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

Filing 44

ORDER granting Plaintiff's 15 Motion for Substitution and Remand. The Clerk is instructed to REMAND this case back to the State Court of Glynn County. Signed by Judge Lisa G. Wood on 12/3/2018. (csr)

^tt t|ie dititteli States!
for tfie ^ontfiem

Conrt
of 4^eorgta

iimnotutck IBtbtOion
PATRICIA D. DEVER,

Plaintiff,
No. 2:17-cv-19
V.

FAMILY

DOLLAR STORES OF

GEORGIA, LLC and
DARRYL MARTIN, individually

and as Agent of Family Dollar
Stores of Georgia, LLC,
Defendants.

ORDER

Pending before the Court on remand from the Eleventh Circuit
is Plaintiff Patricia Dever's (^'Plaintiff") Motion to Substitute
and

Remand

{Dkt.

No.

15).

For

the

reasons

set

forth

below.

Plaintiff's Motion {Dkt. No. 15) is hereby GRANTED.
BACKGROUND

I.

Factual Background

Plaintiff alleges that she slipped and fell at Defendant
Family

Dollar

Brunswick,

Stores

Georgia,

of

Georgia,

facility

as

a

LLC's

result

(^'Family

of

Dollar")

Defendant

Martin's (^'Martin") failure to keep the store safe.

Darryl

Dkt. No. 1.

Plaintiff seeks to substitute a party and remand this action back
to state court for lack of diversity.

A0 72A

(Rev. 8/82)

Dkt. No. 5.

Specifically,

Plaintiff

seeks

to

substitute

Manning (^'Manning").

Martin

for

store-manager

Deon

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.
II.

Procedural History

On November 2, 2018, the Eleventh Circuit vacated this Court's

previous order denying Dever's Motion to Substitute and Remand and
this Court's order granting summary judgment for Family Dollar in
this case.

Dkt. No. 42.

The Eleventh Circuit remanded this case

back to this Court for further proceedings consistent with the
circuit court's opinion.

Id.

Specifically, the Eleventh Circuit

remanded this case so that this Court may ''consider whether to

allow Dever to substitute Manning as a party defendant in light of
the fact that she sought to bring a claim against the store manager

in her original complaint but was mistaken as to his identity."
Id. at 9.

Therefore, this Court has reviewed the parties' briefs

in support of and in opposition to this motion again in light of
the Eleventh

Circuit's ruling and has made a new

consideration of that ruling.

decision in

Upon reconsideration on Plaintiff's

motion, this Court will grant the motion to add Manning as a
substituted party in this case.
DISCUSSION

Under 28 U.S.C. § 1441(a), a defendant in a case originally
filed in state court may remove the case to federal district court

if the district court could have exercised original jurisdiction.
Under 28 U.S.C. § 1447(c), however, the case must be remanded to

state court 'Mi]f at any time before final judgment it appears
that the district court lacks subject matter jurisdiction."
Pursuant to 28

U.S.C. § 1447(e), 'Mi]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."

28

U.S.C. § 1447(e); see also Ingram v. CSX Transp., Inc., 146 F.3d
858, 862 (11th Cir. 1998).

The decision is committed to the sound

discretion of the district court.

Mayes v. Rapoport, 198 F.3d

457, 462 (4th Cir. 1999); Hensqens v. Deere & Co., 833 F.2d 1179,
1182 (5th Cir. 1987).

''[T]he addition of a 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, and allowing
Plaintiff

to

substitute

require remand.

a

non-diverse

party

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 the amendment."

Jarriel v. Gen. Mot. Corp., 835 F. Supp.

639, 640-41 (N.D. Ga. 1993) (citing Hensqens, 833 F.2d at 1182);

see also Holiday Isle^ LLC, v. Clarion Mortg. Capital, Inc., Civ.

A. No. 07-00798, 2008 WL 1756369, at *2 (S.D. Ala. April 11, 2008);
Sexton V. G & K Serv., Inc., 51 F. Supp. 2d 1311, 1313 (M.D. Ala.

1999) (^'In balancing the equities, the parties do not start out on
an equal footing.

This is because of the diverse defendant's right

to choose between a state or federal forum.").

The court should

balance the danger of parallel federal/state proceedings against
the

defendant's

interest

in

retaining

the

federal

forum

by

considering the following factors:

the extent to which the purpose of the amendment is to
defeat federal jurisdiction, whether the plaintiff has
been dilatory in asking for the amendment, whether the
plaintiff will be significantly injured if the amendment
is not allowed, and any other factors bearing on the
equities.

Hensgens, 833 F.2d at 1182.

The Eleventh Circuit adopted these

factors in its unpublished opinion in this case.

Dkt. No. 42 at

7; Dever v. Family Dollar Stores of Georgia, LLC, No. 18-10129,
2018 WL 5778189, at *3 (11th Cir. Nov. 2, 2018).

