Davis et al v. Kemp et al

Filing 17

MEMORANDUM RULING re 11 MOTION to Amend/Correct Complaint with consent sought but not obtained filed by Amy M Davis, David R Davis, 12 MOTION to Remand filed by Amy M Davis, David R Davis. Signed by Magistrate Judge Mark L Hornsby on 4/6/09. (crt,Alexander, E)

UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF LOUISIANA M O N R O E DIVISION

D A V ID R. DAVIS, ET AL VERSUS S H A W N L. KEMP, ET AL

C IV IL ACTION NO. 08-cv-2027 J U D G E JAMES M A G I S T R A T E JUDGE HORNSBY

M E M O R A N D U M RULING I n t r o d u c tio n D a v id Davis ("Plaintiff") filed suit in state court for personal injuries related to an a u to m o b ile accident. The defendants removed the case based on an assertion of diversity ju ris d ic tio n . Soon after the removal, Plaintiff changed lawyers, and his new counsel filed a M o t io n for Leave to Amend (Doc. 11) that proposed to add two non-diverse defendants. P la in tif f filed a related Motion to Remand (Doc. 12) on the grounds that the new defendants w o u ld destroy subject-matter jurisdiction. The original defendants oppose both motions. For th e reasons that follow, the motions will be granted. R elev a n t Facts P lain tiff gave a recorded statement to an insurance investigator, and a transcript is a tta c h ed to the defendants' memorandum. Doc. 14. That statement provides the facts, set f o rth below, regarding how the accident occurred. Plaintiff was employed as the shop m a n a g er at Triple D Service Center, a Farmerville business that works on 18-wheel tra c to r-tra ile r rigs. He received a call about 11:00 o'clock one morning. A truck had broken

d o w n in front of a grocery store on Highway 15, about five miles southeast of town. H ig h w a y 15 is a two-lane road with no shoulders, except there was a shoulder on the right sid e of the road in front of the store, which is located at the top of a hill. The speed limit alon g the highway is generally 55 miles per hour, but near the hill it is 45 miles per hour. P la in tif f was able to start the truck, and the driver began to leave the parking lot of the s to re , take a right turn, and proceed toward Farmerville. The sky was pouring rain. Plaintiff s a id he originally started to drive away behind the truck, but something told him to back up to the top of the hill, turn on his emergency flashers, and give warning to approaching traffic o f the slow-moving truck on the other side of the hill. Plaintiff did so and remained parked in the rain, on the right shoulder, with his flashers on. Plaintiff looked in his mirror as he sat on the shoulder, and he saw a Saulsbury tra c to r-tra iler rig top the hill, moving fast. The truck had not been in sight when the repair tru ck began to enter the highway. Plaintiff said he believed that the driver of the Saulsbury tru c k saw the slower truck and jammed on his brakes, which caused his trailer to jackknife to the shoulder and hit Plaintiff's truck. The impact knocked Plaintiff's truck across the p a rk in g lot and spun it around. The Saulsbury truck kept going, but a volunteer fireman who w itn e ss e d the accident managed to stop the driver, who said he did not know the accident h a p p e n e d . A local business owner volunteered that his surveillance camera recorded the e n tir e incident.

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P la in tif f refused to get in an ambulance to be taken for medical care, but he later went to a north Monroe hospital. A CAT scan was performed, and a physician told Plaintiff that the scan showed no physical harm from the wreck, but did reveal metastatic lung cancer. P la in tif f had recently been laid off from his job of 22 years and had no health insurance. He s p e n t a week taking pain pills and a muscle relaxer for his injuries, and at the same time he w a s worried about how he was dying of cancer. He later went to the E. A. Conway Hospital in Monroe to seek treatment for the cancer. A physician there performed X-rays and a CAT s c a n . He told Plaintiff that he did not have cancer. Plaintiff does claim that pleurisy troubles h i s lungs. P lain tiff filed suit in state court against Shawn Kemp, (the driver of the Saulsbury tru c k ), Saulsbury Diesel, Inc. (owner of the truck), and Canal Insurance Company (insurer o f the truck). The three defendants removed the case on December 31, 2008. They filed an a n sw e r about three weeks later. Defendants' second listed defense was "sudden emergency c a u se d by the conduct of third persons and not of the making of defendants." The third listed d e f en s e was the fault of Plaintiff. The fourth listed defense was: "the fault of third persons f o r whom no defendant is legally responsible, including the fault of the motorist who had b e e n assisted by the plaintiff David R. Davis immediately prior to the accident, in blocking th e highway without adequate warning or in traveling at an excessively slow speed, thereby c a u sin g Shawn L. Kemp to act emergently by braking, which led to the impact between the v e h ic le driven by Shawn L. Kemp and the plaintiff vehicle."

