2021 WL 4810914

United States District Court, E.D. Louisiana.
DONALD WILFORD, JR.
v.
NATIONWIDE MUTUAL INSURANCE CO., ET AL.
CIVIL ACTION NO: 21-1123
|
10/15/2021

JAY C. ZAINEY, UNITED STATES DISTRICT JUDGE, UNITED STATES DISTRICT COURT

SECTION: “A” (4)

ORDER AND REASONS
*1 The following motion is before the Court: Motion to Remand (Rec. Doc. 7) filed by Plaintiff, Donald Wilford, Jr. Defendants KJ York Enterprises, Inc. (“KJ York”) and Allied P&C Insurance Co. (collectively “Removing Defendants”) oppose the motion. (Rec. Doc. 10). The motion, submitted for consideration on August 4, 2021, is before the Court on the briefs without oral argument. For the following reasons, the motion is GRANTED.

I. BACKGROUND
This suit arises out of an automobile collision that occurred in Cullman County, Alabama on February 18, 2020. (Rec. Doc. 1-6, State Court Petition ¶ 2). Plaintiff, Donald Wilford, Jr., alleges that on the day of the accident he was riding in the passenger seat of a 2016 Ford truck, operated by Darron Guitroz and owned by KJ York, when Guitroz drove the truck into the path of a Kenworth tractor trailer. (Id.). Plaintiff contends that the collision was caused by Guitroz’s fault and negligence and that, as a result, he sustained “serious and permanent physical injuries.” (Id. ¶ 4). Plaintiff alleges that KJ York is vicariously liable for Guitroz’s negligence because, at all relevant times, Guitroz was an employee or agent of KJ York in the course and scope of his employment or agency. (Id. ¶ 5). Plaintiff further claims that, at the time of the accident, Nationwide Mutual Insurance Co. and Allied P&C Insurance Co. had an automobile liability insurance policy in full force and effect insuring KJ York and the driver of its vehicle. (Id. ¶ 6).

On February 18, 2021, Plaintiff initiated this lawsuit in Jefferson Parish state court against Defendants Nationwide Mutual Insurance Co., Allied P&C Insurance Co., KJ York Enterprises, Inc., and Darron Guitroz. (Rec. Doc. 1-6, State Court Petition ¶ 1). Removing Defendants removed this matter pursuant to 28 U.S.C. § 1332 and § 1441. (Rec. Doc. 1, Notice of Removal). While acknowledging Plaintiff’s and Defendant Guitroz’s shared Louisiana citizenship, Removing Defendants argue that Guitroz was improperly joined and, therefore, that his citizenship should be ignored for jurisdiction purposes. (Id.¶ 12). Specifically, Removing Defendants contend that Plaintiff was an employee of KJ York at the time of the accident, making him Defendant Guitroz’s co-employee and barring his negligence claim against Guitroz under the Louisiana Workers’ Compensation statute. (Id. ¶¶ 15–17). Plaintiff moves to remand the case back to state court contending that the parties are not completely diverse and that the joinder of Guitroz is proper because Plaintiff was not an employee of KJ York at the time of the accident. (Rec. Docs. 7, 7-1).

II. LAW AND ANALYSIS
Under 28 U.S.C. § 1441(a), a defendant may remove to federal court “any civil action brought in a State court of which the district courts of the United States have original jurisdiction.” Federal district courts have original jurisdiction over all civil actions between citizens of different states where the amount in controversy exceeds $75,000.00, exclusive of interest and costs. 28 U.S.C. § 1332(a)(1). The Court considers the jurisdictional facts that support removal as of the time of removal. Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000). The Court must presume that a suit lies outside of the limited jurisdiction of a federal court, and the burden of establishing federal jurisdiction rests on the party seeking the federal forum. Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001) (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). Because removal raises significant federalism concerns, any doubt regarding the propriety of removal jurisdiction must be resolved against federal jurisdiction and in favor of remand. Acuna v. Brown & Root, Inc., 200 F.3d 335, 339 (5th Cir. 2000) (citing Willy v. Coastal Corp., 855 F.2d 1160, 1164 (5th Cir.1988)). In the present case, Defendants removed the suit from state to federal court based on 28 U.S.C. § 1332, diversity jurisdiction. Therefore, Defendants carry the burden of proving that the prerequisites of § 1332—complete diversity of citizenship and an amount in controversy that exceeds $75,000—are satisfied. Stafford v. Mobil Oil Corp., 945 F.2d 803, 804 (5th Cir. 1991).

