Wells et al v. Medtronic, Inc. et al

Filing 38

ORDER granting 5 Motion for Leave to File; granting 12 Motion to Remand to State Court. Signed by Judge Nannette Jolivette Brown on 3/21/16. (jrc) (Additional attachment(s) added on 3/22/2016: # 1 Letter) (jrc).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JAMES E. WELLS, et al.

CIVIL ACTION

VERSUS

CASE NO. 15-1460

MEDTRONIC, INC., et al.

SECTION: “G”(1)
ORDER

Before the Court are Plaintiffs James E. Wells and Ann M. Wells’ (collectively,
“Plaintiffs”) “Motion for Leave to File First Amending and Supplemental Complaint”1 and
“Motion to Remand.”2 Having considered the motions, the memoranda in support and in
opposition, the record, and the applicable law, the Court will grant both motions.
I. Background
A.

Factual Background
This lawsuit arises out of an anterior cervical spine surgery that was performed at Tulane

Medical Center in New Orleans, Louisiana on May 23, 2014.3 According to the Complaint,
Plaintiff James E. Wells received a Medtronic dynamic titanium implant, which was
manufactured and/or distributed by Defendants Medtronic, Inc. and Medtronic USA, Inc.
(collectively, “Defendants”).4 According to Plaintiffs, when James E. Wells returned to see his
doctor on July 14, 2014, x-rays were taken and revealed that the Medtronic device had fractured

1

Rec. Doc. 5.

2

Rec. Doc. 12.

3

Rec. Doc. 1-1 at p. 3.

4

Id.

1

in half.5 Plaintiffs allege that the fracture was caused by the Defendants’ negligent manufacture
or design of the product, which they believe to be the Atlantis Translational Anterior Cervical
Plate System (“Atlantis System”).6
B.

Procedural Background
Plaintiffs filed this lawsuit on February 10, 2015 in the Civil District Court for the Parish

of Orleans, Louisiana.7 In the petition, Plaintiffs named Medtronic, Inc. and Medtronic USA,
Inc., as well as “Defendant ABC,” as the defendants in the suit.8 On May 1, 2015, Defendants
removed the case to federal district court, alleging complete diversity of citizenship and an
amount in controversy exceeding $75,000.9 On May 22, 2015, Plaintiffs filed an ex parte motion
for leave to file an amended complaint pursuant to Federal Rule of Civil Procedure 15, wherein
they sought to add a non-diverse defendant, Hudson Higgins (“Higgins”).10 On May 26, 2015,
Defendants filed an opposition to the motion, arguing that Plaintiffs’ motion should be set for
submission pursuant to Fifth Circuit precedent requiring courts to strictly scrutinize amendments
to pleadings that would destroy diversity jurisdiction.11 On May 26, 2015, the Court set
Plaintiffs’ motion to amend the complaint for hearing on June 24, 2015, without oral argument.12

5

Id. at p. 4.

6

Id. at pp. 3–4.

7

Id. at p. 1.

8

Id.

9

Rec. Doc. 1 at p. 3.

10

Rec. Doc. 5-1 at p. 2.

11

Rec. Doc. 6 at p. 2.

12

Rec. Doc. 7.

2

On June 1, 2015, Plaintiffs filed a motion to remand.13 In response to joint requests for
continuances, the Court twice continued the hearing dates on Plaintiffs’ pending motions, first to
August 19, 2015,14 and next to September 30, 2015.15 On September 18, 2015, Plaintiffs filed a
reply memorandum in support of their motion to amend the complaint, but the reply was struck
as deficient by a Clerk of the Court.16 Also on September 18, 2015, the parties requested that the
Court indefinitely continue the hearing dates on both motions or, in the alternative,
administratively close the case pending settlement negotiations.17 The Court denied the parties’
request on September 21, 2015.18
On September 22, 2015, Defendants filed oppositions to both the motion to amend the
complaint and the motion to remand, wherein they addressed arguments made in Plaintiffs’ reply
brief while noting that the reply was not properly before the Court yet.19 Plaintiffs properly filed
their reply, styled as a reply in support of both pending motions, on September 25, 2015.20

13

Rec. Doc. 12.

14

Rec. Doc. 14.

15

Rec. Doc. 17.

16

Rec. Doc. 18.

17

Rec. Doc. 19.

18

Rec. Doc. 22.

19

Rec. Docs. 23, 24.

20

Rec. Doc. 26. On September 28, 2015, before the submission date for the already pending motions,
Plaintiffs filed a motion for leave to file a second amending and supplemental complaint, in which they seek to add
John A. Davis (“Davis”), the doctor who performed the surgery on James E. Wells, and Tulane University Hospital
& Clinic – Health Care Indemnity, Inc., two additional non-diverse defendants. Rec. Doc. 28. Because the Court
herein grants Plaintiffs’ first motion to amend their complaint, which thereby destroys diversity and requires this
Court to remand the case, the Court need not reach Plaintiffs’ arguments regarding joining the other defendants.

3

II. Parties’ Arguments
A.

Plaintiffs’ Arguments in Support of Motion for Leave to File First Amending and
Supplemental Complaint
In their first motion for leave to amend their complaint, Plaintiffs argue that Federal Rule

of Civil Procedure 15 allows them to amend their complaint as a matter of course before
Defendants have filed any pleadings as set forth under Rule 15(A)(1)(b).21 According to
Plaintiffs, the purpose of the amended complaint is to clarify the identity of the previously
unknown non-diverse defendant named as “ABC” in the original petition, who on April 23, 2015
was discovered to be Higgins.22
B.

Defendants’ Arguments in Opposition to Amendment of Complaint
Defendants filed two oppositions to the first motion to amend Plaintiffs’ complaint. In the

first opposition, Defendants argue that Plaintiffs’ motion should not be treated as a motion to
amend as a matter of course pursuant to Rule 15, because the motion was both untimely and
improper under Fifth Circuit jurisprudence.23 Defendants argue that Rule 15(a)(1), relied upon by
Plaintiffs, is inapplicable because more than 21 days had passed since service of Plaintiffs’
petition, which took place on April 14, 2015, and Defendants had not yet filed responsive
pleadings or any motions pursuant to Federal Rules of Civil Procedure 12(b), (e), or (f).24
Accordingly, Defendants argue, Rule 15(a)(2) would ordinarily apply, requiring Plaintiffs to

21

Rec. Doc. 5-1 at p. 1.

22

Id. at p. 2.

23

Rec. Doc. 6 at p. 1.

24

Id. at p. 3.

