Razo v. Home Depot U.S.A., Inc.
Filing
15
MEMORANDUM OPINION and ORDER finding as moot 9 Motion for Extension, denying 12 Motion to Amend Pleadings, Join Party, and Remand... that plaintiff by August 15, 2014, (1) file an amended complaint that complies with the FRCP and the LCR of the U SDC for the ND/TX and that does not include Matthew Matney as a defendant, and (2) serve the amended complaint on Home Depot. The court further ORDERS that by August 29, 2014, Home Depot file an answer, or otherwise respond, to the amended complaint... see Order for further specifics. (Ordered by Judge John McBryde on 8/6/2014) (krg)
,_,
U.S. DISTRICT COUHT
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IN THE UNITED STATES DISTRI TN6ilfftiRNDISTRICTOFTEXAS
NORTHERN DISTRICT OF TE XA$
FILED
FORT WORTH DIVISION
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AUG- 6 2014
JOSE RAZO, INDIVIDUALLY AND
AS NEXT FRIEND OF CHRISTINA
SPRINGFIELD AND KEITH
SPRINGFIELD,
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CLERK, U.S. DISTRICT COli RT
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By ____~--------Depur~
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Plaintiff,
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vs.
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NO. 4:14-CV-428-A
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HOME DEPOT U.S.A., INC.,
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Defendant.
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MEMORANDUM OPINION
and
ORDER
Came on for consideration (1) the agreed motion of
plaintiff, Jose Razo, individually and as next friend of
Christina Springfield and Keith Springfield, for extension of
time to file a motion for leave to file a first amended
complaint; and (2) the motion of plaintiff to amend pleadings,
join party, and remand.
Defendant, Home Depot U.S.A., Inc.
("Home Depot"), filed a response to the motion to amend
pleadings, join party, and remand.
Having considered the
motions, the pleadings, and applicable legal authority, the court
concludes that plaintiff's motion to amend pleadings, join party,
and remand should be denied, and plaintiff's motion for extension
of time should be denied as moot.
I .
Background
Plaintiff initiated this action by filing his original
petition against Home Depot in the District Court of Tarrant
County, Texas, 236th Judicial District, as Cause No. 236-27147514.
Home Depot removed the action to this court within 30 days
of being served, alleging that this court has diversity
jurisdiction under 28 U.S.C.
§
1332.
By order signed June 18,
2014, the court ordered plaintiff by July 18, 2014, to file an
amended complaint that complied with the Federal Rules of Civil
Procedure and the Local Civil Rules of the United States District
Court for the Northern District of Texas, and to serve the
amended complaint on Home depot.
On July 18, 2014, plaintiff filed an agreed motion for
extension of time to file a motion for leave to file a first
amended complaint and brief in support.
In the motion for
extension of time, plaintiff explained that he had recently
learned the identity of a new defendant and intended to add that
new defendant in his amended complaint.
Plaintiff then filed his
motion to amend pleadings, join party, and remand on July 25,
2014, seeking to file an amended complaint that adds a nondiverse defendant and requesting remand of the action if leave to
amend and join the additional defendant is granted.
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II.
Plaintiff's Claims
A.
State Court Petition
In his original state court petition, plaintiff makes the
following factual allegations:
On or about September 1, 2012, plaintiff took his lawnmower
to Home Depot to have it repaired.
Plaintiff's grandchildren,
Christina Springfield and Keith Springfield, came with him.
An
employee of Home Depot instructed plaintiff to lift the front of
the lawn mower up, and the lawn mower cut off four of plaintiff's
fingers,
two on the left hand and two on the right.
Plaintiff's
grandchildren witnessed the incident.
Plaintiff asserted claims of negligence and gross negligence
against Home Depot.
B.
Proposed First Amended Complaint
Plaintiff's proposed first amended complaint makes the
following factual allegations:
In the summer of 2012, plaintiff purchased a new Toro walk
power lawnmower from Home Depot.