*2 The improper joinder doctrine constitutes a narrow exception to the rule of complete diversity. Cuevas v. BAC Home Loans Servicing, LP, 648 F.3d 242, 249 (5th Cir. 2011) (citing McDonal v. Abbott Labs., 408 F.3d 177, 183 (5th Cir. 2005)). Subsection (b) of the federal removal statute specifies that suits not arising under federal law are removable “only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 572 (5th Cir. 2004) (en banc) (quoting 28 U.S.C. § 1441(b)) (emphasis in original). Accordingly, in removal cases based on diversity jurisdiction and involving allegations of improper joinder, such as the present case, the removing party has the additional burden of proving the alleged fraud. Getty Oil Corp., a Div. of Texaco, Inc. v. Ins. Co. of N. Am., 841 F.2d 1254, 1259 (5th Cir. 1988) (citing B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981)). Therefore, Removing Defendants also have the burden of proving that Defendant Guitroz was improperly joined in this suit.

The Fifth Circuit has recognized two ways of establishing improper, or fraudulent, joinder.1 Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568 (5th Cir. 2004) (en banc). The removing party must prove: “(1) actual fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action against the non-diverse party in state court.” Smallwood, 385 F.3d at 573 (quoting Travis v. Irby, 326 F.3d 644, 646–47 (5th Cir. 2003)). Removing Defendants do not dispute that both Plaintiff and Defendant Guitroz are Louisiana citizens, so only the second method is implicated here. Under the second method, the removing defendant establishes improper joinder by “demonstrat[ing] that there is no possibility of recovery by the plaintiff against an in-state[, nondiverse] defendant,” or, said another way, “that there is no reasonable basis for the district court to predict that the plaintiff might be able to recover against an in-state[, nondiverse] defendant.” Cumpian v. Alcoa World Alumina, L.L.C., 910 F.3d 216, 220 (5th Cir. 2018) (quoting Smallwood, 385 F.3d at 573)).
The district court may resolve this inquiry in one of two ways. Int’l Energy Ventures Mgmt., L.L.C.
v. United Energy Grp., Ltd., 818 F.3d 193, 200 (5th Cir. 2016) (citing Smallwood, 385 F.3d at 573). First, the court may conduct a Rule 12(b)(6)-type analysis, looking at the allegations of the petition to determine whether it states a claim against the non-diverse defendant under state law. Id. If the plaintiff can survive a Rule 12(b)(6) challenge, then ordinarily there is no improper joinder. Smallwood, 385 F.3d at 573. “To pass muster under Rule 12(b)(6), [a] complaint must have contained ‘enough facts to state a claim to relief that is plausible on its face.’ ” Int’l Energy Ventures Mgmt., 818 F.3d at 200 (quoting Reece v. U.S. Bank Nat’l Ass’n, 762 F.3d 422, 424 (5th Cir. 2014)).

Alternatively, in cases where a plaintiff has stated a claim that satisfies Rule 12(b)(6), but has misstated or omitted discrete facts that would establish the propriety of joinder, “the district court may, in its discretion, pierce the pleadings and conduct a summary inquiry.” Cumpian v. Alcoa World Alumina, LLC, 910 F.3d 216, 220 (5th Cir. 2018) (quoting Smallwood, 385 F.3d at 573–74). However, Smallwood warns this “summary inquiry is appropriate only to identify the presence of discrete and undisputed facts that would preclude plaintiff’s recovery against the in-state defendant.” Smallwood, 385 F.3d at 573–74. Although the court may consider summary judgment-type evidence in the record, any piercing of the pleadings should not entail substantial hearings. Id; Travis v. Irby, 326 F.3d 644, 649. (5th Cir. 2003). Discovery should not be allowed unless it is sharply tailored to the question at hand and there has been a showing of its necessity. Smallwood, 385 F.3d at 573–74. Traversing outside of these restrictions places the court at risk of moving beyond jurisdiction and into the merits of the case. Id.

