Krah v. DDR Corp.
MEMORANDUM AND ORDER AND RECOMMENDATION: IT IS HEREBY ORDERED that plaintiffs motion to file an amended complaint (Doc. 13-1) is sustained. Katsam, LLC, is added as a party defendant. IT IS FURTHER ORDERED that the Clerk of Court reassign this actio n by the random selection process to a District Judge, advising that judge of the pendency of this Order and Recommendation. IT IS HEREBY RECOMMENDED that this case be remanded to the Circuit Court of Jefferson County for further proceedings. The parties may have 14 days to file objections to this Order and Recommendation. Signed by Magistrate Judge David D. Noce on 11/2/15. (JAB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
DDR CORP., and
No. 4:15 CV 887 DDN
· MEMORANDUM AND
ORDER AND RECOMMENDATION
This action is before the court on the motion of plaintiff Annie Krah (a) for leave
to file a first amended complaint which would join Katsam, LLC as a defendant and (b)
to remand this case to Missouri state court. (Doc. 13.)
This action was commenced in the Circuit Court of Jefferson County. In her state
court petition, plaintiff alleges she was injured when her shopping cart fell in a hole on
the parking lot of defendant DDR Corp. and she fell to the ground.
Defendant removed the case to this court under 28 U.S.C. § 1441, because plaintiff is a
citizen of Missouri, defendant DDR is incorporated under the law of Ohio where it has its
principal place of business, and the amount in controversy exceeds $75,000.00 exclusive
of interest and costs. See 28 U.S.C. § 1332(a) (diversity of citizenship subject matter
Plaintiff has moved to amend her pleading by adding a claim against Katsam,
LLC. (Doc. 13-1.) Plaintiff alleges that Katsam, a limited liability company whose
members are Missouri citizens, is a street sweeping vendor which has its principal place
of business in Missouri. Plaintiff seeks monetary damages from Kats am because she was
injured due to its negligent failure to warn about the dangerous condition of DDR's
parking lot. (Id. at 3.)
Because the addition of Katsam as a defendant in this case would destroy the
required diversity of citizenship for subject matter jurisdiction, plaintiff also asks the
court to remand the action to the Missouri circuit court under 28 U.S.C. § 1447(c) and
(e). DDR does not object to the motion in any respect.
To begin, plaintiff is entitled to amend her initial pleading to add a party against
whom she would allege a nonfrivolous claim. F. R. Civ. P. 15(a) (2) (court should allow
an amendment of the pleadings when justice requires).
Joining Katsam as a defendant is
proper under F. R. Civ. P. 20(a)(2)(A).
However, if, as here, amending the complaint will destroy diversity, special
consideration is required. See Bailey v. Bayer CropScience L.P., 563 F.3d 302, 307 (8th
Cir. 2009). "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 State court." 28 U.S.C. § 1447(e). Whenjoinder would
destroy jurisdiction, the Eighth Circuit has endorsed a balancing test weighing the
defendant's interests in maintaining the federal forum against the plaintiffs interests of
not having parallel lawsuits or contradicting verdicts. Bailey, 563 F.3d at 309 (citing
Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir. 1987)). This balancing test
requires the court to consider: "1) the extent to which the j oinder of the nondiverse party
is sought to defeat federal jurisdiction, 2) whether [the] plaintiff has been diiatory in
asking for amendment, and 3) whether plaintiff will be significantly injured if
amendment is not allowed." Id.
As highlighted in plaintiffs motion to amend and remand (Doc. 13), her amended
complaint will destroy this court's subject matter jurisdiction. However, the court does
not find that plaintiff is attempting to join Katsam in this lawsuit in order to defeat federal
jurisdiction. Plaintiff brought suit against the owner of the parking lot and nothing
indicates she knew or should have known DDR had hired an outside business to maintain
the lot. Upon learning of the additional party she timely filed an amended complaint and
motion to remand. The deadline to join parties was October 2, 2015 and plaintiff filed
her motion (Doc. 13) on September 25, 2015. (Doc. 11.) If plaintiff is not permitted to
amend the complaint in order to add Katsam as a party, she might not be able to secure
complete relief as the law may allow. Further, defendant DDR Corp. has not objected to
either the amendment adding the second defendant or to remanding the case to the circuit
court. Plaintiff is entitled to amend her complaint to add Katsam as a defendant.
An order remanding this action to the Circuit Court of Jefferson County under 28
U.S.C. § 1447(e) is necessary, because adding Katsam destroys subject matter
Plaintiff and original defendant DDR Corp. consented to the exercise of plenary
authority by the undersigned Magistrate Judge under 28 U.S.C. § 636(c). However, §
636(c) requires that all parties to consent to the authority of the Magistrate Judge. With
addition of another party, Kats am LLC as a defendant, who has not consented, even
though it has not yet actually entered the case, the authority of the undersigned extends
only to that granted by § 636(b) (authority limited to nondispositive matters).
the consent of the additional party, the undersigned Magistrate Judge is without authority
to order remand, which has been determined to be a dispositive matter but may
recommend to the assigned District Judge that the case be remanded. Flam v. Flam, 788
F.3d 1043, 1048 (9th Cir. 2015).
For the reasons stated above,
IT IS HEREBY ORDERED that plaintiffs motion to file an amended complaint
(Doc. 13-1) is sustained. Katsam, LLC, is added as a party defendant.
IT IS FURTHER ORDERED that the Clerk of Court reassign this action by the
random selection process to a District Judge, advising that judge of the pendency of this
Order and Recommendation.
IT IS HEREBY RECOMMENDED that this case be remanded to the Circuit
Court of Jefferson County for further proceedings. The parties may have 14 days to file
objections to this Order and Recommendation.
Isl David D. Nace
UNITED STATES MAGISTRATE JUDGE
Signed and filed on November 2, 2015.
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