4

either seek written consent of the opposing party or to seek leave of court.25
Defendants claim, however, that even if Plaintiffs did have a right to amend as a matter of
course pursuant to Rule 15(a)(2), however, the jurisprudence holds that when a party seeks to
add a non-diverse defendant post-removal that would destroy diversity, Rule 15 is circumscribed
by 28 U.S.C. § 1447, and the district court should conduct an analysis pursuant to factors set
forth by the Fifth Circuit in Hensgens v. Deere & Co.26
C.

Plaintiffs’ Arguments in Further Support of Amendment
In their reply, Plaintiffs claim that in their Petition, they named “Defendant ABC,” a

fictitious, unknown defendant believed to be a Louisiana citizen but not yet identified through
discovery, who they believed to be a representative of Medtronic, and who they believed locally
supplied the spinal implant to the operation room at Tulane University Hospital and actively
participated in the decision to use the particular device.27 Plaintiffs argue that naming the
defendant ABC should have put Defendants on notice that a non-diverse defendant would be
added when that individual or entity was identified through discovery.28
Plaintiffs contend that Defendants were served on April 14, 2015, and on or about April
23, 2015, Plaintiffs discovered that the true identity of Defendant ABC was Hudson Higgins, a
resident of Orleans Parish, Louisiana, who was a highly trained representative to physicians for
Medtronic spinal products, believed to be acting as an independent contractor.29 Plaintiffs allege
25

Id.

26

Id. at pp. 3–4 (citing 833 F.2d 1179 (5th Cir. 1987)).

27

Rec. Doc. 26 at p. 2.

28

Id.

29

Id.

5

that they informed Defendants of Higgins’ identity, but did not immediately file an amending
petition because of conversations between counsel for the parties about the possibilities of
settlement, and because it was understood that no action was to be taken by either party until
sufficient evidence was collected for consideration in settlement discussions.30 Nevertheless,
Plaintiffs claim, Defendants filed a joint Notice of Removal on May 1, 2015 alleging complete
diversity.31
Plaintiffs aver that even if leave of Court is required to amend the complaint, Rule
15(a)(2) states that “[t]he court should freely give leave when justice requires.”32 Here, Plaintiffs
argue, justice requires allowing the amendment because Defendants were on notice of an
unknown Louisiana defendant and were notified of his true identity when it was discovered.33
Plaintiffs contend that although they did not immediately move to amend their complaint
because negotiations toward a settlement were underway, the Defendants’ filing of a Notice of
Removal forced the Plaintiffs to immediately identify Defendant ABC in an amending and
supplemental petition in order to then file a motion to remand, which must be filed within 30
days of a Notice of Removal.34 Furthermore, Plaintiffs argue, the available records required
expert review to confirm the exact participation of Higgins during the surgical procedure of May
23, 2014, accounting for the Plaintiffs’ delay in naming him.35 According to Plaintiffs, Higgins

30

Id.

31

Id.

32

Id. at p. 3.

33

Id. at p. 4.

34

Id.

35

Id. at p. 5.

6

was a highly trained sales representative who was present during the surgery and materially
participated in the decision, along with the surgeon, to use the Atlantis System.36
Plaintiffs allege that Defendants’ representations that Plaintiffs do not have a reasonable
probability of recovery against Higgins because Higgins was not the manufacturer of the medical
device at issue and had no duty to warn the “learned intermediary” of issues concerning the
product are without merit.37 According to Plaintiffs, “the sales representative for spinal surgical
devices is not a passive displayer of wares, but rather is a highly trained professional, usually
present in the operating room to give advice to the surgeon as to choice of product, its assembly,
and its method of insertion. At times, sales reps will even scrub into the surgical procedure to
demonstrate or help the scrub tech with assembly on the back table.”38 Plaintiffs contend that
surgeons often rely upon the sales representative to supply necessary information, as the sales
representative is the liaison with the manufacturer.39 As such, Plaintiffs argue, although the duty
to warn lies with the manufacturer, the sales representative is the individual charged with the
responsibility of dispensing that information.40
Plaintiffs argue that the operative nursing notes of the medical record clearly indicate that
Higgins was present during the operation at issue and supplied the device that ultimately failed.41
Moreover, Plaintiffs assert, Higgins was again present in the operating room on July 19, 2014,

36

Id.

37

Id. at p. 6.

38

Id.

39

Id.

40

Id. at pp. 6–7.

41

Id. at p. 7.

7

when the device was removed, and took the failed plate into his possession for return to
Defendants for analysis.42 Plaintiffs contend that although Davis, the surgeon, was certainly a
learned intermediary, he was supplied his “learning” of the device largely through Higgins.43
Plaintiffs also contend that, although Defendants argue that the Plaintiffs’ admission of
knowing Higgins’ identity prior to removal suggests that the principal purpose for the
amendment was to destroy diversity, the argument is specious because Defendants were on
notice from the original petition that a third, unknown defendant was involved, one who was
believed to be a resident of Louisiana.44 Moreover, Plaintiffs contend, any alleged delay was due
to the parties’ engagement in good faith settlement negotiations.45
D.

Defendants’ Arguments in Further Opposition to Amendment
Defendants respond that because Plaintiffs’ proposed amended pleading seeks to add a

non-diverse party that would destroy diversity, Rule 15 is in tension with 28 U.S.C. § 1447(e).46
In such situations, Defendants contend, § 1447(e) constricts Rule 15 and requires the court to
balance the original defendant’s interest in maintaining a federal forum with the competing
interest of avoiding parallel lawsuits.47
In Hensgens, Defendants contend, the Fifth Circuit instructed district courts to consider
four factors when determining whether to allow an amendment that would destroy diversity: (1)

42

Id.

43

Id.

44

Id.

45

Id.

46

Rec. Doc. 23 at p. 3.

47

Id. (citing Boyce v. CitiMortgage, Inc., 992 F. Supp. 2d 709 (W.D. Tex. 2014); Zibari v. Int’l College of
Surgeons, No. 14-0858, 2014 WL 4146382 (W.D. La. Aug. 19, 2014)).

