Wilson v. Federal Express Corporation et al
ORDER denying 7 Motion for Leave to File; denying 8 Motion to Remand to State Court; finding as moot 26 Motion for Leave to File Signed by District Judge Keith Starrett on 10/26/17 (aa)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
CIVIL ACTION NO. 2:17-CV-138-KS-MTP
FEDERAL EXPRESS CORP., et al.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiff’s Motion for Leave to File Amended Complaint
, Motion to Remand  and Motion for Leave to File Affidavit and Proof of Residency of
Bertha McCormick . Having considered the parties’ briefs, the record, and the applicable law,
the Court finds that both the Motion for Leave to Amend and the Motion to Remand should be
denied and that the Motion for Leave to File Affidavit should be denied as moot.
Plaintiff, Genora Wilson, alleges that Defendant McCann, while driving a vehicle owned
by Defendant Federal Express Corp. (“FedEx”), negligently rear-ended Plaintiff on July 6, 2015.
Plaintiff is a resident of Mississippi. FedEx is incorporated in Delaware, with its principal place of
business in Tennessee. While Plaintiff alleged that McCann is a resident of Mississippi in her
Complaint, McCann avers that he is a resident of Ohio. Plaintiff filed suit on May 25, 2017 in the
First Judicial District of Jasper County of Mississippi. Defendants removed on the basis of
diversity jurisdiction. In their Answer , Defendants asserted that a third party, Bertha
McCormick, was responsible for all of Plaintiff’s damages, as McCormick allegedly swerved into
Plaintiff’s lane shortly before the accident. Plaintiff then moved to amend her Complaint to add
McCormick as a defendant. Since McCormick is also a resident of Mississippi, Plaintiff also
moved to remand, arguing that diversity jurisdiction would no longer exist once McComick was
added as a defendant.
II. STANDARD OF REVIEW
“[F]ederal courts are courts of limited jurisdiction, having ‘only the authority endowed by
the Constitution and that conferred by Congress.’” Halmekangas v. State Farm Fire & Cas. Co.,
603 F.3d 290, 292 (5th Cir. 2010) (quoting Epps v. Bexas-Medina-Atascosa Ctys. Water
Improvement Dist. No. 1, 665 F.2d 594, 595 (5th Cir. 1982)). Under 28 U.S.C. § 1441(a), this
Court has removal jurisdiction of any case where it has original jurisdiction, and it has original
jurisdiction in civil matters between citizens of different states where the amount in controversy
exceeds $75,000. 28 U.S.C. § 1332(a). Generally, “jurisdictional facts are determined at the time
of removal, and consequently post-removal events do not affect that properly established
jurisdiction.” Louisiana v. Am. Nat’l Prop. & Cas. Co., 746 F.3d 633, 636 (5th Cir. 2014) (citing
Grupo Dataflux v. Atlas Global Grp., L.P., 541 U.S. 567, 569-70 (2004)).1
There is, however, an exception to the rule that jurisdictional facts are determined at the
time of removal. “If 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).2 When faced with a request to add a
There is no dispute that diversity jurisdiction existed at the time of removal. In her Complaint, Plaintiff alleges that
she is a resident of Mississippi. Defendant FedEx asserts that it is a citizen of Delaware and Tennessee. McCann is a
resident of Ohio. Since Plaintiff did not assert a specific amount of damages, the Court may determine the amount in
controversy is met if “it is apparent from the face of the petition that the claims are likely to exceed $75,000.” Manguno
v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002). As Plaintiff has alleged that she has suffered
total disability from the car accident affecting her wage earning capacity, that she requires several surgeries from her
injuries, and that she has and will continue to experience pain and suffering, the Court may infer that the amount in
controversy is greater than $75,000. Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000); Scirocco v.
Ford Motor Co., No. 5:13-cv-128-KS-MTP, 2014 WL 5817543, at *1 (S.D. Miss. Nov. 10, 2014).
When a plaintiff attempts to amend her complaint to add a party that will destroy diversity jurisdiction, a simple Rule
15 analysis will not suffice. Rather, the Court must examine her request under 28 U.S.C. § 1447(e) and case law
interpreting that statute. Albritton v. W.S. Badcock Corp., No 1:02-cv-378-D-D, 2003 WL 21018636, at *2 (N.D. Miss.
Apr. 7, 2003).
non-diverse defendant that would destroy jurisdiction, a district court “should scrutinize that
amendment more closely than an ordinary amendment” and apply the factors articulated in
Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir. 1987).
