Zibari v. International College of Surgeons et al
MEMORANDUM ORDER denying 10 Motion to Amend. FURTHER ORDER denying 10 Motion to Remand. Signed by Magistrate Judge Karen L Hayes on 8/19/14. (crt,Crawford, A)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
GAZI B. ZIBARI, M.D.
CIVIL ACTION NO. 14-0858
JUDGE S. MAURICE HICKS
INTERNATIONAL COLLEGE OF
MAG. JUDGE KAREN L. HAYES
SURGEONS - WORLD BODY, ET AL.
Before the undersigned magistrate judge, on reference from the District Court, is a
consolidated motion for leave to file an amended complaint and motion to remand [doc. # 10]
filed by plaintiff Gazi Zibari. The motions are opposed. For reasons assigned below, the
motions are DENIED.1
On March 4, 2014, Gazi Zibari filed the instant “Petition for Temporary Restraining
Order, Preliminary and Permanent Injunctions and Declaratory Relief and Damages” (the
“Petition” or “Complaint”) in the First Judicial District Court for the Parish of Caddo, State of
Louisiana. Named defendants include the International College of Surgeons (incorrectly named
in the petition as the “International College of Surgeons – World Body”) (hereinafter“ICS”); Max
Downham; Christopher Chen; Adel Ramzy; Yik Hong Ho; Clement Chan; Fidel Ruiz
As these motions are not excepted within 28 U.S.C. § 636(b)(1)(A), nor dispositive of
any claim on the merits within the meaning of Rule 72 of the Federal Rules of Civil Procedure, this
order is issued under the authority thereof, and in accordance with the standing order of this court.
Any appeal must be made to the district judge in accordance with Rule 72(a) and L.R. 74.1(W).
Healy; and Earl Owen. The petition alleges that Zibari, a transplant surgeon, was the 2013
president of the International College of Surgeons Alliance-United States Section (hereinafter,
“ICS-US”), a separate, subsidiary of the ICS. (Petition, ¶¶ 3-4). At some point, Zibari became
concerned about then-director of the ICS, Max Downham’s opaque financial activities, as well as
the seemingly inappropriate control exerted on the governing members of the ICS and the ICSUS by Downham and past ICS president, Christopher Chen. Id. Zibari memorialized his
concerns in an October 15, 2012, e-mail, that was seen by Chen, to which he took umbrage. Id.
As a result, Zibari contends that Chen and Downham conspired to expel him from the ICS by
filing a grievance against Zibari to be heard by a committee appointed by Chen and Downham.
Id., ¶¶ 4-5. Ultimately, the grievance committee convened and on, or about April 10, 2013,
issued a ruling expelling Zibari from the ICS. Id., ¶ 11.
Thereafter, on January 15, 2014, Downham sent Zibari an e-mail in which he asked
Zibari to return his ICS membership certificate and other indicia of membership – documentation
which Zibari alleges that he never possessed to begin with. Id., ¶ 17. Zibari perceived the
request as a threat to publicly embarrass him. Id.
Zibari alleges that as a result of the foregoing events, he was forced to undergo
neurological surgery in November 2012 to alleviate the physical manifestation of the emotional
distress that he had endured. Id., ¶ 12. He also suffered loss of consortium, difficulty sleeping,
persistent concerns regarding his professional career opportunities, lost productivity, and inability
to focus. Id.
Zibari further contends that he will suffer loss of reputation should defendants publish his
expulsion from the ICS. Id., ¶ 20. Consequently, he petitions the court to issue a temporary
restraining order (“TRO”) and preliminary injunction prohibiting defendants from publishing his
expulsion from the ICS. Id., ¶¶ 20-23.
Discerning from the face of plaintiff’s petition the presence of federal subject matter
jurisdiction, via both federal question and diversity, 28 U.S.C. §§ 1331 & 1332, defendant, ICS,
removed the matter to federal court on April 22, 2014. The next day, ICS filed an amended
notice of removal, to which all other defendants consented and joined in. (Amend. Notice of
On May 20, 2014, all defendants joined in a motion to dismiss plaintiff’s complaint
pursuant to Federal Rules of Civil Procedure 12(b)(2), (5), and (6), and alternatively, to transfer
venue. [doc. # 7]. Two days later, plaintiff filed the instant motion for leave to amend his
petition/complaint and to remand. On June 17, 2014, defendants filed their opposition to the
consolidated motions. Plaintiff did not file a reply, and the time to do so has lapsed. Thus, the
matter is ripe.
