United States District Court, S.D. Mississippi, Eastern Division
MEMORANDUM OPINION AND ORDER
STARRETT, UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff's Motion for
Leave to File Amended Complaint , Motion to Remand  and
Motion for Leave to File Affidavit and Proof of Residency of
Bertha McCormick . Having considered the parties'
briefs, the record, and the applicable law, the Court finds
that both the Motion for Leave to Amend and the Motion to
Remand should be denied and that the Motion
for Leave to File Affidavit should be denied as
Genora Wilson, alleges that Defendant McCann, while driving a
vehicle owned by Defendant Federal Express Corp.
(“FedEx”), negligently rear-ended Plaintiff on
July 6, 2015. Plaintiff is a resident of Mississippi. FedEx
is incorporated in Delaware, with its principal place of
business in Tennessee. While Plaintiff alleged that McCann is
a resident of Mississippi in her Complaint, McCann avers that
he is a resident of Ohio. Plaintiff filed suit on May 25,
2017 in the First Judicial District of Jasper County of
Mississippi. Defendants removed on the basis of diversity
jurisdiction. In their Answer , Defendants asserted that a
third party, Bertha McCormick, was responsible for all of
Plaintiff's damages, as McCormick allegedly swerved into
Plaintiff's lane shortly before the accident. Plaintiff
then moved to amend her Complaint to add McCormick as a
defendant. Since McCormick is also a resident of Mississippi,
Plaintiff also moved to remand, arguing that diversity
jurisdiction would no longer exist once McComick was added as
Standard of Review
courts are courts of limited jurisdiction, having ‘only
the authority endowed by the Constitution and that conferred
by Congress.'” Halmekangas v. State Farm Fire
& Cas. Co., 603 F.3d 290, 292 (5th Cir. 2010)
(quoting Epps v. Bexas-Medina-Atascosa Ctys. Water
Improvement Dist. No. 1, 665 F.2d 594, 595 (5th Cir.
1982)). Under 28 U.S.C. § 1441(a), this Court has
removal jurisdiction of any case where it has original
jurisdiction, and it has original jurisdiction in civil
matters between citizens of different states where the amount
in controversy exceeds $75, 000. 28 U.S.C. § 1332(a).
Generally, “jurisdictional facts are determined at the
time of removal, and consequently post-removal events do not
affect that properly established jurisdiction.”
Louisiana v. Am. Nat'l Prop. & Cas. Co., 746
F.3d 633, 636 (5th Cir. 2014) (citing Grupo Dataflux v.
Atlas Global Grp., L.P., 541 U.S. 567, 569-70
is, however, an exception to the rule that jurisdictional
facts are determined at the time of removal. “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.” 28 U.S.C. §
1447(e). When faced with a request to add a
non-diverse defendant that would destroy jurisdiction, a
district court “should scrutinize that amendment more
closely than an ordinary amendment” and apply the
factors articulated in Hensgens v. Deere & Co.,
833 F.2d 1179, 1182 (5th Cir. 1987).
are two competing interests that guide our analysis: the
diverse defendant's interest in maintaining the federal
venue and the risk of wasting judicial resources through
maintaining parallel federal and state litigation.
Id. In balancing these interests, the court must
consider the four Hensgens factors: “(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 plaintiff will
be significantly injured if amendment is not allowed, and (4)
any other factors bearing on the equities.”
Id. (enumeration added).
Plaintiff's Purpose in Seeking Amendment
analyzing Plaintiff's purpose in amending her Complaint,
district courts often consider “whether the plaintiff
knew or should have known of the identity of the non-diverse
defendant when the original complaint was filed.”
Sills v. Beal Bank, SSB, No. 2:15-cv-90-KS-MTP, 2015
WL 5642913, at *2 (S.D.Miss. Sept. 24, 2015); Anzures v.
Prologis Tex. I LLC, 886 F.Supp.2d 555, 562 (W.D. Tex.
