Levine v. GBG, Inc.
MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 12/19/2016. (aos, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Case No.: G.JH-16-2455
Plaintiff Todd Levine (""Plaintiff' or "Levine") moves to amend his Complaint to add
Jeannine Kokiko (""Kokiko") as a delendant in this action for negligence. ECF No. 20. Defendant
GBG. Inc. ("Defendant". or "GBG") opposes I'laintilrs
Motion. ECF No. 22. No hearing is
necessary. See Loc. R. 105.6. Plaintiffs Motion for Leavc to Amcnd the Complain!. ECF No.
20. is hcrcby granted. However. because the addition of this defendant voids this Court"s
jurisdiction over the action. the case is remanded to the Circuit Court lor Montgomery County,
This case arises from bodily injuries Plaintiffallcgedly
sustained at a Gold's Gym in
Olney. Maryland. alier a spinningl instructor ..turned on the stereo ... to an unreasonably high
and dangerous volume. causing acoustic trauma and injury to plaintiffs inner ear and associated
refers to a common branu of indoor cycling. David ficdlcr. WhallluPl'ens in 1111/ndoor (rcling
(last visited December 16. 2(16).
nervous system:' ECF NO.2 at22 PlaintilTtiled a complaint against Defendant GBG Inc. tfa
Gold's Gym in the Circuit Court for Montgomery County, Maryland (the "State Court") on April
IS, 2016, alleging one count of negligence. Defendant removed the action to federal court on
June 30, 2016. In its Notice of Removal. Defendant alleged that the amount in controversy
exceeded $75.000, and there existed complete diversity of citizenship between the parties
because Plaintiff is a citizen of Maryland, and Defendant is "a business incorporated under the
laws of the State of Virginia with its principal place of business in Dallas, Texas:' ECF No. I at
1-2. A scheduling Order was issued, and the parties began discovery on July 20. 2016. ECF No.
On November 3. 2016, Plaintiff tiled a Motion for Leave to Amend the Complaint to
include Jeannine Kokiko as a defendant in his case. PlaintitTstates that his counsel "reccivcd
cxecuted discovery responses last weck which identitied the spin class instructorftortfeasor as
Jeannine Kokiko, a Maryland resident:' ECF No. 20 ~ 2. Plaintifffurthcr
states. "Kokiko was
required to have a certification to teach the class, and was required to bc familiar with the Gold
Gym's Group Fitncss Instructor's Manual. Said manual indicatcd that the music volume for
group titncss c1asscs nccdcd to be checked before class was begun, and must be played at a safe
levcl at all timcs:' Id. Thus, PlaintilTrcqucsted to "amcnd his Complaint and add Jeanninc
Kokiko as a party to this case:' Id. '13. Dcrcndant submittcd a bricfOpposition
Motion Ii)f Leave to Amend thc Complaint. ECF No. 22. Specifically, Defendant argues that
..[t]he Court should exercise its discretion and decline to join Ms. Kokiko as a defendant since
PlaintitThas waived his right to make a claim against Ms. Kokiko:'
Pin cites to documents
by that system.
filed on the COUJ1"S
tiling system (CMfECF) refer to the page numbers generated
"We begin. as we must in a diversity case. by examining the basis for jurisdiction."'
Mayes \'. /?apoporl, 198 F.3d 457. 460 (4th Cir. 1999). "A defendant in a state civil action may
remove the case to federal court only if the rederal court can exercise original jurisdiction over at
least one or the asserted claims" Dean ". Nl/\:v Fed Credil Union. RDB 09-1989. 2009 WL
3817587. at *4 (D. Md. Nov. 12.2009) (citing 28 U.S.c.
* 1441(a)-(c) (2006)). "Federal courts
have original jurisdiction over two kinds of civil actions-those
which are founded on a claim or
right arising under the Constitution. treaties or laws of the United States. and those where the
matter in controversy exceeds $75,000 and is between citizens ordifferent States."' Jd at *5
(citing U.S. Const. art. III.
* 2: 28 U.s.C. ** 1331. 1332(a)). Thus. where a civil action is not
based on a question or constitutional or federal law. "a federal court may only exercise original
jurisdiction based on diversity of citizenship." Id "As the Supreme Court has noted.
'[i Incomplete diversity destroys original jurisdiction with respect to all claims'"
Erxol1 Mohi! Corp. ,'. Allapal/ah Sen's .. 545 U.S. 546. 554 (2005)). Further:
When a plaintiff seeks to join a nondiverse derendant alier the case
has been removed. the district court's analysis begins \vith 28
1447(e). which provides the district court with two
options: "If after removal the plaintiff seeks to join additional
would destroy subject matter
jurisdiction. the court may deny joinder. or permit joinder and
remand the action to the State court."' These are the only two
options lor a district court faced with a post-removal attempt to
join a nondiverse defendant; the statute does not allow a district
court to retain jurisdiction once it permits a nondiverse defendant
to be joined in the case.