8

the extent to which the purpose of the amendment is to defeat federal jurisdiction; (2) whether
the plaintiff has been dilatory in asking for the amendment; (3) whether the plaintiff will be
significantly injured if amendment is not allowed; and (4) any other factor bearing on the
equities.48 Defendants claim that, if, after considering these factors, the Court grants joinder, it
must remand the matter to state court; if it denies joinder, it cannot remand.49 According to
Defendants, in Cobb v. Delta Exports, Inc., the Fifth Circuit held that the “fraudulent joinder”
doctrine would be inapplicable after a post-removal joinder of a non-diverse party.50 Defendants
assert that, in Cobb, the Fifth Circuit explained that a “request to join a party against whom
recovery is not really possible and whose joinder would destroy subject matter jurisdiction”
would never be granted, and thus a defendant may argue at the time when joinder is considered
that there is “no colorable claim against the party the plaintiff is seeking to join.”51 Thus,
Defendants argue, they can seek to prevent post-removal joinder of a non-diverse defendant by
showing that the plaintiff has no colorable claim against that defendant.52
Defendants cite Zibari v. International College of Surgeons, a Western District of
Louisiana case in which they allege the court noted that a district court may deny leave to amend
if the proposed amendment is futile, even when the plaintiff is allowed to amend as a matter of
course.53 According to Defendants, the Zibari court observed that a plaintiff will not be

48

Id. (citing Hensgens, 833 F.2d at 1182).

49

Id. at pp. 3–4 (citing Hensgens, 833 F.2d at 1182).

50

Id. at p. 4 (citing 186 F.3d 675 (5th Cir. 1999)).

51

Id. (citing Cobb, 186 F.3d at 678).

52

Id.

53

Id. at pp. 4–5 (citing No. 14-0858, 2014 WL 4146382, at *7 (W.D. La. Aug. 19, 2014)).

9

“significantly injured” by a court’s denial of leave to add a clearly meritless claim, and therefore
it is within a district court’s discretion to deny a proposed amendment as futile if there is no
reasonable basis to predict that the plaintiff will be able to recover against the would-be, nondiverse defendant.54 Defendants argue that the Zibari court concluded that the plaintiff had no
colorable claim for relief or possibility of recovery against a non-diverse defendant because,
other than naming him, the amended pleading contained no allegations against him.55
Furthermore, Defendants contend, the Zibari court observed that the plaintiff sought to amend
his complaint only 30 days after removal and 79 days after commencing proceedings in state
court, and though this was not dilatory, the fact that the motion to amend came so closely on the
heels of the defendants’ dispositive motion led the court to conclude that the timing of the
motion suggested an ulterior motive, an impression that was further buttressed by the proposed
amendment’s failure to state a claim for relief against the non-diverse defendant.56 Thus,
Defendants assert, the Zibari court denied the motion to amend.57
Likewise, Defendants argue, this Court should apply the Hensgens factors, as well as the
“colorable claim” requirement discussed in Cobb, to deny Plaintiffs’ motion for leave to
amend.58 According to Defendants, the lawsuit was filed on February 10, 2015, Medtronic was
served on April 14, 2015, and it timely removed the matter on May 1, 2015.59 Defendants

54

Id. at p. 5 (citing Zibari, 2014 WL 4146382, at *8).

55

Id. (citing Zibari, 2014 WL 4146382, at *8).

56

Id. (citing Zibari, 2014 WL 4146382, at *9).

57

Id. (citing Zibari, 2014 WL 4146382, at *10).

58

Id. at p. 6.

59

Id.

10

contend that Plaintiffs then sought to add Higgins as a defendant on May 22, 2015, and
regardless of whether seeking to name him as a defendant approximately three months after
filing suit is considered dilatory, Plaintiffs have no reasonable possibility of recovery against
him.60 Moreover, Defendants argue, the fact that Plaintiffs are seeking to amend their complaint
shortly after removal, when they admit in their motion to knowing Higgins’ identity prior to
removal, suggests that the principal purpose for the amendment is to destroy diversity.61
Defendants aver that, notwithstanding the timing of Plaintiffs’ motion to amend their
complaint, Plaintiffs’ allegations against Higgins are inadequate, as the proposed amended
complaint contains both boilerplate, non-specific allegations against him, and more specific
allegations that are not supported by the facts or applicable law.62 Defendants assert that
Plaintiffs’ allegations against Higgins are that: (1) Higgins was present in the operating room
with Davis when the alleged Medtronic device at issue was installed; (2) the device chosen by
Higgins was defective and known to be effective only for temporary use under limited
circumstances and not appropriate for the surgery at hand; and (3) he failed to warn Davis of the
“inherent dangers” risked by using the Medtronic plate under the existing circumstances.63
However, Defendants argue, Higgins attested in an affidavit that, at the time of the surgery in
question, he had no knowledge of any alleged defects in the Atlantis System.64 Furthermore,
Defendants argue, despite Plaintiffs’ allegation that Higgins was “materially involved” in Davis’
60

Id.

61

Id.

62

Id.

63

Id. at p. 7.

64

Id.

11

decision to use the plate at issue, Higgins had “absolutely no input into the decision by Dr. Davis
(who had been using the Atlantis [System] well before Mr. Higgins was employed with
Medtronic) to surgically implant the” Atlantis System.65 Defendants aver that “regardless of
what Plaintiffs argue, these are the facts.”66
Furthermore, Defendants argue, although Plaintiffs make claims in a reply brief regarding
what medical device sales representatives typically do and how a medical device sales
representative is more than a “passive displayer of wares,” these generalized arguments are
“wholly unsupported” and inapplicable to the facts of the instant case, which are properly
supported by Higgins’ testimony.67 Furthermore, Defendants contend, despite Plaintiffs’
allegations that Higgins failed to warn Davis of the risks posed by using the Medtronic system,
courts reviewing similar allegations have held that medical sales representatives have no such
duty to warn, as that duty lies with the manufacturer of the product, not its sales representative.68
Defendants cite Bloodsworth v. Smith & Nephew, a Middle District of Alabama case, in which
they aver that the court was tasked, in the context of a motion to remand, with determining
whether a non-diverse medical sales representative was improperly joined to the litigation to
defeat diversity.69 According to Defendants, the court in Bloodsworth determined that a nondiverse medical sales representative who sold a defective hip replacement had no duty to warn
pursuant to Alabama law, which Defendants contend uses the same “learned intermediary

65

Id.

66

Id.

67

Id. at p. 8.

68

Id. (citing Bloodworth v. Smith & Nephew, No. 05-622, 2005 WL 3470337, at *7 (M.D. Ala. Dec. 19,

2005)).