*3 The party claiming improper joinder bears the burden of persuasion, and that burden is a heavy one. Travis v. Irby, 326 F.3d 644, 649. (5th Cir. 2003). Accordingly, the court must view all unchallenged factual allegations, including those in the petition, in the light most favorable to the plaintiff and resolve “[a]ny contested issues of fact and ambiguities of state law in favor of the plaintiff.” Travis, 326 F.3d at 649 (citing Griggs v. State Farm Lloyds, 181 F.3d 694, 699 (5th Cir. 1999)). If there is at least one nondiverse defendant, there is no federal diversity jurisdiction. Int’l Energy Ventures Mgmt., L.L.C. v. United Energy Grp., Ltd., 818 F.3d 193, 202 (5th Cir. 2016). Thus, for the case to remain in federal court, Removing Defendants must prove that Defendant Guitroz was improperly joined.

At the outset, Plaintiff properly alleges a negligence claim against Guitroz so improper joinder is not established under the Rule 12(b)(6)-type analysis. Removing Defendants recognize as much but claim that Plaintiff has no reasonable possibility of recovery against Guitroz because Plaintiff and Guitroz were co-workers at KJ York and were in the course and scope of their employment at the time of the accident. (Rec. Doc. 10, p. 2). Thus, according to Removing Defendants, Guitroz is improperly joined because he is an immune co-employee under the Louisiana’s Workers’ Compensation Act (“LWCA”). (Id. p. 4). Accordingly, this court will “pierce the pleadings” and conduct a summary inquiry to determine whether Plaintiff has a reasonable possibility of recovering against Guitroz.

Under the LWCA, a plaintiff’s exclusive remedy against his or her employer or co-employee for work-related injuries is limited to workers’ compensation benefits, unless the injury results from an intentional tort. La. Rev. Stat. § 23:1032; see Larroquette v. Cardinal Health 200, Inc., 466 F.3d 373, 376 (5th Cir. 2006) (citing Cole v. State Dep’t of Pub. Safety & Corr., 825 So.2d 1134 (La. 2002)). To fall within the workers’ compensation recovery scheme there must be an employment relationship, the injury must arise out of or in the course of employment, and the plaintiff-employee must have suffered a compensable injury, as defined by the statute. See generally La. Rev. Stat. § 23:1032. Independent contractors, however, are generally excluded from Louisiana’s workers’ compensation regime. La. Rev. Stat. § 23:1021(7). Section 23:1021(7) of the Louisiana Revised Statutes states:
“Independent contractor” means any person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or as a whole, under the control of his principal as to results of his work only, and not as to the means by which such result is accomplished, and are expressly excluded from the provisions of this Chapter unless a substantial part of the work time of an independent contractor is spent in manual labor by him in carrying out the terms of the contract, in which case the independent contractor is expressly covered by the provisions of this Chapter….
Id. This means that an independent contractor engaged primarily in manual labor has a claim for workers’ compensation against his principal and the principal is immunized from a negligence suit. Jorge-Chavelas v. La. Farm Bureau Cas. Ins. Co., 917 F.3d 847, 851–52 (5th Cir. 2019). Thus, under Louisiana law, the improper joinder analysis pertaining to Guitroz turns on whether Plaintiff was an independent contractor or employee; and, if he was an independent contractor, whether a substantial part of his work time was spent in manual labor carrying out the terms of the contract.

