Garcia v. Kroger Texas L.P.
Filing
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ORDER AND OPINION, granting 10 MOTION to Remand, granting 9 MOTION for Leave to File Amended Complaint, mooting 8 MOTION to Designate Responsible Third Party. This case is REMANDED to the 234th Judicial District of Harris County, Texas Cause no. 2017-57324.(Signed by Judge Melinda Harmon) Parties notified.(jdav, 4)
United States District Court
Southern District of Texas
ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CARMEN LETICIA GARCIA,
Plaintiff,
VS.
KROGER TEXAS L.P.,
Defendant.
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June 13, 2018
David J. Bradley, Clerk
CIVIL ACTION NO. 4:17-CV-03667
ORDER AND OPINION
Before the Court, in this slip-and-fall case, is Defendant Kroger Texas, L.P.’s (“Kroger”)
Motion to Designate Louis Macey, Trustee, and Fountainview Partnership No. 1 (collectively,
“Fountainview”) as Responsible Third Parties, Doc. 8, Plaintiff Carmen Leticia Garcia’s
(“Garcia”) Motion for Leave to File Amended Complaint to add Fountainview and Macey
Property Management, LLC (“Macey Management”) as Defendants, Doc. 9, and Garcia’s
Motion to Remand because the additional defendants, if added, would destroy diversity
jurisdiction, Doc. 10. The Court construes Garcia’s Motion to Amend as opposition to the third
party designation because Garcia asserts that Fountainview and Macey Management should be
added as defendants, not as responsible third parties.1 Kroger has not filed a response to Garcia’s
Motion to Amend or Remand. Therefore, under Local Rule 7.4, those Motions are deemed
unopposed. After considering these documents and the applicable law, the Court grants Garcia’s
Motions to Amend and Remand, Docs. 9 & 10, rendering Kroger’s Motion to Designate as moot,
Doc. 8.
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Kroger’s certificate of conference in the Motion to Designate indicates that Garcia is
unopposed to that Motion, Doc. 8, but Garcia later filed the Motion to Amend
designating Fountainview and Macey Management as defendants, instead of responsible
third parties.
I. Background
On November 29, 2017, Garcia filed her Original Petition in state court alleging that she
“slipped and fell and sustained serious injuries” in Kroger’s store because Kroger “failed to
correct or warn of the . . . dangerous condition,” which “constitutes negligence.” Doc. 1-1 at 2,
(Cause No. 2017-57324 in the 234th Judicial District Court of Harris County, Texas). Garcia
sought relief in the amount of $100,000 or less. Id. at 4. Next, Kroger answered and removed the
case to this Court under diversity jurisdiction, alleging that Garcia is a resident of Texas, Kroger
is an Ohio corporation, and that the amount in controversy is greater than $75,000. See 28 U.S.C.
§ 1332; Docs. 1 at 1; 1-3.
The parties have filed certificates of interested parties, Docs. 3 & 4, a joint discovery
management plan, Doc. 5, attended a scheduling conference with Magistrate Judge Stacy, and
received the Court’s scheduling order, Doc. 6. On May 14, 2018, Kroger also filed its initial
disclosures indicating the existence of Fountainview and attaching the lease agreement. Doc. 7.
The scheduling order set the deadline to amend pleadings or to join additional parties to May 21,
2018. Doc. 6.
On May 18, 2018, Kroger timely filed its Motion for Leave to Designate. In its Motion,
Kroger alleges that the “puddle of water [that] purportedly caused [Garcia’s] injures . . . was
presumably caused by the roof leaks that were not properly repaired” by Fountainview. Doc. 8
at 2. Kroger alleges that Fountainview’s predecessor-in-interest agreed in the lease to “maintain
the structure and the exterior of the premises including . . . all structural portions of the
building.” Id. at 1 (citing lease agreement and modification, Docs. 1-1 & 1-2). In order to
maintain the structure, Kroger alleges that the lease granted Fountainview the “right and
responsibility to enter the demised premises . . . to inspect the condition of said premises and to
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make repairs.” Id. at 2 (citing Doc. 1-2). Because it alleges that Fountainview failed to inspect
and repair the leaky roof, Kroger “moves for leave to designate Fountainview as a responsible
third party.” Id. at 2.
