Dad's Enterprises, Inc. v. Sodexo Construction, Inc. et al, No. 3:2013cv00568 - Document 36 (M.D. Ala. 2014)

Court Description: OPINION AND ORDER: it is the ORDER, JUDGMENT, and DECREE of the court as follows: (1) The 31 responsive brief filed by dft Sodexo Construction, Inc., in opposition to the motion to amend filed by plf Dad's Enterprises, Inc., is treated as an o bjection to the court's 30 order granting the motion to amend; (2) Dft Sodexo Construction, Inc.'s 31 objection is overruled; (3) Pursuant to 28 USC § 1447(e), this lawsuit is remanded to the Circuit Court of Macon County, Alabama, for want of removal jurisdiction based on diversity of citizenship; DIRECTING the clerk to take appropriate steps to effect the remand; This case is closed in this court; copy mailed with certified docket sheet to Circuit Clerk. Signed by Honorable Judge Myron H. Thompson on 7/3/2014. (furn: calendar, ag)(term: PTC for 10/31/2014; Jury Trial for 12/01/2014) (Attachments: # 1 Civil Appeals Checklist) (wcl, )
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IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, EASTERN DIVISION DAD S ENTERPRISES, INC., ) ) ) ) ) ) ) ) ) Plaintiff, v. SODEXO CONSTRUCTION, INC., et al., Defendants. CIVIL ACTION NO. 3:13cv568-MHT (WO) OPINION AND ORDER Plaintiff Dad s Enterprises, Inc., brought this suit in Alabama Construction, state Inc., court and against other various state-law claims. defendantSodexo defendants, asserting According to the complaint, Sodexo contracted with Tuskegee University to construct a new dormitory, and Dad s in turn entered into a subcontract to perform some of the necessary work for Sodexo. The complaint alleges, in essence, that Sodexo and the other original defendants did not pay pursuant to the subcontract. Sodexo removed this case from state to federal court on August 8, jurisdiction. 2013, based on diversity-of-citizenship See 28 U.S.C. §§ 1332, 1441. Sodexo filed a third-party complaint against Tuskegee on January 13, 2014, and, on March 18, 2014, stipulated to the dismissal of the third-party complaint. On May 30, 2014, Dad s filed a motion to amend its complaint to add three new defendants, including Tuskegee, and the court granted that motion on June 9, 2014, albeit with leave to a nonmovement to file an objection afterward. Thereafter, Sodexo filed a response opposing Dad s motion to amend; because the court had already granted the motion, it will treat Sodexo s response as an objection to the court s order. The parties agree that, if the new defendants are added, diversity-of-citizenship will be destroyed because Dad s and the three new defendants, including Tuskegee, are all citizens of Alabama. 2 Under 28 U.S.C. § 1447(e), a district court has discretion in deciding whether to permit joinder of a diversity-destroying defendant. This subsection provides: 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 State court. 28 U.S.C. § 1447(e). In determining whether joinder is appropriate under § 1447(e), the court balances the equities involved. Tillman v. CSX Transp., Inc., 929 F.2d 1023, 1029 (5th Cir. 1991); Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir. 1987). [T]he court should consider the extent to which the purpose of the amendment is to defeat federal jurisdiction, whether asking amendment, for plaintiff whether has been dilatory plaintiff will in be significantly injured if amendment is not allowed, and any other factors bearing on the equities. F.2d at 1182. 3 Hensgens, 833 Applying the considerations articulated in Tillman and Hensgens, the court concludes that the new defendants should be added. proper claims defendants. seeks to It appears that Dad s desires to pursue against Tuskegee and the other new There is no credible evidence that Dad s add the jurisdiction. new defendants to defeat federal While Dad s filed its motion to amend some nine months after removal, circumstances have changed in the interim: Sodexo first filed a third-party suit against Tuskegee, and then dismissed that suit with prejudice, apparently through a settlement agreement. Dad s argued that these developments and other intervening events led it to add Tuskegee and the other new defendants into the case, and Sodexo has not explained satisfaction why that is not so. to the court s Finally, the court is not persuaded that Sodexo will suffer prejudice if the new defendants choice, are and added the apart court from finds 4 losing that the its forum of interests of efficiency would be best served if all the claims against all the defendants are tried by the same factfinder. *** Accordingly, it is the ORDER, JUDGMENT, and DECREE of the court as follows: (1) The responsive brief (Doc. No. 31) filed by defendant Sodexo Construction, Inc., in opposition to the motion to amend filed by plaintiff Dad s Enterprises, Inc., is treated as an objection to the court s order (Doc. No. 30) granting the motion to amend. (2) Defendant Sodexo Construction, Inc. s objection (Doc. No. 31) is overruled. (3) Pursuant to 28 U.S.C. § 1447(e), this lawsuit is remanded to the Circuit Court of Macon County, Alabama, for want of removal jurisdiction based on diversity of citizenship. 5 The clerk of the court is DIRECTED to take appropriate steps to effect the remand. This case is closed in this court. DONE, this the 3rd day of July, 2014. /s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE