BUFFKIN et al v. MARUCHAN, INC.

Filing 37

MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN, JR on 1/14/2016; For the reasons set forth herein, Plaintiffs' Motion for Leave to File First Amended Complaint (Doc. 28 ) is DENIED.(Sheets, Jamie)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

KIMBERLY BUFFKIN and
ERIC RICHARDSON, in his
capacity as Guardian ad
Litem for OP,
Plaintiffs,
v.
MARUCHAN, INC., and TOYO
SUISAN KAISHA, LTD.,
Defendants.

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1:14CV3

MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Plaintiffs Kimberly Buffkin1 (“Buffkin”) and Eric Richardson
in his capacity as guardian ad litem for OP (“OP”) (collectively
“Plaintiffs”) commenced this action by filing a Complaint in the
General Court of Justice, Superior Court Division, Forsyth
County, North Carolina, against Defendants Maruchan, Inc.
(“Maruchan”) and Toyo Suisan Kaisha, Ltd. (“Toyo”) (collectively

1

Kimberly Buffkin is the mother of OP.

“Defendants”).2 (Complaint (“Compl.”) (Doc. 7).) Defendant
Maruchan removed the action to federal court on January 6, 2014,
based on diversity jurisdiction. (Notice of Removal (Doc. 1).)
Presently before this court is Plaintiffs’ Motion for Leave
to File First Amended Complaint. (Pls.’ Mot. for Leave to File
First Am. Compl. (“Pls.’ Mot.”) (Doc. 28).) This court has
carefully considered the motion and all supporting briefs filed
by both parties.

For the reasons stated fully below, this court

will deny the motion.
I.

BACKGROUND
Plaintiffs filed the present action to recover damages

resulting from OP allegedly being burned by a spill of instant
soup produced by Maruchan. OP’s father allegedly prepared the
Instant Lunch as directed by adding boiling water to the instant
lunch. (Compl. (Doc. 7) ¶ 32.) Plaintiffs allege that, because
of a design defect in the Styrofoam packaging, OP’s infant
nephew tipped the Instant Lunch, which then spilled on OP and
2

In the Complaint, Plaintiffs allege that Maruchan is a
subsidiary of Toyo. (Compl. (Doc. 7) at 1.) On January 6, 2014,
Attorneys Leslie P. Lasher and J. Matthew Little also filed
Notices of Appearances (Docs. 2, 4) on behalf of both Maruchan
and Toyo. Plaintiffs now indicate that they will seek a
voluntary dismissal of Toyo. (Br. in Supp. of Pls.’ Mot. for
Leave to File First Am. Compl. (“Pls.’ Br.”) (Doc. 29) at 2
n.1.) Therefore, this court refers only to Maruchan and not
“Defendants” in this Order.
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severely burned her. (Id. ¶¶ 31, 33-34.) Plaintiffs contend that
Maruchan knew or should have known that the design was dangerous
and defective and is, therefore, responsible for OP’s injuries
and subsequent medical expenses. (Id. ¶ 37.) Plaintiffs
initiated the present action to recover medical and other
related costs stemming from Maruchan’s alleged design defect and
negligence. (Id. ¶ 45.) They now seek to add a negligence claim
against OP’s father, Jason Antonio Powell. (See Pls.’ Mot. (Doc.
28) at 1.)
II.

ANALYSIS
Plaintiffs move this court to grant them leave to file

their First Amended Complaint (Doc. 28-1). (Pls.’ Mot. (Doc. 28)
at 2.) Defendant Maruchan opposes Plaintiffs’ motion. (Def.
Maruchan, Inc.’s Mem. of Law Opposing Pls.’ Mot. for Leave to
File First Am. Compl. (“Def.’s Resp.”) (Doc. 33).)
Because “Jason Antonio Powell, father of The Minor
Plaintiff, was present at the scene of the incident and,
Plaintiffs maintain, was responsible for the supervision of the
two young children in his care,” (Pls.’ Mot. (Doc. 28) ¶ 3),
“Plaintiffs now seek leave to amend their complaint to name
Jason Antonio Powell as a defendant with allegations sounding in
negligence.” (Id. ¶ 4.) They base this motion on Federal Rule of
Civil Procedure 15(a) and a trial court’s discretion to freely
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give leave to amend when so compelled, (Pls.’ Br. (Doc. 29) at
1), asserting that there is no undue delay, they comply with
this court’s April 28, 2015 scheduling order, and their claims
against Maruchan and its alleged conduct “remain[] essentially
unchanged.” (Id. at 2.)
Defendant Maruchan opposes Plaintiffs’ motion on several
grounds: (1) the court should decline to exercise discretion per
28 U.S.C. § 1447(e), given the timing of Plaintiffs’ motion, the
impact on diversity, the equities in this case, and the
potential for fraudulent joinder; (2) the court should deny the
request to amend because adding Powell as a defendant would be
futile; and (3) Plaintiffs’ motion is barred by the law of the
case doctrine. (See generally Def.’s Resp. (Doc. 33).)
Plaintiffs respond: (1) Plaintiff Buffkin and OP have
relocated to New York so “joinder may or may not destroy
diversity”; (2) parent-child immunity does not bar their claim
against Powell; and (3) the law of the case doctrine does not
apply here. (See Pls.’ Reply to Def.’s Mem. of Law Opposing
Pls.’ Mot. for Leave to File First Am. Compl. (“Pls.’ Reply”)
(Doc. 34) at 1-2 n.1 (emphasis added).)
With respect to whether joining Jason Antonio Powell would
destroy diversity, this court makes the following findings.

