Smith v. Live Nation Entertainment, Inc.

Filing 32

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the Clerk of Court shall correct docket to reflect Defendant's proper name. Defendant Live National Entertainment, Inc., shall be changed to Live Nation Worldwide, Inc. IT IS FURTHER ORDERED tha t Defendant Live Nation Worldwide Inc.'s motion for the Court to reconsider its October 22, 2020 Order Granting Plaintiff's Motion for Leave to Amend her Complaint is DENIED. [ECF No. 20 ] IT IS FURTHER ORDERED that Defendant Leslie Rams ey's Motion to Dismiss is DENIED. [ECF No. 30 ] IT IS FURTHER ORDERED that Plaintiff Darcy Smith's Motion to Remand is GRANTED. [ECF No. 24 ] IT IS FURTHER ORDERED that this case is REMANDED to the Circuit Court of St. Charles County, Missouri An appropriate Order of Remand will accompany this memorandum and order. Signed by District Judge Ronnie L. White on 1/7/2021. (TMT)

Case: 4:20-cv-01396-RLW Doc. #: 32 Filed: 01/07/21 Page: 1 of 7 PageID #: 162

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DARCY SMITH,
Plaintiff
V.

LIVE NATION ENTERTAINMENT
INC., et al.,
Defendants.

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No. 4:20-CV-1396 RLW

MEMORANDUM AND ORDER
This matter is before the Court on Defendant Live Nation Worldwide Inc.'s ("Live
Nation") motion for the Court to reconsider its October 22, 2020 Order Granting Plaintiffs Motion
for Leave to Amend her Complaint. 1

(ECF No. 20). Also pending before the Court is Defendant

Leslie Ramsey's Motion to Dismiss, (ECF No. 30), and Plaintiffs Motion to Dismiss, (ECF No.
24). For the reasons that follow, the Court denies Defendant Live Nation's motion to reconsider
and Defendant Ramsey's motion to dismiss and grants Plaintiffs motion to remand.

I. Background
Plaintiff Darcy Smith, a resident of Missouri, filed this action on August 21, 2020, in state
court against Defendant Live Nation for the wrongful death of her husband, Jasen Smith. Plaintiff
alleges that following a Dave Matthews Band concert at Hollywood Casino Amphitheatre in St.
Charles, Missouri, Mr. Smith was struck in the head by a rental chair that was thrown by a Live
Nation employee. "The force of the impact from the thrown chair caused Jasen to fall backward,

1Defendant

Live Nation was improperly named as Live Nation Entertainment, Inc., in Plaintiffs
Petition. Plaintiff corrected the mistake in her First Amended Complaint. See ECF No. 12. The
Court shall direct the Clerk of Court to correct the docket to reflect Defendant Live Nation's proper
name.

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violently striking the back of his skull on the concrete and resulting in severe, catastrophic and
ultimately fatal brain injury." (ECF No. 7 at 2). According to the Petition, Mr. Smith died as a
result of his injuries. In her Petition, which was filed in the Circuit Court of St. Charles County,
Plaintiff brought one state law claim for wrongful death against Defendant Live Nation.
On September 29, 2020, Live Nation removed the case to this Court on the basis of
diversity pursuant to 28 U.S.C. §§ 1332 and 1441. Live Nation avers that it is incorporated in
Delaware, and its principal place of business is in California and, therefore, there is complete
diversity of citizenship. Live Nation also avers that the amount in controversy exceeds $75,000.
On the same date Live Nation filed its Notice of Removal, it also answered Plaintiff's Petition.
On October 20, 2020, 21 days following service of Live Nation's Answer, Plaintiff filed a
First Amended Complaint. The factual allegations in the First Amended Complaint are nearly
identical to her original Petition. But in addition to a wrongful death claim against Live Nation,
Plaintiff also brings a wrongful death claim against Leslie Ramsey, a Live Nation employee and
resident of St. Louis County, Missouri. Plaintiff does not assert any claims under federal law.
Despite having filed her First Amended Complaint, on October 21, 2020, Plaintiff filed a
"Motion to Amend Complaint as a Matter of Right and Memorandum of Law in Support." (ECF
No. 14). Attached to the motion, as a proposed amended complaint, was the same First Amended
Complaint Plaintiff had filed on October 20, 2020.
On October 22, 2020, through a Docket Text Order, the Court denied as moot Plaintiff's
motion to amend. The full text of the Docket Text Order is as follows:
Docket Text ORDER RE: ECF No. [14], Motion to Amend Complaint, filed by
Plaintiff Darcy Smith; ORDERED denied as moot. Under Rule 15(a)(l)(B), Fed.
R. Civ. P., plaintiff does not need leave of Court to amend and may file her First
Amended Complaint as a matter of course, because it was filed within 21 days after
2

