Alfonso v. MV Transp., Inc.

KAREN ALFONSO, Individually, and onbehalf of Melanie Pericat, Plaintiff, v. MV TRANSPORTATION, INC., Defendant.

Case No.: 2:20-cv-289-FtM-66MRM

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION

September 1, 2020

REPORT AND RECOMMENDATION

Before the Court are Defendant's Motion to Dismiss Count II of Plaintiff's Complaint (Doc. 8) and Plaintiff's Motion for Leave to Amend Complaint (Doc. 16). These matters were referred to the Undersigned for Report and Recommendation. (Doc. 20). The Undersigned notes that in the "proposed Amended Complaint, Plaintiff is dropping the claims for filial consortium in Count II, which are the subject of Defendant's pending Motion to Dismiss (Doc. 8)." (Doc. 16 at 2). Because the parties agree concerning Count II of Plaintiff's Complaint, the Undersigned recommends DENYING AS MOOT Defendant's Motion to Dismiss (Doc. 16). For the reasons set forth below, the Undersigned also recommends that Plaintiff's Motion for Leave to Amend Complaint (Doc. 16) be GRANTED IN PART and DENIED IN PART.

BACKGROUND

The issue before the Court is whether Plaintiff may amend her Complaint to add a non-diverse defendant, thereby destroying diversity jurisdiction and necessitating remand. Plaintiff originally filed her Complaint in Florida state court alleging one count of negligence and one count for loss of filial consortium as a result of an injury Plaintiff allegedly suffered through Defendant's transportation business. (See Doc. 5). At that time, and currently, MV Transportation Inc. ("MV") was the only named Defendant. (Id.). Thereafter, MV removed the action from state court to this Court, invoking diversity jurisdiction as complete diversity existed between the parties. (Doc. 1).

In addition to dropping Count II (for loss of filial consortium), Plaintiff also seeks leave to state a claim against MV's employee, Frederick Deon Hawkins, "as he was the employee or agent of MV Transportation whose negligent actions resulted in the injuries" to Plaintiff. (Doc. 16 at 2). In support thereof, Plaintiff argues that there is no "dilatory conduct by Plaintiff, as she is seeking amendment shortly after the action was removed." (Id. at 3). Plaintiff also asserts that "the requested amendment does not raise the possibility of fraudulent joinder." (Id.). Moreover, Plaintiff asserts that if the Court denies Plaintiff's Motion to add Mr. Hawkins, "there will be prejudice to Plaintiff as she will be required to file a separate lawsuit in State court in order to pursue her claim against the negligent driver." (Id. at 4). "This," Plaintiff argues, "would result in additional litigation expenses as well as the possibility of conflicting decisions" and "the potential for inconsistent verdicts is significant." (Id.).

In response, Defendant argues the Court should deny the Motion and retain jurisdiction. Specifically, Defendant argues that Plaintiff acted in dilatory manner by failing to name Mr. Hawkins as a defendant in the state court matter, despite the fact that his "identity had been known by Plaintiff since her initial investigation into this claim." (Doc. 18 at 5). It is Defendant's position that "Plaintiff made the conscious decision not to include the driver" and "it is clear Plaintiff's only goal in doing so is to defeat diversity jurisdiction and have this action remanded back to" state court. (Id. (emphasis in original)). Defendant also argues that it "readily admits that it would be vicariously liable for any negligence of its driver" and that "Plaintiff's Proposed Amended Complaint [raises] no cause of action [] that would give rise to asource of additional liability, or a single dollar of additional damages, specific to Mr. Hawkins that would not be attributable to MV." (Id. at 5-6). Furthermore, Defendant argues that Plaintiff "will be free to depose Mr. Hawkins as it [sic] would have if he were a party" and that there are no "circumstances in this case that require the [sic] Mr. Hawkins' presence as a necessary party." (Id.). Thus, Defendant's argue Plaintiff has failed to show any injury "that would occur should its [sic] Motion for Leave to Amend be denied." (Id.).

LEGAL STANDARD

Federal Rule of Civil Procedure 15(a)(2) provides that after a responsive pleading is served, "a party may amend its pleading only with the opposing party's written consent or the [C]ourt's leave. The [C]ourt should freely give leave when justice so requires." The decision whether to permit an amendment is within the sound discretion of the court. Foman v. Davis, 371 U.S. 178, 182 (1962). However, the Supreme Court has held that the words "leave shall be freely given" must be heeded. Id. Consequently, the Court must find a justifiable reason to deny a request for leave to amend. Id. "[T]he Supreme Court indicated that a court should deny leave to amend a pleading only when: (1) the amendment would be prejudicial to the opposing party, (2) there has been bad faith or undue delay on the part of the moving party, or (3) the amendment would be futile." Taylor v. Florida State Fair Authority, 875 F. Supp. 812, 814 (M.D. Fla. 1995) (citing Foman, 371 U.S. at 182); see also Carruthers v. BSA Advert., 357 F.3d 1213, 1217 (11th Cir. 2004).

