Cline v. Safeway Inc, et al

Filing 21

ORDER denying 16 Plaintiff's Motion to Amend; signed by Judge Ronald B. Leighton.(DN)

HONORABLE RONALD B. LEIGHTON

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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CASE NO. C17-5828 RBL

CASEY K CLINE,
Plaintiff,
v.

ORDER DENYING MOTION FOR
LEAVE TO AMEND

SAFEWAY INC, et al.,

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Defendants.

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THIS MATTER is before the Court on Plaintiff Cline’s Motion to Amend his complaint.
[Dkt. # 16].

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The case involves a slip and fall at a Safeway store. Cline initially named as Doe

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Defendants (1) an “Employee” who should have seen the spill that caused the accident, and the

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“Manager” who had a duty to exercise reasonable care in supervising employees, including the

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one who did not see or clean up the spilled soap that led to Cline’s fall. Safeway removed the

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case on diversity grounds. Cline sought remand, arguing that the employees were Washington

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citizens. The Court denied the motion because the citizenship of Doe defendants is disregarded

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for diversity purposes. It invited Cline to re-visit the issue when he identified the employee(s).

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ORDER DENYING MOTION FOR LEAVE TO
AMEND - 1

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Cline now seeks to name as a defendant Karen Ballard, the “Manager” (she is actually the

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“Assistant Store Director”) who assisted him after he fell.

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Safeway argues that the deadline for adding parties passed February 1, and that Cline

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knew of Ballard’s identity for a month before that. It argues that she is a “sham” defendant added

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only to destroy diversity, emphasizing that the only factual allegations against Ballard are that

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she was a manager, and she saw the soap when she helped Cline.

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Leave to amend a complaint under Fed. R. Civ. P. 15(a) “shall be freely given when

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justice so requires.” Carvalho v. Equifax Info. Services, LLC, 629 F.3d 876, 892 (9th Cir. 2010)

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(citing Forman v. Davis, 371 U.S. 178, 182 (1962)). This policy is “to be applied with extreme

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liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003)

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(citations omitted). In determining whether to grant leave under Rule 15, courts consider five

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factors: “bad faith, undue delay, prejudice to the opposing party, futility of amendment, and

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whether the plaintiff has previously amended the complaint.” United States v. Corinthian

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Colleges, 655 F.3d 984, 995 (9th Cir. 2011) (emphasis added). Among these factors, prejudice to

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the opposing party carries the greatest weight. Eminence Capital, 316 F.3d at 1052.

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A proposed amendment is futile “if no set of facts can be proved under the amendment to

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the pleadings that would constitute a valid and sufficient claim or defense.” Gaskill v. Travelers

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Ins. Co., No. 11-cv-05847-RJB, 2012 WL 1605221, at *2 (W.D. Wash. May 8, 2012) (citing

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Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1393 (9th Cir.1997)).

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A non-diverse defendant that has been “fraudulently joined,” may be ignored when the

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court determines the existence of diversity. United Computer Systems, Inc. v. AT & T Corp., 298

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F.3d 756, 761 (9th Cir. 2002) (citing Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th

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Cir. 2001)).

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ORDER DENYING MOTION FOR LEAVE TO
AMEND - 2

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“Fraudulent Joinder” is a term of art. Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067

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(9th Cir. 2001)(citing McCabe v. General Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 1987)). The

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non-diverse defendant has been fraudulently joined if the plaintiff fails to state a cause of action

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against that defendant and that failure is obvious according to the settled laws of the state. McCabe,

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811 F.2d at 1339. The removing defendant is entitled to present facts outside of the complaint to

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establish that a party has been fraudulently joined. Id. Doubt concerning whether the complaint

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states a cause of action is resolved in favor of remanding the case to state court. Albi v. Street &

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Smith Publications, 140 F.2d 310, 312 (9th Cir. 1944).

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Cline has not alleged any facts which plausibly state a claim against Ballard, and he has

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failed to explain the delay in naming her. For both reasons, the Motion to Amend to add Ballard

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as a defendant is DENIED.

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IT IS SO ORDERED.

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Dated this 15th day of May, 2018.

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A

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Ronald B. Leighton
United States District Judge

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ORDER DENYING MOTION FOR LEAVE TO
AMEND - 3