Linden v. DrakeAerial Enterprises LLC et al
ORDER Accepting 30 Report and Recommendation and Dismissing Action Without Prejudice. Signed by District Judge Denise Page Hood. (JOwe)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
HOWARD LINDEN, as Personal
Representative of the Estate of
Case No. 16-13365
Hon. Denise Page Hood
DRAKE AERIAL ENTERPRISES, LLC,
ORDER ACCEPTING REPORT AND RECOMMENDATION
AND DISMISSING ACTION WITHOUT PREJUDICE
This matter is before the Court on Magistrate Judge Elizabeth A. Stafford’s
Report and Recommendation. [Doc. No. 30] Timely objections and a response to
the objections were filed in this matter. [Doc. Nos. 31, 32] The Court has had an
opportunity to review this matter and finds that the Magistrate Judge reached the
correct conclusions for the proper reasons.
Defendant Drake Aerial Enterprises, LLC (“Drake”) objects to the
Magistrate Judge’s recommendation that this case be dismissed due to a proper
permissive joinder that would destroy subject matter jurisdiction, rendering moot
Plaintiff’s Motion for Leave of the Court to Amend the Complaint.
contends that the Magistrate Judge did not determine: (1) whether permissive
joinder was fundamentally fair; (2) whether it would result in prejudice to either
side, or (3) the motives of Plaintiff.
The Court finds no merit in Drake’s
First, Plaintiff’s Motion for Leave of Court to Amend the Complaint is based
on the-now-known fact that the identity of the John Doe defendant is Seth Killian,
a Michigan resident.
The Court finds that suing (and naming) the pilot,
particularly a pilot who had already been sued as a John Doe, in a case stemming
from an airplane accident in itself comports with the principles of fundamental
Second, the Court is not persuaded that Drake is an innocent party, such that
Drake has been harmed by the timing of Plaintiff’s proposed amendment, nor by
the dismissal of this action.
The Court, like the Magistrate Judge, finds no
evidence that Plaintiff failed to exercise diligence in determining the identity of the
“John Doe” defendant or that Plaintiff delayed identifying the John Doe defendant.
Rather, it appears that Drake took measures to avoid disclosing John Doe’s identity
(and the fact that he was a Michigan resident that would destroy diversity
jurisdiction) at the outset of the action. The evidence shows that Drake indicated
to Plaintiff that Seth Killian was a witness rather than the pilot of the plane, a fact
Drake knew (together with Seth Killian’s residency) from the outset of this
litigation. The Court finds that Defendant would not be unfairly prejudiced by the
dismissal of this action.
Third, there is no evidence that Plaintiff’s desire to add Seth Killian as a
defendant was motivated by a desire to return to state court. Plaintiff previously
filed an action in state court (including naming a John Doe defendant when he
assumed the pilot was a Michigan resident because the accident occurred in
Michigan). Plaintiff then filed the instant action (when he again sued a John Doe
defendant, this time under the belief that the pilot was an Ohio resident because the
pilot was employed by Drake). As a result, Plaintiff will have to file a third action,
pay a third filing fee, and be delayed in obtaining a resolution of this matter. The
Court also notes that, although discovery has been ongoing in this Court, there are
no rulings or other actions that would suggest to Plaintiff (or any other party) that
the Court is predisposed to rule in any particular manner, such that Plaintiff would
be motivated to leave federal court for state court.
The Court accepts the Magistrate Judge’s Report and Recommendation as
this Court’s findings of fact and conclusions of law.
IT IS ORDERED that the Report and Recommendation of Magistrate Judge
Elizabeth A. Stafford [Doc. No. 30, filed September 7, 2017] is ACCEPTED and
ADOPTED as this Court’s findings of fact and conclusions of law.
IT IS FURTHER ORDERED that Drake’s Objections [Doc. No. 31, filed
September 21, 2017] are OVERRULED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave of Court to
Amend the Complaint [Doc. No. 24, filed June 16, 2017] is DENIED as MOOT.
IT IS FURTHER ORDERED that this action is DISMISSED WITHOUT
S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: October 6, 2017
I hereby certify that a copy of the foregoing document was served upon counsel of
record on October 6, 2017, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
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