

plaintiff
would

to

28

to

seeks

destroy

U.S.C.

join

subject

§

1447(e),

additional

matter

or

permit

joinder and

court."

28

U.S.C.

§

146

F.3d

858,

1447(e);

862

remand
see

(11th

after

defendants

jurisdiction,

joinder,

Inc.,

'Mi]f

the

also

Cir.

the

whose
court

action

Inqram

1998).

removal

v.

The

to
CSX

joinder
may

the

Rapoport,

Deere

&

Co.,

addition of a

198

833

F.3d

F.2d

457,

462

1179,

(4th

1182

Cir.

(5th

1999);

Cir.

deny
State

Transp.,

decision

committed to the sound discretion of the district court.
V.

the

Mayes

Hensqens

1987).

is

v.

^MT]he

non-diverse party should not be permitted without

consideration of the original defendant's interest in the choice

of the federal forum."

Osqood v.

Discount Auto Parts,

LLC,

955

F. Supp. 2d 1352, 1355 (S.D. Fla. 2013).

Here,

jurisdiction is based upon diversity,

Plaintiff

to

substitute

require remand.

a

non-diverse

party

and allowing

would

ultimately

For this reason, her motion to amend should be

scrutinized ^'more closely than a motion to amend under Rule 15,"

and the Court ^^should deny leave to amend, unless strong equities
support
Supp.

the

639,

1182);

amendment."
640-41

see

Inc.,

Civ.

April

11,

1311,

also
A.

1313

Jarriel

(N.D. Ga.
Holiday

No.

2008);
(M.D.

1993)

Isle,

07-00798,

Ala.

Gen.

v.

WL

1756369,

C^In

at

Inc.,

balancing

the

diverse

federal

parallel
interest

defendant's

forum.").

The

federal/state
in

retaining

right

court

to

should

proceedings
the

choose

federal

against
forum

by

F.

Capital,

(S.D.

F.

Ala.

Supp.

equities,

2d
the

This is because

between

balance

835

833 F.2d at

*2

51

the

parties do not start out on an equal footing.
of

Corp.,

Clarion Mortq.

G & K Serv.,

1999)

Mot.

(citing Hensqens,

LLC,

2008

Sexton v.

v.

the

the

a

state
danger

or
of

defendant's

considering

the

following factors:

the extent to
defeat federal
been dilatory
plaintiff will
not
allowed,

which the purpose of the amendment is to
jurisdiction,
whether the plaintiff has
in asking for the amendment, whether the
be significantly injured if the amendment is
and
any
other
factors
bearing
on
the

equities.

Hensqens,

833 F.2d at 1182.

Here,

the

timing

and

substance

of

the

proposed

amendment

strongly supports finding that Plaintiff's motive is to destroy

diversity

jurisdiction.

Plaintiff

seeks

to

add

a

non-diverse

defendant immediately after removal but before discovery,
suggests

that

destroying
Gardens

Supp.
463

the

amendment

diversity

Condo

Inc.

(S.D.

Fla.

that

the

scrutinize

add

but before
courts

a

any additional
be

wary

purpose

Villas

Specialty

Ins.

Co.,

(citing Mayes,

district

attempt

court

to

was

add

at

a

defendant

immediately

discovery has

that

the

after

taken place,

amendment

sought

Lowe's

No.

128823,

at

*1

to

the

case

purpose

the

of

Home

to

to

Fla.

Ctr.,

Inc.,

2007)

("The

for

defendants

federal

court

[Plaintiff's]

only

that

after

2007

Plaintiffs

[the

is

to

WL

seek

Defendant]

^strongly indicates

amendment

the

see also

8:06-CV-1885,

fact

removal

district

is

v.

removed the

F.

nondiverse

Vazquez

non-diverse

799

correct

jurisdiction."));

add

Miami

198 F.3d at

specific purpose of avoiding federal

(M.D.

of

Especially where, as here, a plaintiff

nondiverse

should

^'specific

Ibis

2011)

Mayes's

defendant after removal.
to

with

Aspen

1335

carefully

seeks

v.

emphasize

(^'We

done

jurisdiction."

Ass'n,

2d 1333,

is

which

that

the

defeat

federal

claim

against

jurisdiction.'")).

Further,

Manning stems

it

is

undisputed

that

from his claim against

Plaintiff s

Family Dollar.

Plaintiff

makes no allegations that Manning acted outside of the scope of
4

his

employment

However,

or

was

employed

while Manning

is

as

an

independent

unlikely to be personally liable

this matter,

his presence will destroy diversity.

Court

the

views

purpose

contractor.

of

adding

Manning

to

As

such,

this

in
the

matter

to

primarily be a tactical choice to destroy federal jurisdiction.
Next,

the

Court

finds

that

Plaintiff

will

not

significantly prejudiced if Manning is not added to this

be

case.

There has been no showing by Plaintiff that she will not be able
to

obtain

presence
Family
allow

full

relief

on

of Manning.

Dollar

the

access

to

Manning's being in this
that

Family

Dollar

claims

in

Plaintiff can

without

Plaintiff

her

presence
the

case,

would

same

this

obtain
of

Court

a

judgment

Manning,

information

without

against

discovery
with

or

the

will

without

and there has been no suggestion

be

unable

to

satisfy

a

judgment.

Plaintiff is free to sue Manning in state court should she wish
to do so.
Dkt.

No.

As

a

matter of fact,

15-2.

Therefore,

the

that is exactly what she did.
Court

can

discern

little

to

no

prejudice to Plaintiff.
Because

amending
because

the

this

Court

matter

Plaintiff

Court maintains

will

can

to

discern

substitute

suffer

no

no

substantive

Manning

discernable

jurisdiction over this matter,

for

reason

Martin,

prejudice

if

for

and
the

the Court hereby

denies Plaintiff's motion for substitution and remand.

CONCLUSION

For the reasons set forth above.
Motion for Substitution and Remand

Plaintiff Patricia Dever's

(Dkt. No.

SO ORDERED, this 20th day of July,

15)

is DENIED.

2017.

HON. LISA GODBEY WOOD,
UNITED STATES
SOUTHERN

A0 72A

(Rev. 8/82)

JUDGE

DISTRICT COURT

DISTRICT OF GEORGIA