United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE
Weibin Lam seeks leave to amend his complaint in order to add
a negligence claim against Nikita Thompson, a nondiverse
party and the decedent of his co-plaintiff, Nancy Thompson.
Defendants Joe-K Used Cars and General Motors separately
oppose Lam's motion to amend, asserting that Lam is
attempting to fraudulently join the nondiverse defendant in
order to divest this Court of subject-matter jurisdiction.
Because Lam's claim against Thompson has a reasonable
basis in fact and law, I will grant Lam's motion to
amend; further, because this Court will no longer have
subject-matter jurisdiction as a result of Thompson's
joinder, this action will be remanded to state court.
and Procedural Background
case arises from a car accident which resulted in the
untimely deaths of Nikita Thompson and Chananya Siripaph.
Thompson was turning left at an intersection when his car was
struck by an unknown driver of a stolen vehicle coming from
the opposite direction. Thompson's car burst into flames
on impact, and both he and Siripaph, who was sitting in
Thompson's passenger seat, were pronounced dead at the
scene of the crash.
2, 2019, plaintiffs Weibin Lam (Siripaph's husband) and
Nancy Thompson (Nikita's mother) jointly filed a wrongful
death action in Missouri state court against Michael Hunter,
the owner of the stolen vehicle which struck and killed
plaintiffs' decedents, and Joe-K Used Cars, the entity
that sold the vehicle to Hunter. Plaintiffs amended their
complaint on July 31, 2019, joining General Motors (GM), the
manufacturer of Thompson's car, as a defendant and adding
several tort and products liability claims against it. GM
answered and removed the action to this Court on August 27,
August 29, 2019, plaintiff Lam filed the instant motion to
amend, seeking to add a claim against Nikita Thompson and
Thompson's estate. In short, Lam alleges Thompson waited
several seconds at the intersection and did not begin turning
until his traffic signal turned yellow; accordingly, Lam
alleges Thompson's negligent driving contributed to
Siripaph's death. Defendants GM and Joe-K oppose
Lam's motion to amend, alleging Lam is simply attempting
to join Thompson, a Missouri citizen, in order to defeat
diversity and divest the Court of its subject-matter
jurisdiction under 28 U.S.C. § 1332(a). In response, Lam
maintains he intended on bringing a claim against Thompson
from the outset of this litigation, but that he did not do so
sooner because he had been engaged in unsuccessful settlement
negotiations with Thompson's insurance company until
approximately August 9, 2019. ECF 16 at pg. 4. For the
reasons that follow, I will grant Lam's motion to amend.
plaintiff seeks to join a defendant after a case has been
removed to federal court, and where such joinder would
destroy subject-matter jurisdiction, the court may either
deny joinder, or permit joinder and remand the action to
state court. Johnson v. Texas Roadhouse Holdings,
LLC, No. 4:10-CV-36 CDP, 2010 WL 2978085, at *1 (E.D.
Mo. July 23, 2010) (quoting 28 U.S.C. § 1447(e)).
Federal Rule of Civil Procedure 15(a) provides that leave to
amend a pleading should be freely given “when justice
so requires, ” but a particular standard applies when a
plaintiff seeks to add a nondiverse party after removal:
“In this situation, justice requires that the district
court consider a number of factors to balance the
defendant's interests in maintaining the federal forum
with the competing interests of not having parallel
lawsuits.” Bailey v. Bayer CropScience L.P.,
563 F.3d 302, 309 (8th Cir. 2009) (citation omitted).
Specifically, the Court must consider “1) the extent to
which the joinder of the nondiverse party is sought to defeat
federal jurisdiction, 2) whether plaintiff has been dilatory
in asking for amendment, and 3) whether plaintiff will be
significantly injured if amendment is not allowed, ”
Le Duc v. Bujake, 777 F.Supp. 10, 12 (E.D. Mo.
1991), as well as “any other factors bearing on the
equities.” Johnson, 2010 WL 2978085, at *2.