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service of the responsive pleading. Plaintiff filed her Amended Complaint, as was
her right, and no motion was required. Signed by District Judge Ronnie L. White
on October 22, 2020.

On October 30, 2020, Live Nation filed its Motion for the Court to Reconsider its Order
Granting Plaintiff's Motion to Amend Her Complaint, which is presently at bar. (ECF No. 20).
Live Nation argues the Court should reconsider its order because Live Nation was not allowed the
opportunity to respond to Plaintiff's motion to amend. Live Nation further argues: (1) the Court
is within its power to reconsider its prior decision permitting leave to amend because Plaintiff did
not fully inform the Court that Defendant Ramsey's addition would destroy diversity; (2) Plaintiff
was dilatory in not naming Ms. Ramsey in state court; (3) Plaintiff added Ms. Ramsey's as a
defendant solely to defeat diversity, and she is not an indispensable party.

In its motion,

Defendant Live Nation does not argue Ms. Ramsey was fraudulently joined, or that Plaintiff's First
Amended Complaint fails to state a claim against her.
Plaintiff opposed Live Nations' motion to reconsider and filed a motion to remand.
Plaintiff argues complete diversity under 28 U.S.C. § 1332 no longer exists in this case and,
therefore, the Court lack subject matter jurisdiction to hear the dispute. Live Nation opposes the
Motion to Remand.
On November 30, 2020 Defendant Ramsey entered an appearance and filed a motion to
dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Defendant Ramsey did not file a memorandum in
support of her motion, and instead she states that she "adopts and incorporates as if more fully
stated herein all arguments previously outlined and briefed in Defendant Live Nation Worldwide,
Inc.' s . . . pending Motion for the Court to Reconsider its Order Granting Plaintiff's Motion to

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Amend her Complaint [Doc. #20] in support of her Motion to Dismiss Count II of Plaintiffs
Amended Complaint. [Doc.# 14]." (ECF No. 30).

IL

Discussion

The Federal Rules of Civil Procedure do not mention motions for reconsideration. The
United States Supreme Court has stated in regard to the reconsideration of orders that "as a rule,
courts should be loathe to [revisit prior decisions] in the absence of extraordinary circumstances .
. . ." Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988) (quoting Arizona v.
California, 460 U.S. 605, 618 n.8 (1983)) (discussing law of the case doctrine). Reconsideration
is appropriate to correct manifest errors of law or fact, or to present newly-discovered evidence.
Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3rd Cir. 1985) (citation omitted). A further basis
for a motion to reconsider would be a controlling or significant change in the law or facts since the
submission of the issues to the Court. See, e.g., Above the Belt, Inc. v. Mel Bohannon Roofing,
Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983). The Court finds Live Nation fails to meet these criteria
and has presented no valid reason for the Court to reconsider its October 22, 2020 Order.
Live Nation argues in its motion that the Court granted Plaintiffs motion for leave to
amend before Defendant had time to response. First, the Court did not grant Plaintiffs motion.
The motion was denied as moot. Second, it is of no import that Defendant did not have an
opportunity to respond to Plaintiffs motion because under the Federal Rules of Civil Procedure,
Plaintiff was entitled to amend her pleading as a matter of right. "A party may amend its pleading
once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which
a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after
service of a motion under Rule 12(b), (e), or (f), whichever is earlier." Fed. R. Civ. P. 15(a)(l).

