Altizer v. KIA Motors America Inc et al

Filing 25

ORDER denying motions 11 and 12 plaintiff's motion to amend and motion to remand are denied for the reasons stated in order. See order for specifics. Signed by Honorable Joe Heaton on 07/21/2014. (lam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JUDY ALTIZER,
Plaintiff,
v.
KIA MOTORS AMERICA, INC., and
KIA MOTORS CORPORATION,
Defendants.

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NO. CIV-14-0459-HE

ORDER
Plaintiff Judy Altizer filed this products liability action against defendants Kia Motors
America, Inc. and Kia Motors Corporation in the District Court of Custer County, Oklahoma.
Plaintiff alleges that she purchased a vehicle manufactured by defendants, and that the
vehicle failed to properly protect her in a single-car accident. On May 6, 2014, defendants
removed the action to this court pursuant to 28 U.S.C. §§ 1332 and 1441. Plaintiff has now
moved to amend her complaint to add a claim against a non-diverse party, BRSI, LLC, the
alleged seller of her car. Plaintiff has also moved to remand the case to state court based on
the resulting lack of complete diversity. Defendants have responded, and the motions are at
issue.
Defendants argue that plaintiff’s motions should be denied because the motions are
merely an attempt to destroy federal jurisdiction and force remand to state court. Plaintiff
argues that BRSI is a necessary party to the case, and she should be allowed to amend her
complaint because amendments are “freely given when justice so requires.”
“It has long been the rule that to satisfy the diversity of citizenship requirement of 28

U.S.C. § 1332(a)(1) the plaintiffs and defendants must be completely diverse: No plaintiff
can be a citizen of the same state as any defendant.” Salt Lake Tribune Pub. Co., LLC v. AT
& T Corp., 320 F.3d 1081, 1095-96 (10th Cir. 2003). Pursuant to 28 U.S.C. § 1441, a
defendant may remove a case to federal court that was initially filed in state court if the
diversity of citizenship requirements are satisfied. As a general rule, the propriety of removal
is judged on the complaint as it stands at the time of the removal. As the Supreme Court
noted: “We have consistently held that if jurisdiction exists at the time an action is
commenced, such jurisdiction may not be divested by subsequent events.” FreeportMcMorran Inc. v. K N Energy, 498 U.S. 426, 428 (1991). However, courts have wrestled
with the question of how broadly to read the indicated language, particularly in situations
where the subsequent addition of a party would destroy diversity. In particular, it is not
altogether clear how the Court’s statement should be reconciled in the removal context with
28 U.S.C. § 1447(e). That subsection states: “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.” The statute
suggests that certain subsequent events (i.e. the addition of the non-diverse party) can force
remand, which effectively divests jurisdiction.1 Moreover, § 1447(c) provides that “[i]f at
any time before final judgment it appears that the district court lacks subject matter
1

See Bishop v. Moore, 2000 WL 246583 (D. Kan. 2000)(unpublished), discussing the tension
between Freeport-McMoran and §1447(e), and concluding that the expansive language in FreeportMcMoran is dictum (citing cases). See also this court’s discussion in Lopez v. Farmers Ins. Co.,
2010 WL 2977301 (W.D. Okla. 2010)(unpublished), noting the existence of § 1447(e) in connection
with the discussion of Freeport-McMoran.

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jurisdiction, the case shall be remanded.” (emphasis added).
Freeport-McMoran did not mention § 1447(e), perhaps because the underlying events
at issue there predated the adoption of § 1447(e).2 In any event, giving effect to the plain
language of the statute, the court concludes that, in the circumstances existing here, the
applicable rule is that “if a non-diverse party is added to the complaint at any time prior to
final judgment, the case must be remanded to state court.” McPhail v. Deere & Co., 529 F.3d
947, 951 (10th Cir. 2008); see 14C Wright, Miller & Cooper, Fed. Prac. & Proc § 3739
Remand (4th ed.) (“If the court permits the non-diverse party to be joined, under amended
Section 1447(e) the court must remand the case to the state court from which it was
removed.”).
Although amendments are freely granted, “[a]s § 1447(e) indicates , . . . the plaintiff
does not have an absolute right to join [non-diverse] parties.” McPhail, 529 F.3d at 951. In
determining whether leave to add a non-diverse party should be granted, a number of factors
are considered, including “whether the amendment will result in undue prejudice, whether
the request was unduly and inexplicably delayed, [whether it] was offered in good faith,” and
whether the party sought to be joined is indispensable under Fed. R. Civ. P. 19. Id. at 95152. Applying those factors, the court concludes that plaintiff’s motions should be denied.
A party is indispensable if:
(1) in the person's absence complete relief cannot be accorded among those

2

Section 1447(e) was adopted as part of the Judicial Improvements and Access to Justice Act
of 1988, Pub. L. No. 100-702, 102 Stat. 4642.

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already parties, or (2) the person claims an interest relating to the subject of the
action and is so situated that the disposition of the action in the person's
absence may (I) as a practical matter impair or impede the person's ability to
protect that interest or (ii) leave any of the persons already parties subject to
a substantial risk of incurring double, multiple, or otherwise inconsistent
obligations by reason of the claimed interest.
Citizen Potawatomi Nation v. Norton, 248 F.3d 993, 997 opinion modified on reh'g, 257 F.3d
1158 (10th Cir. 2001). Plaintiff makes no effort to argue that the defendant it seeks to
add—the dealer which sold the car—is indispensable. Further, she does not suggest she
would be prejudiced other than by a very conclusory suggestion of inefficiency due to the
possibility of multiple lawsuits being necessary.
It appears likely that plaintiff’s effort to add the non-diverse defendant is simply an
effort to return the case to state court. Defendants assert that to be the case, noting the timing
of the request to amend, the absence of any new information not known to plaintiff at the
time of the original filing, and other factors. Plaintiff makes no effort to respond to that
assertion or to suggest otherwise.3 Further, she suggests nothing that might tend to establish
“excusable neglect” in not including the defendant earlier. See Fed. Ins. Co. v. Gates Learjet
Corp., 823 F.2d 383, 387 (10th Cir. 1987).
In any event, the court concludes leave to amend should be denied.
For the reasons stated, plaintiff’s motion to amend [Doc. #11] and motion to remand
to state court [Doc. #12] are DENIED.

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After defendants made the jurisdiction-shopping assertion in their response brief, plaintiff
did not file a reply brief or otherwise contest the assertion.

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IT IS SO ORDERED.
Dated this 21st day of July, 2014.

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