However, plaintiff continued to
use his old lawnmower until September 1, 2012.
On or about
September 1, 2012, plaintiff decided to use the new lawnmower,
but it would not work properly.
Plaintiff and his grandchildren,
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C.S. and K.S., took the lawnmower to the Home Depot where it had
been purchased because the lawnmower was new and under warranty.
Plaintiff and his grandchildren were directed to a Home
Depot mechanic, who, based on information provided by Home Depot,
was Matthew Matney {"Matney").
Matney was the only mechanic who
worked with plaintiff that day, and Matney's primary language is
English, while plaintiff's primary language is Spanish, although
plaintiff does understand some English.
Home Depot provided to
plaintiff on July 22, 2014, a video, without audio, of the
incident.
The video shows Matney and plaintiff looking at the
lawnmower indoors, with Matney working on the lawnmower.
Plaintiff then goes to the controls of the lawnmower while Matney
continues to stay at the base of the mower.
the controls, and plaintiff goes to the base.
Next, Matney goes to
Matney told
plaintiff to pick up the lawnmower, and plaintiff did not
understand at first.
pick up the lawnmower.
Matney repeated to plaintiff that he should
When plaintiff picked up the mower, the
blades cut parts of six of plaintiff's fingers and partially
amputated two fingers.
The video shows that plaintiff's
grandchildren witnessed the incident and were upset by it.
Plaintiff originally believed that he did not start the
lawnmower at Home Depot and that the mower was not running when
he picked it up.
However, after reviewing the video, plaintiff
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now believes that he started the lawnmower and that it was
running at the time he was instructed to pick it up.
Plaintiff
did not believe that picking up the lawnmower at the spot where
he did would result in injuries.
Plaintiff asserts a cause of action for negligence against
Home Depot; negligent hiring, supervision, training, and
retention against Home Depot; negligence against Matney; and
gross negligence against Matney and Home Depot.
III.
Grounds of Plaintiff's Motion to Amend Pleadings, Join Party,
and Remand and Nature of Home Depot's Response
Plaintiff argues that leave to amend his complaint and join
a non-diverse defendant should be granted because there was no
undue delay, no bad faith or dilatory motive, no repeated failure
to cure deficiencies by previous amendments, there will be no
prejudice to Home Depot, and the amendment is not futile.
Further, plaintiff contends that the purpose of the amendment is
not to defeat diversity, plaintiff was not dilatory in asking for
amendment, and plaintiff may be significantly injured if
amendment is not allowed.
Finally, plaintiff asserts that if
leave is granted, there will not be complete diversity between
plaintiff and defendants and the action should be remanded.
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Home Depot argues that it is apparent that the sole purpose
of adding Matney is to defeat diversity, that amendment would be
futile because Home Depot would be liable for Matney's alleged
conduct, that plaintiff will not be significantly injured by
denial of the motion, and that other factors bearing on equity
favor denying amendment.
IV.
Analysis
A.
Motion to Amend Pleadings, Join Party, and Remand
Rule lS(a) of the Federal Rules of Civil Procedure provides
that "[t]he court should freely give leave [to amend a pleading]
when justice so requires."
Fed. R. Civ. P. lS(a) (2).
However,
leave is not automatic, and is at the discretion of the court.
Moore v. Manns, 732 F.3d 454, 456 (5th Cir. 2013).
Further,
"[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).
The
court should scrutinize an amended pleading that seeks to join a
non-diverse defendant more closely than an ordinary amended
pleading.
Moore, 732 F.3d at 456.
The court should consider
several factors in deciding whether to allow leave under such
circumstances, including "the extent to which the purpose of the
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amendment is to defeat federal jurisdiction/ whether plaintiff
has been dilatory in asking for amendment/ whether plaintiff will
be significantly injured if amendment is not allowed/ and any
other factors bearing on the equities."
Deere & Co.
1
833 F.2d 1179
1
Id.
(quoting Hensgens v.
1182 (5th Cir. 1987))
(internal
quotation marks omitted) .
