Tacket v. Guardian Life Insurance Company of America et al
ORDER denying 28 Motion for Joinder; denying 36 Renewed Motion for Remand-Related Discovery. Defendant Guardian hereby is allowed seven (7) days from the date of this order to respond to the Plaintiff's Motion to Remand. Plaintiff's Reply is due seven (7) days after the filing of Defendant Guardian's Response. Signed by Magistrate Judge Jane M. Virden on 08/05/2015. (lec)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
CIVIL ACTION NO.: 3:15-cv-45-NBB-JMV
GUARDIAN LIVE INSURANCE COMPANY
OF AMERICA, ET AL.
This matter is before the court on Plaintiff’s Renewed Motion for Remand-Related
Discovery  and Motion for Joinder . Upon due consideration of the motions, the court
finds they are not well-taken and should be denied as follows.
Plaintiff’s Renewed Motion for Remand-Related Discovery
As discussed more fully at the recent telephonic hearing, Plaintiff’s motion to conduct
remand-related discovery is denied because it fails to satisfy the dictates of Smallwood v. Illinois
Central Railroad Co. 385 F.3d 568 (5th Cir. 2004). Smallwood holds a party seeking discovery
on the remand-related issue of improper joinder must sharply tailor its request and make a
showing of its necessity. Id. at 574. Smallwood further addresses the necessity of “a summary
inquiry [in certain cases in order] to identify the presence of discrete and undisputed facts that
would preclude plaintiff’s recovery against the in-state defendant.” Id. at 586. The non-diverse
defendant in the instant case has, however, not requested such discovery. Nevertheless, Plaintiff
seeks a broad range of discovery for the asserted purpose of learning undisputed facts that might
“evidenc[e] the possibility of [a] recovery against Advanced Healthcare....” Pl.’s Renewed Mot.
for Remand-Related Disc.  at 4. This is an untenable position as explained below.
The instant case was removed to this court on federal question jurisdiction and diversity
jurisdiction, and the instant motion regards the latter basis for removal. The defendants argue the
complaint fails to state any cognizable claim against Advanced Healthcare. Thus, Defendants
contend Advanced Healthcare was not properly joined – evidencing a circumstance of
“fraudulent joinder.” Plaintiff’s remand motion asserts to the contrary. Specifically, Plaintiff
asserts, “[a] fair reading of Tackett’s Complaint reveals facts that could entitle her to relief under
any and all of her claims....” Pl.’s Mem. in Supp. of Mot. to Remand  at 12. In her Renewed
Motion for Remand-Related Discovery, Plaintiff repeatedly asserts her complaint states a
cognizable cause of action against Advanced Healthcare. Yet at the same time, Plaintiff asserts a
need to conduct a broad range of discovery for remand purposes. Plaintiff does not explain, and
the court cannot discern, why any discovery is necessary for remand purposes here. Indeed, even
if the court were to permit such discovery and assuming plaintiff identified all evidence
favorable to her, such evidence would not be relevant on the issue of whether the complaint
states a cognizable cause of action as pled. In this case, the requested discovery is simply not
necessary for resolution of the remand-related issue. Lacking such necessity, this discovery
would not be appropriate under Smallwood.
Plaintiff’s Motion for Joinder
Plaintiff further moves to join Pontotoc LTC, Inc. as a party defendant. The motion is not
separately pled but is a duplicate of Plaintiff’s Motion for Reconsideration  of the Court’s
Order  denying Remand-Related Discovery, in which joinder is also discussed.
When a plaintiff files an amended pleading (or in this case, seeks to join a non-diverse
defendant) that would deprive the Court of its diversity jurisdiction, section 1447(e) requires the
court to scrutinize the attempted amendment. Parker v. CitiMortgage, No. 2:14cv173-KS-MTP,
2015 WL 2405168, at *2 (S.D. Miss. May 20, 2015); see also Albritton v. W .S. Badcock Corp.,
Nos. 1:02-cv378-D-D, 1:02-cv379-D-D, 2003 WL 21018636, at *2 (N.D. Miss. Apr. 7, 2003).
