United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
SHIRLEY PADMORE MENSAH UNITED STATES MAGISTRATE JUDGE.
case is before the Court on Plaintiff's Motion for Leave
to Amend Petition, Motion to Join Additional Defendant, and
Motion to Remand. (Doc. 11). On September 17, 2019, Plaintiff
filed his petition in the Circuit Court of the City of St.
Louis, State of Missouri, alleging counts of assault,
battery, negligence, and punitive damages against Defendant
Larry M. Hendrick. (Doc. 1-1-, at 3-7). Plaintiff alleges
that on or about September 6, 2019, Defendant attacked
Plaintiff by verbally threatening and physically assaulting
and battering Plaintiff.
December 12, 2019, Defendant removed the case to this Court
based on 28 U.S.C. §§ 1332(a), 1441(a), and
1446(b), alleging that Plaintiff is a citizen of Missouri,
that Defendant is a citizen of Kentucky, and that the amount
in controversy exceeds $75, 000. (Doc. 1). The same day,
Defendant filed a Motion to Dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(5), arguing that there was
insufficient service of process. (Doc. 6). Pursuant to a
motion for extension of time, Plaintiff's deadline for
responding to that motion is January 24, 2020. (Doc. 13).
now seeks leave pursuant to Federal Rule of Civil Procedure
15(a)(2) to amend his Petition and join as a defendant SLB
Acquisition LLC d/b/a Enterprise Center (“SLB”).
Plaintiff suggests that joinder is appropriate pursuant to
Rule 19 (requiring joinder of parties under certain
circumstances) or Rule 20 (a)(2) (stating that persons may be
joined in one action as defendants “if (A)any right to
relief is asserted against them jointly, severally, or in the
alternative with respect to or arising out of the same
transaction, occurrence, or series of transactions or
occurrences; and (B) any question of law or fact common to
all defendants will arise in the action”). Plaintiff
asserts that his claims against the defendants arise out of
the same transaction, occurrence, and/or series of
transactions or occurrences and that common questions of law
and fact will arise as to the two defendants. Plaintiff also
asks the Court to remand the case, stating that SLB is a
non-diverse defendant who will destroy this Court's
Rule 15(b)(2), “a party may amend its pleading only
with the opposing party's written consent or the
court's leave, ” and “[t]he court should
freely give leave when justice so requires.”
Fed.R.Civ.P. 15(b)(2). Additionally, 28 U.S.C. § 1447(e)
states, “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.”
Where, as here, joinder would destroy subject matter
jurisdiction, “courts have generally held that §
1447(e) gives the court the authority to deny joinder
notwithstanding any right the plaintiff may have to amend
under Rule 15.” Woodbury v. Courtyard Mgmt.
Corp., No. 4:11-CV-1049, 2012 WL 482344, at *3 (E.D. Mo.
Feb. 14, 2012). The Eighth Circuit has stated that
“[t]he district court, when faced with an amended
pleading naming a new nondiverse defendant in a removed case,
should scrutinize that amendment more closely than an
ordinary amendment.” Bailey v. Bayer CropScience
L.P., 563 F.3d 302, 309 (8th Cir. 2009) (quoting
Hensgens v. Deere & Co., 833 F.2d 1179, 1182
(5th Cir. 1987)). Under such circumstances, “The Court
is required to consider 1) the extent to which the joinder of
the nondiverse party is sought to defeat federal
jurisdiction, 2) whether [the] plaintiff has been dilatory in
asking for amendment, and 3) whether [the] plaintiff will be
significantly injured if amendment is not allowed.”
Id. (quoting Le Duc v. Bujake, 777 F.Supp.
10, 12 (E.D. Mo. 1991)). The Court must also “determine
whether the amendment involves the addition of parties that
are considered necessary or dispensable under Fed.R.Civ.P.
19(a)-(b).” Woodbury, 2012 WL 482344, at *3
(citing Bayer, 463 F.3d at 307).
has not submitted a proposed amended complaint-a deficiency
that, on its own, warrants denial of the motion for leave to
amend. See Popoalii v. Corr. Med. Servs., 512 F.3d
488, 497 (8th Cir. 2008) (“We have held. . . that
granting leave to amend a complaint where the plaintiff has
not submitted a proposed amendment is inappropriate.”).
The Court also notes that Plaintiff has not explained the
nature of the claims he seeks to add against the proposed new
defendant, why justice requires allowing him to add such
claims, whether he will be significantly injured if amendment
is allowed, or whether the party he seeks to add is
considered necessary or dispensable under Fed.R.Civ.P.
19(a)-(b). Under these circumstances, the Court cannot
determine whether it is appropriate to grant leave to amend
under Rule 15(a)(2) or § 1447(e). Therefore, Plaintiffs
Motion for Leave to Amend Petition and Motion to Join
Additional Defendant will be denied without prejudice.
Moreover, because the only basis for Plaintiffs Motion to
Remand is the possible presence of a party who has not yet
been joined, the Court will also deny the Motion to Remand.
If Plaintiff wishes to renew any of ...