12

doctrine” as recognized by Louisiana law.70 Defendants aver that, as the court in Bloodworth
explained, pursuant to the learned intermediary doctrine, any duty to warn the surgeon who
performed the plaintiff’s procedure was owed by the manufacturer, not the sales representative.71
According to Defendants, a similar result was reached in Catlett v. Wyeth, Inc., a Middle
District of Georgia case that concluded that, pursuant to Georgia law, there was no basis for a
claim against a pharmaceutical sales representative under the learned intermediary doctrine,
because although manufacturers employ sales representatives to be one source of information,
the manufacturers are the ones who are ultimately responsible, and thus liable, for any alleged
failure to provide information related to the prescription drugs at issue.72 Defendants also cite
Walker v. Medtronic, Inc., a Northern District of Mississippi case in which they contend the
court expressly held that “[u]nder the learned intermediary doctrine, any duty to warn a
physician about the dangers of a medical device is placed upon the device’s manufacturer; the
sales representative selling the device is under no duty to warn patients . . . .”73 Defendants claim
that although there are no Louisiana cases squarely addressing the issue, under Louisiana law, as
in Mississippi, Alabama, and Georgia, the manufacturer alone has the duty to warn the
intermediary of inherent dangers not within the knowledge of or obvious to the average
intermediary.74 Moreover, Defendants argue, even if Louisiana did recognize a duty on the part
69

Id. (citing Bloodsworth, 2005 WL 3470337, at *7).

70

Id. at pp. 8–9 (citing Zachary v. Dow Corning Corp., 884 F. Supp. 1061, 1065 (M.D. La. 1995); Guidry
v. Adventis Pharm., Inc., 418 F. Supp. 2d 835, 840 (M.D. La. 2006)).
71

Id. at p. 9 (citing Bloodsworth, 2005 WL 3470337, at *7).

72

Id. (citing 379 F. Supp. 2d 1374 (M.D. Ga. 2004)).

73

Id. (citing No. 03-74, 2003 WL 21517997, at *3 (N.D. Miss. June 4, 2003)).

74

Id. at pp. 9–10 (citing Zachary, 884 F. Supp. At 1065; Guidry, 418 F. Supp. 2d at 840).

13

of medical sales representatives, Higgins has attested to the fact that he had no knowledge of any
alleged defects at the time of the surgery at issue.75 Furthermore, Defendants allege, Higgins did
not design, manufacture, or assemble the Atlantis System, he did not make any representations or
warranties to Davis or the Plaintiffs concerning the suitability of the system for implantation, and
he in fact never spoke with or communicated in any way with Plaintiffs.76
E.

Plaintiffs’ Arguments in Support of Remand
Plaintiffs filed a Motion to Remand on June 1, 2015, arguing that the motion was likely

premature but being filed to ensure compliance with 28 U.S.C. § 1447(c).77 Plaintiffs contend
that because the addition of Higgins would defeat diversity, should the Court allow Plaintiffs to
amend their complaint to add Higgins as a defendant, the Court should also remand the case to
state court for lack of subject-matter jurisdiction.78
F.

Defendants’ Arguments in Opposition to Remand
In opposition, Defendants argue that Plaintiffs are correct that their motion to remand is

premature, and the Court therefore should not consider it.79 According to Defendants, the facts
that support removal must be judged at the time of removal, and at the time of removal, all
parties were diverse.80 Thus, Defendants argue, the motion to remand should be denied.81

75

Id. at p. 10.

76

Id.

77

Rec. Doc. 12-1 at p. 1.

78

Id. at p. 2.

79

Rec. Doc. 24 at p. 2.

80

Id.

81

Id.

14

III. Law and Analysis
A.

Legal Standard on a Motion to Amend
Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend “shall be

freely given when justice so requires.”82 The Fifth Circuit has strictly followed this rule, stating
that “leave to amend should be granted liberally . . . .”83 However, when an amendment after
removal from state court would destroy subject matter jurisdiction, 28 U.S.C. § 1447(e)
applies.84 Section 1447(e) vests broad discretion in the trial court by expressly providing the
following choice: “the court may deny joinder, or permit joinder and remand the action to the
State court.”85
The Fifth Circuit has held that when considering an amendment that 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.”86 Therefore, when determining whether to allow joinder of a party
under § 1447(e), a district court examines the factors set out in Hensgens v. Deere & Co.87 The
Hensgens 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;

82

Fed. R. Civ. P. 15(a).

83

Robertson v. Plano City of Tex., 70 F.3d 21, 22 (5th Cir. 1995).

84

Hensgens v. Deere & Co., 833 F.2d 1179, 1181 (5th Cir. 1987).

85

28 U.S.C. § 1447(e).

86

Hensgens, 833 F.2d at 1182.

87

Id.

15

(3) whether plaintiff will be significantly injured if amendment is not allowed; and
(4) any other factors bearing on the equities.88
The balancing of these interests does not hinge on “a rigid distinction of whether the proposed
added party is an indispensable or permissive party.”89
The “fraudulent joinder doctrine,” by which a federal court may assert diversity
jurisdiction when a non-diverse defendant has been fraudulently joined, in that there is no
possibility that the plaintiff would be able to establish a cause of action against the in-state
defendant in state court, does not apply to joinders that occur after an action is removed to
federal court.90 Therefore, a defendant has an opportunity at the time joinder is considered to
prevent joinder by arguing that there is no colorable claim against the party the plaintiff is
seeking to join.91
B.

Legal Standard for Remand
A defendant may remove a state civil court action to federal court if the federal court has

original jurisdiction over the action.92 A federal court has subject matter jurisdiction over an
action “where the matter in controversy exceeds the sum or value of $75,000” and the action “is
between citizens of different states.”93 The removing party bears the burden of demonstrating

88
Id.; see also Priester v. JP Morgan Chase Bank, N.A., 708 F.3d 667, 679 (5th Cir. 2013) (noting that
Hensgens is the “correct legal standard” to apply in determining whether joinder of nondiverse parties should be
permitted after removal).
89

Hensgens, 833 F.2d at 1182.

90

Cobb v. Delta Exports, Inc., 186 F.3d 675, 677 (5th Cir. 1999).

91

Id. at 678.

92

28 U.S.C. § 1441(a); Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 34 (2002).

93

28 U.S.C. § 1332(a)(1).

16

that federal jurisdiction exists.94 Subject matter jurisdiction is fixed at the time of removal, and
cannot be eliminated by events that occur after removal.95 The removal statute, 28 U.S.C. §
1441(b), states that “[i]n determining whether a civil action is removable on the basis of the
jurisdiction under section 1332(a) of this title, the citizenship of defendants sued under fictitious
names shall be disregarded.”
In assessing whether removal was appropriate, the Court is guided by the principle,
grounded in notions of comity and the recognition that federal courts are courts of limited
jurisdiction, that “removal statute[s] should be strictly construed in favor of remand.”96 Remand
is appropriate if the Court lacks subject matter jurisdiction, and “doubts regarding whether
removal jurisdiction is proper should be resolved against federal jurisdiction.”97 Moreover, 28
U.S.C. § 1447(c) states: “If at any time before final judgment it appears that the district court
lacks subject matter jurisdiction, the case shall be remanded.”
C.

