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Estate of Alex v. T-Mobile US Inc

United States District Court, N.D. Texas, Dallas Division

February 21, 2018

ESTATE OF BRANDON ALEX, through personal representative Detreasure Coker, and DETREASURE COKER, individually and as surviving mother of Brandon Alex, deceased, Plaintiffs,



         Before the Court is Plaintiffs' Motion to Remand. (ECF No. 19). For the reasons stated below, the Motion is DENIED.

         I. Factual and Procedural Background

         On 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).

         Plaintiffs 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.[1](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).

         II. Legal Standard

         A 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. Tex. 1996).

         If, 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).

         III. Analysis

         a. Motion to Remand

         Plaintiffs 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.

         i. Whether the Purpose of the Amendment Is To Defeat Jurisdiction

         In 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).

         Here, 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 ...

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