United States District Court, S.D. Mississippi, Southern Division
ORDER DENYING MOTIONS TO AMEND AND REMAND
GUIROLA, JR. UNITED STATES DISTRICT JUDGE.
THE COURT are the  Plaintiff's Amended Motion to
Remand and  Motion to Amend Complaint. Defendant filed a
response to both motions, but there has been no reply by
Plaintiff. After due consideration of the record, arguments
of counsel and the relevant law, it is the Court's
opinion that amendment and remand should be denied.
Dan Wesley Brewer filed this lawsuit in the County Court of
Jackson County, Mississippi on June 6, 2019 alleging
alienation of affection by Defendant Benjamin Brian Hemphill.
According to the original Complaint, Hemphill and
Brewer's former wife began an affair in June 2016.
(Notice of Removal Ex. A, at 4-5, ECF No. 1-1.) Brewer
subsequently obtained a divorce, and by this lawsuit seeks
$200, 000 in compensatory and punitive damages from Hemphill.
removed the case to this Court on the basis of diversity
jurisdiction; he is a citizen of Louisiana, Brewer is a
citizen of Mississippi, and more than $75, 000 is at stake.
Brewer then moved to amend his complaint and for remand,
arguing that if he is allowed to amend his complaint as
requested, complete diversity would not exist. The proposed
Amended Complaint adds Brewer's former wife as a
defendant, and she is alleged to be a citizen of Mississippi.
His claims against her are for negligent and intentional
infliction of emotional distress. Allowing the proposed
amendment would destroy the diversity jurisdiction that
existed at the time this lawsuit was removed.
general rule, “jurisdictional facts are determined at
the time of removal, and . . . 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) (citations omitted). However,
28 U.S.C. § 1447(e) imbues the Court with the
post-removal discretion to either permit joinder of
non-diverse defendants and remand the action to state court
or deny joinder.
a plaintiff files an amended pleading that would destroy the
court's jurisdiction, ‘§1447(e) requires the
court to scrutinize the attempted amendment.'”
Parker v. CitiMortgage, Inc., No. 2:14CV173-KS-MTP,
2015 WL 2405168, at *2 (S.D.Miss. May 20, 2015) (quoting
Albritton v. W.S. Badcock Corp., No. 1:02cv378, 2003
WL 21018636, at *2 (N.D. Miss. Apr. 7, 2003)); see also
Moore v. Manns, 732 F.3d 454, 456 (5th Cir. 2013)
(“The district court should scrutinize an amended
pleading naming a new nondiverse defendant in a removed case
‘more closely than an ordinary amendment.'”).
“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.” Hensgens v. Deere & Co., 833
F.2d 1179, 1182 (5th Cir. 1987). “The court should
consider the extent to which the purpose of the amendment is
to defeat federal jurisdiction, whether plaintiff has been
dilatory in asking for amendment, whether plaintiff will be
significantly injured if amendment is not allowed, and any
other factors bearing on the equities.” Id.
analyzing the first Hensgens factor, 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.” Parker, 2015 WL
2405168, at *3 (citing Shelley v. Colo. State Univ.,
No. A-14-CA-516, 2015 WL 1004292, at *7 (W.D. Tex. Mar. 6,
2015); Anzures v. Prologis Tex. I LLC, 886 F.Supp.2d
555, 562 (W.D. Tex. 2012); Weathersby v. Gen. Motors
Corp., No. 4:04 cv 298, 2006 WL 1487025, at *3 (N.D.
Miss. May 24, 2006)). If the plaintiff knew about the
non-diverse party when he filed suit but omitted “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-CA-19-SS, 2015 WL 1275915, at *5
(W.D. Tex. Mar. 19, 2015) (quoting In re Norplant
Contraceptive Prods. Liab. Litig., 898 F.Supp. 433, 435
(E.D. Tex. 1995)).
knew about his former wife's involvement in the affair
when he filed his original Complaint against Hemphill in the
Jackson County Court. Indeed, there is little difference
between the factual allegations contained in the original
Complaint and the Amended Complaint. Brewer has merely added
allegations that his former wife “continually lied
about the affair to Plaintiff all the while continuing sexual
relations with your Plaintiff and Hemphill” in support
of his infliction of emotional distress claims against her.
(Am. Compl. 4, ECF No. 5-1.) The attempt to add her as a
defendant at this stage appears to be for the purpose of
destroying diversity jurisdiction. This is particularly so
because the “linchpin” of Brewer's remand
request is the addition of a non-diverse party, which
“strongly suggests” that the purpose of the
amendment is to defeat jurisdiction. Parker, 2015 WL
2405168, at *4 (citations omitted).
courts have also considered the viability of plaintiffs'
claims against proposed defendants under the first
Hensgens factor.” Parker, 2015 WL
2405168, at *3 (citing Anzures, 886 F.Supp.2d at
564; McKnight v. Orkin, Inc., No. 5:09CV17-DCB-JMR,
2009 WL 2367499, at *3 (S.D.Miss. July 30, 2009)). Hemphill
argues that Brewer cannot state viable claims against his
former wife for a number of reasons, but primarily because
the divorce proceedings resolved any possible emotional
distress damage issue between them. Assuming that Brewer has
stated viable claims against his former wife, the Court's
assessment of the first Hensgens factor remains
unchanged. See Anzures, 886 F.Supp.2d at 564.
Brewer's former wife could have been named in the
original Complaint, yet Brewer only sought to make her a
party after Hemphill removed the proceeding to federal court.
The Court thus finds that the first factor weighs heavily
against allowing Brewer to add her as a defendant.
to the second Hensgens factor, Brewer's request
for amendment was promptly made. This factor weighs in his
favor. However, the third factor - whether Brewer will be
significantly injured if amendment is not allowed - does not
weigh in his favor. The torts alleged against the former wife
- negligent and intentional infliction of emotional distress
- are alleged to have occurred when the defendants
intentionally carried on an affair. (Am. Compl. 4, ECF No.
5-1.) In connection with both infliction of emotional
distress claims, Brewer alleges that the actions
“invoked outrage and [revulsion].” (Id.)
There are no negligent actions alleged.
as here, the language used is consistent with an intentional
infliction of emotional distress claim, the court is to
disregard the plaintiff's label and treat the claim as
one for intentional infliction of emotional distress.
Carter v. Reddix, 115 So.3d 851, 858-59 (Miss. Ct.
App. 2012). The applicable statute of limitations for
intentional infliction of emotional distress is one year, and
Brewer alleges the affair began sometime prior to December
16, 2017. Id. at 859; (Am. Compl. 2, ECF No. 5-1.)
Brewer will not be significantly injured if he is unable to
bring apparently time-barred claims against his former wife.
the Court cannot discern any other equitable considerations
bearing upon the joinder of the non-diverse defendant, the
Court finds that the balance of the Hensgrens
factors weighs against allowing her addition to this lawsuit.