Long v. Boston Mutual Life Insurance Co.

Filing 28

ORDER granting in part and denying in part 9 plaintiff's motion for leave to amend complaint and denying 10 plaintiff's motion to remand. Plaintiff shall file her amended complaint (joining claims against Peter McKee only) on ECF within THREE DAYS of the date of this Order. Signed on 4/26/13 by Chief District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION

JULIE LONG,
Plaintiff,
v.
BOSTON MUTUAL LIFE INS. CO.,
Defendant

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Case No. 4:12-cv-01434-FJG

ORDER
Currently pending before the Court is Plaintiff’s Motion for Leave to Amend
Complaint (Doc. No. 9) and Motion to Remand (Doc. No. 10).
I.

Background
Plaintiff Julie Long filed a petition in state court on October 30, 2012 alleging two

counts of vexatious refusal to pay life insurance proceeds under Mo. Rev. Stat. §
375.420 and Mo. Rev. Stat. § 375.296 against defendant Boston Mutual Life Ins. Co.
(Doc. No. 1). The action was removed to this Court based on diversity jurisdiction on
December 7, 2012. (Doc. No. 1). Plaintiff’s complaint stems from an assertion that Peter
McKee, acting as an agent for Defendant, was negligent in transcribing the Plaintiff’s
husband’s medical conditions on an application for life insurance resulting in Plaintiff’s
claim on the life insurance policy being denied. (Doc. No. 1).
On December 31, 2012, Plaintiff filed the pending Motion for Leave to Amend
Complaint seeking to join Peter McKee and Children’s Mercy Hospital as defendants to
the action. (Doc. No. 9).

Plaintiff asserts a negligence claim against proposed

defendant McKee and a negligence claim on a theory of respondeat superior against

proposed defendant Children’s Mercy. (Doc. No. 9). Joinder of Children’s Mercy would
defeat diversity jurisdiction, so Plaintiff contemporaneously filed the pending Motion to
Remand. (Doc. No. 10).
II.

Standard of Review
Rule 20(a) imposes two requirements for the joinder of parties: (1) a right to relief

must be asserted against the defendants jointly, severally, or in the alternative with
respect to or arising out of the same transaction, occurrence, or series of transactions or
occurrences; and (2) a question of law or fact common to all parties must arise in the
action. Fed. R. Civ. P. 20(a)(2) (2013). Once the requirements of Rule 20(a) are met
and where joinder of a nondiverse party would defeat diversity jurisdiction, the district
court has discretion whether to permit joinder. Holman v. State Farm General Ins. Co.,
No. 90-4205-cv, 1991 WL 219425, at *3 (W.D. Mo. Oct. 9, 1991). The court may deny
joinder, or permit joinder and remand the action to the State court. Bailey v. Bayer
CropScience L.P., 563 F.3d 302, 308 (8th Cir. 2009).
II.

Discussion
In this case, the Rule 20(a) requirements are satisfied as to both Children’s

Mercy Hospital and Peter McKee. The Court will immediately turn to whether it will
permit joinder of Children’s Mercy Hospital and Peter McKee. See Holman v. State
Farm General Ins. Co., No. 90-4205-cv, 1991 WL 219425, at *3 (W.D. Mo. Oct. 9,
1991). When faced with an amended complaint naming a new defendant that would
defeat diversity, the district court should scrutinize the amendment more closely than an
ordinary amendment. Bailey, 563 F.3d at 309. The courts have applied a three-part
balancing test in determining whether to allow joinder: The court is to consider (1) the

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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. Id. (quoting
Le Duc v. Bujake, 777 F.Supp. 10, 12 (E.D. Mo. 1991)).
Because joining Peter McKee as a defendant would not defeat diversity, joinder
of Peter McKee as a defendant will be allowed. However, joinder of Children’s Mercy
as a defendant would defeat diversity and require remand. While Plaintiff asserts that
McKee was an employee of Children’s Mercy, McKee has sworn in an affidavit that he
was not employed by Children’s Mercy at any time. (Doc. No. 13). Therefore, Children’s
Mercy could not be liable for his actions under an employer/employee respondeat
superior theory.

In reply, Plaintiff indicates that perhaps McKee is an agent of

Children’s Mercy and discovery could flesh that out; however, Plaintiff’s proposed
Amended Complaint pleads only that McKee is employed by Children’s Mercy, not that
he may be an agent of Children’s Mercy. (Doc. No. 9, Exhibit 1). It is apparent that
plaintiff is seeking to join Children’s Mercy only to defeat diversity jurisdiction.
Additionally, both McKee and Children’s Mercy were known to the Plaintiff before she
filed suit; Plaintiff only sought to join them as defendants when the case was removed to
federal court, another indication that joinder was sought to defeat diversity jurisdiction.
This Court also finds it significant that Plaintiff filed her Motion for Leave to
Amend Complaint and Motion to Remand on the same day. In Bailey, the plaintiff filed
a motion to remand less than a month after the joinder order, suggesting to the court
that he was aware of the jurisdictional issues and sought joinder primarily to defeat
diversity jurisdiction. Bailey, 563 F.3d at 309. In this case, Plaintiff’s contemporaneous

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filing of her Motion to Remand and Motion for Leave to Amend Complaint evidences
that Plaintiff is clearly aware of the jurisdictional issues. While requiring Plaintiff to
proceed against Children’s Mercy separately in state court (if she so desires) may lead
to duplication of efforts, this is not sufficient to rise to the level of significant injury to the
Plaintiff. Therefore, for the foregoing reasons, the Court finds that the relevant factors
weigh in favor of denying leave to add the nondiverse party. Bailey v. Bayer
CropScience L.P., 563 F.3d 302, 308-09 (8th Cir. 2009).

III.

Conclusion
For all the foregoing reasons, Plaintiff’s Motion for Leave to Amend Complaint

(Doc. No. 9) is GRANTED IN PART as to joinder of Peter McKee and DENIED IN
PART as to joinder of Children’s Mercy Hospital. Plaintiff’s Motion to Remand (Doc. No.
10) is DENIED. Plaintiff shall file her amended complaint (joining claims against Peter
McKee only) on ECF within THREE DAYS of the date of this Order.
IT IS SO ORDERED.

/s/ Fernando J. Gaitan, Jr.
Fernando J. Gaitan, Jr.
Chief United States District Judge

Date: April 26, 2013
Kansas City, Missouri

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