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Federal courts’ diversity jurisdiction arises under
28 U.S.C. § 1332. Consequently, “[t]he question of citizenship
for purposes of diversity jurisdiction is ultimately one of
federal law.” Long v. Sasser, 91 F.3d 645, 647 (4th Cir. 1996)
(citation omitted). For diversity purposes, “the legal
representative of an infant or incompetent shall be deemed to be
a citizen only of the same State as the infant or incompetent.”
28 U.S.C. § 1332(c)(2); cf. Fed. R. Civ. P. 17(c)(2) (“A minor
or an incompetent person who does not have a duly appointed
representative may sue by a next friend or by a guardian ad
litem.”). Further, in the Fourth Circuit, “a guardian ad
litem[’s] . . . residence has not been thought to be controlling
of the question of diversity.” Lester v. McFaddon, 415 F.2d
1101, 1103-04 (4th Cir. 1969) (citation omitted); see Blackwell
v. Vance Trucking Co., 139 F. Supp. 103, 108 (E.D.S.C. 1956)
(“[W]e find it definitely stated: ‘But the next friend or
guardian ad litem of an infant is a mere mechanical device . . .
the infant is the real litigant and his would be the controlling
citizenship.’ . . . . ‘[T]he citizenship of the infant
determines the question of diversity, and not that of the
guardian ad litem.’” (citations omitted)); Willard v. United
Parcel Serv., 413 F. Supp. 2d 593, 597 (M.D.N.C. 2006)
(“Defendants state in their notice of removal that GCW is a
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citizen of North Carolina.

Therefore, plaintiff [who served as

guardian ad litem of GCW, a minor,] must also be treated as one
pursuant to 28 U.S.C. § 1332(c)(2).”); cf. Ziady v. Curley, 396
F.2d 873, 874 n.1 (4th Cir. 1968) (noting that “Plaintiff d[id]
not dispute that the citizenship of the infant and not of the
next friend determines whether diversity jurisdiction exists.”
(citation omitted)); Merritt v. Greenberg, 4 F. Supp. 655, 655
(E.D.N.Y. 1933) (“In an action brought by an infant, by a
guardian ad litem, the citizenship of the infant, not of that
guardian ad litem, is controlling on the question of diversity
of citizenship.”).
As to timing, “[c]itizenship of the members of the proposed
plaintiff classes shall be determined for purposes of paragraphs
(2) through (6) as of the date of filing of the complaint or
amended complaint . . . .” 28 U.S.C. § 1332(d)(7) (emphasis
added).
Based on Plaintiffs’ representations and the proposed
Amended Complaint, this court determines that, should Plaintiff
Buffkin and OP now be domiciled in New York, joining Powell as a
defendant would not destroy diversity.

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Because joining Powell under these circumstances would not
involve adding a non-diverse party, section 1447(e)3 and the law
of the case doctrine are not implicated. The issue of futility,
however, warrants consideration.
Generally, the decision of whether to grant leave to amend
is in a district court’s discretion. Foman v. Davis, 371 U.S.
178, 182 (1962). Federal Rule 15(a) provides that “[i]n 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)(2). “The Supreme Court has emphasized that ‘this
mandate is to be heeded.’” Johnson v. Oroweat Foods Co., 785
F.2d 503, 509 (4th Cir. 1986) (citing Foman, 371 U.S. at 182).
Further, “leave to amend a pleading should be denied only when
the amendment would be prejudicial to the opposing party, there
has been bad faith on the part of the moving party, or the
amendment would be futile.” Id. (citation omitted); Foman, 371
U.S. at 182.

28 U.S.C. § 1447, describing procedure after removal
generally, provides that, “[i]f 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).
3

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“Leave to amend . . . should only be denied on the ground
of futility where the proposed amendment is clearly insufficient
or frivolous on its face.” Johnson, 785 F.2d at 510-11
(citations omitted)(finding no futility where the resolution
required complex arguments and factual inquiries); see Davis v.
Piper Aircraft Corp., 615 F.2d 606, 613 (4th Cir. 1980)
(citation omitted).

