Herbert v. Thornton et al

Filing 77

ORDERED that 59 Motion for Leave to File Third Supplemental and Amended Complaint is GRANTED AS UNOPPOSED as to Plaintiff's request to re-join State Farm. FURTHER ORDERED that it is DENIED as to Plaintiff's request to join the Church of Jesus Christ of Latter-Day Saints. Plaintiff has seven days to file his amended complaint. Signed by Magistrate Judge Karen Wells Roby. (cml, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JUSTIN HERBERT

CIVIL ACTION

VERSUS

NO:

TREVOR THORNTON, ET AL.

SECTION: "E" (4)

12-0607

ORDER

Before the Court is Plaintiff, Justin Herbert's (“Herbert”) Motion for Leave to File Third
Supplemental and Amended Complaint (R. Doc. 59) which seeks leave of Court to amend his
complaint and add as defendants, The Church of Jesus Christ of Latter-Day Saints (“LDS”) and
State Farm Mutual Automobile Insurance Company (“State Farm”). The motion is opposed. See R.
Docs. 63, 64. It was heard by oral argument on Wednesday, February 26, 2014.
I.

Background
This action was first brought in the Twenty-First Judicial District Court Parish of

Tangipahoa, and removed on the basis of diversity jurisdiction to this Court, on March 7, 2012. Id.
Herbert's complaint alleges that on or about January 23, 2012, he was allegedly driving a vehicle
traveling eastbound on Highway 16 in Amite, Louisiana, when he was struck by a vehicle driven
by defendant, Trevor A. Thornton, (“Thornton”) traveling westbound, who was attempting to make
a left turn. See R. Doc. 1, see also R. Doc. 30, pp. 1-2. Herbert alleges that he suffered severe
injuries as a result of the accident. Id.

On August 20, 2012, Herbert filed an amended complaint, and on April 5, 2013, he filed a
second amended complaint. See R. Doc. 15, 30. In the second amended complaint, Herbert named
Trevor A. Thornton (“Thornton”), the Corporation of the Presiding Bishop of the Church of Jesus
Christ of Latter-Day Saints (“the Corporation”), National Union Fire Insurance Company of
Pittsburgh, PA (“National Union”), and State Farm Mutual Automobile Insurance Company (“State
Farm”) and as defendants in this action. See R. Doc. 30, pp. 1-2.
On August 8, 2013, Herbert filed a “Joint Motion to Dismiss” State Farm from this action
without prejudice. See R. Doc. 45. This Court granted Herbert's Joint Motion to Dismiss State Farm,
on August 9, 2013. See R. Doc. 46. Shortly thereafter, on October 11, 2013, the parties filed a joint
motion to continue the deadlines and trial. See R. Doc. 47. The Court granted this motion on October
17, 2013. See R. Doc. 49. On November 14, 2013, this Court issued a Scheduling Order, setting
forth the applicable deadlines. See R. Doc. 50. The presiding District Judge set forth the deadline
for filing all amendments to pleadings as December 9, 2013. Id.
As to the instant motion, Herbert acknowledges that the pleading deadline in this matter
expired on December 9, 2013, but contends that “good cause” exists to warrant the allowance of his
request to amend the complaint and add as additional defendants, LDS, an unincorporated, nonprofit,
religious organization, and State Farm. See R. Doc. 59, p. 1.
Specifically, Herbert contends that although defendants had ample opportunity since July
2013, counsel for defendants failed to reveal a conflict of interest in the dual representation of
Thornton and the Corporation, until January 23, 2014. Id. at 2. Thus, Herbert seeks to amend his
complaint and add State Farm as a defendant, although it was previously dismissed from this action
on August 9, 2013, as it may be liable, following the recent disclosure of the conflict of interest.

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Furthermore, Herbert contends that on January 31, 2014, during the deposition of Jim Wall,
the Mission President, it was first established that the party vicariously responsible for the actions
of Thornton, is not the Corporation, but rather, is an associated legal entity of it, LDS. Therefore,
Herbert seeks to amend his complaint and add LDS as the proper defendant in this matter. Id.
II.