There are two competing interests that guide our analysis: the diverse defendant’s interest
in maintaining the federal venue and the risk of wasting judicial resources through maintaining
parallel federal and state litigation. Id. In balancing these interests, the court must consider the four
Hensgens factors: “(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 amendment, (3) whether
plaintiff will be significantly injured if amendment is not allowed, and (4) any other factors bearing
on the equities.” Id. (enumeration added).3
Plaintiff’s Purpose in Seeking Amendment
In analyzing Plaintiff’s purpose in amending her Complaint, district courts often consider
“whether the plaintiff knew or should have known of the identity of the non-diverse defendant
when the original complaint was filed.” Sills v. Beal Bank, SSB, No. 2:15-cv-90-KS-MTP, 2015
WL 5642913, at *2 (S.D. Miss. Sept. 24, 2015); Anzures v. Prologis Tex. I LLC, 886 F. Supp. 2d
555, 562 (W.D. Tex. 2012). “Where the plaintiff knew about the non-diverse party’s activities at
the time he filed suit but did not include that party as an original defendant, ‘courts have viewed
any later attempt to add the nondiverse party as a defendant as nothing more than an attempt to
Plaintiff has cited Teacher Retirement System of Texas v. Reilly Mortgage Group Inc., 154 F.R.D. 156 (W.D. Tex.
1994) for the proposition that when a defendant argues that an indispensable party exists, the Court need only consider
potential prejudice to the plaintiff and other factors in equity when deciding whether the remand. This case is
inapplicable to the present situation. In Teacher Retirement, the defendants argued that dismissal was required because
plaintiff failed to join a necessary and indispensable party. Teacher Ret. Sys. of Tex., 154 F.R.D. at 158. The court
decided to remand instead of dismiss since the defendants made the argument that the indispensable party existed. Id.
at 162. Here, Defendants have not argued that McCormick is an indispensable party. Rather, they argue that
McCormick is a permissive party. Defs.’ Sur-Rebuttal Resp. Pl.’s Mot. Leave Amend Compl. 3, ECF No. 25.
Therefore, all four of the Hensgens factors apply.
destroy diversity.’” Wein v. Liberty Lloyds of Tex. Ins. Co., No. A-15-cv-19-ss, 2015 WL 1275915,
at *5 (W.D. Tex. Mar. 19, 2015).
There is no question that Plaintiff knew McCormick’s identity on the date of the accident.4
Nevertheless, when a plaintiff knows a potential defendant’s identity but was unaware of facts
giving rise to that defendant’s liability, courts have made exceptions. Plaintiff unsuccessfully
attempts to align herself with such cases by comparing her situation to that of the plaintiff in Lowe
v. Singh, No. H-10-1811, 2010 WL 3359525 (S.D. Tex. Aug. 23, 2010). In Lowe, Plaintiff alleged
that she was a passenger in a car driven by Banfield when it was struck by an 18-wheeler from
behind. Id. at *1. Plaintiff sued the company that owned the 18-wheeler and the driver. Id.
Defendants removed based on diversity. Id. Plaintiff then moved to join Banfield, based on
Defendants’ assertion in their answer that Banfied “may have stopped suddenly contributing to the
cause of the collision.” Id. at *2. In analyzing the plaintiff’s purpose, the Lowe court stated: “Here,
though Plaintiff surely knew Banfield’s identity as of the time of the accident, Plaintiff alleges that
she desires to amend ‘because discovery has raised facts supporting the claims raised.’” Id.
Plaintiff argues that her case is similar to Lowe because she “seeks to bring in McCormick due to
Defendants [sic] allegations that McCormick was the sole proximate cause of the accident.” Reb.
Supp. Leave Amend 14, ECF No. 20.
Defendants point out that McCormick’s name was listed in the Collision Narrative of the Mississippi Uniform Crash
Report created shortly after the accident. The Narrative states:
Driver of Vehicle #1 (Ms. Genora Wilson) stated that while she was traveling north on South Pine
Avenue she notice[d] a white vehicle coming toward her on the wrong[ ]side of the street. Ms Wilson
stated that as she was attempting to slow down to keep from hitting the vehicle head[ ]on, Vehicle
#2 [driven by Meashell McCann] hit her from the back and she lost control of the vehicle. . . . Driver
of Vehicle #3 (Ms. Bertha McCormick) stated that she wasn’t trying to drive on the wrong[ ]side of
Ex. A to Defs.’ Resp. Opp’n Pl.’s Mot. Amend Compl. 2, ECF No. 16-1. Further, the Collision Diagram shows
McCormick’s vehicle veering into Plaintiff’s lane. Id. Plaintiff has not contested any of this.