When addressing the futility of a proposed

amendment,
“the merits of the litigation” are only relevant to
the Court’s ruling on a motion for leave to amend if
“a proposed amendment may clearly be seen to be
futile,” such as “if the proposed amended complaint
fails to state a claim under the applicable rules and
accompanying standards.” Notably, a claim is subject
to dismissal for failure to state a claim “‘when the
face of the complaint clearly reveals the existence of
a meritorious affirmative defense.’”
Intellectual Ventures I LLC v. Capital One Fin. Corp., 99 F.
Supp. 3d 610, 616 (D. Md. 2015) (citing Occupy Columbia v.
Haley, 738 F.3d 107, 116 (4th Cir. 2013); Katyle v. Penn Nat’l
Gamming Inc., 637 F.3d 462, 471 (4th Cir. 2011); Davis v. Piper
Aircraft Corp., 615 F.2d 606, 613 (4th Cir. 1980); MTB Servs.,
Inc. v. Tuckman-Barbee Constr. Co., Civil Action No. RDB-1202109, 2013 WL 1819944, at *3 (D. Md. Apr. 30, 2013)); see also
Occupy Columbia v. Haley, 738 F.3d 107, 116 (4th Cir. 2013)
(“Although a motion pursuant to Rule 12(b)(6) invites an inquiry
into the legal sufficiency of the complaint, not an analysis of
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potential defenses to the claims set forth therein, dismissal
nevertheless is appropriate when the face of the complaint
clearly reveals the existence of a meritorious affirmative
defense.” (internal quotation marks omitted) (citing Brockington
v. Boykins, 637 F.3d 503, 506 (4th Cir. 2011))).
When “[j]urisdiction is founded upon diversity of
citizenship, 28 U.S.C.A. § 1332, . . . the law of North Carolina
is controlling.” Md. Cas. Co. v. Bank of Charlotte, 340 F.2d
550, 551 (4th Cir. 1965); see Fried v. N. River Ins. Co., 710
F.2d 1022, 1024 (4th Cir. 1983).
“It is the rule in North Carolina . . . that an
unemancipated minor child cannot maintain a tort action against
his parent for personal injuries . . . .” Gillikin v. Burbage,
263 N.C. 317, 321, 139 S.E.2d 753, 757 (1965) (citations
omitted); see also Lee v. Mowett Sales Co., 316 N.C. 489,
491-92, 342 S.E.2d 882, 884 (1986) (“The Small decision
enunciated the rule that an unemancipated minor child may not
maintain an action based on ordinary negligence against his
parents.” (citations omitted)).4 Further, parent-child immunity’s
status as an affirmative defense or not is irrelevant to the

4

While North Carolina has a statutory exception to this
rule, allowing suits in motor vehicle cases, see N.C. Gen. Stat.
§ 1-539.21 (2015), that exception does not apply to this case.
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question of futility as long as it is apparent on the face of
the complaint. See Intellectual Ventures, 99 F. Supp. 3d at 616.
In the proposed Amended Complaint (Doc. 28-1), Plaintiffs
make the following allegations:
(1)

“Defendant Jason Antonio Powell is the father of The
Minor Plaintiff.” (Id. ¶ 7.)

(2)

“At all times herein, the Defendant Jason Antonio
Powell, had a duty to exercise reasonable care to
provide safe premises to The Minor Plaintiff.” (Id.
¶ 51.)

(3)

“The Defendant Jason Antonio Powell was then and there
negligent in the following ways . . . .” (Id. ¶ 52.)

(4)

“As a result of the negligence of Defendant Jason
Antonio Powell, The Minor Plaintiff sustained serious
physical injuries . . . .” (Id. ¶ 53.)

(5)

“As a further proximate result of the Defendant Jason
Antonio Powell’s foregoing negligence, The Minor
Plaintiff, sustained serious personal injuries,
incurred medical expenses, experienced pain and
suffering and will continue to incur medical expenses
and experience pain and suffering in the future.” (Id.
¶ 54.)

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On the face of the proposed First Amended Complaint, it is
clear to this court that Plaintiffs seek to add a simple
negligence claim against Powell. Plaintiffs allege a duty of
care, actual and proximate causation, and injury. Further, the
proposed First Amended Complaint explicitly alleges that Powell
is OP’s father and that OP is a minor.

Thus, under North

Carolina parent-child immunity, this suit simply cannot proceed.
Because this futility is apparent on the face of the proposed
Amended Complaint, this court will deny leave to amend.
III. CONCLUSION
For the reasons set forth herein, IT IS HEREBY ORDERED that
Plaintiffs’ Motion for Leave to File First Amended Complaint
(Doc. 28) is DENIED.
This the 14th day of January, 2016.

_______________________________________
United States District Judge

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