Standard of Review
Federal Rules of Civil Procedure (“Rule”) 15(a), which governs the amendment of pleadings,

provides that leave to amend pleadings “shall be freely given when justice so requires.” See Fed. R.
Civ. P. 15(a)(2). This, and other federal rules, “reject the approach that pleading is a game of skill
in which one misstep by counsel may be decisive to the outcome and accept the principle that the
purpose of pleading is to facilitate a proper decision on the merits.” Conley v. Gibson, 355 U.S. 41,
48 (1957).
Thus, Rule 15(a) evinces a liberal amendment policy and a motion to amend should not be
denied absent a substantial reason to do so. See Jacobsen v. Osborne, 133 F.3d 315, 318 (5th Cir.
1998). Furthermore, “this ‘policy’ is strongest when the motion challenged is the first motion to
amend.” Thompson v. New York Life Ins. Co., 644 F.2d 439, 444 (5th Cir. 1981). Permission may
be granted even though the original pleading is defective in its statement of a claim for relief or
defense. Id.
Leave to amend is by no means automatic, but is within the sound discretion of the trial
court. Addington v. Farmer's Elevator Mut. Ins. Co., 650 F.2d 663, 666 (5th Cir. 1981). In
exercising its discretion, the trial court must determine that there is a "substantial reason" for the
delay. Mayeaux v. Louisiana Health Service and Indemnity Co., 376 F.3d 420, 425 (5th Cir. 2004).
The Court may consider such factors as (1) undue delay, bad faith, or dilatory motive on the part of

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the movant; (2) repeated failure to cure deficiencies by amendments previously allowed; (3) undue
prejudice to the opposing party by virtue of allowance of the amendment; and (4) futility of the
amendment. Gregory v Mitchell, 634 F.2d 199, 203 (5th Cir. 1981).
III.

Analysis
Herbert, filed the instant motion, after the expiration of deadlines set by this Court, seeking

leave to file its third supplemental and amended complaint to add LDS, the proper party employer
of Thornton, and to add State-Farm, who was previously dismissed from this action without
prejudice. See R. Doc. 59-1, p. 1-2.
A.

Good Cause -16(b)

Although Rule 15(a) governs the amendments of pleadings, the Fifth Circuit has established
that Rule 16(b) "governs the amendment of pleadings after a scheduling order deadline has expired."
S & W Enters., L.L.C. v. S. Trust Bank of Ala., NA, 315 F.3d 533, 536 (5th Cir. 2003). Rule 16
provides that a scheduling order may only be modified for good cause shown and with the Judge’s
consent. See Fed. R. Civ. Pro. 16(b)(4).
To determine whether a party has provided good cause to amend a pleading after the deadline
set in the Scheduling Order, Courts may examine four factors: “(1) the explanation for the untimely
conduct; (2) the importance of the requested untimely action; (3) the potential prejudice in allowing
the untimely conduct; and (4) the availability of a continuance to cure such prejudice.” Huey v. Super
Fresh/Sav-A-Center, Inc., No. 07-1169, 2008 WL 2633767, at *1 (E.D. La. June 25, 2008) (citing S
& W Enters., 315 F.3d at 535. “The good cause standard requires the party seeking relief to show that
the deadlines cannot reasonably be met despite the diligence of the party needing the extension.” S
& W Enters., LLC, at 535 (internal quotations and citations omitted).

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Before considering the merits of the motion to amend, in accordance with the presiding
Judge’s Scheduling Order, amendments to pleadings were due no later than December 9, 2013. See
R. Doc. 50. No extensions were granted, and the Scheduling Order expressly stated that any motion,
or in this instance, amendment would necessitate a showing of good cause. Id. Plaintiff Herbert’s
motion was filed on February 6, 2014, nearly two months after the deadline, and is thus, untimely.
Therefore, the Court must first determine whether good cause exists to warrant the allowance of this
amendment.
Herbert argues that although he diligently tried to meet the Court’s deadlines, it was not until
the deposition of the mission president, Jim Wall, taken on January 31, 2014, that it was first
established that the party vicariously responsible for the actions of Thornton, was not the
Corporation, but rather, an associated legal entity of it, LDS - the Church. See R. Doc. 59-1, p. 2,
5.1
During this deposition, Herbert contends that Wall revealed that neither he nor Thornton performed
duties for the Corporation, but rather, they performed the duties of their mission for the Church. Id.
at 7. Herbert argues that this was the first time he was ever given notice that another entity could
have been responsible for Thornton’s actions. Id. at 6. As a result, Herbert seeks to amend his
complaint and add LDS as the proper defendant in this matter. Id.
In opposition, the defendants contend that with the trial scheduled to commence in less than
five months, this motion is a last ditch effort in an attempt to destroy the Court’s diversity
jurisdiction by adding LDS, the Church to this action. See R. Doc. 63, p. 2. Furthermore, defendants

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Herbert contends that the conflict was known by the defendants since July 19, 2013, when counsel for the
Corporation and Thornton responded to Interrogatories and Requests for Production of Documents on behalf of both
parties. Id. at 3. Herbert also contends that defense counsel failed to plead any affirmative defenses which would have
suggested that the Corporation was not the proper defendant in this action.