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O n February 6, 2009, about five weeks after the case was removed, Plaintiff filed a m o tio n to substitute new counsel, and the request was granted. New counsel filed, just four d a ys later, the Motion to Amend and the Motion to Remand that are at issue today. P la in tif f 's proposed amendment revises some of his allegations about his injuries and d a m a g e s , but the principal proposed change is the addition of claims against Greg Hancock a n d Rogers Manufacturing Corporation, the driver and owner of the slow-moving truck that P la in tif f had just assisted. Plaintiff's proposed allegations parrot those of defendants that the a c ti o n s of Hancock in operating his vehicle at a slow rate of speed, so as to cause an o b stru c tio n in the roadway, presented a hazard that caused Shawn Kemp to have to brake his v e h ic le suddenly. Plaintiff alleges that Hancock's actions may have been a contributing f a c to r in causing the accident. T h e one-year anniversary of the accident, and the prescriptive period for filing suit, p a ss e d in February 2009 before the pending motions could be briefed and decided. Plaintiff, o u t of an abundance of caution, filed a separate suit in state court against Greg Hancock and R o g ers Manufacturing Corporation. He alleged in that suit that those two defendants were a t fault for the accident. H e n sg e n s and the Proposed Amendment If after removal a plaintiff seeks to join a new defendant whose joinder would destroy s u b je c t matter jurisdiction, the court may (1) deny joinder or (2) permit joinder and remand th e case. 28 U.S.C. § 1447(e). The court's decision of the issue is guided by the factors set

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f o r th in Hensgens v. Deere & Co., 833 F.2d 1179 (5th Cir. 1987). See also Cobb v. Delta E x p o rts, Inc., 186 F.3d 675, 678-79 (5th Cir. 1999). Although leave to amend is ordinarily f re e ly granted, Hensgens instructs that when a district court is faced with an amendment that ad d s a non-diverse party it "should scrutinize that amendment more closely than an ordinary a m e n d m e n t." Id. at 1182. The court must balance the defendant's interests in maintaining the federal forum with th e competing interest of not having parallel lawsuits. Factors to be considered include (1) th e extent to which the purpose of the amendment is to defeat federal jurisdiction, (2) w h e th e r the plaintiff has been dilatory in asking for the amendment, (3) whether the plaintiff w i ll be significantly injured if the amendment is not allowed, and (4) any other factors b e a rin g on the equities. Hensgens, 833 F.2d at 1182; Hawthorne Land Co. v. Occidental C h e m ic a l Corp., 431 F.3d 221, 227 (5th Cir. 2005). Analysis W h e n a plaintiff knows or should know of the identity of other defendants but does n o t seek to add them until post-removal when they would destroy diversity, that often su g g ests dilatoriness and an intent to defeat federal jurisdiction. In this case, however, there a re factors present that distinguish the case from the ordinary situation. Plaintiff did know th e identity of Hancock and Rogers before he filed suit, but his original counsel chose not t o name them as defendants. That is not surprising, as Plaintiff's own statement is to the e f f e c t that there was no oncoming traffic within sight when Hancock began to enter the

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r o a d w a y. There is not much about those facts to suggest a strong case of liability against H a n c o c k . But defendants then answered the suit and, although they did not file a third party d e m a n d against Hancock (or Rogers), they did make direct allegations that Hancock was w h o lly or partially at fault for the accident. Accordingly, it is likely that defendants would b e entitled to have the jury assess a percentage of fault against Hancock at trial, even if H a n c o c k is not a named party, and defendants could avoid liability for that portion of P la in tif f 's damages. La. Civ. Code art. 2323 and 2324. Plaintiff's new counsel quickly conducted his own assessment of the case, including th e pleading filed by defendants, and chose to move to name as defendants those persons the o r i g i n a l defendants were already attempting to blame for the accident. That was a quite re a so n a b le strategy by new counsel, and one that he pursued promptly. Plaintiff may be p le a se d that the addition of the new parties would result in his return to state court, but the f a cts and circumstances presented by the record do not suggest that was his principal m o tiv a tio n . The claims against Hancock and Rogers do not appear to be particularly strong ( b a s e d on the scant materials in the record), but when the original defendants began to cast b la m e on them for the accident, Plaintiff had an objectively reasonable, perhaps even a c o m p e llin g , basis to add the non-diverse defendants. If leave to amend is denied, Plaintiff will be allowed to pursue his claims against H a n c o ck and Rogers in the state court suit that he filed. (The filing of that suit indicates P la in tif f is serious about pursuing the claims and is not merely attempting to add Hancock

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a n d Rogers to destroy diversity jurisdiction). Plaintiff will, however, bear the additional e x p e n se of litigating essentially the same case in two forums, and judicial resources will be w a ste d as well. There is also the risk that Plaintiff could receive inconsistent verdicts or o t h e r results in the parallel proceedings. T h e court has carefully considered the three principal Hensgens factors (purpose, d ilatorine ss , and significant injury if denied), as well as the other facts and factors that are r e le v a n t to the decision. The court is of the opinion that the best and most reasonable exercise o f its discretion in this relatively new case, where there have been no substantive federal p r o c e e d in g s , is to permit Plaintiff to add the new defendants so that this entire controversy m a y be tried in a single proceeding in a single forum. Accordingly, the Motion for Leave to Amend Complaint (Doc. 11) is granted. The Motion to Remand (Doc. 12) is, subject to the stay set forth in the accompanying order, granted, and this case will be remanded to th e Third Judicial District Court, Union Parish, Louisiana. T H U S DONE AND SIGNED in Shreveport, Louisiana, this 6th day of April, 2009.

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