Three days later and on the deadline under the scheduling order, Garcia filed her Motion
to Amend to add Fountainview and Macey Management because they “failed to ensure the
apparent roof leaks in the structure were properly prepared.” Doc. 9 at 1–2. In the proposed First
Amended Complaint (“FAC”), Garcia alleges that Luis Macey resides in Houston, Texas,
Fountainview is a Texas Partnership, and Macey Management is a Texas LLC. Doc. 9-1 at 1–2.
Kroger did not timely object to this motion.
On the same day as her Motion to Amend, Garcia also filed her Motion to Remand
because this Court would lacks diversity jurisdiction if the amendment is approved. Garcia is a
citizen of Texas. Garcia asserts that because prospective Defendants are all from Texas diversity
and subject matter jurisdiction are destroyed. Doc. 10 at 2–3. Kroger did not timely object to this
motion.
All motions are now ripe for adjudication.
II. Motions to Amend and Remand
Garcia asserts that if the Court allows the amendment to add the additional defendants,
diversity is destroyed, and the case should be remanded back to state court under 28 U.S.C. §
1447(c). Because no party contests the Texas residency status of Fountainview or Macey
Management, the Court finds them to be located in Texas for the purposes of diversity
jurisdiction. See 28 U.S.C. § 1332(c)(1).
Under 28 U.S.C. §1332, a defendant may remove a case if there is (1) complete diversity
of citizenship and (2) the amount in controversy is greater than $75,000, exclusive of interests
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and costs. Id. “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); Doc. 25 at 1–2.
Where the nondiverse parties were joined after the case was removed, not before, the
standard is not whether the new parties were fraudulently joined, but whether the Court, when
“confronted with an amendment to add a nondiverse nonindispensable party, should use its
discretion in deciding whether to allow that party” to be joined. Hensgens v. Deere & Co., 833
F.3d 1179, 1182 (5th Cir. 1987), appeal after remand, 869 F.2d 879 (5th Cir. 1989), cert. denied,
493 U.S. 851 (1989); see 28 U.S.C. § 1447(e). “The court should ‘scrutinize that amendment
more closely than an ordinary amendment’ and ‘consider a number of factors to balance the
defendant's interests in maintaining the federal forum with the competing interests of not having
parallel lawsuits.” Villarreal v. Wells Fargo Bank, N.A., 814 F.3d 763, 768–69 (5th Cir. 2016)
(citing Hensgens, 833 F.3d at 1182).
The court should consider four equitable factors on whether to allow joinder: “[(1)] the
extent to which the purpose of the amendment is to defeat federal jurisdiction, [(2)] whether
plaintiff has been dilatory in asking for amendment, [(3)] whether plaintiff will be significantly
injured if amendment is not allowed, and [(4)] any other factors bearing on the equities.” Id.
(citing id.). For the first factor, courts have considered whether the claim asserted was a ruse to
defeat jurisdiction, whether plaintiff knew of the identity of the added party at the filing of the
state court petition, how soon after removal the petition was amended, and if the amendment was
filed prior to a plaintiff’s motion to remand. See Boyce v. CitiMortgage, Inc., 992 F. Supp. 2d
709, 716–17 (W.D. Tex. 2014). For the second factor, courts have considered the “time between
the original state court action and the request to amend, and the time between removal and the
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request,” the stage of litigation, and whether trial or pre-trial dates have been scheduled. Lowe v.
Singh, No. CIV.A. H-10-1811, 2010 WL 3359525, at *2 (S.D. Tex. Aug. 23, 2010) (holding
amendment six months after initial filing was not dilatory); see Boyce v. CitiMortgage, Inc., 992
F. Supp. 2d at 720–21 (concerning stage of litigation and scheduling). For the third factor, courts
have considered whether the plaintiff can obtain complete relief absent the amendment and
whether the plaintiff will be forced to litigate against the non-diverse defendants in a different
court system with different timetables and procedural rules. Id. at 721.
