Messinger v. Window World, Inc.

Filing 62

MEMORANDUM OPINION AND ORDER pursuant to the 35 Order, the court granted the plaintiff's unopposed 26 Motion to Amend Complaint and as set forth more fully herein; having reconsidered the joinder of Hanshaw Enterprises as a defendant i n this matter, the court finds that granting the plaintiff's Motion to Amend Complaint was proper; this court is therefore bound by § 1447(e) and REMANDS this case to the Circuit Court of Lincoln County, West Virginia; because the court lacks subject matter jurisdiction, the court leaves other pending motions in this litigation to be addressed in state court. Signed by Judge Joseph R. Goodwin on 1/7/2019. (cc: counsel of record; any unrepresented party) (taq)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
ALVIN MESSINGER
Plaintiff,
v.

CIVIL ACTION NO. 2:18-cv-00912

WINDOW WORLD, INC., et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
I.

Introduction
This action was removed from state court by Defendant Window World, Inc. on

May 11, 2018, solely on the basis of diversity jurisdiction. Not. Removal [ECF No. 1]
1. For jurisdictional purposes, Defendant Window World, Inc. is a citizen of North
Carolina, and the plaintiff is a citizen of West Virginia. Id. at 2.
On August 1, 2018, the court granted the plaintiff’s unopposed Motion to
Amend Complaint [ECF No. 26] to add Hanshaw Enterprises, Inc. (a West Virginia
corporation) and John Doe, unknown contractor, as defendants. The Amended
Complaint states that this court retains jurisdiction over the subject matter of this
case “pursuant to diversity jurisdiction.” Am. Compl. [ECF No. 36] ¶ 5. However, the
joinder of Hanshaw Enterprises, Inc. (“Hanshaw Enterprises”) as a defendant
destroys complete diversity of citizenship because “diversity jurisdiction does not

exist unless each defendant is a citizen of a different State from each plaintiff.” Owen

Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978). For this reason, the court
reconsiders the decision permitting amendment and REMANDS this case to the
Circuit Court of Lincoln County, West Virginia.
II.

Discussion
“[W]hen a trial court grants a plaintiff leave to amend the complaint by naming

additional defendants, and the plaintiff fails to inform the court that one or more of
those defendants will destroy diversity, the trial court may reconsider its earlier
decision.” Bailey v. Bayer CropScience L.P., 563 F.3d 302, 307 (8th Cir. 2009); see

also Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 761 (7th Cir. 2009) (“when a
district court is unaware that joinder will destroy diversity, it may reconsider its prior
decision permitting leave to amend a complaint”) (citing Mayes v. Rapoport, 198 F.3d
457, 462 n.11 (4th Cir. 1999)). In this case, the plaintiff is a citizen of West Virginia,
and the Amended Complaint states that Defendant Hanshaw Enterprises “is a West
Virginia corporation.” Am. Compl. ¶ 2. The parties failed to inform the court that the
joinder of Hanshaw Enterprises would destroy diversity jurisdiction. Thus, the court
revisits the Order [ECF No. 35] granting the plaintiff’s Motion to Amend to join
Hanshaw Enterprises as a defendant in this matter.1

Because the court finds the joinder of Hanshaw Enterprises proper and remands the action, the court
does not reconsider the propriety of joining John Doe, unknown contractor. The court notes, however,
that “[s]ound authority supports the general proposition that the ‘John Doe’ practice is unwarranted
in diversity cases.” Johnson v. Gen. Motors Corp., 242 F. Supp. 778, 779 (E.D. Va. 1965).
1

2

When a plaintiff seeks to join a nondiverse defendant after removal, “the
district court's analysis begins with 28 U.S.C. § 1447(e).” Mayes, 198 F.3d at 461.
Section 1447(e) “provides the district court with two options: ‘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.’” Id. at 461–62. These are the only options “for a district
court faced with a post-removal attempt to join a nondiverse defendant; the statute
does not allow a district court to retain jurisdiction once it permits a nondiverse
defendant to be joined in the case.” Id. at 462. Here, the plaintiff seeks to join
Hanshaw Enterprises, a nondiverse defendant, after removal, which would destroy
complete diversity of citizenship.
The decision on whether to permit joinder of a defendant under these
circumstances “is committed to the sound discretion of the district court.” Id. The
Fourth Circuit has held that the district court is entitled to consider all relevant
factors, including: “the extent to which the purpose of the amendment is to defeat
federal jurisdiction, whether the plaintiff has been dilatory in asking for amendment,
whether the plaintiff will be significantly injured if amendment is not allowed, and
any other factors bearing on the equities.” Id.
The court finds that the joinder of Hanshaw Enterprises was proper. When the
plaintiff filed his Complaint, he believed that he purchased the windows at issue in
this case from a franchise owned by Window World, Inc. After removal, the plaintiff
3

learned that Hanshaw Enterprises sold him the windows and allegedly retained an
inappropriate contractor to install the windows. The plaintiff then sought to add
Hanshaw Enterprises as a defendant.
The court finds that there is no indication that the plaintiff sought leave to
amend his Complaint to defeat federal jurisdiction. To the contrary, the plaintiff
moved to amend to join Hanshaw Enterprises based upon information that became
known to the plaintiff after removal regarding the identity of the seller of the windows
at issue. The plaintiff did not discover that Hanshaw Enterprises sold him the
windows or hired a purportedly inappropriate contractor to install the windows until
the filing of Window World Inc.’s Third-Party Complaint [ECF No. 5]. The court also
notes that the plaintiff did not move to remand the action, indicating that the plaintiff
did not seek amendment for the purpose of defeating diversity jurisdiction.
Nor was the plaintiff dilatory in seeking amendment. The plaintiff’s Motion to
Amend was filed before the deadline for amended pleadings and joinder of parties set
forth in the Scheduling Order [ECF No. 20]. It was also filed within a reasonable time
after the filing of Window World, Inc.’s Third-Party Complaint against Hanshaw
Enterprises. Moreover, Defendant Window World, Inc. failed to respond to the
plaintiff’s Motion to Amend and has therefore provided no indication that the plaintiff
improperly sought leave to amend or was dilatory in doing so.
The plaintiff would also be injured if amendment is not allowed: Hanshaw
Enterprises was the entity that sold the allegedly defective windows to the plaintiff,
4

not Window World, Inc. The plaintiff seeks to assert, among other claims, a breach of
contract claim against Hanshaw Enterprises regarding the purchase and installation
of the windows at issue. Am. Compl. ¶ 22. The plaintiff contends that this breach of
contract damaged his personal property and his health. Id. The plaintiff also seeks to
assert a negligent retention claim against Hanshaw Enterprises based on its
allegedly inappropriate hiring of John Doe, unknown contractor, to install the
plaintiff’s windows, which the plaintiff claims caused mold damage to his home in
addition to permanent health problems. Id. ¶ 24–26. The court finds the plaintiff
would be injured if amendment is not allowed, and Defendant Window World, Inc.,
by failing to respond to the Motion to Amend, has provided no evidence to the
contrary.
III.

Conclusion

Having reconsidered the joinder of Hanshaw Enterprises as a defendant in this
matter, the court finds that granting the plaintiff’s Motion to Amend Complaint [ECF
No. 26] was proper. This court is therefore bound by § 1447(e) and REMANDS this
case to the Circuit Court of Lincoln County, West Virginia. Because the court lacks
subject matter jurisdiction, the court leaves other pending motions in this litigation
to be addressed in state court.
The court DIRECTS the Clerk to send a copy of this Memorandum Opinion
and Order to counsel of record and any unrepresented party.

5

ENTER:

6

January 7, 2019