Joinder of a non-diverse defendant following removal is scrutinized pursuant to the factors set
forth in Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir. 1987). Parker, at *2. The
Hensgens factors are: (1) “the extent to which the purpose of the amendment is to defeat federal
jurisdiction;” (2) “whether the plaintiff has been dilatory in asking for the amendment;” (3)
“whether the plaintiff will be significantly injured if amendment is not allowed;” and (4) “any
other factors bearing on the equities.” Hensgens, 833 F.2d at 1182.
First, the court finds Plaintiff is not attempting to join Pontotoc LTC, Inc. for the sole
purpose of defeating federal jurisdiction. Presently, the complaint names Advanced Healthcare,
also a non-diverse party, as Plaintiff’s employer. But, Plaintiff is unsure if her actual employer is,
instead, Pontotoc LTC, Inc. She does not wish to make different allegations against Pontotoc
LTC, Inc. than those already asserted against Advanced Healthcare.
Second, the court is not persuaded Plaintiff has been dilatory in seeking to add Pontotoc
LTC, Inc. Arguably, the plaintiff might have earlier recognized her paychecks reference
Pontotoc LTC, Inc. as her employer. But, the business by which she was employed did business
as a dba, rather than in the name of the legal entity which owned the business. As such, the court
finds this element weighs in favor of the amendment.
The third factor weighs heavily against the amendment. Joinder at this juncture does not
have any relevance to the remand-related issues presently pending before the court or with
respect to the current motion to dismiss by Advanced Healthcare. Plaintiff can re-urge her
motion in the event the court determines it has jurisdiction to hear this matter.
Finally, the court must consider other equitable factors to determine whether Pontotoc
LTC, Inc. should be joined as a party to this action. In this regard, the undersigned may properly
consider the futility of allowing an amendment. Dorsey v. Tadlock, No. 2:12cv17-B-A, 2013
WL 5372800, at *1 (“It is within the district court's discretion to deny a motion to amend if it is
futile.”) (citing Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863, 872–73 (5th Cir.2000)). In this
case, the exact same cause of action Plaintiff proposes to assert against Pontotoc LTC, Inc has
already been asserted against Advanced Healthcare. A motion to dismiss for failure to state a
cause of action is presently pending on that claim. The district judge will independently
determine the merits of that motion. But for futility analysis purposes, the undersigned notes the
arguments in support of the motion to dismiss are seemingly persuasive. For example, the
complaint alleges Plaintiff’s employer, Advanced Healthcare, withheld premiums at her direction
to pay for coverage of her husband’s life insurance under a policy issued by Defendant Guardian.
She further alleges the premiums were paid, but when her husband died, Guardian denied the
claim. According to her complaint, Guardian denied the claim because she failed to offer the
required proof of insurability when she applied for the insurance. See Exh. J to Compl. [1-3] at
349. It is unclear to the undersigned how these alleged facts could give rise to a colorable claim
against Advanced Healthcare. However, the undersigned does not hold that the complaint fails to
state a cause of action or that the amendment would necessarily be futile. It does hold this issue
weighs in favor of disallowing the amendment.
For the reasons explained supra, the court finds remand-related discovery is unnecessary
under the guidelines of Smallwood and the Hensgens factors weigh against adding Pontotoc
LTC, Inc. as a party defendant at this time. Therefore, Plaintiff’s Renewed Motion for RemandRelated Discovery and Plaintiff’s Motion for Joinder are both hereby DENIED. Defendant
Guardian hereby is allowed seven (7) days from the date of this order to respond to the Plaintiff’s
Motion to Remand. Plaintiff’s Reply is due seven (7) days after the filing of Defendant
SO ORDERED this, the 5th day of August, 2015.
/s/ Jane M. Virden
UNITED STATES MAGISTRATE JUDGE
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