Law and Analysis
Removal Principles and Plaintiff’s Motions
“A party may remove an action from state court to federal court if the action is one over
which the federal court possesses subject matter jurisdiction.” Manguno v. Prudential Prop. &
Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002); see 28 U.S.C. § 1441(a). “The removing party
bears the burden of showing that federal jurisdiction exists.” De Aguilar v. Boeing Co., 47 F.3d
1404, 1408 (5th Cir. 1995) (citing Gaitor v. Peninsular & Occidental S.S. Co., 287 F.2d 252,
253-54 (5th Cir. 1961)). To determine whether jurisdiction is present, courts consider “the
claims in the state court petition as they existed at the time of removal.” Manguno, 276 F.3d at
723 (citing Cavallini v. State Farm Mut. Auto. Ins. Co., 44 F.3d 256, 264 (5th Cir. 1995)). “Any
ambiguities are construed against removal because the removal statute should be strictly
construed in favor of remand.” Id. (citing Acuna v. Brown & Root, Inc., 200 F.3d 335, 339 (5th
Plaintiff’s proposed amendment seeks to delete his allegation that defendants violated
federal employment law, and to add a non-diverse defendant that would destroy diversity
jurisdiction. In other words, the proposed amendment would reverse the asserted bases for
federal subject matter jurisdiction and compel remand. However, plaintiff also seeks remand
because the amount in controversy does not exceed the jurisdictional minimum necessary to
support diversity jurisdiction, and because all defendants did not join in or consent to removal.
Therefore, he contends that the court does not enjoy subject matter and removal jurisdiction even
without consideration of his proposed amendment. Relatedly, if plaintiff’s original complaint
conferred subject matter jurisdiction via federal question, then whether there was/is diversity
jurisdiction is moot. Because these jurisdictional/removal issues affect the court’s consideration
of the motion for leave to amend, the court will address them first.
Federal Question Jurisdiction
Federal courts are courts of limited jurisdiction. Howery v. Allstate Ins. Co., 243 F.3d
912, 916 (5th Cir. 2001) (citation omitted). Thus, a suit is presumed to lie outside this limited
jurisdiction unless and until the party invoking federal jurisdiction establishes otherwise. Id.
Federal law authorizes the removal to federal court of “any civil action brought in a State court of
which the district courts of the United States have original jurisdiction . . .” 28 U.S.C. § 1441(a).
Here, removing defendants invoke federal subject matter jurisdiction, in part, on the basis of
federal question, which confers district courts with “original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331.
To support removal premised on federal question jurisdiction, a removing defendant must
show that the plaintiff has alleged (1) a federal claim; (2) a state cause of action that Congress
has transformed into an inherently federal claim by completely preempting the field; (3) a statelaw claim that necessarily raises a disputed and substantial issue of federal law that a federal
court may entertain without disturbing federal/state comity principles; or (4) a claim for
injunctive relief from state regulation on the basis that such regulation is preempted by a federal
statute. Marren v. Stout, Civil Action No. 12-0631, 2013 WL 1117539 (W.D. Tex. Mar. 18,
2013) (as to bases 1-3) (citations omitted); Gillis v. Louisiana, 294 F.3d 755, 760 (5th Cir. 2002)
(as to basis 4).
Removing defendants contend that federal question jurisdiction is satisfied pursuant to
ground one only. However, for the sake of completeness, the court also will address the
“The presence or absence of federal - question jurisdiction is governed by the
‘well-pleaded complaint rule,’ which provides that federal jurisdiction exists only when a federal
question is presented on the face of the plaintiff's properly pleaded complaint.” Rivet v. Regions
Bank of Louisiana, 522 U.S. 470, 118 S.Ct. 921 (1998). “[A] suit arises under the Constitution
and laws of the United States only when the plaintiff’s statement of his own cause of action
shows that it is based upon those laws or that Constitution.” Louisville & Nashville R. Co. v.
Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 43 (1908). Stated another way,
whether a case is one arising under the Constitution or a law or treaty of the
United States, in the sense of the jurisdictional statute, ... must be determined
from what necessarily appears in the plaintiff's statement of his own claim in the
bill or declaration, unaided by anything alleged in anticipation of avoidance of
defenses which it is thought the defendant may interpose.
Franchise Tax Bd. of State of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 10,
103 S.Ct. 2841, 77 (1983) (quoted source omitted).
[t]he plaintiff is  the master of her complaint. A plaintiff with a choice between
federal- and state-law claims may elect to proceed in state court on the exclusive
basis of state law, thus defeating the defendant's opportunity to remove, but taking
the risk that his federal claims will one day be precluded.
Carpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d 362, 366 (5th Cir. 1995) (citations omitted).
In the case sub judice, defendants contend that the court enjoys federal question
jurisdiction because plaintiff alleged that he was “retaliated against by Downham and Chen with
the pretext of Chen’s grievance complaint against . . . [him] in violation of federal and state
employment laws.” (Petition, ¶ 18) (emphasis added). However, the petition does not request
relief under any federal law, nor does it reference the federal employment law purportedly
breached by defendants. In fact, defendants acknowledge in their motion to dismiss that it is
unclear which federal or state employment laws are implicated by plaintiff’s petition.
(M/Dismiss, Memo., pg. 21).
The court emphasizes that plaintiff’s requested relief for injunctive and monetary
damages are all premised upon state law causes of action. See Petition, ¶ 25 and Prayer. Where,
as here, plaintiff did not allege a separate cause of action stemming from an unspecified federal
statute, it is manifest that he does not state a federal claim. See Howery, supra; Willy v. Coastal
Corp., 855 F.2d 1160, 1169 (5th Cir. 1988). At best, then, the alleged violation of a phantom
federal employment law serves no more than an aggravating circumstance within plaintiff’s
claims for relief under state law. This does not suffice to grant access to a federal forum. See
MSOF Corp. v. Exxon Corp., 295 F.3d 485, 490 (5th Cir. 2002).
The “artful pleading” doctrine is an “independent corollary” to the well-pleaded
complaint rule. MSOF Corp., supra (citing Rivet, supra). This principle provides that a
“plaintiff may not defeat removal by omitting to plead necessary federal questions.” Rivet, supra
(citation omitted). The artful pleading doctrine permits removal in cases where federal law
completely preempts the plaintiff’s state law claim. Id. In fact, without complete preemption,
the artful pleading doctrine does not apply. Terrebonne Homecare, Inc. v. SMA Health Plan,
Inc., 271 F.3d 186, 189 (5th Cir. 2001) (citation omitted).
Here, there is no allegation or showing that an unspecified federal employment law has
completely preempted the field of employment law as required to support the artful pleading
Substantial, Disputed Issue of Federal Law
A cause of action that is created by state law still may “arise under” the laws of the
United States if the well-pleaded complaint establishes that plaintiff’s right to relief under state
law requires resolution of a substantial, disputed question of federal law. Franchise Tax Bd. of
State of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 13, 103 S.Ct. 2841, 2848
(1983). In Grable & Sons Metal Products, Inc. v. Darue Engineering & Mfg., the Supreme Court
framed the question, as follows, “does a state-law claim necessarily raise a stated federal issue,
actually disputed and substantial, which a federal forum may entertain without disturbing any
congressionally approved balance of federal and state judicial responsibilities.” Grable & Sons
Metal Products v. Darue Engineering, 545 U.S. 308, 314, 125 S.Ct. 2363, 2368 (2005).
However, it “takes more than a federal element to open the ‘arising under’ door.” Empire
Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 126 S.Ct. 2121 (2006) (citation omitted).
In the aftermath of Grable & Sons, the Fifth Circuit articulated four requirements that
must be met before a federal issue embedded in a state law cause of action will confer federal
question jurisdiction: “(1) resolving [the] federal issue is necessary to resolution of the state-law
claim; (2) the federal issue is actually disputed; (3) the federal issue is substantial; and (4) federal
jurisdiction will not disturb the balance of federal and state judicial responsibilities.” Singh v.
Duane Morris LLP, 538 F.3d 334, 338 (5th Cir. 2008).