2012). “Where the plaintiff knew about the non-diverse
party's activities at the time he filed suit but did not
include that party as an original defendant, ‘courts
have viewed any later attempt to add the nondiverse party as
a defendant as nothing more than an attempt to destroy
diversity.'” Wein v. Liberty Lloyds of Tex.
Ins. Co., No. A-15-cv-19-ss, 2015 WL 1275915, at *5
(W.D. Tex. Mar. 19, 2015).
is no question that Plaintiff knew McCormick's identity
on the date of the accident.Nevertheless, when a plaintiff
knows a potential defendant's identity but was unaware of
facts giving rise to that defendant's liability, courts
have made exceptions. Plaintiff unsuccessfully attempts to
align herself with such cases by comparing her situation to
that of the plaintiff in Lowe v. Singh, No.
H-10-1811, 2010 WL 3359525 (S.D. Tex. Aug. 23, 2010). In
Lowe, Plaintiff alleged that she was a passenger in
a car driven by Banfield when it was struck by an 18-wheeler
from behind. Id. at *1. Plaintiff sued the company
that owned the 18-wheeler and the driver. Id.
Defendants removed based on diversity. Id. Plaintiff
then moved to join Banfield, based on Defendants'
assertion in their answer that Banfied “may have
stopped suddenly contributing to the cause of the
collision.” Id. at *2. In analyzing the
plaintiff's purpose, the Lowe court stated:
“Here, though Plaintiff surely knew Banfield's
identity as of the time of the accident, Plaintiff alleges
that she desires to amend ‘because discovery has raised
facts supporting the claims raised.'” Id.
Plaintiff argues that her case is similar to Lowe
because she “seeks to bring in McCormick due to
Defendants [sic] allegations that McCormick was the sole
proximate cause of the accident.” Reb. Supp. Leave
Amend 14, ECF No. 20.
Lowe, the Defendants' Answer was not the first
time Plaintiff learned she may have had a claim against
McCormick since such facts were contained in the accident
report created the day of the accident. Anzures, 886
F.Supp.2d at 563 (distinguishing Lowe when plaintiff
knew of the facts supporting proposed non-diverse
defendant's liability since the beginning of litigation
and finding the purpose of plaintiff's amendment was to
destroy jurisdiction). Nor was there any discovery that
raised new facts to support a claim against McCormick that
Plaintiff previously did not know. Andrews Restoration
Inc. v. National Freight Inc., No. 3:15-cv-1336-M, 2015
WL 4629681, at *4 (N.D. Tex. Aug. 4, 2015) (“Where a
plaintiff ‘seek[s] to add nondiverse defendant shortly
after removal, but prior to any additional discovery, [that]
is further indication that the amendment is sought for the
purpose of defeating diversity.”) (quoting Martinez
v. Holzknecht, 701 F.Supp.2d 886, 889 (S.D. Tex. 2010)).
Rather, Defendants' assertions in their Answer were based
on the accident report that Plaintiff has had for the past
courts have also recognized that when a plaintiff states a
valid claim against a defendant, it is unlikely that the
primary purpose of bringing those defendants into a
litigation is to destroy diversity jurisdiction.”
Schindler v. Charles Schab & Co., Inc., No.
Civ.A.05-0082, 2005 WL 1155862, at *3 (E.D. La. May 12,
2005). Plaintiff therefore asserts that the only “real
issue” is whether she has stated a viable claim against
the proposed defendant. Reb. Supp. Leave Amend 5, ECF No. 20.
Plaintiff primarily cites Andrews Restoration Inc. v.
National Freight Inc. in support of her argument. While
the validity of Plaintiff's claim is a relevant inquiry,
the Andrews court recognized that whether the
plaintiff has asserted a plausible claim is not the only
consideration. Andrews Restoration Inc., 2015 WL
4629681, at *4 (stating that “if the plaintiff knew of
the nondiverse defendant from the outset and chose to exclude
him from ...