Opinion
3:21-cv-00849-YY
02-22-2022
KATHLEEN M. BAKER, Personal Representative for the Estate of MARIBETH CORRIGAN, Plaintiff, v. YRC INC., a Delaware Corporation, And JOHN DOE, an individual, Defendants.
FINDINGS AND RECOMMENDATIONS
YOULEE YIM YOU, UNITED STATES MAGISTRATE JUDGE.
FINDINGS
Plaintiff Kathleen M. Baker brings this suit as personal representative for the Estate of Maribeth Corrigan. The Complaint alleges that on May 14, 2020, Corrigan was working at defendant YRC Inc.'s (“YRC”) facility when another employee, defendant John Doe, was operating a yard truck while “intoxicated by opioids and/or other controlled substances” and “fatally pinn[ed] [Corrigan] between the loading dock and rear of a semi-trailer or otherwise causing her injuries and death.” Compl. ¶ 16, ECF 1-1. The complaint alleges one count of negligence against defendant John Doe and one count of negligence against defendant YRC. Id. ¶¶ 17-31.
Defendant YRC removed the case to federal court based on diversity jurisdiction-Baker is a citizen of Oregon and YRC is a citizen of Delaware. Plaintiff has since identified the John Doe as Michael S. Adams and moves to add Adams as a defendant. Mot. Am. & Remand, ECF 8. Further, plaintiff moves to remand the case to state court because Adams is a citizen of Oregon and there will no longer be complete diversity between the parties. Id.; see Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996) (holding the “general-diversity statute . . . applies only to cases in which the citizenship of each plaintiff is diverse from the citizenship of each defendant”). Plaintiff's motion should be GRANTED and the case should be remanded for the reasons discussed below.
This motion is suitable for decision without oral argument pursuant to LR 7-1(d)(1).
I. Applicable Law-28 U.S.C. § 1447(e)
The parties agree that plaintiff's motion is governed by 28 U.S.C. § 1447(e). Section 1447(e) provides that “[i]f 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). The court's decision to permit joinder under § 1447(e) is discretionary. Stevens v. Brink's Home Sec., Inc., 378 F.3d 944, 949 (9th Cir. 2004); Newcombe v. Adolph Coors Co., 157 F.3d 686, 691 (9th Cir. 1998) (“The language of § 1447(e) is couched in permissive terms and it clearly gives the district court the discretion to deny joinder.”); Mayes v. Rapoport, 198 F.3d 457, 462 (4th Cir. 1999) (holding that, under § 1447(e), the decision whether to permit joinder of a defendant is committed to the sound discretion of the district court and “not controlled by a Rule 19 analysis”) (citation omitted).
YRC also cites Federal Rule of Civil Procedure 15(a). Opp. 2-3, ECF 9. However, “[a] motion for leave to amend to add a nondiverse party whose inclusion would destroy diversity and divest the court of jurisdiction is governed by 28 U.S.C. § 1447(e), not Rule 15(a).” Smith v. Robin Am., Inc., CIV.A. H-08-3565, 2009 WL 2485589, at *4 (S.D. Tex. Aug 7, 2009) (collecting cases); see Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1068 (9th Cir. 2001); 6 Fed. Prac. & Proc. Civ. § 1477 (3d ed.) (“[A] party may not employ Rule 15(a) to interpose an amendment that would deprive the district court of jurisdiction over a removed action.”).
Rule 19 pertains to required joinder of parties. “Section 1447(e) engineers a ‘departure' from the analysis required by [Rule 19] in that it allows the joinder of a necessary non-diverse party and a subsequent remand to state court.” Yniques v. Cabral, 985 F.2d 1031, 1034-35 (9th Cir. 1993), disapproved of on other grounds by McDowell v. Calderon, 197 F.3d 1253 (9th Cir. 1999). Section 1447(e) expands “the district court's options for dealing with an attempt to join a necessary, non-diverse party where the case has been removed to federal court.” Id. “[A]mendment under § 1147(e) is a less restrictive standard than for joinder under [Rule 19].” IBC Aviation Services, Inc. v. Compania Mexicana de Aviacion, S.A. de C.V., 125 F.Supp.2d 1008, 1011-12 (N.D. Cal. 2000).
In deciding whether to permit joinder under § 1447(e), courts have considered:
(1) whether the would-be defendants are necessary for just adjudication of the controversy; (2) whether the plaintiff still could bring an action in state court against the putative defendants; (3) whether there has been any unexplained delay in joinder; (4) whether it appears the plaintiff is seeking to destroy diversity; (5) the apparent merit of the claims against the new parties; and (6) whether plaintiff would suffer prejudice without the joinder of the defendants.Garrett v. New Hampshire Ins. Co., No. 3:11-CV-788-HZ, 2012 WL 426004, at *4 (D. Or. Feb. 9, 2012). “Any of the factors might prove decisive, and none is an absolutely necessary condition for joinder.” Yang v. Swissport USA, Inc., No. C 09-03823 SI, 2010 WL 2680800, at *3 (N.D. Cal. July 6, 2010).
