Opinion
Civil Action No: 02-2608, SECTION: "M"(1)
October 7, 2002
MINUTE ENTRY HEARING ON MOTION
APPEARANCES: Submitted on briefs
MOTION: MOTION FOR LEAVE TO FILE SUPPLEMENTAL PETITION (Rec. doc. 5)
DENIED
Before the undersigned is the motion of the plaintiffs, Sandra Bordelon and Darren Bordelon, individually and on behalf of their minor child, Darren M. Bordelon Jr., for leave to file supplemental petition. The plaintiffs filed their action in 24th Judicial District Court for the Parish of Jefferson, State of Louisiana, on November 2, 2001 and named as defendants, Liberty Mutual Fire Insurance Company ("Liberty Mutual") and Peggy Strassel ("Strassel"). Rec. doc. 1 at pp. 8-10. The plaintiffs allege that their minor child was injured while under Strassel's care. The plaintiffs also allege that Liberty Mutual knew that Strassel operated a child care facility and was liable for the arbitrary and capricious failure to honor the claim. Id. On August 12, 2002, Strassel, a Louisiana resident, obtained a discharge by the United States Bankruptcy Court for the Eastern District of Louisiana for any liability in this matter. Rec. doc. 1 at pp. 2-6. On August 23, 2002, Liberty Mutual removed the action to federal court and contended that Strassel's citizenship should be disregarded for purposes of determining whether complete diversity was present. Id. Based on the order of discharge, Strassel was dismissed from this action with prejudice. Rec. doc. 6. In addition to filing the motion for leave to amend, the plaintiffs also filed a motion to remand. Rec. docs. 5 and 7.
Liberty Mutual filed an action to rescind the policy of insurance issued to Strassel. See Liberty Mutual Fire Insurance Company v. Peggy Strassel, CA 01-3256"M"(1). The District Court granted the motion of the intervenors, the plaintiffs in this proceeding, to dismiss and Liberty Mutual filed a notice of appeal. Rec. docs. 17 and 24.
The plaintiffs contend that their request for leave to amend is timely, because a trial date has not been set. The plaintiffs seek to add as defendants the following: (1) State of Louisiana, Department of Social Services; (2) State of Louisiana, Department of Public Safety and Corrections, Office of State Fire Marshal; (3) Deep South Community Services, Inc.; (4) Absolutely Nutritious, Inc; (5) the City of Kenner; and (6) the Parish of Jefferson.
In Jacobsen v. Osborne, 133 F.3d 315 (5th Cir. 1998), the Fifth Circuit said:
The denial of a Rule 15(a) motion to amend is reviewed for abuse of discretion. Likewise, whether to grant such a motion is committed to the sound discretion of the district court, but, that discretion is limited by Rule 15(a), which states that leave shall be given when justice so requires. In sum, the motion should not be denied unless there is a substantial reason to do so.Id. at 318. This is tempered by the requirement found in Hensgens v. Deere Co., 833 F.2d 1179, 1182 (5th Cir. 1987), that "the district 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 added." See also Doleac v. Michalson, 264 F.3d 470, 474 (5th Cir. 2001). Hensgens identified the following factors that the district court should consider in balancing the defendants' interests in maintaining the federal forum with the competing interests of not having parallel lawsuits: (1) the extent to which the purpose of the amendment is to defeat federal jurisdiction; (2) whether the plaintiff has been dilatory in asking for an amendment; (3) whether the plaintiff will be significantly injured if the amendment is not allowed; and (4) any other factors bearing on the equities. 833 F.2d at 1182.
The circumstances show that the likely purpose of the amendment is to defeat jurisdiction. The original petition was filed in state court on November 2, 2001, and alleges that because of Strassel's negligence and want of due care the minor child was allowed to fall into a swimming pool and sustain serious injuries. There are no allegations in the original petition that would implicate the State of Louisiana and other parties sought to be added as unidentified parties. Although the action was pending in state court for nearly ten months until August 23, 2002, the plaintiffs took no action to add any additional claims or defendants. Only after Strassel, the nondiverse party, was discharged from all liability, did the plaintiffs seek to add non-diverse parties. The plaintiffs make no attempt to show that there was any other motive for attempting to add these nondiverse parties. The only conclusion is that the purpose of the amendment is to defeat federal jurisdiction.
The plaintiffs' motion is dilatory because leave was not sought until nearly a year after the filing of the suit in state court. While the plaintiffs argue that their motion for leave is timely, because the case has not yet been set for trial, this should not be a consideration where the purpose of the amendment is to defeat diversity jurisdiction.
Liberty Mutual argues that the plaintiffs will not be significantly injured if the amendment is not allowed. It contends that the plaintiffs can assert the claims against the State of Louisiana and the other nondiverse parties in state court. Liberty Mutual does not address the issue of prescription. The minor child was injured on September 26, 2001. Rec. doc. 1 at p. 11. More than a year has elapsed. If the plaintiffs' claims against the nondiverse parties are filed in state court, the claims may be prescribed. While plaintiffs sought leave to amend prior to the one year anniversary of the incident, they could have filed an action in state court to preserve their claims against the nondiverse parties. Whether the plaintiffs will be significantly injured must be measured against their own efforts to preserve the claims against the nondiverse parties. Liberty Mutual shows that at least some of the nondiverse parties were identified by it when it filed its motion for summary judgment in the related case on December 20, 2001. Rec. doc. 6 in CA 01-3256. The plaintiffs cannot be heard to complain of significant injury when it is self-inflicted.
The balance of the equities favors denying the plaintiffs' motion for leave to amend.
IT IS ORDERED that the motion of the plaintiffs for leave to amend (Rec. doc. 5) is DENIED.