The first factor in this analysis requires the

Court to

discern the purpose of the amendment and to determine the extent
to which that purpose is to defeat federal jurisdiction.

On the

one hand, other district courts in this circuit have held that

where a plaintiff seeks to add a non-diverse defendant immediately
after removal but before discovery, such action suggests that the

"specific

purpose" of

the

amendment

is

to

destroy

diversity

jurisdiction.

Ibis Villas at Miami Gardens Condo Ass^n, Inc. v.

Aspen Specialty Ins. Co., 799 F. Supp. 2d 1333, 1335 (S.D. Fla.

2011) (citing Mayes, 198 F.3d at 463 (''We emphasize that the
district court was correct to carefully scrutinize Hayes's attempt
to add a nondiverse defendant after removal.

Especially where, as

here, a plaintiff seeks to add a nondiverse defendant immediately
after removal but before any additional discovery has taken place,
district courts should be wary that the amendment sought is for

the specific purpose of avoiding federal jurisdiction.")); see
also Vazquez v. Lowe's Home Ctr., Inc., No. 8:06-CV-1885, 2007 WL
128823, at *1 (M.D. Fla. 2007) ("The fact that Plaintiffs S'eek ta,
add the non-diverse defendants only after [the Defendant] removed

the case to federal court 'strongly indicates that the purpose of
the [Plaintiff's] amendment is to defeat federal jurisdiction.'").

Here, Plaintiff sought to add a non-diverse party immediately after
removal but before discovery, and thus, if left alone, this fact

indicates a specific purpose of destroying diversity jurisdiction.
However, on the other hand, considering the fact Plaintiff

sought to bring a claim against the store manager in her original
complaint but was mistaken as to that manager's identity. Plaintiff
has shown an alternative motive or purpose behind seeking to add

this non-diverse party.

Here, Plaintiff attempted to sue Family

Dollar and the store manager who she believed was the manager at
the time of her alleged injury, but she included the wrong manager

in the original complaint, namely Darryl Martin.^

Martin was a

non-diverse party as he was listed as a resident of Glynn County,

Georgia, in the complaint.
a resident of Georgia.

Dkt. No. 1-1 at 5.

Dkt. No. 1 at 3.

Plaintiff is also

Plaintiff states that

she did not learn that Martin was not employed by Family Dollar

and that Deon Manning—another Georgia resident and non-diverse

party—was in fact the store manager at the time of her alleged
injury until after Defendants removed the case to federal court.
''In ^determining whether the purpose of attempting to add a
non-diverse defendant post-removal has been to destroy federal

jurisdiction, courts often look to see whether the plaintiff was
aware or should have been aware of the non-diverse defendant at

the time the suit was filed."

Seropian v. Wachovia Bank, N.A.,

No. 10-80397-CIV, 2010 WL 2822195, at *3 (S.D. Fla. July 16, 2010).

Here, Plaintiff argues that she was not aware that she had sued

the wrong manager at the time she filed her original complaint.
While she should have figured out who the correct manager was at

the time of her injury, it is also possible that Plaintiff made a

mistake by suing a different manager with the same initials who
was hired at a later date. .Furthermore, it is clear, based on the

fact that Martin is included in the

original complaint, that

Plaintiff always intended to sue the store manager who was in

1 Plaintiff s misspelled Martin's name in the original complaint as Darryl
Martin instead of Darrell Martin, but there is no dispute as to whom the

complaint is referring.

Dkt. No. 1 at 2.

charge at the time of her alleged injury and that Martin, like
Manning, was a non-diverse party.

Cf. Ibis Villas, 799 F. Supp.

2d at 1336 (holding that the only reasonable explanation for the
timing

of

the

plaintiff's

motion

for

joinder

was

to

destroy

diversity because ^^if not, [the plaintiff] would have included the

proposed

additional

defendants

in

the

original

complaint").

Furthermore, unlike other cases where filing this motion after

removal and before discovery is suspect, here it makes sense that
Plaintiff would file at that point in time because she learned
\

that Martin was the wrong party based off of Defendants' notice of
removal.
Plaintiff

After
filed

finding
this

that

motion

Manning
about

a

was

the

month

correct

and

a

half

party.
after

receiving the notice of removal.

Moreover, in Duniqan v. Countrywide Home Loans, Inc., No.

l:08-CV-3735-CC, 2009 WL 10698799, at *6 (N.D. Ga. Sept. 10, 2009),
the court found that where the plaintiffs had filed their original

complaint that included ^Vohn Does I, II, and III" without knowing
those parties names or citizenships but always maintained that
these unknown parties were liable, these facts weighed '^^against a
finding" that

the

plaintiffs'

complaint to add these
diversity."