*4 In support of Removing Defendants’ assertion that Plaintiff was an employee of KJ York at the time of the accident, they present an affidavit by Kimberly York, the co-owner of KJ York. (Rec. Doc. 10-1, Affidavit p. 1). Ms. York states that from March 2019 to February 18, 2020 Plaintiff was directly employed by KJ York as a technician, a manual labor position wherein Plaintiff loaded and unloaded garbage containers from KJ York vehicles. (Id.). Ms. York further claims that Plaintiff was provided with work uniforms and a monthly stipend for his phone and that Plaintiff received all work instructions directly from KJ York management. (Id.). Ms. York states that on the date of the accident, Plaintiff was traveling with co-employee Guitroz and that both were in the course and scope of their employment. (Id. p. 2). Ms. York’s affidavit also details the wages that KJ York paid Plaintiff in 2019 and 2020. (Id.). Removing Defendants attached the corresponding transaction reports as Exhibit 1A and Exhibit 1B. (Rec. Docs. 10-2, 10-3).

In Plaintiff’s reply memorandum in support of the Motion to Remand he claims he was an independent contractor at the time of the accident. (Rec. Doc. 14, p. 1). Plaintiff supports this contention with his own affidavit. Contrary to Ms. York’s affidavit, Plaintiff claims that he was contracted to KJ York as “Cart Specialist” from April 2016 to February 2020 (Rec. Doc. 14-1, Affidavit p. 1). Although he held employee status with KJ York for a few weeks in 2018 or 2019, Plaintiff says he ultimately negotiated with KJ York to be returned to the position of non-employee contractor. (Id.). Plaintiff’s affidavit states that he did not have a set work schedule, he had the authority to accept or deny jobs that KJ York offered him, and he could perform the jobs at his discretion without any direct supervision by KJ York. (Id.). Besides the brief period where he was labeled as “employee,” Plaintiff alleges that he was not paid employee wages or a monthly phone stipend and KJ York never deducted any taxes, social security, or other withholding from payments made to Plaintiff. (Id. p. 2). Instead, he claims he was paid a set amount per day worked. (Id. p. 1). Plaintiff alleges that KJ York provided him with a Form 1099-NEC for each year that he worked. (Id. p. 1). In support, he attached his Form 1099-NEC for the year 2020, the year of the accident. (Id. pp. 1, 3). The form shows that Plaintiff’s 2020 compensation from KJ York was labeled as “nonemployee compensation.” (Id.).

As previously indicated, Defendants contend that Plaintiff was an employee of KJ York, rendering workers’ compensation as Plaintiff’s exclusive remedy and barring his negligence claim against Guitroz. This is a proper legal conclusion under Louisiana law, if Plaintiff in fact had an employment relationship with KJ York as defined by the LWCA and Louisiana case law. However, both Plaintiff and Removing Defendants point to competing summary-judgment type evidence on this issue. Defendants provided evidence showing that Plaintiff was an employee of KJ York, while Plaintiff presented evidence indicating that he was an independent, non-employee contractor. This creates a disputed issue of fact which must be resolved in the Plaintiff’s favor during a summary inquiry.

The summary inquiry for improper joinder does not allow the Court to weigh evidence or to resolve material factual disputes as if it were sitting as the factfinder. And a resolution of this issue would require the Court to do so by assessing the credibility of Plaintiff and Ms. Kimberly. Such an inquiry would move the Court beyond the parameters prescribed by the Fifth Circuit. The law is clear that all factual disputes and ambiguities must be resolved in favor of the plaintiff and remand. Therefore, without definitive evidence that Plaintiff is an employee, or an independent contractor covered by the LWCA, Removing Defendants have failed to meet their “heavy burden” of proving that Plaintiff has no possibility of recovering against Defendant Guitroz. Accordingly, Defendant Guitroz is not improperly joined in this suit and the case shall be remanded for a lack of complete diversity between the parties.

