Summary
In Pettibone, the plaintiff filed a complaint in a Florida state court against Walgreen Co. ("Walgreens") after she tripped and fell on an uneven sidewalk outside the store.
Summary of this case from Accordino v. Wal-Mart Stores East, L.P.Opinion
CASE NO. 3:02-cv-123-J-21TEM
February 18, 2003
ORDER
This case came before the Court on January 30, 2003 for a hearing on Plaintiffs' Motion for Leave to File Amended Complaint (Doc. #17, Motion to Amend), Plaintiffs' Memorandum of Law in Support (Doc. #18), and Defendant's Response and Memorandum of Law in Opposition (Doc. #19) thereto. Plaintiffs seek to join two parties as defendants in the instant case (Doc. #17). Defendant objects to the joinder on the grounds it would destroy the diversity jurisdiction of the Court and require remand of the action to state court (Doc. #19). The Court convened this hearing for oral argument on the issue of whether joinder of the desired parties was appropriate and/or would destroy diversity jurisdiction. Early in the hearing, the parties agreed Plaintiffs' Motion to Amend was timely filed under Case Management and Scheduling Order deadline for joinder of parties. (See Doc. #12.)
Plaintiffs originally brought this tort action in state court alleging Defendant's negligence led to Plaintiff Kathleen Pettibone's injuries from a slip and fall accident in Defendant's parking lot. Plaintiff John C. Pettibone raises a loss of consortium claim. (Doc. #2, Complaint). Defendant removed this action to federal court in February, 2002 (Doc. #1).
Plaintiffs now seek to add Hawkins Construction, Inc., a Florida corporation, and Michael Williams, a Florida resident and employee of Walgreens, as defendants in this matter. Plaintiffs assert that discovery thus far has revealed Hawkins Construction, Inc. was the contractor of record for the Walgreens parking lot in question, and Mr. Williams was the store manager purportedly responsible for design and maintenance of the parking lot when the alleged injuries occurred. Plaintiffs assert it is essential to have all potentially liable parties named in the lawsuit.
This argument was raised by Plaintiffs during the January 30, 2003 hearing. The record of that hearing is hereby incorporated by reference. The non-transcribed recording of the January 30, 2003 hearing may be found on Tape 3:07TEM at 704-2189. The Court has ordered a transcript of the proceedings, but it has yet to be delivered.
Defendant Walgreens strenuously opposes Plaintiffs' Motion to Amend as a ploy to destroy the diversity jurisdiction of this Court and cause the case to be remanded to state court. (See Doc. #19, Response.) Defendant asserts the requested joinder is fraudulent under Ferry v. Bekum America Corp., 185 F. Supp.2d 1285 (M.D. Fla. 2002) which recognizes a joinder as fraudulent if there is "no possibility that the plaintiff can prove a cause of action against the nondiverse defendant[s]." Id. at 1291, n. 10 (citing Triggs v. John Crump Toyota, Inc., 153 F.3d 1284, 1287 (11th Cir. 1998)).
28 U.S.C. § 1447(e) provides: "If 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." The undersigned realizes ruling on Plaintiffs' Motion to Amend (Doc. #17) may result in remand of this action to State court. However, such determination is reserved for the District Court and may be the subject of future dispositive motion practice. The current ruling is made in light of standards set forth for amendments to pleadings and joinder of parties.
Rule 15(a) of the Federal Rules of Civil Procedure states that leave to amend "shall be freely given when justice so requires." Fed.R.Civ.P. 15; Foman v. Davis, 371 U.S. 178, 182 (1962). In the language of the Foman Court,
In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be `freely given.'Foman, 371 U.S. at 182. This Court finds Plaintiffs Motion to Amend (Doc. #17) not to be in bad faith, for purposes of delay, or for any suspect reason stated above. Plaintiffs' motivation for joining these defendants does not matter when Plaintiff claims a real intent to pursue a judgment and there exists the possibility that the amended complaint states a cause of action against the named nondiverse defendants. See Chicago, Rock Island Pacific Ry. Co. v. Schwyhart, 227 U.S. 184 (1913); Triggs v. John Crump Toyota, Inc., 154 F.3d 1284 (11th Cir. 1998).
Additionally, Rule 19(a)(1) of the Federal Rules of Civil Procedure provides that additional persons may be joined as a party in an action if "in the person's absence complete relief cannot be accorded among those already parties. . . ." FED. R. Civ. P. 19. Plaintiffs in the instant case seek to join parties who have a demonstrable relationship to the situs of the alleged negligence. There is no indication the joinder would be fraudulent or made in bad faith, Plaintiffs have an arguable basis for linking the two nondiverse parties, Hawkins Construction, Inc. and Michael Williams, to the design and/or maintenance of the parking lot area in which Plaintiff Kathleen M. Pettibone fell. Since Florida law provides that fault be apportioned among all potentially negligent parties in negligence lawsuits, it is appropriate for the Court to grant leave to amend the complaint in the instant case to include all potential defendants identified by Plaintiffs. Fabre v. Marin, 623 So.2d 1182 (Fla. 1993) (reversed on other grounds); Walmart v. McDonald, 676 So.2d 12 (Fla. 1st DCA 1996).
Accordingly, it is hereby
ORDERED:
1. Plaintiffs' Motion for Leave to File Amended Complaint (Doc. #17) is GRANTED.
2. Plaintiffs are directed to file the Amended Complaint in compliance with all applicable rules, and which shall be identical in form and content to Exhibit A of the instant motion, within ten (10) days of this Order.
3. Plaintiffs shall serve the Amended Complaint upon Defendants, forthwith.
DONE AND ORDERED