Unlike Lowe, the Defendants’ Answer was not the first time Plaintiff learned she may have
had a claim against McCormick since such facts were contained in the accident report created the
day of the accident. Anzures, 886 F. Supp. 2d at 563 (distinguishing Lowe when plaintiff knew of
the facts supporting proposed non-diverse defendant’s liability since the beginning of litigation
and finding the purpose of plaintiff’s amendment was to destroy jurisdiction). Nor was there any
discovery that raised new facts to support a claim against McCormick that Plaintiff previously did
not know. Andrews Restoration Inc. v. National Freight Inc., No. 3:15-cv-1336-M, 2015 WL
4629681, at *4 (N.D. Tex. Aug. 4, 2015) (“Where a plaintiff ‘seek[s] to add nondiverse defendant
shortly after removal, but prior to any additional discovery, [that] is further indication that the
amendment is sought for the purpose of defeating diversity.”) (quoting Martinez v. Holzknecht,
701 F. Supp. 2d 886, 889 (S.D. Tex. 2010)). Rather, Defendants’ assertions in their Answer were
based on the accident report that Plaintiff has had for the past two years.
“However, courts have also recognized that when 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.” Schindler v. Charles Schab & Co., Inc., No. Civ.A.05-0082,
2005 WL 1155862, at *3 (E.D. La. May 12, 2005). Plaintiff therefore asserts that the only “real
issue” is whether she has stated a viable claim against the proposed defendant. Reb. Supp. Leave
Amend 5, ECF No. 20. Plaintiff primarily cites Andrews Restoration Inc. v. National Freight Inc.
in support of her argument. While the validity of Plaintiff’s claim is a relevant inquiry, the Andrews
court recognized that whether the plaintiff has asserted a plausible claim is not the only
consideration. Andrews Restoration Inc., 2015 WL 4629681, at *4 (stating that “if the plaintiff
knew of the nondiverse defendant from the outset and chose to exclude him from the original
pleading, the court ‘views the fact with much suspicion’” and noting that courts have considered
it “very relevant”) (quoting O’Connor v. Auto. Ins. Co. of Hartford Conn., 846 F. Supp. 39, 41
(E.D. Tex. 1994)).
Further, district courts in the Fifth Circuit have recognized that a plaintiff’s knowing failure
to join a non-diverse defendant may trump the fact that she is asserting a cognizable claim.
Anzures, 886 F. Supp. 2d at 564 (“Plaintiff’s clear desire to litigate this case in state court, coupled
with the fact that Plaintiff has known of [the non-diverse defendant]’s identity and role in this case
since the beginning of the case, all would trump the fact that the Proposed Amended Complaint
asserts cognizable claims against [the non-diverse defendant].”); see Arthur v. Stern, No. H-073742, 2008 WL 2620116, at *4-5 (S.D. Tex. June 26, 2008) (plaintiff, who first filed in state court
and included a non-diverse party against which there was no possibility of recovery, found to be
acting with the purpose of destroying jurisdiction even though she asserted cognizable claims
against newly proposed defendants).
Finally, the Court considers the circumstances that led to Plaintiff’s filing the Motion to
Amend. Defendants point out: “As shown in her Complaint, Plaintiff believed that Defendant
McCann was a resident of the State of Mississippi at the time of filing; therefore, Plaintiff assumed
that this case was not removable even if McCormick had not been joined as a party. Only upon
learning that McCann is a citizen of Ohio, and thereafter learning that complete diversity exists
among the named Defendants, has Plaintiff sought to amend her Complaint to add McCormick.”
Defs.’ Resp. Opp’n Pl.’s Mot. Leave Amend Compl. 5-6, ECF No. 16. The Court finds Plaintiff’s
assumption that diversity jurisdiction did not initially exist to be relevant in determining Plaintiff’s
purpose in requesting an amendment. Furthermore, the fact that Plaintiff filed her Motion to
Amend within a few hours of her Motion to Remand suggests that the purpose of her amendment
was to avoid federal jurisdiction. Sills, 2015 WL 5642913, at *2 (plaintiff who filed an amended
complaint minutes before a motion to remand clearly intended to defeat federal jurisdiction) (citing
Parker v. Citimortgage, Inc., No 2:14-cv-173-KS-MTP, 2015 WL 2405168 (S.D. Miss. May 20,
2015)); Albritton, 2003 WL 21018636, at *2 (amended complaint adding non-diverse party filed
on the same day as motion to remand held to be solely to destroy diversity).