Applying the foregoing considerations here, the undersigned initially observes that
defendants made no effort to demonstrate that plaintiff’s petition meets the applicable standard.
This omission alone precludes a determination that plaintiff’s petition raises “a significant federal
issue sufficient to establish federal question jurisdiction.” See New Orleans & Gulf Coast Ry.
Co. v. Barrois, 533 F.3d 321, 338 (5th Cir. 2008). Moreover, in the case sub judice, there is no
indication that resolution of an alleged violation of federal employment law is indispensable to
plaintiff’s state law causes of action for intentional infliction of emotional distress and libel. In
addition, exercising federal question jurisdiction in this case would upset the balance of state and
federal responsibilities by essentially federalizing state law tort claims that incidentally allege the
violation of an unknown federal statute – a result not intended by Congress or the Supreme
Court. See Singh, supra.
In sum, defendants have failed to establish the stringent and limited circumstances
whereby a federal court may exercise federal question jurisdiction as a result of a federal issue
embedded within a state law cause of action. Singh, supra.
Injunctive Relief Based Upon Federal Preemption
In Shaw v. Delta Air Lines, Inc., the Supreme Court held that
[a] plaintiff who seeks injunctive relief from state regulation, on
the ground that such regulation is pre-empted by a federal statute
which, by virtue of the Supremacy Clause of the Constitution, must
prevail, thus presents a federal question which the federal courts
have jurisdiction under 28 U.S.C. § 1331 to resolve.
Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 103 S.Ct. 2890, n. 14 (1983).
In Gillis, supra, the court invoked Shaw to find federal question jurisdiction where the plaintiff
sought a declaration of rights and implicitly sought injunctive relief based on a federal statute.
See Gillis, supra.
Here, in contrast, plaintiff’s sole claim for injunctive relief stems from violations of state
tort law – not because any alleged transgression of federal law.
In sum, defendants have not demonstrated the existence of a federal question sufficient to
support the exercise of federal subject matter jurisdiction.
The federal diversity statute contemplates complete diversity of citizenship and an
amount in controversy greater than $75,000. 28 U.S.C. § 1332(a). Both requirements are
satisfied here. First, the parties are completely diverse: Plaintiff is a citizen of Louisiana;
defendants are citizens of the District of Columbia, Illinois, Singapore, Egypt, Australia, Hong
Kong, and Mexico. (Amend. Notice of Removal, ¶¶ 9-17). Second, defendants have
demonstrated by a preponderance of the evidence that the amount in controversy exceeded
$75,000 at the time of removal.
Pursuant to the Federal Courts Jurisdiction and Venue Clarification Act of 2011
(“JVCA”), the removal statute now specifies that
[i]f removal of a civil action is sought on the basis of the jurisdiction conferred by
section 1332(a), the sum demanded in good faith in the initial pleading shall be
deemed to be the amount in controversy, except that-(A) the notice of removal may assert the amount in controversy if the
initial pleading seeks-*
(ii) a money judgment, but the State practice either does not permit
demand for a specific sum or permits recovery of damages in excess of the
amount demanded . . .
28 U.S.C. § 1446(c)(2)(A)(ii).
When, as permitted above, the amount in controversy is derived from the notice of removal, the
removing defendant must demonstrate by a preponderance of the evidence that the amount in
controversy exceeds the jurisdictional minimum. 28 U.S.C. § 1446(c)(2)(B); De Aguilar v.
Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995) (removing party bears the burden of establishing
“To satisfy the preponderance standard, the removing defendant may support federal
jurisdiction either by establishing that it is ‘facially apparent’ that the claims probably exceed
$75,000 or by establishing the facts in controversy in the removal petition or [summary
judgment-type evidence] to show that the amount-in-controversy is met.” Felton v. Greyhound
Lines, Inc., 324 F.3d 771, 774 (5th Cir. 2003); accord St. Paul Reinsurance Co. v. Greenberg,
134 F.3d 1250, 1254 (5th Cir. 1998). Removal cannot be supported by conclusory allegations,
however. Simon v. Wal-Mart Stores, Inc., 193 F.3d 848, 850 n.7 (5th Cir. 1999) (citations
“In actions seeking declaratory or injunctive relief the amount in controversy is measured
by the value of the object of the litigation.” Leininger v. Leininger, 705 F.2d 727, 729 (5th Cir.
