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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ifn t(ie ?ISntte))i Stated SBtsftrict Cottrt foi: ^outlliem Btsstriet of <(leorgta PtuttOlotcit IBiiitOtoit 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

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