Opinion
Civil Action No. 3:01-CV-1936-D
December 5, 2001
ORDER
In this removed action, plaintiff Cynthia Kenney ("Kenney") moves for leave to amend her complaint to add a non-diverse party and to remand the case to state court. The court grants the motion.
Kenney filed her motion on November 21, 2001 and defendant filed its response on November 28, 2001. Although the time for Kenney to file a reply brief has not yet elapsed, as permitted by N.D. Tex. Civ. R. 7.1(f), the court in its discretion is deciding this motion prior to receipt of a reply brief. See Solomon v. Godwin Carlton, P.C., 898 F. Supp. 415, 416 n. 2 (N.D. Tex. 1995) (applying former Local Rule 5.1(f)).
I
Kenney sued defendant Home Depot U.S.A., Inc. ("Home Depot") in Texas state court alleging that it is liable for personal injuries that she sustained when a Home Depot forklift operator negligently knocked down an eight-foot plywood display, causing heavy merchandise to fall on her. Home Depot removed the case to this court based on complete diversity. Kenney moves for leave to amend to add Jeff Smith ("Smith"), the forklift operator, as a defendant. She maintains that she was unaware of Smith's identity until Home Depot made its Fed.R.Civ.P. 26(a)(1) disclosures; that she had earlier undertaken several steps to determine his identity so that she could join him as a defendant; that Smith is a necessary and indispensable party; that she acted diligently in seeking his identity and requesting leave to amend once his identity became known; that the primary purpose in joining him as a defendant is not to defeat federal court jurisdiction; that there are numerous issues that must be established in this suit — including whether Smith was acting within the course and scope of his employment at the time of the incident, whether he received proper training, and whether Home Depot's forklift policies and procedures were adequate — that intertwine Home Depot and Smith; and that if the court denies her motion, she will be required to file a parallel suit in state court against Home Depot and Smith because she is entitled to sue Smith individually and to satisfy a judgment from his available assets.Home Depot opposes the motion. It argues that the motion should be denied because it has filed a written stipulation of fact that Smith was acting within the course and scope of his employment at the time of the incident, it agrees that it is legally responsible for any negligent acts that Smith may have committed, and it is therefore unnecessary for Kenney to sue Smith individually; and that by adding him as a party, Home Depot will be deprived of a federal forum. It posits that Kenney's motive in seeking leave to amend — as evidenced by her threat of parallel litigation — is simply to cause the case to be remanded to state court, and that she will incur no prejudice if leave is denied.
II
28 U.S.C. § 1447(e) provides that if a court permits the joinder of an additional defendant whose joinder would destroy subject matter jurisdiction, the court may "permit joinder and remand the action to State court." Id. The court must balance the original defendant's interest in maintaining a federal forum with the competing interest in not having parallel lawsuits. See Hensgens v. Deere Co., 833 F.2d 1179, 1182 (5th Cir. 1987). The court examines (1) the extent to which the purpose of the amendment is to defeat federal jurisdiction; (2) whether plaintiff has been dilatory in asking for amendment; (3) whether plaintiff will be significantly injured if amendment is not allowed; and (4) any other factors bearing on the equities. Gulley v. Fireman's Fund Ins. Co., Civil Action No. 3:92-CV-2204-D, slip op. at 2 (N.D. Tex. Dec. 31, 1992) (Fitzwater, J.) (citing St. Louis Trade Diverters, Inc. v. Constitution State Ins. Co., 738 F. Supp. 1269, 1271 (E.D. Mo. 1990)).
The court concludes that Kenney does not seek leave to amend primarily for the purpose of defeating federal court jurisdiction. Although she plainly desires to obtain a remand to avoid parallel litigation in state court, she served discovery requests on Home Depot before it removed the case in an effort to learn Smith's identify. This indicates that she desired to sue him before the case was removed. Moreover, Kenney has not, for example, suffered an adverse substantive ruling in this court that she is attempting to circumvent via amendment and remand.
Kenney was not dilatory in asking for leave to amend. There is no dispute in the record that Home Depot first disclosed Smith's identity in Rule 26(a)(1) initial disclosures made October 12, 2001 and that Kenney filed the instant motion for leave to amend on November 21, 2001. Her motion was filed within weeks of the disclosure, fewer than 60 days after the case was removed, and fewer than 90 days after she filed suit in state court.
The court holds that although Kenney will not be significantly injured if the requested amendment is not allowed, she will be harmed by the necessity for parallel litigation. Home Depot argues that Smith's joinder is unnecessary because it has stipulated to course and scope of employment and will be responsible for any relief that Kenney may obtain against Smith. Although the court disagrees with Kenney's assertion that Smith is a necessary and indispensable party, it recognizes her right to sue him individually, regardless whether Home Depot is willing to answer in damages for any tort he may have committed. Under Texas law, an agent is individually liable for the torts he commits while acting in the scope of his employment. Leyendecker Assocs., Inc. v. Wechter, 683 S.W.2d 369, 375 (Tex. 1984) (on rehearing) (holding that "[a] corporation's employee is personally liable for tortious acts which he directs or participates in during his employment); E. Tex. Mack Sales v. Northwest Acceptance Corp., 819 F.2d 116, 119-20 (5th Cir. 1987) (Texas law) (holding that agent who commits tort in scope of employment is personally liable even though principal is also liable under respondeat superior). Because Kenney may sue Smith individually, she will be left to do so in state court, in substantially redundant litigation, unless the court allows her to join Smith as a defendant in the present case.
When the court considers all other factors bearing on the equities, it concludes that joinder should be allowed. This is not a suit that should be litigated in two fora, with its attendant costs and the potential for a race to judgment. Texas law will control, and Texas trial and appellate courts are best suited to adjudicate the purely state-law issues that will be presented. Although the removal statute is designed to protect out-of-state parties from local prejudices, there is no indication in the record that Home Depot faces the prospect of unfair treatment in a Texas state court. And even if the court denies Kenney's motion, Home Depot will still be subject to suit in Texas state court in the form of a second lawsuit by Kenney, this time including Smith as a defendant.