1983). Furthermore, it is axiomatic that when resolving a motion to remand, the court looks at
jurisdictional facts as they exist at the time the case was removed. Asociacion Nacional De
Pescadores v. Doe Quimica, 988 F.2d 559, 565 (5th Cir. 1993), abrogated on other grounds,
Marathon Oil Co. v. A.G. Ruhrgas, 145 F.3d 211 (5th Cir.1998) (“ANPAC”).
Here, plaintiff seeks both injunctive relief and monetary damages. (Petition, ¶ 25,
Prayer). In support of plaintiff’s request for a TRO, counsel averred that unless the court
enjoined the publication of his expulsion from the ICS, then plaintiff would lose his current
employment, together with the ability to seek employment, renew his medical license, and obtain
membership in other professional associations. (Chu Certificate; Petition, Exh.). In other words,
plaintiff contends that his professional livelihood is at stake in this proceeding.
The court finds, more likely than not, that the value of a surgeon’s livelihood exceeds the
requisite jurisdictional minimum. In addition, plaintiff seeks monetary damages stemming from
his intentional infliction of emotional distress claim which required him to undergo neurological
surgery with resulting difficulty sleeping, persistent concerns regarding his professional career
opportunities, lost productivity, and inability to focus. Plaintiff’s claim for compensatory
damages also suffices to independently exceed the jurisdictional threshold, irrespective of the
claim for injunctive relief.
It has long been the rule in the Fifth Circuit, that all properly joined and served
defendants must join in the notice of removal or otherwise consent to removal within the 30 day
period set forth in 28 U.S.C. § 1446(b). Jones v. Scogin, 929 F.Supp. 987, 988 (W.D. La. 1996)
(citing Getty Oil, Div. Of Texaco v. Ins. Co. of North America, 841 F.2d 1254, 1263 (5th Cir.
1988)). Failure to do so, renders the removal defective. Getty Oil, 841 F.2d at 1263. While each
defendant need not sign the notice of removal, there must be “some timely filed written
indication from each served defendant, or from some person or entity purporting to formally act
on its behalf in this respect and to have the authority to do so, that it has actually consented to
such action.” Gillis v. Louisiana, 294 F.3d 755, 759 (5th Cir. 2002) (quoting, Getty, supra).
The JVCA codified the foregoing principles, as follows, “[w]hen a civil action is
removed solely under section 1441(a), all defendants who have been properly joined and served
must join in or consent to the removal of the action.” 28 U.S.C. § 1446(b)(2)(A). Defendants do
not contest that they effected removal solely under § 1441(a).2 Thus, all properly served
Another provision of the JVCA provides that if plaintiff joins “a claim arising under the
Constitution, laws, or treaties of the United States (within the meaning of section 1331 of this
title) . . .” with a claim not within the original or supplemental jurisdiction of the district court or
that is nonremovable by statute, then the court shall sever and remand the latter claim(s). 28
U.S.C. § 1441(c)(1) & (2). Under these circumstances, only those defendants against whom
defendants were required to timely consent to removal herein.
Plaintiff contends that remand is required because defendant, Adel Ramzy, who,
according to plaintiff, was properly served, did not join in or timely consent to removal.
Defendants contend that Ramzy was not properly served, however. See M/Dismiss. Plaintiff has
not rebutted defendants’ showing. In any event, Ramzy and all of the other individual defendants
joined in the timely filed amended notice of removal, signed by their collective counsel. Thus,
the removal was not procedurally deficient.
Leave to Amend
Having assured, heretofore, the existence of subject matter and removal jurisdiction, the
court now turns to plaintiff’s proposed amendment. As discussed earlier, the proposed
amendment seeks to undermine the original grounds asserted by defendants to support federal
subject matter jurisdiction by deleting the federal law allegation and by adding a non-diverse
defendant. As to the former, however, the motion is superfluous as the undersigned has
determined that the lone reference to federal employment law in the original complaint does not
state a claim for relief and does not suffice to confer federal subject matter jurisdiction. If
necessary, the federal law allegation may be dismissed via the pending 12(b)(6) motion.