Analysis
As a preliminary matter, the parties dispute whether Plaintiffs’ motion for leave to amend

their complaint was timely filed pursuant to Rule 15. Plaintiffs argue that their amended
complaint may be filed as a matter of right pursuant to Rule 15,98 while Defendants contend that

94

See Allen v. R&H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995).

95

Doddy v. Oxy USA, Inc., 101 F.3d 448, 456 (5th Cir. 1996) (“We have consistently held that if
jurisdiction exists at the time an action is commenced, such jurisdiction may not be divested by subsequent
events.”).
96

Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002).

97
Acuna v. Brown & Root Inc., 200 F.3d 335, 339 (5th Cir. 2000) (citing Willy v. Coastal Corp., 855 F.2d
1160, 1164 (5th Cir. 1988)).
98

Rec. Doc. 5-1 at p. 2.

17

their pleading was untimely.99 The issue is irrelevant, however, as both parties agree that under
either scenario, because the amended complaint seeks to add a non-diverse defendant, or
technically, reveal the identity of a non-diverse John Doe defendant, leave to amend is not
automatic and Hensgens v. Deere & Co. requires the Court to conduct an analysis to balance the
defendant’s right to maintain the federal forum with the competing interest of not having parallel
lawsuits.100 In determining whether to allow joinder of a party under § 1447(e), a district court
examines the factors set out in Hensgens, which 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;
(3) whether plaintiff will be significantly injured if amendment is not allowed; and
(4) any other factors bearing on the equities.101
1.

Purpose of the Amendment

Courts look to a number of factors to determine whether the purpose of an amendment is
to destroy diversity. For example, courts will ask “whether the plaintiff[ ] knew or should have
known the identity of the non-diverse defendant when the state court complaint was filed.”102
Although Defendants have alleged that Plaintiffs were dilatory in seeking amendment after
discovering Higgins’ identity, as examined below, they do not appear to allege that Plaintiffs

99

Rec. Doc. 6 at p. 2.

100

Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir. 1987). Furthermore, the Court’s Scheduling
Order allowed amendments to pleadings until December 15, 2015, and thus the motion was timely filed. Rec. Doc.
34 at p. 2.
101

Id.

102

Schindler v. Charles Schwab & Co., No. 05-0082, 2005 WL 1155862, at *3 (E.D. La. May 12, 2005)
(Africk, J.); see also Penny Realty Inc. v. Sw. Capital Servs., Inc., No. 08-0473, 2008 WL 2169437, at *2 (W.D. La.
May 23, 2008).

18

knew or should have known Higgins’ identity when the state court complaint was filed. Instead,
Defendants base the bulk of their opposition to amendment on the basis that Plaintiffs cannot
state a “colorable claim” against Higgins.
“[T]he case law indicates that as long as the plaintiff states a valid claim against the new
defendants, the principal purpose of the amendment is not to destroy diversity jurisdiction.”103
Defendants argue that, although there are no Louisiana cases directly on point, under the
“learned intermediary” doctrine employed in Louisiana, a sales representative cannot be held
liable for failure to warn, as that duty lies solely with the manufacturer of a product. Moreover,
Defendants assert, despite Plaintiffs’ claims in their amended complaint that Higgins was
directly involved in the decision to use the allegedly defective Medtronic device, the “facts” of
this case, as evidenced by Higgins’ affidavit, contradict Plaintiffs’ allegations.
In Cobb v. Delta Exports, Inc., the Fifth Circuit stated in dicta that the “fraudulent
joinder” doctrine would be inapplicable after a post-removal joinder of a non-diverse party,
because presumably the defendant could raise such arguments at the time that the district court
was considering whether to allow amendment.104 Therefore, it appears that the Court employs
the “fraudulent joinder” test at this stage to determine whether Plaintiffs could state a claim
against Higgins.105 Although it is well-established that on a motion to dismiss, a district court

103

Herzog v. Johns Manville Prods. Corp., No. 02-1110, 2002 WL 31556352, at *2 (E.D. La. Nov. 15,
2002) (Fallon, J.) (citing Bienaime v. Kitzman, No. 00–473, 2000 WL 381932, at *2 (E.D. La. April 12, 2000);
Burton v. Mentor Corp., No. 96–278, 1996 WL 751063, at *1 (E.D. La. Oct. 29, 1996)). See also Tillman v. CSX
Transp., Inc., 929 F.2d 1023, 1029 (5th Cir. 1991) (upholding a district court decision finding that where the
plaintiff had a valid cause of action against a defendant, the principal purpose of the amendment was not to defeat
federal jurisdiction).
104

186 F.3d 675 (5th Cir. 1999).

105

See, e.g., Noble v. Norfolk S. Corp., No. 02-3233, 2003 WL 1618590, at *3 (E.D. La. Mar. 26, 2003)
(employing the fraudulent joinder doctrine in evaluating the Hensgens factors).

19

may not “go outside the complaint” to determine whether a plaintiff may state a claim against a
defendant,106 the standard is less certain under the fraudulent joinder doctrine.
In Smallwood v. Illinois Central Railroad Co., the Fifth Circuit held that district courts
may assess whether a plaintiff has “a reasonable basis of recovery under state law” in either of
two ways.107 First, the court may conduct a Rule 12(b)(6)-type analysis, looking initially at the
allegations of the complaint to determine whether the complaint states a claim under state law
against the in-state defendant.”108 Second, in rare cases, if “a plaintiff has stated a claim, but has
misstated or omitted discrete facts that would determine the propriety of joinder . . . the district
court may, in its discretion, pierce the pleadings and conduct a summary inquiry.”109 If a court
decides to “pierce the pleadings” when assessing a claim of fraudulent joinder, it may “consider
summary judgment-type evidence in the record, but must also take into account all unchallenged
factual allegations, including those alleged in the complaint, in the light most favorable to the
plaintiff,” and resolve “[a]ny contested issues of fact and any ambiguities of state law” in the
plaintiff’s favor.110 However, the court does not assess “whether the plaintiff will actually or
even probably prevail on the merits of the claim,” but only determines whether there is “a
possibility that the plaintiff might do so.”111 In other words, where courts choose to pierce the
pleadings, the party asserting fraudulent joinder must provide evidence that “negate[s] the
106
Rodriguez v. Rutter, 310 F. App’x 623, 626 (5th Cir. 2009); Carter v. Target Corp., 541 F. App’x 413,
416–17 (5th Cir. 2013).
107

385 F.3d 568, 573 (5th Cir. 2004).

108

Id.