Yet because "Plaintiff's amended complaint seeks to join a non-diverse defendant, it must be analyzed under 28 U.S.C. § 1447(e)." Adkins v. Allstate Fire and Cas. Ins. Co., No. 2:14-cv-588-FtM-38DNF, 2015 WL 64544, at *2 (M.D. Fla. Jan. 5, 2015). "If after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matterjurisdiction, the court may deny joinder, or permit joinder and remand the action to the State court." 28 U.S.C. § 1447(e). "In determining whether to permit or deny joinder of a non-diverse party, a district court must either (1) deny joinder, or (2) permit joinder and remand the case to state court." Id. (citing Ingram v. CSX, 146 F.3d 858, 862 (11th Cir. 1998)). Because the Court's decision to grant or deny joinder necessarily affects its jurisdiction, "the joinder of a non-diverse party should not be permitted without consideration of the original defendant's interest in the choice of the federal forum." Id. (citing Seropian v. Wachovia Bank, N.A., No. 10-80397-Civ, 2010 WL 2822195, at *3 (S.D. Fla. July 16, 2010)). "A district court, when faced with an amended pleading adding a non-diverse defendant in a case removed based on diversity jurisdiction, 'should scrutinize that amendment more closely than an ordinary amendment' and should deny leave to amend unless strong equities support the amendment." Id. (citing Linares v. Home Depot U.S.A., Inc., No. 12-60308-Civ, 2012 WL 1441577, at *2 (S.D. Fla. Apr. 26, 2012)).

In scrutinizing the proposed amendment, the Court should apply the factors set forth in Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir. 1987). See Espat v. Espat, 56 F. Supp. 2d 1377, 1382 (M.D. Fla. 1999) (applying Hensgens factors to § 1447 analysis). These factors include: "(1) the extent to which the purpose of the amendment is to defeat federal jurisdiction, (2) whether plaintiff has been dilatory in asking for [the] amendment, (3) whether plaintiff will be significantly injured if [the] amendment is not allow[ed], and (4) any other factors bearing on the equities." Adkins, 2015 WL 64544, at *2 (citing Hensgens, 883 F.2d at 1182).

As described below, these factors weigh against Plaintiff's proposed amendment.

DISCUSSION

As a threshold issue, the Undersigned notes that Plaintiff makes an argument concerning fraudulent joinder (see Doc. 16 at 4), but Defendant does not appear to contend that Plaintiff seeks to add Mr. Hawkins for fraudulent purposes. Thus, the Undersigned finds that the Court need not address this issue.

As to the first Hensgens factor, the Undersigned notes that both parties cite case law in support of their position that Plaintiff's intent or purpose is either relevant or irrelevant. For example, Plaintiff relies on Bechtelheimer v. Continental Airlines, Inc., 776 F. Supp. 2d 1319, 1322 (M.D. Fla. 2011) for the proposition that "[i]n determining the above factors, the trial court is not required to make an inquiry into the motive of plaintiff in seeking to add a diverse defendant." (Doc. 16 at 3). In turn, Defendant cites Alleyne v. Am. Sec. Ins. Co., No. 11-60302-Civ-DIMITROULEAS, 2011 WL 12711451, at *3 (S.D. Fla. Apr. 12, 2011), for the proposition that a court "should be very suspicious of the timing of an amendment where, as here, a plaintiff seeks to add a non-diverse defendant directly after removal but before additional discovery." (Doc. 18 at 3). While the Court "is not required" to inquire into Plaintiff's motive, "[a] plaintiff is not entitled to add non-diverse defendants in a case simply to defeat the defendant's right of removal." O'Neill v. KB Home Inc., No. 07-61490-CIV-DIMITROULEAS, 2008 WL 11419017, at *4 (S.D. Fla. Jan. 2, 2008). And courts will deny a motion to amend where a plaintiff's "motivation in bringing the instant motion is to destroy diversity jurisdiction." Adkins, 2015 WL 64544, at *3 (citing Osgood v. Disc. Auto Parts, LLC, 995 F. Supp. 2d 1352, 1355 (S.D. Fla. 2013)).

Here, Plaintiff offers no explanation whatsoever as to why she is seeking to add Mr. Hawkins only after removal. In fact, Plaintiff merely argues that "she is seeking amendmentshortly after this action was removed." (Doc. 16 at 3). Yet Defendant asserts Plaintiff knew of Mr. Hawkins "since her initial investigation into this claim." (Doc. 18 at 5). Defendant further contends that "Plaintiff had ample opportunity to draft a complaint naming the driver." (Id.). Defendant's argument—which Plaintiff does not successfully refute—persuades the Undersigned that Plaintiff acted in a dilatory manner and is likely seeking to add Mr. Hawkins for the purposes of defeating federal jurisdiction.

As to the remaining two factors, the Undersigned also finds they weigh against Plaintiff. Plaintiff's...