Leave to amend to join Larry Sasaki, M.D., however, merits closer inspection. Because
Sasaki is a citizen of Louisiana, and thus, non-diverse from plaintiff, his substitution will destroy
diversity jurisdiction and compel remand. 28 U.S.C. § 1447(e).
An amendment to add a party may be analyzed under Federal Rules of Civil Procedure,
plaintiff asserted a claim arising under federal law need join in or consent to removal. 28 U.S.C.
Rule 15(a). Gallegos v. Safeco Ins. Co. of Indiana, C. A. No. 09-2777, 2009 WL 4730570 (S.D.
Tex. Dec. 7, 2009); see also Short v. Ford Motor Co., 21 F.3d 1107 (5th Cir. 1994) (reviewing a
motion for leave to amend to join a party under Rule 15(a)). Rule 15(a) provides that a plaintiff
may amend his complaint once as a matter of course within 21 days after service of 1) a
responsive pleading or 2) a motion under Rule 12(b), (e), or (f) – whichever is earlier.
Fed.R.Civ.P. 15(a)(1)(B) (emphasis added).3 Here, plaintiff’s proposed amendment complies
with the foregoing temporal constraints, and thus, technically, leave of court is not required.
Nevertheless, a district court may deny leave to amend if the proposed amendment is futile –
even when the plaintiff is entitled to amend as a matter of course. United States v. Gonzalez, 592
F.3d 675, 681 (5th Cir. 2009) (citations omitted).
In addition, courts have held that amendment under Rule 15, even as a matter of course, is
circumscribed by 28 U.S.C. § 1447(e) which provides that “[i]f after removal the plaintiff seeks
to join additional defendants whose joinder would destroy subject matter jurisdiction, the court
may deny joinder, or permit joinder and remand the action to the State court.” 28 U.S.C. §
1447(e); Ascension Enters. v. Allied Signal, 969 F. Supp. 359, 360 (M.D. La. 1997) (Section
“1447(e) trumps Rule 15(a)”); Drew v. Rebuild Am., Inc., Civ. Action No. 13-384, 2013 WL
6179184 (S.D. Miss. Nov. 25, 2013); Boyce v. CitiMortgage, Inc., 87 Fed. R. Serv. 3d 832 (W.D.
Tex. 2014). Instead, under these circumstances, courts are required to “scrutinize [the]
amendment more closely than an ordinary amendment,” in accordance with the considerations set
forth in Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir. 1987). See Boyce, supra, Drew,
Because a complaint is a pleading that requires a response, Rule 15(a)(1)(B) is
supra. Specifically, the court must balance the defendant’s interest in maintaining a federal
forum, with the competing interest of avoiding parallel lawsuits by considering the following
 the extent to which the purpose of the amendment is to defeat federal
jurisdiction,  whether the plaintiff has been dilatory in asking for amendment,
 whether plaintiff will be significantly injured if amendment is not allowed, and
 any other factors bearing on the equities. The district court, with input from
the defendant, should then balance the equities and decide whether amendment
would be permitted. If it permits the amendment of the non-diverse defendant, it
must remand to the state court. If the amendment is not allowed, the federal court
Wilson v. Bruks-Klockner, Inc., 602 F.3d 363, 367-368 (5th Cir. 2010) (citation omitted).
Also, in the matter sub judice, defendants contend that leave to amend should be denied
because plaintiff’s proposed pleading fails to state any allegations against Sasaki. The court will
address this issue first.
In Cobb v. Delta Exports, Inc., the Fifth Circuit stated that leave to amend to join a party
“against whom recovery is not really possible and whose joinder would destroy subject matter
jurisdiction,” should never be granted. Cobb. v. Delta Exports, Inc., 186 F.3d 675, 678 (5th Cir.