Each factor is discussed in turn below.
A. Whether Adams is Necessary for Just Adjudication
The Ninth Circuit has identified necessary parties as “those ‘[p]ersons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on, and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it.'” CP Nat. Corp. v. Bonneville Power Admin., 928 F.2d 905, 912 (9th Cir. 1991) (quoting Shields v. Barrow, 58 U.S. (17 How.) 130, 139 (1855)). “Courts that have approved discretionary joinder look at least for a high degree of involvement by the defendant in the occurrences that gave rise to the plaintiff's cause of action.” Boon v. Allstate Ins. Co., 229 F.Supp.2d 1016, 1022 (C.D. Cal. 2002). “Courts disallow joinder of non-diverse defendants where those defendants are only tangentially related to the cause of action or would not prevent complete relief.” IBC Aviation Servs., Inc. v. Compania Mexicana de Aviacion, S.A. de C.V., 125 F.Supp.2d 1008, 1012 (N.D. Cal. 2000).
Additionally, the Ninth Circuit considers whether denying joinder “would merely result in unnecessary and repetitive litigation.” CP Nat. Corp., 928 F.2d at 912. Even where a separate state court action “might be possible, ” the court looks at whether litigating “essentially the same issues in two forums would be a waste of judicial resources and risks inconsistent results.” IBC Aviation Servs., 125 F.Supp.2d at 1012.
The Northern District of California's decision in Yang, which has facts similar to this case, is persuasive. There, the plaintiff, an airline ramp mechanic, was assisting employees of Swissport USA, Inc. (“Swissport”), a ground crew company, in a “pushback” operation during which the plaintiff was pinned beneath an aircraft and lost one of his legs. 2010 WL 2680800, at *1. Initially, the plaintiff brought suit against only Swissport, a Delaware corporation. Id. at *2. Later, after learning the “full extent” of the “reckless conduct” by two Swissport employees, their “roles in the accident, ” and “their violation of Swissport's standard safety and operating procedures, ” the plaintiff moved to amend the complaint to add those employees as defendants. Id. The court held the claims against the two employees were “more than just tangentially related to those pending against” the Swissport and found this factor weighed in favor of joinder. Id. at *4. Ultimately, after “[w]eighing the six factors collectively, ” the court found that “permitting the diversity-destroying joinder of [the two employees] is appropriate, ” and remanded the case to state court. Id. at *6.
Just like in Yang, plaintiff seeks to join the employee who operated the machinery that was used to cause the injury. In fact, plaintiff has always intended to include Adams in this lawsuit-the first claim in the complaint alleges a claim for negligence against John Doe for “ingesting opioids and/or other controlled substances or intoxicants prior to operating a yard truck, ” in addition to other negligent acts. Compl. 4, ECF 1-1. Plaintiff just did not know Adams' identify until recently.
YRC argues that Adams is not a necessary party because “[p]laintiff admits that YRC, the employer of both Mr. Adams and Ms. Corrigan, would be responsible for Mr. Adams' negligence arising in the course-and-scope of his employment.” Opp. 3, ECF 9. But plaintiff contends her claims are not “completely overlapping.” Reply 3, ECF 10. Rather, “plaintiff not only alleges that YRC is vicariously liable for Adams's actions, but also that YRC is directly liable for its own misconduct.” Id. Moreover, if plaintiff is forced to file a separate action against Adams in state court, it could result in inconsistent verdicts, something the Ninth Circuit has identified as an important consideration. Id. at 3-4. Therefore, this factor weighs in favor of joinder.
B. Whether Suit Can Still Be Brought Against Adams in State Court
The statute of limitations has not expired and does not bar plaintiff from bringing an action against Adams in state court. But the mere fact that plaintiff can still bring a state court action against Adams is not a factor that weighs in favor joinder, particularly given the risk of inconsistent verdicts.
C. Whether There Has Been Any Unexplained Delay in Joinder
There has been no unexplained delay. This action was originally filed in state court on May 5, 2021, and removed to federal court on June 4, 2021. Notice Removal, ECF 1. At the time plaintiff filed the Complaint, she did not know the identity of the John Doe defendant who had operated the yard truck. Mot. 6, ECF 8. On or about July 23, 2021, YRC provided plaintiff with the partial name “Michael Adams.” Lucia Becchetti Decl. ¶ 3, ECF 8-2. However, due to the common nature of that name, this yielded “hundreds of possibilities.” Id. ¶ 6. Plaintiff did not have Adams' address until YRC provided her with Adams' personnel file on or about August 16, 2021. Id. ¶ 7. Based on this information, plaintiff was able to confirm that Adams resides in Fairview, Oregon, and is an Oregon citizen. Id. ¶ 8.