109

Id.

110

Travis v. Irby, 326 F.3d 644, 648–49 (5th Cir. 2003)

111

Guillory v. PPG Indus., Inc., 434 F.3d 303, 308–09 (5th Cir. 2005).

20

possibility” that the non-diverse party may be held liable.112
If the Court finds that, even taking all allegations in the amended complaint as true,
Plaintiffs cannot state a claim against Higgins, then the Court need not determine whether it
needs to pierce the pleadings to resolve this matter. In their amended complaint, in addition to
general allegations of liability, Plaintiffs specifically claim that Higgins was the local
representative for Medtronic; he was present in the operating room with Davis when the Atlantis
System was installed; Higgins was materially involved in choosing the particular plate installed,
which was defective and known to be effective only for temporary use under limited
circumstances, and thus not appropriate for the surgery at hand; and he failed to warn Davis of
the “inherent dangers” risked by using the Medtronic plate under the existing circumstances.113
Louisiana follows the learned intermediary doctrine, wherein the manufacturer has no
duty to warn the patient, but need only warn the patient's physician.114 To recover against a
manufacturer for a failure to warn under the learned intermediary doctrine, “a plaintiff must
show: (1) that the defendant failed to warn the physician of a risk associated with the use of the
product, not otherwise known to the physician, and (2) that the failure to warn the physician was
both a cause in fact and the proximate cause of the plaintiff's injury.”115 Even if a product is not
defectively designed or constructed, a manufacturer may still have a duty to warn consumers
about any characteristic of the product that unreasonably may cause damage.116
112

Travis, 326 F.3d at 650.

113

Rec. Doc. 5-2 at p. 3.

114

See Guidry v. Aventis Pharm., Inc., 418 F. Supp. 2d 835, 840 (M.D. La. 2006).

115

Willett v. Baxter Int'l, Inc., 929 F.2d 1094, 1098 (5th Cir. 1991).

116

Grenier v. Med. Eng'g Corp., 243 F.3d 200, 205 (5th Cir. 2001).

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The party asserting improper joinder “bears a heavy burden of proving that joinder of the
in-state party was improper.”117 Defendants allege that Plaintiffs cannot state a claim because
sales representatives do not owe a duty to warn under Louisiana’s “learned intermediary”
doctrine. Defendants cite several cases from Alabama, Georgia, and Mississippi with similar
facts that they claim all stand for the proposition that sales representatives cannot be held liable,
as any duty to warn rests with the manufacturer, rather than a sales representative.118 Although
Defendants accurately summarize the cases they rely on, Defendants admit that they are aware of
no Louisiana case that squarely addresses the issue, and the Court has not found any.
Moreover, although Louisiana does employ the “learned intermediary” doctrine,119
Defendants do not explain why the doctrine, which generally states that “a drug manufacturer’s
obligation to the consumer is fulfilled when the prescribing or treating physician is informed of
any potential side effects or risks from the drug’s use so that they may intelligently decide on its
use and advise the patient,” should automatically exclude sales representatives from liability.120
Indeed, under certain factual circumstances, a judge in the Northern District of Mississippi has
concluded that allegations that a sales representative directly participated in a tort, such as by
intentionally dodging questions and misrepresenting the risks of a drug, could allow a plaintiff to

117

Smallwood, 385 F.3d at 574.

118

See Rec. Doc. 23 at pp. 7–10 (citing Bloodsworth v. Smith & Nephew, No. 05-622, 2005 WL 3470337,
at *6 (M.D. Ala. Dec. 19, 2005); Catlett v. Wyeth, Inc., 379 F. Supp. 2d 1374 (M.D. Ga. 2004); Walker v.
Medtronic, Inc., No. 03-74, 2003 WL 21517997, at *3 (N.D. Miss. June 4, 2003)).
119
See Stahl v. Novartis Pharm. Corp., 283 F.3d 254, 265 (5th Cir. 2002); Calhoun v. Hoffman-La Roche,
Inc., 1998-2770 (La. App. 1 Cir. 2/18/00); 768 So. 2d 57, 59, writ denied, 2000-1223 (La. 6/23/00); 765 So. 2d
1041.
120

Calhoun, 768 So. 2d at 59 n.1.

22

recover against a sales representative.121 In Texas, which similarly utilizes the learned
intermediary doctrine, a judge in the Southern District of Texas has concluded that the learned
intermediary doctrine does not preclude recovery against a sales representative under Texas law,
because “when the warning to the learned intermediary—the prescribing physician—is
inadequate or misleading, the manufacturer and its sales representatives remain liable for injuries
sustained by the patient who is prescribed the medication.”122
Plaintiffs allege that Higgins, as Medtronic’s sales representative, is liable under this
doctrine for failure to warn the surgeon regarding the dangers of using the Atlantis System,
which was known to be effective for only temporary use under limited circumstances, “in the
case of a multilevel corpectomy and strut graft in which only the top and bottom segments of the
plate would be fixated by screws.”123 According to Plaintiffs, Higgins was the liaison between
the surgeon and the manufacturer, and was therefore the individual relied upon by Defendants to
disperse information to the surgeon.124 As such, Plaintiffs allege, Higgins shares with Defendants
the duty to warn Davis, the “learned intermediary,” regarding any possible risks or defects.125
The Court determines that, without authority to the contrary, it appears that Plaintiffs have met
their minimal burden of showing that they can state a claim that Higgins failed to warn the
physician of a risk associated with the use of the product, not otherwise known to the physician.

121

Smith v. Merck & Co., Inc., No. 07-170, 2007 WL 3120254, at *3 (N.D. Miss. Oct. 23, 2007).

122

Vargas v. Merck & Co., No. 06-501, 2006 WL 3487403, at *3 (S.D. Tex. Dec. 1, 2006); accord Salazar
v. Merck & Co., No. 05-445, 2005 WL 2875332, at *3 (S.D. Tex. Nov. 2, 2005).
123

Rec. Doc. 5-2 at p. 3.

124

Rec. Doc. 26 at p. 6.

125

Id. at pp. 6–7.