Here, a

main

purpose

for

amending

the

parties after removal was ''to defeat

mistaken store

manager in the original

complaint is analogous to including the unknown parties in Duniqan.
The main point being that Plaintiff initially intended to sue a

store manager

who had the same initials as the correct store

manager and who was also non-diverse prior to attempting to add a
non-diverse party after removal.

On balance, considering all of

these facts, this factor weighs in favor of Plaintiff.
The second factor is whether Plaintiff was dilatory in asking
for the amendment.

The Court finds Plaintiff was not dilatory

because she filed this motion on March 31, 2017—about a month and

a half after learning that she included the wrong store manager
from Defendants' notice of removal on February 15, 2017.
15 at 1-2.

Dkt. No.

See Starnes Davis Florie, LLP v. GOS Operator, LLC,

No. CIV.A. 12-0387-WS-N, 2012 WL 3870413, at *4 (S.D. Ala. Sept.

5, 2012) (finding the plaintiff was not dilatory when it filed its
motion about a month after removal); 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 the plaintiff was dilatory when she filed
the motion almost eleven months after removal and two months before

discovery ended).

Thus, this factor also weighs in favor of

granting the amendment.

The

third

factor

is

whether

the

plaintiff

significantly injured if the amendment is not allowed.

will

be

First,

this case does not ''present a circumstance in which [Plaintiff]
will be deprived of complete relief unless this amendment is
granted."

Starnes Davis Florie, LLP v. GOS Operator, LLC, No.

CIV.A. 12-0387-WS-N, 2012 WL 3870413, at *4 n.lO (S.D. Ala. Sept.

8

5, 2012) (explaining that courts in this circuit have often asked

whether the plaintiff can be afforded complete relief under this
factor).
could

If the Court were to deny Plaintiff's motion, Plaintiff

still proceed

against

Family

Dollar—arguably the

larger

defendant with deeper pockets as it is a corporation rather than
an individual.

This Court is more than adequately prepared to

adjudicate Plaintiff's claims and could afford complete relief if
Plaintiff were to be successful in her case.

Furthermore, Plaintiff can, and has, pursued a claim against

Manning in state court, and that court could provide complete
relief on that claim.

duplication

of

Dkt, No. 15-2.

effort

and

However, "'the redundancy,

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, 2008 WL 1756369, at *3).

Thus, while Plaintiff will not be

■"'significantly injured" if the Court denies her motion, she would
nevertheless be

forced to expend the time,

effort,

and expense

necessary to pursue parallel litigation based on the same facts in
two separate judicial fora.

See id.

Additionally, unlike other

cases in this circuit that did not allow the addition of a party

after

removal

based

on

the

proceedings were not possible.
1337,

fact

that

parallel

Ibis Villas,

or that the likelihood of the

7 99 F.

state

court

Supp.

2d at

Plaintiff pursuing parallel

state court proceedings was ^^remote," Linares v. Home Depot U.S.A.,
Inc., No. 12-60308-CIV, 2012 WL 1441577, at *3 (S.D. Fla. Apr. 26,

2012), Plaintiff did in fact file state court proceedings in this

case.

Thus, balancing these different facts, '^this [third] factor

is either neutral or weighs slightly in favor of allowing the
amendment."

Id.

Finally, the Court must consider any other factors bearing on
the equities. At this point, it is worth noting that had Plaintiff
included the correct store manager in the original complaint as
she intended, this Court would not be adjudicating this case.

In

other words, despite Defendants' interest in removal, the fact
remains that had Plaintiff sued the correct store manager in the

original complaint, no basis for removal would have existed.

See

Holiday Isle, 2008 WL 1756369, at *4 (^'While the court recognizes

Clarion, Inc.'s interest in proceeding in federal court, the court
believes that had the relevant facts been known to plaintiff prior

to the filing of the original Complaint, defendant would have had
no basis for removal.").

The Court also notes that it is still

true that Plaintiff makes no allegation in

her complaint that

Manning acted outside of the scope of his employment, such that he
is unlikely to be personally liable in this case.
must

weigh

that fact against the

But, the Court

other factors in

this case

recognizing that a state court may view the case against Manning
differently.
10

Therefore,

balancing

the

equities

based

on

the

factors

discussed above, the Court finds that Plaintiff's amendment should

be permitted and Manning be joined as a party in this case.

result

of

adding

Manning

to

this

litigation,

As a

diversity

jurisdiction no longer exists, and the Court must remand the case
to state court.

CONCLUSION

For

the

reasons

set

forth

above.

Plaintiff's

Substitution and Remand {Dkt. No. 15) is GRANTED.

Motion

for

The Clerk is

instructed to REMAND this case back to the State Court of Glynn
County.

SO ORDERED, this 3rd day of December, 2018.

HON. LISA GODBEY^WOOD, JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN

11

DISTRICT OF GEORGIA