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"In all other cases, a party may amend its pleading only with the opposing party's written consent
or the court's leave. The court should freely give leave when justice so requires." Fed. R. Civ. P.
15(a)(1)(2). Rule 15 (a)(l) allows for amendment as a matter of right, and the Court has no
discretion to deny a timely amendment. See ~ , Williams v. Bd. of Regents of Univ. Sys. of
Ga., 477 F.3d 1282, 1291-92 (11th Cir. 2007) (district court erred by failing to allow plaintiff to
amend complaint as a matter of course), see also 2 Coquillette, et al., Moore's Federal Practice
§ 15.10 (3d ed. 2018).

The cases to which Live Nation cites in support ofreconsideration are not applicable to the
case at bar. In Schur v. L.A. Weight Loss Centers, Inc., 577 F.3d 752, 759 (7th Cir. 2009), Bailey
v. Bayer CropScience L.P., 563 F.3d 302,309 (8th Cir. 2009) Hensgens v. Deere & Co., 833 F.2d
1179, 1182 (5th Cir. 1987), and Le Due v. Bujake, 777 F. Supp. 10, 11 (E.D. Mo. 1991), the
plaintiffs required leave of court to file their amended complaints. That was not the case here.
Plaintiff was entitled to amend her pleading as a matter ofright. See Fed. R. Civ. P. 15(a)(l). In
fact, in Bailey, the motion for leave to amend was filed more than a year after the case had been
removed. 563 F.3d at 309. And in Mayes v. Rapoport, 198 F.3d 457, 458 (4th Cir. 1999), the
non-diverse defendant was added as a defendant, but was later dismissed under Rule 12(b)(6) as
fraudulently joined because the district court found plaintiff had failed to state a claim against him.
Id. Here, Live Nation does not argue Plaintiff fraudulent joined or fails to state a claim against
the non-diverse defendant, Defendant Ramsey. The case is inapplicable. Moreover, on appeal
the Fourth Circuit reversed the district court finding plaintiff had stated a claim against the nondiverse defendant, and it remanded to the district court for further remand to state court. Id.

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The Court finds Live Nation's motion for the Court to reconsider its October 22, 2020
Order Granting Plaintiff's Motion for Leave to Amend her Complaint is entirely without merit.
The motion is denied.
Defendant Leslie Ramsey moves to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) based
entirely on the arguments made in Live Nation's motion to reconsider. Defendant Ramsey is not
a proper Rule 12(b)( 6) motion, in that she is not arguing that Plaintiff failed to state a claim against
her. On that basis alone it should be denied. But as the motion to reconsider is without merit,
the Court also denies defendant Ramey's Motion to Dismiss, which is based entirely on the same
basis.
Finally, the Court will grant Plaintiff's Motion to Remand. Plaintiffs First Amended
Complaint alleges that she and Defendant Ramsey are citizens of the State of Missouri. As the
parties are no longer diverse, this Court lacks subject matter jurisdiction to hear the case. See 28
U.S.C. § 1447(c) ("If at any time before final judgment it appears that the district court lacks
subject matter jurisdiction, the case shall be remanded."). The Court will grant Plaintiffs Motion
to Remand and remand this case to the Circuit Court of St. Charles County, Missouri.
Accordingly,

IT IS HEREBY ORDERED that the Clerk of Court shall correct docket to reflect
Defendant's proper name. Defendant Live National Entertainment, Inc., shall be changed to Live
Nation Worldwide, Inc.

IT IS FURTHER ORDERED that Defendant Live Nation Worldwide Inc.'s motion for
the Court to reconsider its October 22, 2020 Order Granting Plaintiff's Motion for Leave to Amend
her Complaint is DENIED. [ECF No. 20]

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IT IS FURTHER ORDERED that Defendant Leslie Ramsey's Motion to Dismiss is
DENIED. [ECF No. 30]
IT IS FURTHER ORDERED that Plaintiff Darcy Smith's Motion to Remand is
GRANTED.

[ECF No. 24]

IT IS FURTHER ORDERED that this case is REMANDED to the Circuit Court of St.
Charles County, Missouri
An appropriate Order of Remand will accompany this memorandum and order.

RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

Dated this

-,A-

day of January, 2021.

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