*5 The Court notes that, although the parties dedicate their memoranda to debating the propriety of the joinder of Guitroz as a defendant, Removing Defendants’ notice of removal is deficient for failure to distinctly and affirmatively allege the parties’ citizenship. Specifically, Removing Defendants allege that KJ York is “domiciled and headquartered in Bayou Vista, Texas” rather than identifying the place of its incorporation and principal place of business (Rec. Doc. 1, Notice of Removal ¶ 10). Removing Defendants also failed to properly allege the citizenship of Allied P&C Insurance Co., a corporation. Defendants merely stated that Allied takes on the domicile of its insureds for removal purposes but failed to identify the insured or the insured’s citizenship. (Id.). Finally, Removing Defendants did not address the citizenship of Nationwide Insurance Co. Instead, in a footnote, they merely state that “[u]pon information and belief, only Allied P&C Insurance Company provided insurance coverage to KJ York Enterprises, Inc. on the date of the accident.” (Id.p. 4). Because this Court finds that there was no improper joinder and, therefore, a lack of complete diversity between the parties, the deficient notice of removal is a moot point.
Accordingly, and for the foregoing reasons;

IT IS ORDERED that the Motion to Remand (Rec. Doc. 7) filed by Plaintiff, Donald Wilford, Jr., is GRANTED. This matter is hereby REMANDED to the state court from which it was removed for lack of subject matter jurisdiction pursuant to 28 U.S.C. § 1447(c).

October 14, 2021
–––––––––––––––––––––––––––––––––––––

JAY C. ZAINEY

UNITED STATES DISTRICT JUDGE
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA OFFICE OF THE CLERK

CAROL L. MICHEL 500 POYDRAS ST. ROOM C-151
CLERK NEW ORLEANS, LA 70130
October 15, 2021
Clerk

24th Judicial District Court

Parish of Jefferson

PO Box 10

Gretna, LA 70054
RE: Donald Wilford, Jr.

v.
Nationwide Mutual Insurance Co., et al

Civil Action No. 21-1123 A (4)

Your No. 814-903 (Div. P)
Dear Sir:

I am enclosing herewith a certified copy of an order entered by this court on 10/14/2021 remanding the above-entitled case to your court.
Very truly yours,

CAROL L. MICHEL, CLERK
By: ______________________

Deputy Clerk
Enclosure

All Citations
Slip Copy, 2021 WL 4810914

Footnotes

1
The Court notes that the United States Court of Appeals for the Fifth Circuit has adopted the term “improper joinder” as the preferred term given that “improper joinder” is more consistent with the statutory language than “fraudulent joinder.” Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 571 n.1 (5th Cir. 2004) (en banc).

2021 WL 4772844

United States District Court, M.D. Florida,
Jacksonville Division.
Zachary KUHN, an individual, Plaintiff,
v.
Sean APGAR, an individual, and U.S. Foods, Inc., a foreign profit corporation licensed to do business in the State of Florida, Defendants.
CASE NO. 3:21-cv-107-BJD-MCR
|
Signed 10/13/2021
Attorneys and Law Firms
Seth Hendon Studer, Kirilloff Jowers, Jacksonville, FL, for Plaintiff.
Sean Michael McDonough, Steven Edward Hermosa, Hatthalay Tai Phetsanghane, Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, Orlando, FL, for Defendants.

ORDER
MONTE C. RICHARDSON, UNITED STATES MAGISTRATE JUDGE
*1 THIS CAUSE is before the Court on Plaintiff’s Motion to Amend Complaint and to Join James Boyd Davey as Party Defendant (“Motion”) (Doc. 14) and Defendants’ Response in Opposition thereto (“Response”) (Doc. 15). For the reasons stated herein, the Motion is DENIED without prejudice.

I. Background
This negligence action arises out of a collision between Zachary Kuhn’s automobile and a tractor trailer operated by Sean Apgar and owned and/or maintained by U.S. Foods, Inc., which took place in Duval County, Florida, on March 20, 2017. (Doc. 3 at 2.) The Complaint alleges that at all material times, Kuhn was a resident of Duval County, Florida; Apgar was a resident of Beaufort County, South Carolina; and U.S. Foods was a foreign corporation licensed to do business in the State of Florida, with its principal place of business in Rosemont, Illinois. (Id.) In their Answer, Defendants admit that Apgar is a resident of South Carolina for jurisdictional purposes and that U.S. Foods is a corporation incorporated in Delaware, with its principal address in Illinois, and authorized to conduct business in Florida. (Doc. 4 at 1.) Although both the Complaint and the Answer were originally filed in state court, Defendants removed the action to this Court on January 28, 2021 based on diversity jurisdiction. (See Doc. 1.)