Mayes. 198 F.3d at 461-62. It is uncontested that Jeannine Kokiko. as a citizen of Maryland.
would void complete diversity ifadded to Plaintilrs
suit. Accordingly. the Court must determine
whether to deny joinder. or permit joinder and remand the action to the State Court.
Federal Rule of Civil Procedure 15(a) provides that leave to amend shall be Ireely given
"when justice so requires:' and Rule 20 permits the joinder of pr~)per parties. Fed. R. Civ. 1'.
15('1)(2).20('1)(2). However. "when 1~lcedwith an amended pleading naming a new nondiverse
delendant [as Kokiko] in a removed case:' the Court "should scrutinize that amendment more
closely than an ordinary amendment and should conduct a balancing of the equities involved,"
Co/ey \'. Dragon Ltd .. 138 F.R.D. 460. 465 (E.D. Va. 1990) (citing I/emgens v. Deere & Co..
833 F.2d 1179 (5th Cir.1987». On onc hand. if the joinder of the nondiverse defendant is denicd.
"there is the danger of parallel lawsuits in federal and state court. which may spawn inconsistent
results and inellicient use of judicial resources," Coley. 138 F.R.D. at 465 (citing Jleininger \'.
/nc .. 706 F.Supp. 860. 862 (S.D. Fla. 1989)). On the other hand. if the
joinder is pennitted and the action is remanded. the diverse defendant loses its potential "interest
in keeping the action in federal court," !d In exercising its discretion under 28 U.S.c.
the Court may consider all relevant factors. including: "the extent to which the purpose of the
amcndment is to deleat lederaljurisdiction.
whether the plaintiff has been dilatory in asking for
amendmcnt. whether the plaintilTwili be signilicantly injured ifamendment
is not allowed. and
any other factors bearing on the equities," Afaycs \'. RafJofJol'/. 198 F.3d at 462: Co/cy. 138
F.R.D. at 465.
Although the proposed amendment has the effect of deleating federal jurisdiction. the
record docs not show that this was the purpose of the amendmcnt. or that PlaintilThas been
dilatory in seeking leave. Plaintiff states in his Motion for Leave to Amend that he "received
executed discovery responses /asl \l'cck which identilied the spin class instructor/tortfeasor as
Jcannine Kokiko," ECF No. 20'i 2 (emphasis added). While Plaintiff makes no argument in his
Motion lor Leave to Amend regarding "signilicant injury" if joinder of Kokiko were to be
denicd. the Court recognizes that PlaintitTcould bc injured by such a denial. because hc would be
rcquircd to maintain separate cases in two jurisdictions to obtain complete relief
In its Opposition to Plaintiff-s Motion for Leave to Amcnd. Dcfendant acknowledges that
"Ms. Kokiko is a citizen of the State of Maryland and joining her as defendant would void
and citing to Mayes
198 F.3d 457. 461-63 (4th Cir. 1999).
argues that "ltJhe Court should exercise its discretion and deelinc to join Ms. Kokiko as a
dcfendant since Plaintiff has waived his right to make a claim against Ms. Kokiko:" ECF No. 22
~ 4. However. Defendant's citation to Mayes points to no principle supporting such a waiver
argumcnt. nor does anything in the record indicate that PlaintitThas waivcd his rights to amend
To the extent that Defcndant is intimating "Ii'audulent joinder" on the part of Plaintiff
"fraudulcnt joinder must be alleged with particularity and proved by clear and convincing
evidence consisting of 1~lctsrightly leading to that conclusion. apart from the deductions of the
pleader:' Coley. 138 F.R.D. at 465 (citing Wilsol1l'. Repuhlic 11"011 Steel Co .. 257 U.S. 92
(1921)). The Fourth Circuit has made clear:
In order to establish that a nondiverse dctcndant has been
fraudulently joined. the removing party must establish either: [t]hat
there is /10 possihility that thc plaintiff would be able to establish a
cause of action against the in-state defcndant in state court: or
[t]hat there has becn outright fraud in the plaintiffs pleading of
198 FJd at 464 (4th Cir. 1999) (quoting B .. Inc.
Mil/er Brewil1g Co .. 663 F.2d 545.
549 (5th Cir. 1981) (alteration in original). Delcndant has neither alleged fraud on the part of
Plainti ff nor met its "heavy" burden of establishing fraudulent joindcr.
In conclusion. this action involves a single count for negligence. a state law claim for
which no independcnt form of ICderal jurisdiction is available. See ECF NO.2 at 2. Joinder of
Kokiko as a defendant is appropriate here. Because the joinder of Kokiko destroys complete
diversity. the action must be remanded to the State Court.
For the ,foregoing reasons, Plaintiff's Motion for Leave to Amend the Complaint is
granted, and the action is hereby remanded to the Circuit Court for Montgomery County,
Maryland. A separate Order shall issue.
Date: DecembeJ 12016
George J. Hazel
United States District Judge
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