Donahue et al v. Republic National Distributing Company, LLC et al
Filing
191
ORDER AND REASONS regarding 169 Motion to Remand to State Court and 180 Motion to Strike. For the foregoing reasons, Defendants' Motion to Strike is GRANTED and Plaintiff's Motion to Remand is DENIED AS MOOT. Signed by Judge Jane Triche Milazzo on 8/2/2018. (cg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOSHUA DONAHUE ET AL
CIVIL ACTION
VERSUS
NO: 16-13948
REPUBLIC NATIONAL DISTRIBUTING
COMPANY, LLC ET AL
SECTION: “H”(1)
ORDER AND REASONS
Before the Court are a Motion to Strike Plaintiff’s Third Amended
Complaint (Doc. 180), filed by Defendant Republic National Distributing
Company, LLC and adopted by Defendant W&H Systems, Inc., and a Motion
to Remand (Doc. 169) filed by Plaintiff Joshua Donahue. For the following
reasons, the Motion to Strike is GRANTED and the Motion to Remand is
DENIED AS MOOT.
BACKGROUND
This action arises from injuries that Plaintiff Joshua Donahue suffered
while working in the facility of Defendant Republic National Distribution Co.
(“RNDC”). RNDC contracted with Defendant W&H Systems, Inc. (“W&H
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Systems”) to install a conveyor system in its warehouse. W&H Systems
contracted with Defendant Darana Hybrid, Inc. (“Darana”) to perform
electrical work as part of that installation. Darana had an outstanding contract
with Defendant American ManPower Services, Inc. (“AMPS”) in which AMPS
provided labor to Darana. Plaintiff worked for AMPS and, under the contract
with Darana, was assigned to Darana’s electrical project for W&H Systems.
On July 29, 2015 while descending a scaffold in RNDC’s facility, Plaintiff was
struck in the head by the blades of an unguarded overhead fan.
Plaintiffs Joshua Donahue and his wife, Angela Bolton, filed this suit on
June 8, 2016 in Civil District Court for the Parish of Orleans asserting claims
for negligence and premises liability. Defendants removed to this Court on
August 18, 2016.
At a status conference attended by all parties on June 6, 2018, Plaintiffs
orally moved for leave to amend their complaint to add a new defendant, Steele
Solutions, Inc. All parties consented to the motion and the Court granted
Plaintiffs leave to amend their complaint to assert a claim against Steele
Solutions, Inc. 1 Plaintiffs filed their Third Amended Complaint on June 16,
2018. 2 Plaintiff’s Third Amended Complaint added Steele Solutions, Inc. as a
defendant. It also added as a defendant, among others, MS15 LLC. On July 10,
2018, Plaintiffs filed a Motion to Remand, arguing that MS15 LLC was a
Louisiana citizen whose joinder destroyed this Court’s diversity jurisdiction. 3
On July 24, 2018, Defendant RNDC moved to strike Plaintiffs’ Third Amended
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Doc. 144.
Doc. 153.
Doc. 169. The Court observes that, in the briefing on the Motion to Remand, the parties
appear to assume that MS15, LLC is a citizen of Louisiana because it is organized there.
Instead, the “citizenship of a LLC is determined by the citizenship of all of its members.”
Harvey v. Grey Wold Drilling Co., 542 F.3d 1077, 1080 (5th Cir. 2008) (citations omitted).
Any future briefing regarding diversity jurisdiction will best assist the Court if the
citizenship of the entities involved is properly set forth.
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Complaint on the ground that Plaintiffs had not been granted leave of court to
add any entity other than Steele Solutions, Inc. 4 Defendant W&H Systems
joined RNDC’s Motion on July 31, 2018. 5 Plaintiffs oppose the Motion to Strike.
LAW AND ANALYSIS
Federal Rule of Civil Procedure 15 allows a party to amend its pleading
once as a matter of course and subsequently only with the opposing party’s
consent or leave of court. 6 Rule 15 counsels that, “The court should freely give
leave when justice so requires.” 7 However when such an amendment would
destroy subject matter jurisdiction, 28 U.S.C. § 1447(e) gives a court discretion
to deny joinder. 8 In such a situation, the court should apply the factors set forth
in Hensgens v. Deere & Co., 9 “scrutinize[ing] an amendment . . . that would add
a non-diverse party more closely than an ordinary amendment.” 10
Here, Plaintiffs filed an amended complaint that adds a party whose
joinder would destroy this court’s subject matter jurisdiction without seeking
leave of court to add that party. This Court specifically granted leave to add
Steele Solutions, Inc., not any other entity. The use of the plural “parties” in a
sentence relating to a scheduling conference did not change the explicit order
of the Court. Accordingly, Defendants’ Motion to Strike is granted and
Plaintiff’s Second Amending Complaint is stricken in its entirety. Plaintiffs
may re-file an amended complaint that adds Steele Solutions, Inc., but must
Doc. 180.
Docs. 184, 190.
6 FED. R. CIV. P. 15(a).
7 Id. at 15(a)(2).
8 28 U.S.C. § 1447(e).
9 833 F.2d 1179, 1182 (5th Cir. 1987).
10 Priester v. JP Morgan Chase Bank, N.A., 708 F.3d 667, 679 (5th Cir. 2013), abrogated on
other grounds by Wood v. HSBC Bank USA, N.A., 505 S.W.3d 542, 551 (Tex. 2016) (quoting
Short v. Ford Motor Co., 21 F.3d 1107 (5th Cir. 1994)).
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seek leave of court to add any other entity. Furthermore, Plaintiffs’ Third
Amending Complaint having been stricken, Plaintiff’s Motion to Remand is
denied without prejudice as moot.
CONCLUSION
For the foregoing reasons, Defendants’ Motion to Strike is GRANTED
and Plaintiff’s Motion to Remand is DENIED AS MOOT.
New Orleans, Louisiana this 2nd day of August, 2018.
____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
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