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argue that this motion comes months after the deadline for amendments has passed, and years after
Herbert “was put on notice of the distinction between the Church (a spiritual entity with no legal
existence) and Defendant [the Corporation] (a Utah corporation that holds assets and conducts legal
affairs on behalf of the Church).” Id. Therefore, defendants contend that Herbert’s explanation of
the facts, law and that good cause exists to warrant the allowance of the amendment is without merit.
As such, defendants argue that Herbert’s motion should be denied.2
Fed. R. Civ. P. (“Rule”) 16(b) requires the district court to, among other things, limit the time
for the parties to join other parties should a party attempt to amend its pleadings to join another party
after the deadline for taking such an action has expired. The district court must first determine
whether to modify its scheduling order, under the standards of Rule 16(b). If the Court determines
that the movant satisfies the requirements of Rule 16(b), it may also consider the liberal standards
of Rule 15(a), which governs amendments to pleadings. Howell v. Standard Motor Products, Inc.,
2001 WL 196969, at *1 (N.D. Tex. Feb. 26, 2001).
Rule 16(b) states that a party seeking to modify a scheduling order after the deadlines have
expired, must show good cause. Id. See also, Matias v. Taylors Intern. Serv’s, Inc., 2010 WL
3825402, at *3 (E.D. La. Sept. 24, 2010); see S & W Enters., 315 F.3d at 536; Valcho v. Dallas
County Hosp. Dist., 658 F.Supp.2d 802, 814 (N.D. Tex. 2009) (“when as here, the deadline for
seeking leave to amend pleadings has expired, a court considering the motion to amend must first
determine whether to modify the scheduling order under the good cause standard for [Rule]
16(b)(4)”).

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Defendant, Thornton, also opposed the motion, reiterating the Corporation’s argument that Herbert is
attempting to destroy diversity jurisdiction of this Court by seeking to amend the complaint and add the Church as a
defendant in this matter. See R. Doc. 64, p. 5. Thornton also argues that permitting this amendment would prejudice the
Defendants and delay resolution of this action. Id.

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The good cause standard focuses on the diligence of the party seeking to modify the
scheduling order. While relevant to an analysis under Rule 15(a), the absence of prejudice to the
nonmoving party does not constitute good cause under Rule 16(b). Howell, at *1; (citing Am.
Tourmaline Fields v. Int’l Paper Co., 1998 WL 874825, at *1. Likewise, the mere inadvertence by
the movant does not satisfy the good cause requirement. See id. Instead, the moving party may
“demonstrate good cause by showing that, despite his diligence, he could not have met the
scheduling deadline.” Howell, at *1; McCombs v. Allwaste Recovery Sys., 1999 WL 102816 at *2;
Am. Tourmaline Fields, at *1 (internal citations omitted).
Here, the Court finds that the record evidences that there was an apparent conflict between
Thornton and the Corporation from the inception of this action, as indicated by the answers
submitted separately by Thornton and the Corporation, although both pleadings were filed by the
same attorneys, Jerry Glas and Douglas Elliot. See e.g., R. Docs. 5, 19, 34 and 40. However, the
Court finds that this conflict was not apparent to counsel for Herbert, as it was reasonable for him
to assume that this issue was resolved with both parties being represented by the same attorney. It
was not until January 23, 2014, when Jerry Glas withdrew from the instant action, that there was a
clear indication not only in the pleadings, but in actuality, which gave Herbert notice that there was
a conflict of interest between Thornton and the Corporation. Therefore, the Court finds that the lack
of notice of the conflict of interest until 2014 establishes good cause to justify modification of this
Court’s Scheduling Order. See Huey, 2008 WL 2633767, at *1; citing S & W Enters., 315 F.3d at 535.
B.

Leave to Amend - 15(a)

In determining that good cause exists to warrant the modification of this Court’s Scheduling
Order, the Court shall address the merits of Herbert’s request to amend and supplement the second

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amended complaint with the rejoinder of State Farm, and the addition of the Church of Latter-Day
Saints (“LDS”).
1.

State Farm

Herbert seeks to amend the second amended complaint to re-join State Farm, a party who was
previously dismissed from this action without prejudice on August 9, 2013. Herbert contends that State
Farm was originally dismissed due to the dual representation of defendant employee and employer,
and the fact that there was no apparent issue of whether Herbert was in the course and scope of his
employment at the time of the accident. See R. Doc. 46. However, because the circumstances have
changed, it seeks to amend its complaint and re-join State Farm as an additional defendant in this
matter.
During oral argument, counsel for defendants represented that they do not object to this
request. Therefore, Herbert’s request to amend its complaint and re-join State Farm as an additional
defendant is GRANTED AS UNOPPOSED.
2.

