Wallace v. Dolgen Midwest, LLC et al

Filing 30

Memorandum Opinion and Order: The Court concludes that timeliness of removal is not an issue; the case was timely removed. The Clerk is directed to reopen this case. To clarify the record, however, in view of the state court's dismissal of Lora Wakefield, the Court sua sponte strikes the first amended complaint. (Doc. No. 7 .) The operative complaint is the document attached to the notice of removal. (Related Doc # 24 ). Judge Sara Lioi on 8/29/2014. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
JEFFREY J. WALLACE,

PLAINTIFF,

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vs.
DOLGEN MIDWEST, LLC, et al.,
DEFENDANTS.

CASE NO. 5:12CV2945

JUDGE SARA LIOI

MEMORANDUM OPINION
AND ORDER

I. INTRODUCTION
The above-captioned case is currently closed, having been remanded to the
Summit County Court of Common Pleas on February 12, 2013. (Doc. Nos. 20, 21.) Now before
the Court is a “Renewed Notice of Removal.” (Doc. No. 24.) The substance of the document,
however, is more in the nature of a motion to reconsider the order of remand on the basis of
“changed circumstances with respect to the diversity of the parties.” The document also asserts
that removal is proper and timely under the removal statutes.
On July 21, 2014, the Court directed defendant1 to show cause why the case
should not be re-remanded on the basis of untimeliness. Defendant filed its response (Doc. No.
27), plaintiff filed his opposition (Doc. No. 28), and defendant filed a reply (Doc. No. 29).
II. DISCUSSION
At the time defendant Dolgen Midwest LLC (incorrectly identified as Dollar
General Store) originally removed this case on November 29, 2012 (having been served on
November 16, 2012), there was complete diversity of citizenship. Defendant did not immediately
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Dolgen Midwest is currently the only named defendant.

file an answer to the complaint (or any other responsive pleading). Plaintiff, under Fed. R. Civ.
P. 15(a)(1)(A), filed an amended complaint on December 5, 2012 that added a defendant (Lora
Wakefield) who destroyed diversity. Therefore, the Court issued its order of remand, concluding
that the amended complaint, filed “once as a matter of course,” had destroyed diversity
jurisdiction.
After the remand, by judgment entry dated June 9, 2014, the state court dismissed
Wakefield. (See Doc. No. 24-3.) On July 7, 2014, defendant filed the “Renewed Notice of
Removal” presently before the Court, asserting that diversity jurisdiction was revived by the
changed circumstance of the absence of Wakefield.
When the Court issued its order to show cause, it expressed concern about the
timeliness of the re-removal. Defendant’s response to the show cause order now persuades the
Court that timeliness is not an issue. The Court, therefore, turns to defendant’s request to renew
the notice of removal based on changed circumstances.
This case was initially removable on the basis of diversity of citizenship and was,
in fact, timely removed under 28 U.S.C. § 1446(b)(1). As already noted, plaintiff immediately
amended the complaint, before defendant filed any responsive pleading to the initial complaint.
In the order of remand, the Court stated:
In its opposition [to plaintiff’s motion to remand], defendant relies upon
28 U.S.C. § 1447(e) to argue that it is within this Court’s discretion to deny postremoval amendment of the complaint if the amendment would destroy diversity.
Section 1447(e) provides: “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.”
(emphasis added.) However, under the circumstances of this case, plaintiff was
not required to seek joinder (i.e., to move for it) as he had the right under Rule
15(a)(1)(A) to amend his pleading once as a matter of course. Therefore, there
was nothing for this Court to “deny” and Section 1447(e) offers defendants no
refuge.
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(Doc. No. 20 at 138-39, footnote omitted.)
Upon reconsideration, the Court now adopts the reasoning of other district courts
that have recognized “an inherent tension between Fed. R. Civ. P. 15(a), which allows a plaintiff
to amend a complaint without leave of Court prior to the filing of a responsive pleading, and 28
U.S.C. § 1447(e), which allows a Court to deny the joinder of non-diverse defendants whose
joinder would destroy subject matter jurisdiction.” Reigel v. Canyon Sudar Partners, L.L.C.,
Civil Action No. 07-cv-00595-MSK-MJW, 2007 WL 3274430, at *2 (D. Colo. Nov. 5, 2007);
see also Collins v. Nat’l Gen. Ins. Co., No. 10-13344, 2010 WL 4259949, at *1-2 (E.D. Mich.
Oct. 25, 2010). These courts have concluded that, although typically a plaintiff can amend once
as a matter of course prior to the filing of a responsive pleading, where, as here, “‘the addition of
a party will destroy the court’s jurisdiction and prejudice the other party, the general rule prevails
that leave of court is necessary.’” Drew v. Rebuild America, Inc., No. 1:13CV384-LG-JMR,
2013 WL 6179184, at *1 (S.D. Miss. Nov. 25, 2013) (citations omitted); see also, e.g.,
Hauerwaus v. Allied Waste Servs. of North America, L.L.C., No. CV 12-22-M-DLC-JCL, 2012
WL 1378460, at *2 (D. Mont. Mar. 26, 2012) (“Section 1447(e) is controlling even if the
plaintiff has attempted to exercise his or her right to amend a pleading once as a matter of course
under Fed. R. Civ. P. 15.”) (citation omitted); Hardin v. Wal-Mart Stores, Inc., 813 F. Supp. 2d
1167, 1173 (E.D. Cal. 2011) (plaintiff “may not circumvent 28 U.S.C. § 1447(e) by relying on
Fed. R. Civ. P. 15(a) to join non-diverse parties.”); Spradlin v. NPC Intern., Inc., No.
4:08CV04075 JMM, 2009 WL 801621, at *2 (E.D. Ark. Mar. 25, 2009).
In light of this case law, instead of remanding the case, the Court probably should
have simply stricken plaintiff’s first amended complaint, which improperly added a diversity3

destroying defendant. Instead, the Court remanded, and now, in view of the state court’s ruling
on remand, that defendant is no longer a party to the case. Therefore, there is no bar to removal.
III. CONCLUSION
For the reasons set forth, the Court concludes that timeliness of removal is not an
issue; the case was timely removed. The Clerk is directed to reopen this case. To clarify the
record, however, in view of the state court’s dismissal of Lora Wakefield, the Court sua sponte
strikes the first amended complaint. (Doc. No. 7.) The operative complaint is the document
attached to the notice of removal.

IT IS SO ORDERED.

Dated: August 29, 2014
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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