Therefore, although Plaintiff does assert a viable claim against McCormick, the Court finds
that it is clear that Plaintiff is requesting to add McCormick to destroy this court’s jurisdiction, as
Plaintiff was fully aware of McCormick’s identity and activities giving rise to any liability she has
to Plaintiff at the outset of this litigation, Plaintiff filed her Motion to Amend and Motion to
Remand within a few hours of each other, and Plaintiff only requested the amendment after she
discovered that diversity jurisdiction existed. This factor weighs strongly against allowing
Plaintiff’s Timeliness in Seeking Amendment
To determine whether Plaintiff was diligent in requesting amendment, courts look at “the
amount of time that has passed between the plaintiff’s motion to amend and the filing of the
original petition and notice of removal.” Anzures, 886 F. Supp. 2d at 564. A delay of two months
after filing the complaint or almost thirty days after removal has been found dilatory, especially
when plaintiff was aware of the potential defendant’s role when making the original filing. Id. at
565; Phillips v. Delta Air Lines, Inc., 192 F. Supp. 2d 727, 729 (E.D. Tex. 2001). A court should
also consider how far litigation has progressed, including what has been scheduled and if discovery
has taken place. Id.
As noted, Plaintiff was aware of McCormick’s identity and potential liability at the moment
that she filed her Complaint on May 25, 2017. Defendants removed on August 14, 2017. Plaintiff
filed her Motion to Amend on September 12, 2017. Thus, Plaintiff allowed three and one-half
months to pass after initiating this action before requesting to add McCormick. Almost thirty days
had passed between the filing of the Notice of Removal and the Motion for Leave to Amend the
Complaint. Nevertheless, no case management conference has been held, nor has any discovery
been conducted. Therefore, the court finds that this factor weighs slightly against allowing
Prejudice to Plaintiff
To determine the likelihood that Plaintiff will be prejudiced if amendment is denied, courts
consider “whether a plaintiff can be afforded complete relief in the absence of the amendment.”
Anzures, 886 F. Supp. 2d at 565 (quoting Lowe, 2010 WL 3359525, at *3). Significant prejudice
does not exist unless plaintiff can show (1) that the removing defendants cannot satisfy a judgment
or (2) that the plaintiff would be unable to proceed against the non-diverse defendant in state court.
Sills, 2015 WL 5642913, at *3. Further, the “additional expense of maintaining ‘parallel
proceedings . . . does not constitute significant prejudice.” Id. (quoting Martinez, 701 F. Supp. 2d
Here, there is no indication that Defendants, which include a large national corporation,
would be unable to satisfy a judgment against them. Further, Plaintiff still has the ability to proceed
against McCormick in state court, as the statute of limitations for her claim will not run until July
6, 2018. Weathersby ex rel. Estate of Weathersby v. Gen. Motors Corp., No. 4:04-cv-298-PB, 2006
WL 1487025, at *3 (N.D. Miss. May 24, 2006) (no prejudice found when statute of limitations
had not yet run on plaintiff’s claim against non-diverse defendant). The fact that Defendants argue
that McCormick may be responsible for part or all of Plaintiff’s injuries does not require the Court
to permit her joinder. Martinez, 701 F. Supp. 2d at 891.
At the same time, the Court recognizes that forcing Plaintiff to litigate her claims against
McCormick in a separate state court action may lead to inconsistent results and waste the parties’
resources. Schindler, 2005 WL 1155862, at *5. Therefore, the Court finds that this factor weighs
slightly in favor of allowing Plaintiff to amend her complaint.
Other Relevant Factors
Finally, the Court must give weight to any other factors that bear on the equities. The Court
finds that there are no other relevant factors to consider besides those already discussed.
IT IS THEREFORE ORDERED AND ADJUDGED that the Motion for Leave to File
Amended Complaint  is denied. Upon balancing the Hensgen factors, the Court determines that
amendment is not appropriate. As diversity jurisdiction still exists, the Motion to Remand  is
also denied. The Motion for Leave to File Affidavit and Proof of Residency of Bertha McCormick
 is denied as moot.
SO ORDERED AND ADJUDGED, on this, the 26th day of October, 2017.
/s/ Keith Starrett
UNITED STATES DISTRICT JUDGE
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