II. The Parties’ Positions
Pursuant to Rules 15(a)(2), 19(a)(1)(A), 20(a)(2)(A) and (B) of the Federal Rules of Civil Procedure, Plaintiff seeks leave to amend his Complaint to join James Boyd Davey as a party Defendant in this action. (Doc. 14.) Davey was the driver and owner of a vehicle that struck Plaintiff’s vehicle on January 31, 2020. (Id. at 1.) Plaintiff explains:
The existence of this collision and Plaintiff’s intent to potentially amend complaint and join a party defendant was disclosed to Defendants and their counsel on May 13, 2021. Counsel for Plaintiff has also requested that the taking of Plaintiff’s deposition be moved for the purposes of an additional party potentially being present for said. However, the undersigned was not sent the entire case file from Plaintiff’s prior counsel for the January 31, 2020 crash for several weeks. On June 7, 2021, Plaintiff formally retained the undersigned attorney to represent him for his January 31, 2020 motor vehicle negligence claim against JAMES BOYD DAVEY.
Since Plaintiff’s January 31, 2020 collision, he has treated for injuries, including exacerbation of the injuries originally caused by the March 20, 2017 collision. Moreover, a substantial portion of Plaintiff’s medical treatment was provided by Dr. Frank Collier and/or Southeast Orthopaedic Specialists following both the March 20, 2017 and the January 31, 2020 motor vehicle collisions.
Deadline for discovery in this matter is currently set for April 25, 2022 but has thus far revealed intertwining medical issues of causation, aggravation, exacerbation, permanency and future prognosis between the collisions that occurred on March 20, 2017 and January 31, 2020. … Defendants will argue that the January 31, 2020 crash as [sic] an intervening cause relieving them of liability and damages into the future. Moreover, without the addition of the at[-]fault persons from the January 31, 2020 crash, namely JAMES BOYD DAVEY, as a party defendant in this action, it will be impossible to accord complete relief among the existing parties with respect to questions of law and fact common to all.
*2 (Id. at 1-2 (numbering omitted).) Plaintiff argues that his Motion is made in good faith, not for purposes of delay, and will not prejudice Defendants. (Id. at 3.)

Defendants argue that the Motion should be denied, because: (1) permissive joinder of Davey would be inappropriate; (2) even if appropriate, the requisite balancing test under 28 U.S.C. § 1447(e) requires denial; (3) Plaintiff failed to provide the substance of the proposed amendment or attach a copy of the proposed Amended Complaint; and (4) Davey is not an indispensable party or even a necessary one. (Doc. 15.)

III. Standard
Rule 15(a)(2) of the Federal Rules of Civil Procedure provides that “[t]he court should freely give leave [to amend pleadings] when justice so requires.” Fed.R.Civ.P. 15(a)(2). The Supreme Court has stated that “this mandate is to be heeded.” Foman v. Davis, 371 U.S. 178, 182 (1962). The Supreme Court further stated:
In the absence of any apparent or declared reason-such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.-the leave sought should, as the rules require, be “freely given.” Of course, the grant or denial of an opportunity to amend is within the discretion of the District Court, but outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules.
Id.

However, “[w]hen a plaintiff seeks to join a non-diverse defendant after a case has been removed, the analysis begins with 28 U.S.C. § 1447(e), rather than the liberal amendment standard of Rule 15 of the Federal Rules of Civil Procedure.” Henry v. K-Mart Corp., No. 8:10-cv-2105-VMC-MAP, 2010 WL 5113558, at *1 (M.D. Fla. Dec. 9, 2010); see also Hacienda Vill. Homeowners Ass’n, Inc. v. Marsh, Inc., No. 2:10-cv-604-JES-DNF, 2011 WL 2893113, at *2 (M.D. Fla. July 20, 2011) (“The decision concerning whether to allow a complaint which has been removed from state court to be amended is governed not by Rule 15(a) but by 28 U.S.C. § 1447(e).”).