The Church of Jesus Christ of Latter-Day Saints (“LDS”)

Here, Herbert seeks to add LDS, to the instant action because he contends that it, and not the
Corporation, may be his “employer” as revealed from Mission President, Jim Wall’s deposition, on
January 31, 2014. See R. Doc. 59-1, p. 4-5. Furthermore, Herbert argues that the church is not an

unincorporated association, and that it is capable of being sued. See R. Doc. 74-1, p. 1.
In opposition, the Corporation argues that the church, LDS, is a spiritual entity not capable
of being sued because it is a spiritual, unincorporated association with no assets, which is separate
from the Corporation, the legal entity capable of being sued. See R. Doc. 63, p. 5. The Corporation
contends that LDS was incorporated in 1923. Id. This incorporation separated the organization into
two separate and distinct entities for which the Corporation was created as a legal entity to hold the
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assets and conduct the secular affairs on behalf of LDS, the ecclesiastical organization, which
remained an unincorporated spiritual organization, void of legal personality. Id.3
Because LDS is a secular organization, separate and distinct from the incorporated aspect of
the Church which is the Corporation, it is deemed an “unincorporated association” which means that
for purposes of diversity jurisdiction, it is considered to be a citizen of every state where any member
of the association resides. See R. Doc. 63, p. 6; citing Hummel v. Townsend, 883 F.2d 367, 369 (5th

Cir. 1989); United Steelworkers of America v. R.H. Bouligny, Inc., 382 U.S. 145 (1965)). Therefore,
the Corporation argues that if leave were granted, and LDS permitted to enter this suit, this Court’s
diversity jurisdiction would be destroyed.
Although Rule 15(a) provides that “leave to amend should be freely given” and Rule 20
permits joinder of proper parties, when the court is “faced with an amended pleading naming a new
nondiverse defendant in a removed case, [the court must] scrutinize that amendment more closely than
an ordinary amendment.” Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir. 1987). As such,
when an amendment would destroy jurisdiction, “most authorities agree that leave should be denied

in the absence of strong equities in favor of amendment.” Campagna v. Averitt Exp., Inc., No. 991007, 1999 WL 386652, *1, n.6 (E.D. La. June 10, 1999); citing Whitworth v. T.N.T. Bestway
Transp. Inc., 914 F.Supp. 1434 (E.D.Tex.1996) (citing Hensgens, 833 F.2d at 1182).

3

See Folwell v. Bernard, By and Through Bernard, 477 So.2d 1066, 1063 (Fla. App. 2nd Dist. 1985), 486 So.2d
595 (1986) (“When a religious society incorporates, it assumes a dual existence; [. . .] the church, which is conceived
and endures wholly free from the civil law, and the other, the corporation [. . .] [t]he components of the ecclesiastical
interrelationship between the parent church and the subordinate body cannot be permitted to serve as a bridge capable
of reaching the non-secular parent in a civil proceeding.”)(citing Trinity Presbyterian Church of Montgomery v.
Tankersley, 374 So.2d 861 (Ala. 1979); see also Willis v. Davis, 323 S.W.2d 847, 848 (Ky. 1959) (“Such corporation
is civil in nature and is an entity distinguishable from an ecclesiastical society or association, the one having jurisdiction
over the temporal or secular and the other over ecclesiastical or spiritual affairs.”)). See also 66 Am. Jur. 2d Religious
Societies § 5.

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The Fifth Circuit has held that when considering an amendment which would destroy the
jurisdiction of a court, “justice requires that the district court consider a number of factors to balance
the defendant’s interest in maintaining the federal forum with the competing interest of not having
parallel lawsuits.” Hensgens, 833 F.2d at 1182. These factors include “[1] the extent to which the
purpose of the amendment is to defeat federal jurisdiction, [2] whether plaintiff has been dilatory in
asking for amendment, whether plaintiff will be significantly injured if amendment is not allowed,
[and] [4] any other factors bearing on the equities.” Id.
During oral argument, counsel for the Corporation conceded on the record that the Corporation
was Thornton’s employer, and that he did not work for LDS. Furthermore, counsel for the Corporation
indicated that there is no concern about its ability to satisfy a judgment, as it is insured and financially
sound. Therefore it contended that LDS need not be added to this action, because it was not the
employer of Thornton at the time of the incident.
In opposition, counsel for Herbert argued that the Corporation’s admission on the record of
its status as Thornton’s employer is an attempt to “fabricate status so that they can stay in federal
court.” He then went on to state that LDS is an entity capable of being sued because it is named on the
Corporation’s policy of insurance as an insured.
In response, the Corporation stated that Thornton “is our agent” and LDS should not be added
as it possesses no assets, money, or representatives to testify on its behalf during trial.4 Counsel for the
4