23

There is no controlling authority on point, and inquiries into similar situations by other
courts have resulted in different conclusions.126 Therefore, the Court cannot conclude that, on the
face of the complaint, “there is no reasonable basis for the district court to predict that the
plaintiff might be able to recover against an in-state defendant.”127 Moreover, to the extent that
the Court must make an “Erie guess” regarding Louisiana law to address this question,128 it
would be inappropriate at this stage for the Court to conclude that Louisiana law bars recovery
against a sales representative for breaching the duty to warn, particularly in light of the fact that,
in making determinations regarding improper joinder, the district court is “obliged to resolve any
contested issues of material fact, and any ambiguity or uncertainty in the controlling state law, in
[the plaintiff’s] favor.”129 First, neither party adequately briefs the Court regarding Louisiana’s
application of the learned intermediary doctrine. Furthermore, the closest authority the Court
could find on the issue is a decision by the Louisiana Third Circuit Court of Appeal in Marks v.
OHMEDA, Inc. stating that the duty to warn, as established by Louisiana Revised Statute §
2800.57, “cannot be delegated;” the Marks court made no comment, however, on whether the
duty is shared by representatives or liaisons of the manufacturer.130
126

Compare Bloodsworth v. Smith & Nephew, No. 05-622, 2005 WL 3470337, at *6 (M.D. Ala. Dec. 19,
2005) with Vargas, 2006 WL 3487403, at *3.
127

Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 574 (5th Cir. 2004) (en banc).

128

Shaw Constructors v. ICF Kaiser Engineers, Inc., 395 F.3d 533, 546–47 (5th Cir. 2004). To make an
“Erie guess,” the Court “employ[s] the appropriate Louisiana methodology to decide this issue the way that [it
believes] the Supreme Court of Louisiana would decide it.” Id. Courts in Louisiana “begin every legal analysis by
examining primary sources of law: the State’s Constitution, codes, and statutes.” Id. at 547. These primary sources
are “contrasted with persuasive or secondary sources of law, such as [Louisiana and other civil law] jurisprudence,
doctrine, conventional usages, and equity, that may guide the court in reaching a decision in the absence of
legislation and custom.” Id. (quoting La. Civ. Code art. 1).
129

Rico v. Flores, 481 F.3d 234, 239 (5th Cir. 2007) (quoting Griggs v. State Farm Lloyds, 181 F.3d 694,
699 (5th Cir. 1999)).
130

Marks v. OHMEDA, Inc., 2003-1446 (La. App. 3 Cir. 3/31/04); 871 So. 2d 1148, 1155 writ denied,

24

As noted above, Defendants, as the parties asserting improper joinder “bear[] a heavy
burden of proving that joinder of the in-state party was improper.”131 Here, Defendants point to
no Louisiana authorities to support their assertion that sales representatives are never liable for
failure to warn under the learned intermediary doctrine, and provide no briefing to suggest that
Plaintiffs could not possibly recover against Higgins. Instead, they rely solely on out-of-state,
and even out-of-circuit, decisions that they claim are applicable in this context solely on the basis
that Louisiana employs the “learned intermediary” doctrine. Under these circumstances, the
Court is not in a position to make an Erie guess that Louisiana law precludes recovery against a
sales representative, and as such, Defendants have not demonstrated that “there is
no possibility of recovery by the plaintiff against an in-state defendant.”132
Defendants also argue that Higgins attested in an affidavit that, at the time of the surgery
in question, he had no knowledge of any alleged defects in the Atlantis System, and saw no
reason to believe that the Atlantis System suffered any defects.133 Furthermore, Defendants
argue, despite Plaintiffs’ allegation that Higgins was “materially involved” in Davis’ decision to
use the plate at issue, Higgins had “absolutely no input into the decision by Dr. Davis (who had
been using the Atlantis [System] well before Mr. Higgins was employed with Medtronic) to
surgically implant the” Atlantis System.134 Although Defendants ask the Court to pierce the
pleadings and determine that Higgins owes no liability to Plaintiffs, the Fifth Circuit has stated

2004-1653 (La. 10/8/04); 883 So. 2d 1019 and writ denied, 2004-1617 (La. 10/8/04); 883 So. 2d 1020.
131

Smallwood, 385 F.3d at 574.

132

Id. at 573.

133

Rec. Doc. 23 at p. 7.

134

Id.

25

that district court should look at summary judgment-type evidence at this stage of the
proceedings only in those cases, “hopefully few in number, in which a plaintiff has stated a
claim, but has misstated or omitted discrete facts that would determine the propriety of
joinder.”135 Even in such cases, the district court’s decision to pierce the pleadings and conduct a
summary inquiry is within in its discretion.136
Here, Plaintiffs have not filed any responsive pleadings since Defendants filed their
opposition attaching Higgins’ affidavit.137 Therefore, Plaintiffs have not provided any evidence
to rebut Higgins’ account of his involvement in the events at issue. Moreover, both parties have
repeatedly alleged that the actions they have taken in these proceedings, including waiting to
amend the complaint until after the notice of removal was filed, have been taken in light of the
parties’ good faith attempts to reach a settlement. Therefore, considering the procedural
background of this case and the cursory briefing by both parties, the Court declines to proceed
with a summary inquiry at this stage. As such, the Court concludes that Defendants have not met
their burden of proving that, on the face of the complaint, the Plaintiffs could not possibly
recover against Higgins. Therefore, the first Hensgens factor—whether the purpose of
amendment is to destroy diversity—weighs in favor of allowing amendment.
2.

Whether Plaintiff Has Been Dilatory

Defendants do not separately argue that Plaintiffs have been “dilatory,” but they contend
that the principal purpose of the amendment was likely to destroy diversity because, although the

135

Smallwood, 385 F.3d at 573.

136

Id.

137

Although technically Plaintiffs’ reply was filed on September 25, 2015, after Defendants’ opposition
filed on September 22, 2015, the reply was filed to correct a deficiency noted by the Clerk of Court, and the original
pleading was filed on September 18, 2015, before Defendants’ opposition. See Rec. Docs. 20, 26.