After carefully scrutinizing Lam's motion to amend in
consideration of these factors, I do not find that the
purpose of the amendment is to destroy diversity
the first factor, Lam seeks to add a colorable negligence
claim against Thompson based on video surveillance-supported
allegations that Thompson's negligent driving contributed
to the death of Lam's wife. ECF 11 at ¶ 7. In other
words, both the defendant sought to be added and the claim
brought against that defendant have legitimate bases in fact
and law. The mere fact that Thompson's joinder would
divest the Court of jurisdiction does not necessarily render
Lam's otherwise meritorious claim illegitimate. See
Hofmann v. Enter. Leasing Co. of Minnesota, LLC, No.
13-CV-255 (JNE/SER), 2014 WL 12601038, at *5 (D. Minn. Oct.
15, 2014) (“The Court finds the purpose of the
amendment is not to destroy diversity jurisdiction-although
that may be a natural consequence.”).
defendants note, Lam's motion to amend contains a request
to remand in light of the fact that the amendment would
destroy diversity. ECF 11 at ¶ 13. However, to the
extent defendants argue that Lam's transparency is
indicative of fraudulent intent, I disagree; to the contrary,
precedent in the Eighth Circuit encourages plaintiffs to be
open with the district court when their proposed amendments
would divest the court of jurisdiction. See, e.g.,
Hofmann, 2014 WL 12601038, at *6 (“[T]he fact that
the [plaintiffs] are transparent about their intentions for
remand does not automatically suggest that they seek to add
[a nondiverse party] for that sole purpose.”);
Johnson, 2010 WL 2978085, at *2 (“Failure to
inform the court that joinder of a defendant would destroy
diversity has been found to create a reasonable inference
that the defendant was joined for the purpose of defeating
federal jurisdiction.”). This factor thus weighs in
the second factor, Lam filed his motion to amend on August
29, 2019, which is less than two months after plaintiffs
originally filed the action in Missouri state court. ECF 1,
Ex. 3. Accordingly, Lam was not dilatory in seeking leave to
amend. See, e.g., Le Duc, 777 F.Supp. at 12 (holding
plaintiff was dilatory in seeking leave to amend where
plaintiff sought to add a new claim based on an incident that
occurred more than two years before she filed suit).
Lam has presented emails to support his claim that he was
engaged in settlement negotiations with Thompson's
insurer until shortly before GM removed the action to this
Court. ECF 16, Ex. 1. Lam has therefore provided a legitimate
explanation for his decision not to sue Thompson from the
outset, as well as his decision to move to amend promptly
after removal. ECF 16, Ex. 1. Unlike the plaintiff in
Johnson-who knew about the role of a nondiverse
defendant before filing suit and inexplicably did not move to
join said defendant until four months after removal-the
timing of Lam's motion to amend is entirely consistent
with the usual course of pre-trial litigation.
Johnson, 2010 WL 2978085 at *2.
the third factor, it would be impractical, inefficient, and
unnecessarily expensive to require Lam to maintain two
separate wrongful death actions against the defendants in
this action. Further, based on the facts alleged in
plaintiffs' complaint, there is also a distinct
possibility of inconsistent verdicts if two different juries
adjudicate the comparative fault of the various defendants.
In sum, the harm to Lam in maintaining separate lawsuits
would outweigh the harm to the defendants in having to
litigate this action in Missouri state court.
dispense with the remaining arguments in defendants'
memoranda in opposition, I first note that GM's reliance
on Ryan ex rel. Ryan v. Schneider Nat. Carriers,
Inc., 263 F.3d 816 (8th Cir. 2001), is misplaced. In
Ryan, the plaintiffs sought leave to amend their
complaint post-removal in order to add a claim against a
nondiverse co-plaintiff; rather than grant plaintiffs'
request, the district court instead construed the proposed
claim as a crossclaim in order to maintain complete
diversity. Id. at 819. Here, by contrast, Lam seeks
to add a separate claim against non-party Nikita
Thompson-not his co-plaintiff Nancy Thompson. Accordingly, as
a matter of law, Lam's claim against Nikita Thompson
could not be construed as a crossclaim. While a plaintiff
bringing a claim against a co-plaintiff's decedent may be
somewhat unusual, it is procedurally permissible under
Missouri and federal law: “A plaintiff or defendant
need not be interested in obtaining or defending against all