Parshall v. Menard, Inc.

Filing 42

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the motion of defendant Menard, Inc. to deny joinder of additional defendant [Doc. # 20 ] is granted. IT IS FURTHER ORDERED that plaintiffs amended complaint [Doc. # 18 ] is stricken. Signed by District Judge Carol E. Jackson on 7/19/16. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RICHARD PARSHALL,
Plaintiff,
vs.
MENARD, INC. d/b/a MENARDS,
Defendant/Third-Party Plaintiff,
vs.
DANIEL STREIBERG,
Defendant/Third-Party Defendant.

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Case No. 4:16-CV-828 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on the motion of defendant Menard, Inc. to deny
plaintiff’s joinder of an additional defendant.

Plaintiff has responded in opposition,

and the issues are fully briefed.
I.

Background

Plaintiff Richard Parshall initiated this action in the Circuit Court of St. Louis
County, Missouri on December 31, 2015.

Plaintiff seeks damages for personal

injuries he sustained after he was struck by copper merchandise that fell from a
display at a retail store owned by defendant Menard, Inc., d/b/a Menards.
alleges that Menards failed to properly secure the merchandise.

Plaintiff

On February 5,

2016, Menards filed a third-party complaint against Daniel Streibig, 1 another
customer in the store.

Menards alleges that Streibig negligently picked up and

moved the copper merchandise, causing it to fall from its display and injure plaintiff.
In accordance with Missouri law, the plaintiff’s petition included a prayer for
damages necessary to establish the state court’s jurisdiction.
1 Streibig was incorrectly named as “Streiberg” in the third-party complaint.

Mo. R. Civ. P. 55.05

(“[I]n actions for damages based upon an alleged tort, no dollar amount shall be
included in the demand except to determine the proper jurisdictional authority, but
the prayer shall be for such damages as are fair and reasonable.”).

Plaintiff

subsequently sent Menards an initial settlement demand for damages in the amount
of $217,500.

Menards then removed the case to this Court, invoking jurisdiction

based on diversity of citizenship. 28 U.S.C. §§ 1332 and 1446(b)(3). Plaintiff is a
citizen of Missouri, and Menards is a citizen of Wisconsin.
On June 17, 2016, plaintiff sought leave to file an amended complaint to add a
claim against third-party defendant Streibig.

Because no case management order

had been entered, plaintiff’s proposed amendment was filed without leave of Court.
See Fed. R. Civ. P. 15(a). Like plaintiff, Streibig is a citizen of Missouri.

Because

adding Streibig as a defendant would destroy the Court’s subject matter jurisdiction
over this action, Menards requests that the Court deny joinder of Streibig as a
co-defendant.
II.

Discussion

“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). Under
Eighth Circuit case law, “[j]oinder would be required if the plaintiff satisfied Fed. R.
Civ. P. 19 by showing that the new parties are necessary and indispensable to a full
resolution of the case.”
2009).

Bailey v. Bayer CropScience L.P., 563 F.3d 302, 308 (8th Cir.

Streibig, as an alleged joint tortfeasor with Menards, is neither a necessary

nor indispensable party pursuant to Rule 19.

See Temple v. Synthes Corp., Ltd., 498

U.S. 5, 7 (1990) (“It has long been the rule that it is not necessary for all joint
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tortfeasors to be named as defendants in a single lawsuit.”); Bailey, 563 F.3d at 308
(“[T]ortfeasors with joint and several liability are merely permissive parties.”).
Because Streibig is not an indispensable party, the Court has “full discretionary
authority to deny joinder and retain jurisdiction over the action.”

Bailey, 563 F.3d at

308; see also Woodbury v. Courtyard Mgmt. Corp., No. 4:11-CV-1049 (CEJ), 2012 WL
482344, at *3 (E.D. Mo. Feb. 14, 2012) (“Courts have generally held that § 1447(e)
gives the court the authority to deny joinder notwithstanding any right the plaintiff
may have to amend under Rule 15.”).
The Court must also consider whether justice requires that Streibig be joined as
a defendant and the case remanded to state court. Woodbury, 2012 WL 482344, at
*3.

“[T]he Court is required to consider 1) the extent to which the joinder of the

nondiverse party is sought to defeat federal jurisdiction, 2) whether [the] plaintiff has
been dilatory in asking for amendment, and 3) whether [the] plaintiff will be
significantly injured if amendment is not allowed.”
Le Duc v. Bujake, 777

Bailey, 563 F.3d at 309 (quoting

F. Supp. 10, 12 (E.D. Mo. 1991)) (adopting the Fifth Circuit’s

balancing test articulated in Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir.
1987)).
Considering these factors, the Court concludes that plaintiff should not be
allowed to join Streibig as a co-defendant.

First, plaintiff sought leave to amend his

complaint and add Streibig as a defendant six months after filing the original
complaint and seven days after Menards removed the case to this Court.

Shortly

after filing the amended complaint, plaintiff then filed a motion to remand the case to
state court, based in part on the lack of complete diversity between plaintiff and

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Streibig.

The timing and sequence of these facts and reasonable inferences drawn

therefrom suggest an attempt to defeat the Court’s jurisdiction over the matter.
Second, plaintiff does not dispute that he knew of Streibig’s actions as a
potentially liable third-party prior to filing this lawsuit.

Also, plaintiff knew the

identity of Streibig four months prior to removal due to the filing of defendant’s
third-party complaint.

Despite this knowledge, plaintiff did not assert any claims

against Streibig until now.

These facts further suggest that plaintiff’s purpose in

amending the complaint and joining Streibig as a defendant is to defeat the Court’s
subject matter jurisdiction.

See Blando v. Bus. Men’s Assurance Co. of Am., No.

12-0559-CV-W-SOW, 2012 WL 6699090, at *3 (W.D. Mo. Aug. 21, 2012) (“Several
district courts have held that the fact that a plaintiff attempted to add a nondiverse
defendant only after the case was removed, even though the plaintiff knew about the
nondiverse defendant’s activities at the time the suit was filed, strongly indicates the
purpose of plaintiff’s amendment is to defeat the jurisdiction of federal court.”).

This

delay in asserting claims against Streibig also demonstrates that plaintiff was dilatory
in amending the complaint.
Finally, because plaintiff has alleged that Menards and Streibig are joint
tortfeasors and Streibig is thus merely a permissive party, plaintiff will not be
significantly injured if the amendment is not allowed.

See Bailey, 563 F.3d at 309.

Therefore, justice does not require joining Streibig as a co-defendant in this case.
Accordingly,
IT IS HEREBY ORDERED that the motion of defendant Menard, Inc. to deny
joinder of additional defendant [Doc. #20] is granted.

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IT IS FURTHER ORDERED that plaintiff’s amended complaint [Doc. #18] is
stricken.

CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 19th day of July, 2016.

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