“If [the court] permits the amendment of the nondiverse defendant, then it must remand
to the state court, [but i]f the amendment is not allowed, the federal court maintains jurisdiction.”
Hensgens, 833 F.3d at 1182; see also Priester v. JP Morgan Chase Bank, N.A., 708 F.3d 667,
679 (5th Cir. 2013) (affirming Hensgens as the correct legal standard to determine whether
joinder of non-diverse parties should be permitted after removal).
In her Motion to Remand, Garcia asserts that she and the proposed additional Defendants
are citizens of Texas. As a result, diversity and the resultant subject matter jurisdiction is
destroyed. Doc. 10 at 2–3. Kroger has not filed a response to Garcia’s Motion to Remand.
Therefore, under Local Rule 7.4, the Motions is deemed unopposed.
The factors weigh in Garcia’s favor. The first factor is whether the purpose of the
amendment was to defeat federal jurisdiction. Hensgens, 833 F.3d at 1182. The record indicates
that Garcia was not seeking to defeat federal jurisdiction but was reacting to new information
disclosed by Kroger. The record indicates that Garcia was not aware of the existence of
Fountainview and Macey Management until Kroger’s initial disclosures on May 14, 2018. Doc.
7. Shortly thereafter, Kroger filed its Motion to Designate, and a few days later on May 21, 2018,
Garcia filed her Motions to Amend and Remand. Garcia filed her Motions a week after Kroger’s
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disclosures. Thus, the Court holds that Garcia’s Motions seek to add parties Kroger alleges are
partially responsible for the in the slip-and-fall incident. Thus, the Court holds that the purpose
of the amendment was not to defeat federal jurisdiction, but to bring those parties into the suit.
See Boyce, 992 F. Supp. 2d at 716–17.
The second factor, whether plaintiff has been dilatory in asking for amendment, also
weighs in favor of the amendment. Id. The Court notes that filing an FAC beyond six months of
the original petition may be dilatory. See Lowe, 2010 WL 3359525, at *2. But the FAC was filed
on the last day permitted by the Court’s scheduling order, and within a week of Kroger’s
disclosures. See Boyce, 992 F. Supp. 2d at 720–21. Thus, the Court holds that Garcia was not
dilatory in asking for the amendment.
Next, the third factor, whether plaintiff will be significantly injured if amendment is not
allowed, favors the amendment. Id. at 721. Both Garcia and Kroger agree that the potential
Defendants may be partially or wholly responsible for the slip-and-fall incident because of a duty
to maintain and inspect the premises. Garcia and Kroger differ only on whether the potential
Defendants should be responsible third parties or full defendants.
Kroger has not filed an
opposition to the Motions to Amend and Remand. The Court does not to differ from the parties’
assessment. Thus, the Court holds Garcia may be injured if amendment is not allowed.
The Court does not consider the open fourth factor both because it finds the other factors
weigh in favor of amendment and because the parties do not argue this factor.
Thus, the Court concludes that it should allow Garcia to add Luis Macey, the
Fountainview partnership, and Macey Management LLC as parties, even though the action
divests the Court of its jurisdiction. And having lost its jurisdiction, the Court declares that all
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other pending motions in the case are moot. See Hensgens, 833 F.3d at 1182. Accordingly, the
Court
GRANTS Carmen Letica Garcia’s Motions to Amend and Remand, Docs. 9 & 10.
III. Conclusion
Accordingly, it is hereby
ORDERED that Carmen
Letica Garcia’s
Motion for Leave to File Amended
Complaint, Doc. 9, is GRANTED. It is further
ORDERED that Carmen Letica Garcia’s Motion to Remand, Doc. 10, is GRANTED.
It is further
ORDERED that Kroger’s Motion to Designate Louis Macey, Trustee and Fountainview
Partnership No. 1 as Responsible Third Parties, Doc. 8, is MOOT. It is further
ORDERED that this case is REMANDED to the 234th Judicial District Court of Harris
County, Texas, Cause No. 2017-57324.
SIGNED at Houston, Texas, this 13th day of June, 2018.
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MELINDA HARMON
UNITED STATES DISTRICT JUDGE
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