United States District Court, N.D. Texas, Dallas Division
ESTATE OF BRANDON ALEX, through personal representative Detreasure Coker, and DETREASURE COKER, individually and as surviving mother of Brandon Alex, deceased, Plaintiffs,
T-MOBILE US, INC., f/k/a MetroPCS Communications, Inc.; T-MOBILE USA, INC.; T-SYSTEMS NORTH AMERICA, INC.; and DEUTSCHE TELEKOM NORTH AMERICA, INC., Defendants.
MEMORANDUM OPINION AND ORDER
BARBARA M. G. LYNN CHIEF JUDGE.
the Court is Plaintiffs' Motion to Remand. (ECF No. 19).
For the reasons stated below, the Motion is
Factual and Procedural Background
March 11, 2017, Brandon Alex was injured when he "fell
from a daybed." (Am. Compl. ¶ 12, ECF No. 10). His
babysitter found him "breathing too faintly."
(Id.) The babysitter repeatedly dialed 9-1-1 from
her cellphone, but was placed on hold each time.
(Id. ¶ 13). Collectively, the babysitter was
placed on hold for more than forty minutes. (Id.)
Unable to connect to the 9-1-1 dispatcher, the babysitter
contacted Brandon Alex's grandmother, Bridget Alex, who
later drove him to an emergency room. (Id.
¶¶ 13-14). Unfortunately, Brandon Alex was
pronounced dead soon after arriving at the hospital.
(Id. ¶ 14).
instituted this action in the 95th Judicial District, Court
of Dallas County, Texas, for claims arising from Brandon
Alex's death. Defendants removed the case on the basis of
diversity jurisdiction.(Not. of Removal, ECF No. 1). After
removal, Plaintiffs filed an amended pleading that joined the
City of Dallas as a defendant. (ECF No. 10). Arguing that
joinder of the City breaks complete diversity, Plaintiffs
move to remand for lack of subject matter jurisdiction. (ECF
No. 19). T-Mobile responds that the joinder was improper and
moves to strike from the pleading all claims against the
City. (ECF No. 22).
plaintiff must seek leave before amending any pleading that
would divest the court of subject matter jurisdiction.
See Irigoyen v. State Farm Lloyds, 2004 WL 398553,
at *1 (S.D. Tex. Jan. 5, 2004) ("Ignoring clear Fifth
Circuit precedent, the Plaintiffs in this case improperly
filed their actual first amended complaint, joining
nondiverse parties, instead of filing a motion for leave to
file an amended complaint."). The plaintiff must do so
even if the amendment is made as a matter of course under
Federal Rule of Civil Procedure 15(a). See Whitworth v.
TNT Bestway Transp. Inc., 914 F.Supp. 1434, 1435 (ED.
after removal, an amendment would join anon-diverse
defendant, the court may "deny joinder, or permit
joinder and remand the action to the State court."
See 28 U.S.C. § 1447(e). In making this
decision, the court should consider (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 amendment; (3) whether the plaintiff will be
significantly injured if amendment is not allowed; and (4)
any other factors bearing on the equities. See Hensgens
v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir. 1987).
Motion to Remand
and the City of Dallas are all citizens of Texas. See
Interstate Contracting Corp. v. City of Dallas, Tex.,
320 F.3d 539, 540 (5th Cir. 2003). Because there is not
complete diversity, joining the City as a defendant divests
the Court of subject matter jurisdiction. Accordingly,
Plaintiffs were required to seek leave before filing the
Amended Complaint, even if they could file it as a matter of
course under Rule 15(a). See Whitworth, 914 F.Supp.
at 1435 ("[A] party may not employ Rule 15(a) to
interpose an amendment that would deprive the district court
of jurisdiction over a removed action."). Because
Plaintiffs did not do so, joining the City was improper.
Furthermore, for the reasons state below, the Court denies
Plaintiffs' request for leave to join the City.
Whether the Purpose of the Amendment Is To Defeat
evaluating this factor, courts consider the viability of the
proposed claims alleged against the new defendant, the timing
of the plaintiffs attempt to add the defendant, and whether
the plaintiff knew or should have known the identity of the
new defendant prior to removal. See Appliance All, LLC v.
Sears Home Appliance Showrooms, LLC, 2015 WL 9319179, at
*5 (N.D. Tex. Dec. 23, 2015). The factor typically favors
joinder if the proposed claims are viable. See Patton v.
Ortho Dev. Corp., 2013 WL 2495653, at *2 (N.D. Tex. June
10, 2013). However, even when the plaintiff asserts viable
claims, if "the timing of the proposed amendment
suggests [the plaintiffs] principal purpose is to destroy
diversity, " the factor weighs against joinder.
Andrews Restoration, Inc. v. Natl Freight, Inc.,
2015 WL 4629681, at *5 (N.D. Tex. Aug. 4, 2015). In
particular, when a plaintiff did not seek to include a
non-diverse defendant from the beginning of the litigation
but seeks to add one "shortly after removal, but prior
to any additional discovery, [that indicates] that the
amendment is sought for the purpose of defeating
diversity." Andrews Restoration, Inc., 2015 WL
4629681, at *4 (finding notable that a plaintiff "waited
until nine days after removal, and almost two months after
commencing suit" to add non-diverse parties).
the circumstances surrounding Plaintiffs' Motion suggest
that the amendment is sought for the purpose of defeating
diversity jurisdiction. Plaintiffs provide no explanation for
why they waited nearly three weeks after removal to join the
City, despite knowing the basis of their claims against it.
(See PI. Mot. at 3, ECF No. 19 ("From the
outset, it should have been apparent to the T-Mobile entities
that diversity was incomplete because the City of Dallas is
also a proper party to this litigation."). This raises
serious doubts about Plaintiffs' motives. See also
Patton, 2013 WL 2495653, at *2 ("[W]hen a plaintiff
had reason to know about her proposed claims before removal,
and fails to provide a "persuasive explanation" for