Pursuant to 28 U.S.C. § 1447(e): “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). “District courts have broad discretion to decide whether, after removal, to permit joinder of a new defendant who would destroy diversity….” Hickerson v. Enter. Leasing Co. of Ga., LLC, 818 F. App’x 880, 885 (11th Cir. 2020). “In determining whether joinder of a non-diverse defendant should be permitted after removal, a district court must balance the equities involved.” Turner v. Pa. Lumbermen’s Mut. Fire Ins. Co., No. 3:07-cv-374-J-32TEM, 2007 U.S. Dist. LEXIS 78086, *15 (M.D. Fla. Oct. 22, 2007) (citations omitted). The following factors are considered: (1) the extent to which the purpose of the amendment is to defeat federal jurisdiction; (2) whether plaintiff has been dilatory in asking for the amendment; (3) whether plaintiff will be significantly injured if the amendment is not allowed; and (4) any other factors bearing on the equities. Id. at *15-16 (citations omitted).

*3 However, “[a] court first must address whether joinder is permissible under Federal Rule of Civil Procedure 20 and then address the appropriate course of action under § 1447(e).” Griffith v. Geico Gen. Ins. Co., No. 3:13-cv-460-J-32PDB, 2014 U.S. Dist. LEXIS 191837, *4 (M.D. Fla. Sept. 9, 2014) (citing Ingram v. CSX Transp., Inc., 146 F.3d 858, 862 (11th Cir. 1998)). Under Rule 20(a)(2), governing permissive joinder:
Persons … may be joined in one action as defendants if:
(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
(B) any question of law or fact common to all defendants will arise in the action.
Fed.R.Civ.P. 20(a)(2). “In determining what constitutes ‘the same transaction, occurrence, or series of transactions or occurrences,’ for the purpose of Rule 20(a)(2), courts have relied on the interpretation of what constitutes a ‘transaction or occurrence’ for the purpose of a compulsory counterclaim under Rule 13(a).” Griffith, 2014 U.S. Dist. LEXIS 191837, at *4-5 (citations omitted). “The Eleventh Circuit applies the ‘logical relationship’ test to determine if claims arise from the same transaction or occurrence.” Id. at *5 (citing Rep. Health Corp. v. Lifemark Hosps. of Fla., Inc., 755 F.2d 1453, 1455 (11th Cir. 1985)). “There is a logical relationship if ‘the same operative facts serve as the basis of both claims or the aggregate core of facts upon which the claim rests activates additional legal rights, otherwise dormant, in the defendant.’ ” Id. (citations omitted). “The second prong of Rule 20(a) requires only some question of law or fact common to all parties.” Id. (citations omitted).

In addition, “[a] person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if … in that person’s absence, the court cannot accord complete relief among existing parties.” Fed.R.Civ.P. 19(a)(1)(A). The two-step approach set out in Rule 19 can be described as follows:
First, it must be determined whether the party “is one who should be joined if feasible.” “Second, for all such necessary parties, a court determines whether the Rule 19(b) factors permit the litigation to continue if the party cannot be joined, or instead whether they are indispensable.” If the party is a required party, “but cannot be joined—i.e., because they are non-diverse—Rule 19(b) provides a list of factors to determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed.” …
The feasibility question turns on whether a person is subject to service of process and whether their joinder will deprive the court of subject matter jurisdiction.
Burgos Garcia v. Church of Scientology Religious Tr., No. 8:13-cv-220-T-27TBM, 2014 WL 12871007, *4 (M.D. Fla. May 2, 2014) (internal citations omitted).

