Randolph v. Avis Budget Car Rental, LLC

Filing 16

MEMORANDUM AND OPINION entered The factors all weigh against granting Randolph leave to amend. Without amendment, there is no basis to remand. The motion for leave to amend, (Docket Entry No. 12), and the motion to remand, (Docket Entry No. 14), are denied. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
TANGILA RANDOLPH,
Plaintiffs,
v.
AVIS BUDGET CAR RENTAL, LLC,
Defendants.

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April 23, 2018
David J. Bradley, Clerk

CIVIL ACTION NO. H-17-3638

MEMORANDUM & OPINION DENYING THE PLAINTIFF’S
MOTION FOR LEAVE TO AMEND AND MOTION FOR REMAND
This case arises from a December 2015 car accident. Tangila Randolph sued Avis Budget
Car Rental in October 2017 in Texas state court, and Avis Budget timely removed. (Docket Entry
No. 1). Randolph alleges that she learned during discovery in March 2018 that Lloyd Bivens was
the Avis Budget employee driving the truck that hit her car. Joining Bivens, a Texas citizen, as a
defendant would destroy diversity jurisdiction, and Randolph moves to remand the case if the court
permits her to join Bivens. (Docket Entry No. 14). Avis Budget opposes the motion for leave to
file an amended complaint to join Bivens as a defendant. (Docket Entry No. 15).
Rule 15(a) states that “the court should freely give leave [to amend] when justice so
requires.” FED. R. CIV. P. 15(a)(2). Leave is not automatic, but within the district court’s discretion.
Moore v. Manns, 732 F.3d 454 (5th Cir. 2013). “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.” 28 U.S.C. § 1447(e). When a
party seeks to amend pleadings to add a new, nondiverse party, the court should scrutinize the
amendment “more closely than an ordinary amendment.” Moore, 732 F.3d at 456 (quoting
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Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir. 1987)).
To determine whether to permit joinder of a nondiverse party, the district court must balance
the equities using four factors: (1) the extent to which the purpose of the amendment is to defeat
federal jurisdiction; (2) whether the plaintiff has been dilatory in asking for the amendment; (3)
whether the plaintiff will be significantly injured if the amendment is not allowed; and (4) any other
equitable factors. Hensgens, 833 F.2d at 1182; see also Priester v. JP Morgan Chase Bank, N.A.,
708 F.3d 667, 679 (5th Cir. 2013) (the Hensgens factors are the correct legal standard for
considering whether joining nondiverse parties after removal should be allowed).
The first factor weighs in favor of denying Randolph’s motion for leave to amend. “When
courts analyze the first Hensgens factor, they consider whether the plaintiffs knew or should have
known the identity of the nondiverse defendant when the state court complaint was filed.” De la
Cruz v. Home Depot U.S.A., Inc., No. 4:15-1566, 2015 U.S. Dist. LEXIS 143856, at *6 (S.D. Tex.
Oct. 22, 2015) (citations omitted). Randolph states that she did not know of Bivens’s identity until
discovery, after the case was removed. Randolph did, however, know at the time she filed suit that
an Avis Budget employee was driving the truck that hit her. She alleged that Avis Budget was liable
for the negligent actions of its driver. (Docket Entry No. 15-1). Randolph did not include the driver
as an unknown or John Doe defendant, nor did she assert any claims against the unknown employee.
See De la Cruz, 2015 U.S. Dist. LEXIS 143856, at *7 (the first factor weighed against joinder when
the plaintiff was aware that an unknown employee had caused the accident that harmed him, yet
sued only the employer) (citing Razo v. Home Depot U.S.A., Inc., No. 4:14-cv-428-A, 2014 U.S.
Dist. LEXIS 107973 (N.D. Tex. Aug. 6, 2014) (same)).
The second factor also weighs in favor of denying Randolph’s motion for leave to amend.