1999). Thus, the party opposing joinder has the opportunity to prevent joinder by arguing that
plaintiff has no “colorable claim” against the proposed defendant. Id. Further, a plaintiff will not
be “significantly injured” by a court’s denial of leave to add a clearly meritless claim. Wilson,
602 F.3d at 368. Thus, it is within a district court’s discretion to deny a proposed amendment as
futile, if there is no reasonable basis to predict that plaintiff will be able to recover against the
would-be, non-diverse defendant. Id.4
In the Rule 15 context, an amendment is futile if it “would fail to state a claim for relief
upon which relief could be granted.” Stripling v. Jordan Production Co., LLC, 234 F.3d 863,
873 (5th Cir. 2000). A pleading states a claim for relief when, inter alia, it contains a “short and
plain statement . . . showing that the pleader is entitled to relief . . .” Fed.R.Civ.P. 8(a)(2). To
withstand a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as
true, to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 129
S.Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955
Upon review, it is manifest that plaintiff’s proposed pleading fails to state a claim for
relief against Dr. Sasaki, because other than naming him, it contains no allegations against him.
In his supporting memorandum, plaintiff’s counsel explains that Sasaki, the 2012 president of the
ICS-US, was involved in plaintiff’s expulsion from the ICS because Sasaki failed to enforce
unspecified ICS-US bylaws. (Pl. Memo., pg. 1). Counsel’s argument, however, is undermined
by a March 22, 2013, letter attached to the proposed amendment (and also attached to the original
complaint), in which Sasaki (and other members of the ICS-US) conveyed their support for
Zibari to the ICS. (Prop. Amend. Compl., Exh. P7).
In short, the court readily concludes that plaintiff has no colorable claim for relief and/or
possibility of recovery against Sasaki, and thus, plaintiff’s motion for leave to amend his
complaint to join Sasaki must be denied. Cobb, supra. To the extent that the foregoing finding
Albeit, the improper joinder doctrine, per se, does not apply to post-removal joinder(s).
Cobb, 186 F.3d at 677.
is not alone dispositive of plaintiff’s motion, the same result obtains upon consideration of the
District courts have mulled various considerations to determine whether the purpose of a
given amendment was to defeat federal jurisdiction. 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.” Schindler v. Charles Schwab & Co., Inc., C. A. No. 05-0082, 2005
WL 1155862 (E.D. La. May 12, 2005). In addition, if “a plaintiff states a valid claim against a
defendant, it is unlikely that the primary purpose of bringing those defendants into a litigation is
to destroy diversity jurisdiction.” Id.
Here, plaintiff alleges that he intended to include Sasaki as a defendant originally, but, for
whatever reason, neglected to do so. (Pl. Memo., pg. 1). Instead, just two days after defendants
filed their omnibus motion to dismiss, plaintiff sought to remedy his initial oversight by filing the
instant motion. Although the court does not find that plaintiff was dilatory in seeking
amendment only 30 days after removal and 79 days after she commenced the proceeding in state
court, the timing of her motion so close on the heels after defendants filed their dispositive
motion, suggests an ulterior motive. This impression is buttressed by the fact that the proposed
amendment fails to state a claim for relief against Sasaki. See discussion, supra.
As to prejudice, the court discerns no cognizable prejudice to plaintiff if leave to amend is
denied because plaintiff does not have reasonable possibility of recovery against Sasaki. In
addition, there is no indication that Sasaki is in a position to grant plaintiff the proposed
injunctive relief that he seeks. Moreover, there are no allegations that Sasaki initiated or
sustained plaintiff’s removal from the ICS, and thus, cannot be liable for plaintiff’s claim for
monetary damages. These circumstances confirm that the principal purpose for the proposed
amendment is to destroy diversity jurisdiction and secure remand to state court. See Shief v.
Tenet Heathsystem Hosp. Inc., C. A. No. 1998 WL 849308 (E.D. La. Dec. 7, 1998).5
For the foregoing reasons,
IT IS ORDERED that plaintiff’s motion for leave to amend his complaint [doc. # 10] is
DENIED.6 Having denied joinder and determined that plaintiff’s alternative grounds urged in
support of remand lack merit,
IT IS FURTHER ORDERED that plaintiff’s motion to remand [doc. # 10] is likewise
In Chambers, at Monroe, Louisiana, this 19th day of August 2014.
KAREN L. HAYES
UNITED STATES MAGISTRATE JUDGE
Plaintiff does not urge any other dispositive “factor bearing on the equities” that is not
otherwise subsumed within the above analysis.
Defendants ask the court to strike the pleading. Having denied leave to amend to file
the proposed pleading, the request to strike is redundant.
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