Davis v. BRP U.S., Inc.
Filing
82
ORDER denying as moot Plaintiffs' 54 Motion for Extension of Time to Amend Pleadings or Join Parties; denying Plaintiffs' 57 Motion to File Second Amended Complaint and Join Additional Defendant; granting in part and denying in part Pla intiffs' 69 Renewed Motion for Extension of Time to Amend Pleadings or Join Parties; granting Defendants' 74 Motion to Strike Second Amended Complaint. Signed by Magistrate Judge Michael T. Parker on January 12, 2012. (Cochran, Ronald)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
LINDA DAVIS and WILLIE LEE
PLAINTIFFS
v.
CIVIL ACTION NO. 3:11cv236-TSL-MTP
BOMBARDIER RECREATIONAL PRODUCTS, INC.,
BRP, U.S., INC., ABC COMPANIES, and JOHN DOES 1-10
DEFENDANTS
ORDER
THIS MATTER is before the Court on Plaintiffs’ [54] Third Motion for an Extension of
Time to Amend Pleadings or Join Parties; Plaintiffs’ [57] Motion to File Second Amended
Complaint and Join Additional Defendant; Plaintiffs’ [69] Renewed Motion for an Extension of
Time to Amend Pleadings or Join Parties or, in the Alternative, Motion to Submit Additional
Support for Their Third Motion for an Extension of Time to Amend Pleadings or Join Parties;
and Defendants’ [74] Motion to Strike Plaintiffs’ Second Amended Complaint. Having
considered the record in this case, the submissions of the parties, and the applicable law, the
Court finds that the [54] third motion for extension of time to amend pleadings or join parties is
moot; the [57] motion to file second amended complaint to join additional defendant should be
denied; the [69] renewed motion for extension of time to amend pleadings should be granted in
part and denied in part; and the [74] motion to strike the second amended complaint should be
granted.
This Court on two occasions has extended the deadline to file motions to amend
pleadings. See Text Only Order dated August 25, 2011 and docket entry [33]. The most recent
deadline for such motions was December 1, 2011.
On November 29, Plaintiffs filed their [54] third motion for extension of time to amend
pleadings or join parties. The primary reason offered in support of this motion was grounded on
Plaintiffs’ request that they be allowed to review discovery responses to determine the identity of
any additional parties.
As a supplement to this [54] motion, Plaintiffs filed a [69] renewed motion for time to
amend pleadings/join parties, alternatively asking for permission to submit additional support for
their extension request. The “additional support” is the identity of “three new entities” recently
identified in discovery responses. These companies–Teleflex Canada, Inc., Teleflex Megatech,
Inc. and/or Kongsberg Inc.–are believed to be “in charge of the design, development,
manufacturing and supplying the . . . DPS steering system” which is at issue in this litigation.
Plaintiffs desire the opportunity to add these parties as defendants.
The defendants who are presently before the Court responded [78] to Plaintiffs’ [69]
renewed motion. This response is not materially different from the one [55] submitted in
opposition to Plaintiffs’ [54] original motion.
The Court finds that good cause exists to allow Plaintiffs additional time to file a motion
to amend pleadings and/or join parties for the limited purpose of addressing whether it is
appropriate to add the specific companies identified above. These new companies were only
recently identified by Defendants. Because the Court does not have the benefit of a proposed
amended complaint in this regard, Plaintiffs are only being allowed time to submit a request to
amend their pleadings. The parties should understand that this order does not permit Plaintiffs to
file an amended complaint, but only allows Plaintiffs to ask the Court to consider any proposed
amendment under the applicable legal standards.
The situation is different with regard to Plaintiffs’ [57] motion to file second amended
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complaint and join additional defendant. This motion was filed on the December 1 deadline for
motions requesting leave to amend the pleadings or join parties. On the same day, Plaintiffs
filed–without leave of Court–a [58] Second Amended Complaint adding a single defendant,
namely Hattiesburg Cycles, Inc. Hattiesburg Cycles is identified as the seller of the motorcycle
which is the subject of this products liability case. Its participation as a party in this litigation
would defeat diversity of citizenship, thereby depriving this Court of subject matter jurisdiction.
Indeed, Plaintiffs followed this [58] Second Amended Complaint with a [70] Motion to Remand.
Although the motion to remand was [76] withdrawn and [77] deemed moot, the materials
submitted in support of the motion to remand [71] bear on the Court’s decision whether the
amendment should be allowed.
