United States District Court, D. New Jersey
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
matter comes before the Court on a motion filed by plaintiffs
to amend the complaint and remand the action to state court.
This slip-and-fall action was initially filed in New Jersey
Superior Court, Middlesex County, and removed to federal
court. Plaintiff now seeks to add as a defendant Lisa
Kwiatkowski, a citizen of New Jersey, allegedly the store
manager where the underlying incident occurred.
(Certification of William Bock (Bock Cert.), ECF No. 7-1 at
23, 26). For the reasons stated herein, the Court, in its
discretion, shall deny plaintiffs motion for leave to amend.
about December 24, 2016, plaintiff Gerald
McCann slipped and fell while at Macy's East
Brunswick in the Brunswick Square Mall. (Second Amended
Complaint (SAC) at ¶ 1-3). Plaintiff alleges defendants
negligently "owned, leased, maintained managed,
controlled, operated, inspected, constructed, and/or designed
said premises so as to cause a hazardous condition to exist
and cause Plaintiff to slip and fall," (SAC at ¶
4), and "failed to warn plaintiff of same, (SAC at
¶ 4). Plaintiff alleges he: suffered "permanent
injuries" and present and future "great pain";
"has and will in the future be required to expend large
sums of money for the cure and treatment of his
injuries" and "lost wages"; and "has been
and will in the future be unable to pursue his normal daily
activities as before." (SAC at ¶ 5).
are both citizens of New Jersey. (Notice of Removal (NOR),
ECF No. 1 at ¶ 1). The amended complaint (which was
removed) named the following defendants: Macy's, Inc. (a
Delaware corporation with its headquarters in Ohio);
Brunswick Square Mall, LLC (a Delaware corporation with its
headquarters in Indiana); WP Glimcher (an Indiana corporation
with offices in Ohio); and Diversified Maintenance Systems,
Inc. (a Delaware corporation with its principal place of
business in Illinois). (NOR at ¶ 3-11). Upon information
provided to the Court, plaintiff suffered a fractured elbow
and his claim exceeds $75, 000. (See NOR at ¶
filed the initial complaint in state court in September 2017
and filed an amended complaint in November 2017. (NOR at
¶ 1, 12). On December 20, 2017, after amending the
complaint once, plaintiff filed a motion for leave to file a
second amended complaint adding Suzanne Palumbo, a citizen of
New York, as a defendant upon the belief that she was the
floor manager at Macy's East Brunswick. (NOR at ¶
13-15; Bock Cert, at ¶ 18 & Ex. E, F).
January 22, 2018, defendant Diversified filed a notice of
removal,  initiating the action in federal court.
The state-court judge granted plaintiffs motion for leave to
amend the next day but later vacated its order because the
notice of removal was filed before the order. After the case
was removed, plaintiff filed this motion for leave to amend
the complaint to add Kwiatkowski and, as Kwiatkowski's
joinder would divest the Court of diversity jurisdiction,
also moved to remand. Defendants oppose the motion, arguing
"that Plaintiffs application to amend and remove is done
for the purposes of fraudulent joinder and that Ms.
Kwiatkowski's addition to this lawsuit has no impact upon
Plaintiffs liability or damages in the foregoing
action." (Defendants' Brief, ECF No. 8-2, at 6-7).
Court has diversity jurisdiction pursuant to 28 U.S.C. §
1332(a) because the action is between citizens of different
states and, although it is not alleged in any of the
complaints, it appears from the notice of removal that the
amount in controversy exceeds $75, 000. See St. Paul
Mercury Indent. Co. v. Red Cab Co., 303 U.S. 283, 288
(1938) (holding that dismissal is not warranted unless it
"appear[s] to a legal certainty that the claim is really
for less than the jurisdictional amount").
Civ. P. 15(a) allows a party to amend its pleading by leave
of court when justice so requires. Leave to amend pleadings
is to be freely given. Fed.R.Civ.P. 15(a)(2); see also
Foman v. Davis, 371 U.S. 178, 182 (1962). The decision
to grant leave to amend rests within the discretion of the
court. Foman, 371 U.S. at 182. "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).
not constitutionally required, the Supreme Court has long
insisted, as a matter of statutory interpretation, that
complete diversity between plaintiffs and all defendants
exist." Chem. Leaman Tank Lines, Inc. v. Aetna Cas.
& Sur. Co., 177 F.3d 210, 221 (3d Cir. 1999);
Strawbridge v. Curtiss, 1 U.S. (3 Cranch) 267
(1806). Addition of a nondiverse party will defeat
jurisdiction. Owen Equipment & Erection Co. v.
Kroger, 437 U.S. 365, 374 (1978). When faced with an
allegation that joinder after removal is made solely to
defeat federal jurisdiction, courts in this district have
looked to the test set forth in Hensgens v. Deere &
Co., 833 F.2d 1179 (5th Cir. 1987). Hoyden v.
WestfieldIns. Co., 586 Fed.Appx. 835, 840-41 (3d Cir.
2014); Milko v. Int'l Flavors &
Fragrances, Inc., No. 15-cv-8219(MAS)(TJB), 2016 WL
8709998 at 6-8 (D.N.J. July 29, 2016).
Hensgens the District Court "should use its
discretion in deciding whether to allow [a nondiverse
nonindispensible] party to be added." 833 F.2d at 1182.
The court should consider four factors: "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. "The
district court, with input from the defendant, should then
balance the equities and decide whether amendment should be
permitted. If it permits the amendment of the nondiverse
defendant, it then must remand to the state court. If the
amendment is not allowed, the federal court maintains
parties and the Court agree that the second factor weighs in
favor of remand because plaintiff filed this motion within
two weeks of Macy's identifying her. (See
Defendants' Brief, ECF No. 8-2, at 7; Plaintiffs Reply,
ECF No. 9, at ...