26

lawsuit was filed on February 10, 2015 and Defendants timely removed the matter on May 1,
2015, Plaintiffs waited until May 22, 2015 to add Higgins as a defendant.138 Moreover,
Defendants argue that the fact that Plaintiffs are seeking to amend their complaint shortly after
removal, when they admit in their motion to knowing Higgins’ identity prior to removal,
suggests that the principal purpose for the amendment is to destroy diversity.139
When determining whether a plaintiff was dilatory in seeking to amend, “courts often
look to the amount of time that has passed between the filing of the original complaint and the
amendment and the amount of time between removal and the amendment.”140 However, courts
may also consider whether parties knew of the allegedly non-diverse parties’ identities at the
time of filing the complaint, and whether new information has been acquired in the interim.141
Indeed, some “courts applying Hensgens have found that a one or even a two-year delay in
seeking to amend to add a new non-diverse defendant, depending on the circumstances, may not
preclude joinder.”142
Here, Plaintiffs waited three months after filing their complaint, three weeks after
removal, and one month after allegedly learning of Higgins’ identity, to seek to amend their
138

Rec. Doc. 23 at p. 6.

139

Id.

140

Tomlinson v. Allstate Indem. Co., No. 06–0617, 2006 WL 1331541, at *3–4 (E.D. La. May 12, 2006).

141

See Neely v. Scottsdale Ins. Co., No. 14-0048, 2014 WL 1572441, at *6 (E.D. La. Apr. 17, 2014)
(finding a plaintiff was dilatory in seeking amendment where he waited nearly eight months to seek leave to add
defendants whose existence he was aware of when he filed the state court action); see also Herrero v. Sears,
Roebuck, & Co., No. 15-2162, Rec. Doc. 22 at p. 25 (E.D. La. Oct. 20, 2015) (Brown, J.) (concluding that a plaintiff
was not dilatory in seeking amendment seven months after the complaint was filed, and three months after it was
removed, in light of the fact that plaintiffs moved to amend one week after learning the identity of the non-diverse
party, which the defendants had previously withheld).
142

Karr v. Brice Bldg. Co., No. 08-1984, 2009 WL 1458043, at *4 (E.D. La. May 22, 2009) (Barbier, J.)
(citing Bethay v. Ford Motor Co., 1999 WL 496488 (E.D. La., Jul. 13, 1999); Tujague v. Atmos Energy Corp., 2008
WL 489556 (E.D. La. Feb. 20, 2008)).

27

complaint. Defendants contend that Plaintiffs knew of Higgins’ identity “prior to removal,” but
according to Plaintiffs, they learned of Higgins’ identity on April 23, 2015, just over one week
before Defendants removed the case, on May 1, 2015.143 Moreover, both Plaintiffs and
Defendants contend that the parties were actively engaged in settlement talks at the time, which
presumably affected the parties’ calculations regarding whether and when to file pleadings that
would affect jurisdiction in this matter. Therefore, the Court is disinclined to find that a onemonth delay between discovering Higgins’ identity and seeking leave to amend the complaint
amounts to “dilatory” behavior such that granting Plaintiffs’ request to amend would be unjust.
As such, the second Hensgens factor favors allowing Plaintiffs to amend their complaint.
3.

Remaining Hensgens Factors

Neither Plaintiffs nor Defendants make any arguments to the Court under the third or
fourth Hensgens factors—namely, injury if amendment is denied, or any other factors bearing on
the equities. As Defendants point to no additional factors suggesting that its choice of a federal
forum should be honored above Plaintiffs’ preference to pursue the litigation in state court, the
Court declines to invent arguments for Defendants. Therefore, the Court finds that neither the
third nor fourth Hensgens factor weighs in favor of precluding Plaintiffs from amending their
complaint to substitute Higgins for “Defendant ABC.”
4.

Remand

A federal court may exercise subject matter jurisdiction pursuant to diversity of
citizenship over an action only “where the matter in controversy exceeds the sum or value of

143

Rec. Doc. 5-1 at p. 2.

28

$75,000” and the action “is between citizens of different states.”144 Moreover, “[c]omplete
diversity of citizenship is a statutorily mandated rule that is almost as old as the Republic
itself.”145 It follows that if the parties are not completely diverse, and there is no other basis of
jurisdiction, the Court may not exercise subject matter jurisdiction over a proceeding.146
In Cobb v. Delta Exports, Inc., the Fifth Circuit held that post-removal joinder of nondiverse defendants pursuant to Federal Rule of Civil Procedure 19 “destroys diversity for
jurisdictional purposes and requires remand, even when the newly joined defendants are not
indispensable.”147 Furthermore, the Fifth Circuit stated in Doleac ex rel. Doleac v. Michalson
that, regardless of whether a non-diverse party is joined after removal under Federal Rule of
Civil Procedure 19 or substituted for a John Doe under Rule 15, once the party is properly
present in the action, diversity is destroyed and subject matter jurisdiction is extinguished.148
Therefore, as the Court has granted Plaintiffs’ motion for leave to amend their complaint to add
Higgins, who is alleged to be domiciled in Louisiana, the amendment destroys diversity and the
Court must remand the case to state court.
IV. Conclusion
As noted above, all four Hensgens factors largely favor allowing Plaintiffs to amend their
complaint. Plaintiffs have sufficiently shown that: (1) the purpose of the amendment is not solely

144

28 U.S.C. § 1332(a)(1).

145

Hensgens v. Deere & Co., 833 F.2d 1179, 1180 (5th Cir. 1987).

146

Herrero v. Sears, Roebuck & Co., No. 15-2162, 2015 WL 6159141, at *4 (E.D. La. Oct. 20, 2015)

(Brown, J.).
147

Cobb v. Delta Exports, Inc., 186 F.3d 675, 677 (5th Cir. 1999).

148

264 F.3d 470, 475 (5th Cir. 2001) (Ҥ 1447(e) . . . direct[s] remand if the district court permits joinder of
a defendant whose citizenship destroys subject matter jurisdiction.”).

29

to defeat federal jurisdiction; and (2) Plaintiffs have not been dilatory in requesting leave to
amend. Neither Plaintiffs nor Defendants brief the Court regarding whether Plaintiffs will be
significantly injured if amendment is not allowed or other factors bearing on the equities that
would favor granting Plaintiffs’ motion for leave to amend their complaint. In light of the
foregoing reasons, the Court herein grants Plaintiffs’ motion to amend their complaint to
substitute Hudson Higgins, who is domiciled in Louisiana, for “Defendant ABC.” Because the
Court has granted Plaintiffs’ motion to amend their complaint to substitute a non-diverse party
for the initially named “Defendant ABC,” it must remand the case to state court. Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ “Motion for Leave to File First Amending
and Supplemental Complaint”149 is GRANTED.
IT IS FURTHER ORDERED that Plaintiffs’ “Motion to Remand”150 is GRANTED.
NEW ORLEANS, LOUISIANA, this ______ day of March, 2016.
21st
________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

149

Rec. Doc. 5.

150

Rec. Doc. 12.

30