That material indicates that Plaintiff Linda Davis purchased the motorcycle from
Hattiesburg Cycles in 2009. [71]-1. It also shows that said Plaintiff took the motorcycle to
Hattiesburg Cycles that same year to be repaired. [71]-2. In other words, the alleged involvement
of Hattiesburg Cycles was known to Plaintiffs when the original complaint was filed in March
2011 in state court against only BRP, U.S., Inc. D/B/A Bombardier Recreational Products, [1]-2,
at the time of removal to this Court, [1], and when Plaintiffs filed their [12] Amended Complaint
in this Court. That “ABC Companies” were included in this last pleading as “unknown
defendants who may be responsible for the acts complained of” does not change the fact that
Hattiesburg Cycles was well known to Plaintiffs.
Plaintiffs correctly cite Hensgens v. Deere & Company, 833 F.2d 1179 (5th Cir. 1987),
for the standard to be used to determine whether a pleading should be permitted to add a party
whose participation would destroy diversity jurisdiction. The four factors set forth in Hensgens
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are: whether the primary purpose of the amendment is to defeat federal jurisdiction, whether the
plaintiff was diligent in requesting the amendment, whether plaintiff will be prejudiced if the
amendment is denied, and any other factors bearing on the equities. Id. at 1182. Once input is
received from defendants, the Court “should then balance the equities and decide whether
amendment should be permitted.” Id.
Plaintiffs’ arguments for adding Hattiesburg Cycles are based on speculation: they posit
that defendants may argue that the motorcycle was altered or materially changed, and Plaintiffs
may have claims against Hattiesburg Cycles “for failing to take the appropriate action when the
motorcycle was taken there for inspection prior to the accident.” In fact, the language of the [58]
Second Amended Complaint filed without leave of Court is not much different from the
Amended Complaint: each lumps the defendants together for causes of action based on
negligence, gross negligence, and breach of warranties, and specifically identifies defendants
Bombardier and BRP only with regard to strict liability. Plaintiffs’ alternative theories do not
establish prejudice by the denial of the amendment.
In addition, Plaintiffs have “unquestionably been dilatory in asking for this amendment
[seven] months into the litigation.” Montgomery v. First Family Financial Services, Inc., 239 F.
Supp. 2d 600, 606 (S.D. Miss. 2002). In Montgomery, the Court observed that plaintiff knew all
along the identity of persons she dealt with in obtaining a loan. In the instant case, Plaintiffs
knew Hattiesburg Cycles sold and subsequently worked on the subject motorcycle.
As in Montgomery, “even if plaintiffs had some conceivable basis for proceeding against
[this] proposed defendant[], the court is convinced that their purpose in undertaking to sue [this]
resident defendant[] is solely to defeat diversity jurisdiction.” Id. This Court is likewise
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convinced in the instant case: Plaintiffs filed a motion for leave to amend to add Hattiesburg
Cycles, then filed the amended complaint against Hattiesburg Cycles without leave of Court, and
then filed a motion to remand before a ruling could be made on the amendment that would
determine if remand might be appropriate. This certainly suggests that the proposed amendment
is intended to deprive this Court of jurisdiction.
Moreover, the Court in Montgomery went on to conclude that “the equities in this
situation weigh decidedly in favor of preventing these plaintiffs from drawing more parties into
this litigation, the genesis of which is unknown to one plaintiff and the basis for which is
unknown to the other.” Id. See also Weathersby v. General Motors Corp., 2006 WL 1487025, at
*3 (N.D. Miss. 2006) (denying motion to amend complaint where, inter alia, plaintiff knew nondiverse driver of vehicle in accident and waited to add her as a defendant). The same conclusion
applies here with respect to the proposed non-diverse defendant.
For the foregoing reasons–and because the Second Amended Complaint was filed without
leave of Court1–defendants’ [74] motion to strike second amended complaint is granted and
Plaintiffs’ [57] motion to file second amended complaint and join additional defendant is denied.
Accordingly, IT IS ORDERED:
Plaintiffs’ [69] Renewed Motion for an Extension of Time to Amend Pleadings or Join
Parties or, in the Alternative, to Submit Additional Support is GRANTED IN PART and
DENIED IN PART. Plaintiffs are allowed until no later than January 25, 2012 to file a motion
to amend their pleadings or join parties only for the purpose of seeking the addition of Teleflex
Canada, Inc., Teleflex Megatech, Inc., and/or Kongsberg Inc. as defendants. Any motion filed
1
See Fed. R. Civ. P. 15(a)(2).
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for this relief shall include a proposed amended complaint.
Plaintiffs’ [57] Motion to File Second Amended Complaint and Join Additional
Defendant is DENIED.
Defendants’ [74] Motion to Strike Second Amended Complaint is GRANTED, and the
[58] Second Amended Complaint is deemed a nullity and of no legal effect.
Plaintiffs’ [54] Third Motion for an Extension of Time to Amend Pleadings or Join
Parties is DENIED AS MOOT.
SO ORDERED this the 12th day of January, 2012.
s/ Michael T. Parker
United States Magistrate Judge
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