Plaintiff contends that the purpose of amending its
complaint to include Matney is not to defeat diversity.
plaintiff argues
1
Rather/
Matney was directly and personally involved in
the incident that caused plaintiff's injuries and has potential
liability.
However/ the court agrees with Home Depot that the
first factor the court should consider favors denying plaintiff's
motion.
When analyzing whether the purpose of plaintiff's
amendment is to defeat diversity/ the court should consider
"whether the plaintiff[ ] knew or should have known the identity
of the non-diverse defendant when the state court complaint was
filed."
Priester v. Long Beach Mortgage Co.
WL 6116481
1
at *2 (E.D. Tex. Dec. 8
1
2011)
1
No. 4:10CV641/ 2011
(adopting report and
recommendation) aff'd sub nom. Priester v. JP Morgan Chase Bank,
N.A.
1
708 F.3d 667 (5th Cir. 2013)
omitted).
Here
1
(quotation marks and citation
plaintiff was aware of the existence and
involvement of a Home Depot employee at the time he filed his
state court petition/ and yet chose not to add him as a party
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with potential liability, even as an unknown defendant, or to
assert any claims involving the employee, such as a claim for
negligent hiring or training, until after Home Depot removed the
action to federal court.
Therefore, the first factor weighs in
favor of denying plaintiff's motion to amend pleadings, join
party, and remand.
As to the second factor the court should consider, whether
plaintiff was dilatory in seeking amendment, plaintiff contends
that he was not dilatory because he sought Matney's identity
through discovery in state court and through informal
communication with Home Depot's counsel, and then sought
amendment very shortly after learning about Matney.
Plaintiff
did seek amendment very shortly after removal, but, as explained
above, plaintiff knew about the existence of a potential claim
against the Home Depot employee at the time he initiated this
action in state court.
Therefore, the second factor is either
neutral or weighs only slightly in plaintiff's favor.
The third factor supports denying plaintiff's motion to
amend, join party, and remand.
Plaintiff argues that he will be
significantly injured if amendment is not allowed because the
statute of limitations for his claims expires September 1, 2014,
and he will be unable to bring Matney into this matter after that
time or will have to pursue a parallel action against him in
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state court.
One of the considerations for this third factor is
whether the named, diverse defendant would be unable to satisfy a
judgment.
Priester, 2011 WL 6116481, at *3.
Here, Home Depot
admits that it would be liable for any tortious act committed by
Matney giving rise to plaintiff's injuries, and there is no
indication that Home Depot would be unable to satisfy any future
judgment.
Therefore, the third factor favors denial of
plaintiff's motion.
In sum, the balance of the factors that the court should
consider in deciding whether to allow leave to amend a pleading
that seeks to join a non-diverse defendant is in favor of denying
plaintiff's motion to amend pleadings, join party, and remand.
B.
Agreed Motion for Extension of Time to File Motion for Leave
to File First Amended Complaint
Because plaintiff has now filed his motion to amend
pleadings, his motion for extension of time to do so is being
denied as moot.
v.
Order
Therefore,
The court ORDERS that plaintiff's motion to amend pleadings,
join party, and remand be, and is hereby, denied.
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The court further ORDERS that plaintiff's agreed motion for
extension of time to file motion for leave to file first amended
complaint be, and is hereby, denied as moot.
The court further ORDERS that plaintiff by August 15, 2014,
(1) file an amended complaint that complies with the Federal
Rules of Civil Procedure and the Local Civil Rules of the United
States District Court for the Northern District of Texas and that
does not include Matthew Matney as a defendant, and (2) serve the
amended complaint on Home Depot.
The court further ORDERS that by August 29, 2014, Home Depot
file an answer, or otherwise respond, to the amended complaint.
The court further ORDERS that failure of any party to comply
with the terms of this order may result in the imposition of
sanctions, including dismissal of the action or default judgment,
without further notice.
SIGNED August 6, 2014.
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