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“Although courts generally find that a plaintiff ‘is not dilatory in seeking to amend a complaint when
no trial or pretrial dates were scheduled and no significant activity beyond the pleading stage has
occurred,’ the analysis is different when the proposed amendment is to add nondiverse defendants
shortly after removal based on federal diversity jurisdiction.” Multi-Shot, LLC v. B&T Rentals, Inc.,
H-09-3283, 2010 WL 376373, at * 9 (S.D. Tex. Jan. 26, 2010) (internal citation omitted) (quoting
Smith v. Robin Am., Inc., No. 08-3565, 2009 WL 2485589, at *6 (S.D. Tex. Aug. 7, 2009)). “In such
a circumstance, ‘[a] delay of two months after the filing of the original complaint or almost thirty
days after the notice of removal has been found dilatory.’” Id. (quoting Irigoyen v. State Farm
Lloyds, No. 03-0324, 2003 U.S. Dist. LEXIS 27353, 2004 WL 398553, at *4 (S.D. Tex. Jan. 5,
2004)).
Randolph filed her motion for leave to amend on April 4, 2018, nearly six months after she
filed her original petition and four months after Avis Budget removed. (Docket Entry No. 12).
Courts have found shorter periods dilatory. See, e.g., De la Cruz, 2015 U.S. Dist. LEXIS 143856,
at *8 (a motion filed three and a half months after the original petition and two and a half months
after removal was dilatory); Wells v. Chesapeake Energy Corp., No. H-15-1856, 2016 U.S. Dist.
LEXIS 40513, at *9 (S.D. Tex. Mar. 28, 2016) (a three-month delay was dilatory); W&L Ventures,
No. H-13-00754, 2014 U.S. Dist. LEXIS 39674 (S.D. Tex. Mar. 26, 2014) (a motion filed just over
a month after the petition was filed and three days after it was removed was a neutral factor). The
timing here is clearly dilatory in light of the scheduling and docket control order the court entered
at the Rule 16 conference in January 2018, with counsels’ agreement. That order required initial
disclosures by February 23, depositions by March 23, and mediation by April 20. (Docket Entry
No. 8). The parties determined that dispositive motions would not be useful, and the court set

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docket call for May 14, with trial to occur shortly thereafter. Randolph filed her motion to amend
on April 4, only two weeks before the mediation deadline and just over a month before docket call.
The delay is significant in itself and more so given the pretrial deadlines were previously set.
The third Hensgens factor also weighs against allowing the amendment. “Courts analyzing
the third Hensgens factor look to (i) whether the already named diverse defendant would be unable
to satisfy a future judgment, and (ii) whether the possibility of a separate state court proceeding
weighs against denying the proposed amendment because of the inefficiency of parallel proceedings
or because such proceedings would place a financial burden on the plaintiff.” Agyei Endurance
Power Prods., 198 F. Supp. 3d 767, 777 (S.D. Tex. 2016). Randolph will not be significantly
injured if Bivens is not joined. Randolph asserts no claims for independent recovery from Bivens.
Avis Budget “judicially declares it stipulates any alleged negligence Bivens committed occurred
during the course and scope of his employment with Avis.” (Docket Entry No. 15 at 5). Nothing
indicates that Avis Budget would be unable to satisfy a judgment against it. This factor weighs
heavily against allowing amendment. See De la Cruz, 2015 U.S. Dist. LEXIS 143856, at *8–9 (the
defendant’s admission that the nondiverse party the plaintiff sought to join was working in the
course and scope of his employment weighed strongly against granting leave to amend).
The final factor asks about other equitable factors, which include whether granting leave to
amend would deprive a defendant of a properly invoked federal forum and whether denying leave
to amend would result in parallel state-court proceedings. Gallegos v. Safeco Ins. Co., No. H-092777, 2009 U.S. Dist. LEXIS 113532, at *5 (S.D. Tex. Dec. 7, 2009). Avis Budget has properly
invoked this federal forum. Randolph has not identified, and the court does not find, other equitable
factors that weigh in favor of allowing her to amend.

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The factors all weigh against granting Randolph leave to amend. Without amendment,
there is no basis to remand. The motion for leave to amend, (Docket Entry No. 12), and the
motion to remand, (Docket Entry No. 14), are denied.

SIGNED on April 23, 2018, at Houston, Texas.
______________________________________
Lee H. Rosenthal
Chief United States District Judge

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