Ayres et al v. Lowe's Home Centers Inc

Filing 16

OPINION AND ORDER: GRANTING 10 MOTION OMNIBUS MOTION FOR LEAVE TO FILE AMENDED COMPLAINT, FOR PERMISSIVE JOINDER OF ADDITIONAL NONDIVERSE PARTY DEFENDANT, AND FOR REMAND TO KOSCIUSKO SUPERIOR COURT NO. 3; Ordering clerk to file amended complaint as of date of this order; REMANDING case to Kosciusko Superior Court No 3. Signed by Judge Rudy Lozano on 3/12/13. (jld)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
TERRY L. AYRES and
TONI R. AYRES,

)
)
)
Plaintiffs,
)
)
v.
)
)
LOWE’S HOME CENTERS, INC., )
)
Defendant.
)

NO. 3:12-CV-838

OPINION AND ORDER
This matter is before the Court on the Omnibus Motion for
Leave

to

File

Amended

Complaint,

for

Permissive

Joinder

of

Additional Nondiverse Party Defendant, and for Remand to Kosciusko
Superior Court No. 3, filed by Plaintiffs on January 21, 2013. For
the reasons set forth below, the motion is GRANTED.

The Clerk is

ORDERED to file the Amended Complaint accompanying the instant
motion as of the date of this Opinion and Order and to REMAND this
case to Kosciusko Superior Court No. 3.

BACKGROUND
On November 16, 2012, Plaintiffs Terry L. Ayres and Toni R.
Ayres

filed

a

complaint

against

Lowe’s

Home

Centers,

Inc.

(“Lowe’s”) in the Kosciusko Circuit Court, under cause number
43D03-1211-CC-775.

The complaint stems from a dispute regarding a

contract for the installation of a roof, flashing, decking, vents
and fascia.

Lowe’s removed the action to this Court on December

17, 2012.

The removal was based on diversity of citizenship

pursuant to 28 U.S.C. § 1332.

On January 21, 2013, Plaintiffs

filed the instant motion. Plaintiffs seek to amend their complaint
to add Brian J. Nelson (“Nelson”), the individual whom Lowe’s
contracted with to complete the work on the Ayres’ property.

The

joinder of Nelson, a citizen of Indiana, would destroy diversity of
citizenship and for that reason the Ayres’ ask that the case be
remanded to the Kosciusko Superior Court.

Defendant has not

objected to the instant motion, and it is ripe for adjudication.

DISCUSSION
Federal Rule of Civil Procedure 15(a) provides that leave to
amend

a

complaint

requires.”

should

be

“freely

given

when

justice

so

However in the instant case, allowing the complaint

to be amended will destroy subject matter jurisdiction.

Joinder

of non-diverse parties after an action has been removed to federal
court is governed by 28 U.S.C. § 1447(e), which states that “[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.”

The only two options the Court has are to deny

joinder or permit joinder and remand the case to the state court.
Schur v. LA. Weight Loss Centers, Inc., 577 F.3d 752 (7th Cir.
2009).

The Seventh Circuit has held that the following factors

2

are relevant to this determination: (1) the plaintiff’s motive for
seeking joinder; (2) the timeliness of the request to amend; (3)
whether the plaintiff will be significantly injured if joinder is
not allowed; and (4) any other relevant equitable considerations.
Id.
In this case, Defendant Lowe’s has not responded or otherwise
opposed either the motion to amend the complaint or the motion to
remand the case. It appears that joinder of Nelson is proper, and
it does not appear that the Ayres’ are seeking to join Nelson
solely to defeat diversity jurisdiction.

The Ayres’ complaint

appears to state a valid legal claim for relief against Nelson.
Furthermore, it is early in the litigation and the request is
timely.

Because the joinder of Nelson appears appropriate, the

motion to amend the complaint is granted.

And, because Nelson

will be added, diversity is destroyed and this case must be
remanded to the Kosciusko Superior Court.

CONCLUSION
For the reasons set forth above, the motion is GRANTED.

The

Clerk is ORDERED to file the Amended Complaint accompanying the
instant motion as of the date of this Opinion and Order and to
REMAND this case to Kosciusko Superior Court No. 3.

DATED: March 12, 2013

/S/RUDY LOZANO, Judge
United States District Court
3