After YRC filed its answer, this court set a Rule 16 conference for September 15, 2021. Prior to the Rule 16 conference, the parties submitted a Joint Rule 26(f) Report in which plaintiff alerted everyone that she “anticipates filing a motion to amend the complaint to substitute the now-identified individual for ‘John Doe.'” Joint Rule 26(f) Report 2, ECF 6. Plaintiff filed the motion shortly thereafter, on November 3, 2021. Finally, discovery is not scheduled to close for approximately eight months. In sum, the lack of unexplained delay here favors joinder.
D. Whether It Appears Plaintiff is Seeking to Destroy Diversity
There is no indication that plaintiff is seeking to destroy diversity. The original complaint contains a negligence claim against a John Doe defendant, indicating plaintiff always intended to bring suit against Adams and is not doing so now to destroy diversity.
E. Apparent Merit of Claims Against Adams
YRC argues that the exclusive remedy clause of Oregon's Workers' Compensation Act bars plaintiff's claims against Adams. O.R.S. 656.018(1)(a) provides:
The liability of every employer who satisfies the duty required by ORS 656.017 (1) is exclusive and in place of all other liability arising out of injuries, diseases, symptom complexes or similar conditions arising out of and in the course of employment that are sustained by subject workers, the workers' beneficiaries and anyone otherwise entitled to recover damages from the employer on account of such conditions or claims resulting therefrom, specifically including claims for contribution or indemnity asserted by third persons from whom damages are sought on account of such conditions, except as specifically provided otherwise in this chapter.See Kilminster v. Day Mgmt. Corp., 323 Or. 618, 637 (1996) (“ORS 656.018 bars the personal representative's wrongful death claim, based on a theory of negligence.”). The “exemption from liability given an employer under this section is also extended to . . . employees.” O.R.S. 656.018(3); Dehiya v. Spencer, 221 Or.App. 539, 544 (2008) (“[I]f a worker's injury is compensable under the Workers' Compensation Law, then that remedy is exclusive, and the worker cannot seek a tort remedy against a fellow employee instead.”).
The exemption does not apply under certain circumstances, two of which plaintiff asserts here:
(b) If the worker and the person otherwise exempt under this subsection are not engaged in the furtherance of a common enterprise or the accomplishment of the same or related objectives; . . .
(d) If the negligence of a person otherwise exempt under this subsection is a substantial factor in causing the injury, disease, symptom complex or similar condition and the negligence occurs outside of the capacity that qualifies the person for exemption under this section.See O.R.S. 656.018(3)(b) & (d). Plaintiff contends that Adams' “intentional intoxication causes him to lose the benefit of exempt status under the worker's compensation statute because Adams and Ms. Corrigan ‘were not engaged in the furtherance of a common enterprise or the accomplishment of the same or related objectives.'” Reply 4, ECF 10 (citing O.R.S. 656.018(3)(b)). Plaintiff also argues that “due to his on-the-job drug use, ” Adams “acted outside of his capacity as an employee/agent of YRC.” Id. at 5 (citing O.R.S. 656.018(3)(d)).
These are complex issues. Without further legal and factual development, the court cannot conclude, at such an early stage of the case, that plaintiff's claim against Adams is meritless. Given the circumstances, the question of whether the exclusivity provision of the Oregon Workers Compensation Act applies is “best left for the state court to decide, not only because of their expertise in that sphere of law, but also because-pursuant to the doctrines of comity and federalism-although federal courts may be obliged to speak on questions of state law in certain circumstances, absent a strong justification, state law questions belong in state court.” Nugent v. Las Vegas Metro Police Dep't, No. 2:09-CV-00601-GMN, 2010 WL 3810145, at *5 (D. Nev. Sept. 22, 2010).
Also, as plaintiff aptly observes, Adams “has no workers' compensation exclusivity protection unless YRC itself has such protection.” Reply 5, ECF 10. This again raises the risk of inconsistent verdicts if the cases against each defendant proceed in different courts.
Moreover, no one factor is “an absolutely necessary condition for joinder.” Yang, 2010 WL 2680800, at *3. Thus, even if this factor somehow weighs against joinder, it is not determinative of the motion.
F. Whether Plaintiff Would Suffer Prejudice Without Joinder
Regarding this last factor, plaintiff would certainly suffer prejudice without joinder, as she would have to file a separate action in state court and expend the resources to “litigate both matters side-by-side.” Mot. 8, ECF 8.
In sum, when all of the factors are weighed and considered, they make a convincing case in favor of the court exercising its discretion to allow joinder of Adams as a defendant. Once Adams is joined, complete diversity is destroyed, requiring this matter to be remanded to state court.
RECOMMENDATIONS
Plaintiff's Motion to Amend for Joinder of Nondiverse Defendant and Remand (ECF 8) should be GRANTED. Plaintiff should be directed to file her First Amended Complaint within 10 days and the case should thereafter be immediately remanded to Multnomah County Circuit Court.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Tuesday, December 21, 2021. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.