There is case law which suggests that an unincorporated ecclesiastical organization engaged solely in secular
activities may not be sued, but that if it engages in nonsecular activities it may open itself to liability in civil suits. See
e.g., Turner v. Church of Jesus Christ of Latter-Day Saints, et al., No. 3:95-CV-1354, 1996 WL 34447787 at *3 (N.D.
Tex. Feb. 22, 1996) (The Court cites to Tankersley and Folwell, and interpreted that according to the Tankersley court,
the question of whether an “entity is amenable to suit appears to be one of whether either entity engaged in secular
activities.” However, Tankersley is “not necessarily ruling out the possibility of suit against the non[-]corporate form
if that entity engaged in secular, as opposed to ecclesiastical, activities.”).
Here, the Court finds that neither Herbert's original complaint, amended complaint, nor his second amended
complaint allege that LDS was engaged in secular activities. In each of these complaints, Herbert alleges that his injuries
were sustained as a result of Thornton and the Corporation of the Church of the Presiding Bishop of the Church of Jesus

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Corporation indicated that the only listed representative of LDS is a “member of the kingdom of god,”
which will not likely be able to make an appearance in Court.
Therefore, the Court stated that with an admission of employer status on behalf of the
Corporation, that maybe counsel for Herbert did not “want for Thornton to be the agent of the
Corporation,” but that he would rather him be the agent of LDS which would inherently destroy
diversity jurisdiction. To this line of questioning counsel for Herbert responded “that is exactly what
I want.”
The Fifth Circuit has held that when an amendment would destroy jurisdiction, “most

authorities agree that leave should be denied in the absence of strong equities in favor of
amendment.” Campagna v. Averitt Exp., Inc., No. 99-1007, 1999 WL 386652, *1, n.6 (E.D. La. June
10, 1999); citing Whitworth v. T.N.T. Bestway Transp. Inc., 914 F.Supp. 1434 (E.D.Tex.1996)
(citing Hensgens, 833 F.2d at 1182). Furthermore, “a request to join a party against whom recovery
is not really possible and whose joinder would destroy subject matter jurisdiction (i.e., a request
fraudulently to join a party) [should] never be granted.” Id. (Emphasis added). Therefore, when there
exists no colorable claim against the party the plaintiff is seeking to join, joinder should be disallowed
in the interest of justice, as those parties “would never be allowed to become defendants in the first
place.” See Cobb v. Delta Exports, Inc., 186 F.3d 675, 678 (5th Cir. 1999).
Because the Corporation has admitted on the record that it was Thornton’s employer, and that
LDS, is a non-diverse, spiritual organization without assets, money, or a representative for which it
would use during trial, the Court finds that the addition of LDS is clearly an attempt at fraudulent
of

Christ of Latter-Day Saints' "the Corporation" negligence, and that the Corporation was the owner of the car in which
Thornton was driving, but he never alleges any actions attributable to LDS. See e.g., R. Doc. 1-1, p. 4; R. Doc. 15, R.
Doc. 30. In his proposed third supplemental and amended complaint, Herbert also does not allege any actions attributable
to LDS which would suggest that it was engaged in non-secular activities, rather, he simply seeks to add LDS as a named
party, and that he "was in the course and scope of his mission or employment with [LDS]." See R. Doc. 59-6, p.2, ¶ 2.

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joinder. As a result, Herbert’s motion for leave to amend to add LDS, the Church, is DENIED.
IV.

Conclusion
IT IS ORDERED that Plaintiff’s Motion for Leave to File Third Supplemental and

Amended Complaint (R. Doc. 59) is GRANTED AS UNOPPOSED as to Plaintiff’s request to
re-join State Farm.and DENIEDsevenPlaintiff’sto file his amended complaint.
Plaintiff has as to (7) days request to add the Church of Jesus Christ of LatterIT IS
Day Saints. FURTHER ORDERED that it is DENIED as to Plaintiff's request to join the Church
of Jesus Christ of Latter-Day Saints.

New Orleans, Louisiana, this 5th day of March, 2014.
New Orleans, Louisiana, this 5th day of March, 2014.

KAREN WELLS ROBY
UNITED STATES MAGISTRATE JUDGE

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