Opinion
CIVIL ACTION NO. 03-2747, SECTION "K' (3)
December 4, 2003
ORDER AND REASONS
This defamation suit for damages against the plaintiff's former employer was removed from the Civil District Court for the Parish of Orleans pursuant to 28 U.S.C. § 1332 on grounds of the existence of complete diversity of citizenship and the requisite jurisdictional amount. Plaintiff now seeks to amend ins pleadings to add four non-diverse defendants. Plaintiff's motion to amend was denied pursuant to oral hearing for the following written reasons.
BACKGROUND
Plaintiff Donald Stewart ("Stewart") alleges in ins original petition that defendant Courtyard Management Corporation ("Courtyard"), a Delaware corporation, defamed him when it fired him based on alleged false accusations of involvement in a credit card fraud scheme. Stewart alleges that on March 31, 2003, after being questioned and falsely accused for hours, he was improperly relieved of ins employment with Marriott due to its belief that he was involved in credit card fraud. He brings claims for defamation and intentional infliction of emotional distress seeking compensation for pain and suffering, embarrassment, defamation of character, medical expenses, lost wages, attorneys fees and costs. Stewart originally sued only Courtyard and its fictitiously named insurer and did not sue the four non-diverse Courtyard co-employees, even though their participation in ins interrogation was discussed in ins Original Petition.
As set forth above, Stewart now seeks a post-removal amendment to ins pleading that will defeat tins Court's diversity jurisdiction. ins proposed amendment will accomplish two things: (1) add as defendants four non-diverse co-employees who were mentioned in ins original petition; and (2) add a claim for wrongful termination.
ANALYSIS
Under Federal Rule of Civil Procedure 15(a), leave to amend "shall be freely given when justice so requires." However, "[i]f 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, an amendment will destroy diversity, most authorities agree that the court should deny leave to amend unless strong equities exist in its favor. Suffice it to say, the right to freely amend as set forth in Fed.R.Civ.P. 15 does not apply in tins instance, involving a post-removal amendment adding non-diverse defendants.
28 U.S.C. § 1447(e); see also Cobb v. Delta Exports, Inc., 186 F.3d 675, 677 (5th Cir. 1999).
See Hensgens v. Deere Co., 833 F.2d 1179, 1182 (5th Cir. 1987).
See Williams v. Vincent International Inc., 192 F.R.D. 544, 548 n. 7 (S.D. Miss.) ( citing Hensgens, 833 F.2d at 1182 and Sharp v. Kmart Corp., 991 F. Supp. 519, 521 (M. D. La. 1998)).
Faced with an amended pleading naming new non-diverse defendants in a removed case, the Court should scrutinize that amendment more carefully than an ordinary amendment. In so doing, tins Court must consider (1) the extent to which the purpose of the amendment is to defeat diversity jurisdiction, (2) whether the plaintiff has been diligent in requesting an amendment, (3) whether the plaintiff will be prejudiced if the amendment is denied, and (4) any other factors bearing on the equities.
See 28 U.S.C. § 1447(e); Hensgens, 833 F.2d at 1182.
See Hensgens, 833 F.3d at 1182.
Here, as to the first factor, the defendant alleges that the plaintiff's sole motivation for amending ins complaint is to destroy diversity of citizenship. Plaintiff counters that he did not know the names or the residences of the defendants he now seeks to add. The Court here notes that it is not necessary to know an individual's residence or whereabouts to name him or her as a defendant. Regarding the problem of the name, the defendant points out that plaintiff was well aware of the full names of both General Manager Jay Dahlke ("Dahlke") and Front Desk Manager Latonia Bickham ("Bickham"). The defendant explains that Bickham terminated ins employment and Dahlke was present at that time. Additionally, there was written correspondence exchanged between the plaintiff and Courtyard management ( i.e., both Dahlke and Bickam), regarding Richardson's right to appeal ins termination, all of which predated the filing of the instant lawsuit. Turning to Courtyard's Supervisor of Security, Tyler Parker, and Assistant Director, Rodney Burke, they figured prominently in the Original Petition, but were not even named fictitiously, which was done in the case of Courtyard's insurer. in resolving the first factor, the crux of the issue is whether plaintiffs assertions discussed above are credible. They are not. There is little doubt that plaintiff should have at least known the names of Dahlke and Bickham, who terminated ins employment with Courtyard and exchanged written correspondence with the plaintiff before ins state court petition was filed. As to Courtyard's security director and assistant, the problem could have easily been resolved with a simple inquiry. The facts, therefore, suggest that the purpose of the motion to amend and add four non-diverse former co-employees is to defeat tins Court's subject matter jurisdiction.
The final two factors also suggest that the joinder of non-diverse defendants should be denied. First, Stewart will suffer no prejudice if the amendment is denied because Courtyard will be able to fully satisfy any judgment plaintiff receives in tins case. Moreover, the non-diverse individuals were acting within the course and scope of their employment with Courtyard at all pertinent times, remain so employed by Courtyard to date and the plaintiff is not entitled to multiple recoveries for the same injury in any event.
The plaintiff has not demonstrated to tins Court's satisfaction any fairness concerns which militate in favor of granting leave to amend; the Court has been unable to identify any on its own. The defendant highlights the fact that no prejudice will inure to the detriment of the plaintiff because the allegations, even as amended, assert that Courtyard is the sole cause of any damages suffered. Defendant further illustrates the futility of the proposed amendment, noting that Courtyard was the plaintiff's employer as opposed to the individuals sought to be added and thus the plaintiff cannot maintain a claim for wrongful termination against them. Even as to Courtyard, a wrongful termination claim does not lie because plaintiff was an at-will employee and thus could have been terminated at any time for no reason at all. Finally, the defendant points out that a defamation suit does not lie against the individual defendants under the facts pled because any statements made between employees within the course and scope of their employment are not statements communicated or publicized to third persons so as to constitute a publication.
See Johnson v. Delachamps. Inc., 897 F.2d 808, 810 (5th Cir. 1990); Stephen v. Wintney National Bank, 2000 WL 690258 * 2 (E. D. La.) (Chasez, M. J.); see also La. Civ. Code art. 2747.
See Doe v. Grant, 839 So.2d 408, 416 (La.App. 4th Cir. 2003); Bell v. Rogers, 698 So.2d 749, 756 (La.App. 2nd Cir. 1997); Marino v. Louisiana State University Bd. of Supervisors, 1998 WL 560290 * 14 (E. D. La.).
Therefore, equitable concerns do not compel joinder of these non-diverse defendants; moreover, the futility of the proposed amendment counsels against it. Accordingly and pursuant to the December 3, 2003 hearing, the Court issues the following order, to wit:
IT IS ORDERED that the plaintiff Motion for Leave to Supplement and Amend the Complaint is DENIED.
New Orleans, Louisiana,