“Courts have held that a plaintiff's failure to join a non-diverse defendant to an action prior to removal when such plaintiff knew of a non-diverse defendant's identity and activities suggests that the purpose of the amendment is to destroy diversity jurisdiction.” Schindler v. Charles Schwab & Co., Inc., No. 05-0082, 2005 WL 1155862, at *3 (E.D. La. May 12, 2005); see also Darr v. Amerisure Ins. Co., No. 16-232, 2016 WL 5110267, at *5 (M.D. La. Aug. 31, 2016) (“When analyzing the first Hensgens factor, courts within the Fifth Circuit frequently look at whether the plaintiff knew or should have known the identity of the party to be joined and the facts underlying the claim against that party when the state court complaint was filed.”)
And so, because the “analysis [of] the Motion for Leave to [Amend] [(R. Doc. 8)] bears directly on the recommendation with regard to the Motion to Remand, the undersigned is issuing a report on both motions.” Darr v. Amerisure Ins. Co., 2016 WL 5110267, at *1 (M.D. La. Aug. 31, 2016).
Hensgens, 833 F.2d at 1182. See also Darr v. Amerisure Ins. Co., No. 16-232, 2016 WL 5110267, at *8 (M.D. La. Aug. 31, 2016).Darr, 2016 WL 5110267, at *8, quoting Joseph, 513 F.Supp.2d at 670.
In determining the third Hensgens factor, courts consider whether the diverse defendant will be unable to satisfy a future judgment and whether the plaintiff could recover against the proposed nondiverse defendant. Darr v. Amerisure Ins. Co., No. 16-232, 2016 WL 5110267, at *8 (M.D. La. Aug. 31, 2016) (citing Gallegos v. Safeco Ins. Co. of Indiana, No. 9-2777, 2009 WL 4730570, at *5 (S.D. Tex. Dec. 7, 2009)). “[C]onsiderations of cost, judicial efficiency and possible inconsistency of results militate in favor of not requiring plaintiff to prosecute two separate claims in two forums when both arise from the same set of facts and circumstances.”
Hensgens, 833 F.2d at 1182. See also Darr v. Amerisure Ins. Co., 2016 WL 5110267, at *8 (M.D. La. Aug. 31, 2016).Darr, 2016 WL 5110267, at *8, quoting Joseph v. Fluor Corp., 513 F.Supp.2d 664, 670 (E.D. La. 2007).
Although the Fifth Circuit has yet to directly address whether the denial of a motion for leave to amend is “dispositive of a party's claim or defense, ” courts throughout the country are divided on the matter, particularly where the denial of a motion for leave to amend is based on a substantive finding of futility. See Darr v. Amerisure Ins. Co., No. 16-232-JWD-EWD, 2016 WL 5110267, at *1 n.5 (M.D. La. Aug. 31, 2016) (collecting case law). In such instances, some courts have held that the denial of a motion for leave to amend should be addressed through a report and recommendation, and this has been the undersigned's practice.
R. Doc. 52-3, ¶ 7. Darr v. Amerisure Ins. Co., No. 16-232, 2016 WL 5110267 (M.D. La. Aug. 31, 2016), report and recommendation adopted, No. 16-232, 2016 WL 5110480 (M.D. La. Sept. 20, 2016). Darr, 2016 WL 5110267, at *6.
R. Doc. 11-1, p. 6. Cf. Rass v. AHA Huts, LLC, No. 18-835, 2019 WL 2720217 (M.D. La. June 5, 2019); Darr v. Amerisure Ins. Co., No. 16-232, 2016 WL 5110267 (M.D. La. Aug. 31, 2016). Second, it does not appear that Plaintiffs have been dilatory in requesting this amendment.
56 and 103. Darr v. Amerisure, No. 16-232, 2016 WL 5110267, *6 (M.D. La. Aug. 31, 2016), and Norton v. Livingston Parish Detention Center, No. 13-437, 2014 WL 1057218, *3 (M.D. La. Mar. 19, 2014) (citations omitted). Darr, 2016 WL 5110267 at *6 (citations omitted).
R. Doc. 1; R. Doc. 27, ¶ IV; R. Docs. 56 and 103. Darr v. Amerisure, No. 16-232, 2016 WL 5110267, (M.D. La. Aug. 31, 2016), *6, and Norton v. Livingston Parish Detention Center, No. 13-437, 2014 WL 1057218 (M.D. La. Mar. 19, 2014), *3 (citations omitted). Darr, 2016 WL 5110267 at *6 (citations omitted).