IV. Analysis
As an initial matter, Plaintiff’s failure to set forth the substance of the proposed amendment or to attach a copy of the proposed amendment warrants denial of his Motion. See Mandala v. Tire Stickers, LLC, 829 F. App’x 896, 902 (11th Cir. 2020) (per curiam) (“A proper motion for leave to amend requires that a movant either (1) set forth the substance of the proposed amendment, or (2) attach a copy of the proposed amendment to the motion.”); McGinley v. Fla. Dep’t of Highway Safety & Motor Vehicles, 438 F. App’x 754, 757 (11th Cir. 2011) (per curiam) (finding that the district court properly exercised its discretion in denying leave to amend because plaintiffs neither set forth the substance of the proposed amendment nor attached a copy of the proposed amended complaint).

*4 Importantly, Plaintiff’s Motion does not mention Davey’s citizenship. Based on the crash report for the January 31, 2020 accident, Defendants infer that Davey resides in Florida. (See Doc. 15 at 2; Doc. 15-1.) However, as Defendants acknowledge, it is a party’s citizenship, rather than residency, that is determinative for diversity jurisdiction. (Doc. 15 at 2 n.1.) “The citizenship of an individual is determined by his or her ‘domicile,’ i.e. ‘the place of his true, fixed, and permanent home and principal establishment … to which he has the intention of returning whenever he is absent therefrom.’ ” Turner, 2007 U.S. Dist. LEXIS 78086, at *6 (quoting McCormick v. Aderholt, 293 F.3d 1254, 1257-58 (11th Cir. 2002)). “A party’s ‘domicile,’ rather than his or her residence, is determinative of citizenship for diversity jurisdiction.” Id. at *9-10. “The factors considered in determining domicile include home ownership, driver’s license, voting registration, location of family, location of business and where taxes are paid.” Id. at *11.

Plaintiff’s failure to allege Davey’s citizenship frustrates the Court’s analysis in determining whether joinder is proper. As such, the Motion is due to be denied without prejudice. Under the circumstances here, the Court need not analyze the issues in detail, but it appears that Plaintiff cannot show the propriety of joinder under Rule 20(a)(2). As Defendants explain:
In this case, the underlying auto accident between Plaintiff and Sean Apgar occurred on March 20, 2017, whereas the accident between Plaintiff and Davey occurred more than thirty-three months later on January 31, 2020. Plaintiff described the accident with Sean Apgar as a rear-end accident, and it appears the accident with Davey involved a side-swipe or “cutting off” of Plaintiff. There can be no logical relationship between these two accidents or claims because each has its own unique set of operative facts notwithstanding Plaintiff’s contention that the accident with Davey exacerbated injuries sustained in the accident with Sean Apgar.
(Doc. 15 at 5 (internal citations omitted).) Under similar circumstances, the district court in Oda found joinder improper under Rule 20, because the two accidents were “completely separate” and although they allegedly contributed to plaintiff’s injuries, the facts surrounding the two accidents were “wholly distinct from one another.” Oda v. United States, No. CV11-04514-PSG, 2012 WL 692409, *2 (N.D. Cal. Mar. 2, 2012). The court stated: “A finding of liability in one instance will have no bearing whatsoever on a finding of liability in the other, as the evidence required in determining liability in either case will be completely separate.” Id.

In addition, it does not appear that Davey is an indispensable party under Rule 19. “It has long been the rule that it is not necessary for all joint tortfeasors to be named as defendants in a single lawsuit.” Burgos Garcia, 2014 WL 12871007, at *4. In other words, jointly and severally liable defendants, like Davey, are permissive, not necessary, parties. Id. Also, as Plaintiff seeks monetary damages for Defendants’ alleged negligence, there is nothing to suggest that he could not recover them in Davey’s absence. See id. at *5-6.

Accordingly, it is ORDERED:

The Motion (Doc. 14) is DENIED without prejudice.

DONE AND ORDERED at Jacksonville, Florida, on October 13, 2021.

All Citations
Slip Copy, 2021 WL 4772844