Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

McCann v. Macy's Inc.

United States District Court, D. New Jersey

January 17, 2019

Gerald McCann and Judith McCann, Plaintiffs,
Macy's Inc., et al, Defendants.


          PETER G. SHERIDAN, U.S.D.J.

         This 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.


         On or about December 24, 2016, plaintiff Gerald McCann[1] 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).

         Plaintiffs 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 ¶ 16-17).

         Plaintiff 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).

         On January 22, 2018, defendant Diversified filed a notice of removal, [2] 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).


         This 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").

         Legal Analysis

         Fed. R. 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).

         "Though 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).

         Under 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 jurisdiction." Id.

         The 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.