The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SANDRA COPE, )
)
Plaintiff, )
)
vs. ) Case No. 3:22-CV-1524-MAB
)
DG RETAIL, LLC, )
)
Defendant. )
MEMORANDUM AND ORDER
BEATTY, Magistrate Judge:
Plaintiff Sandra Cope alleges that she was injured in the parking lot of the Dollar
General Store in South Roxana, Illinois (Doc. 1-1). She filed suit in state court against
Dollar General Stores, LLC, DG Retail LLC, and the John Doe manager of the store in
question, claiming their negligence caused her injury (Doc. 1-1). Defendants removed the
case to federal court on July 14, 2022, asserting diversity of citizenship as the basis for
federal subject matter jurisdiction (Doc. 1). 28 U.S.C. §§1441(b), 1332(a).1
Four days after the case was removed, Plaintiff filed an amended complaint, which
identified the John Doe store manager as Tracy Malson (Doc. 7). Plaintiff
contemporaneously filed a motion to remand because Malson was a citizen of Illinois,
which destroyed diversity (Doc. 8). However, Plaintiff never served Tracy Malson, (see
1 Plaintiff alleged in the original complaint that the John Doe store manager was a citizen of Illinois (Doc.
1-1). However, the citizenship of parties sued under fictitious names is disregarded when determining
whether a civil action is removable on the basis diversity of citizenship. 28 U.S.C. § 1441(b)(1).
Doc. 25), and instead voluntarily dismissed Malson and Dollar General Stores, LLC in
early November 2022 (Docs. 28, 29, 30).
The case proceeded against only DG Retail, LLC for the next four months until
Plaintiff filed a motion for leave to amend her complaint (Doc. 40), which is presently
before the Court. In the motion, Plaintiff explained that she previously dismissed Tracy
Malson after she was presented with information that Malson was not the store manager
(Id. at p. 1). During the course of discovery, Plaintiff learned that the store manager was
Crystal Ann Grindstaff, and Plaintiff now wants to amend the complaint to name
Grindstaff as a defendant (Id.). Defendant DG Retail filed a response in opposition to
Plaintiff’s motion to amend, arguing that Plaintiff is seeking to fraudulently join
Grindstaff, who is a citizen of Illinois, for the sole purpose of defeating diversity
jurisdiction and getting the case remanded back to state court (Doc. 42, p. 2). Plaintiff did
not file a reply.
Plaintiff requested to amend her complaint pursuant to Rule 15(a)(2), which
provides that the court should freely grant leave to a party to amend its pleadings when
justice so requires. See FED. R. CIV. P. 15(a)(2). However, when a plaintiff seeks leave to
amend their complaint after removal in order to join a nondiverse defendant, like here,
the situation is governed by 28 U.S.C. § 1447(e). Schur v. L.A. Weight Loss Centers, Inc., 577
F.3d 752, 759 (7th Cir. 2009). Section 1447(e) provides, “[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.” 28 U.S.C. § 1447(e). “These are the only options; the district court may not
permit joinder of a nondiverse defendant and retain jurisdiction.” Schur, 577 F.3d at 759.
The decision whether to permit or deny post-removal joinder of a nondiverse party is
discretionary and “the court should balance the equities to make the determination.” Id.
(citing Mayes v. Rapoport, 198 F.3d 457, 463 (4th Cir. 1999)); Brown v. Alter Barge Line,
Inc., 461 F.Supp.2d 781, 784 (S.D. Ill. 2006). Specifically, the court should consider the
following factors: “(1) the plaintiff's motive for seeking joinder, particularly whether the
purpose is to defeat federal jurisdiction; (2) the timeliness of the request to amend; (3)
whether the plaintiff will be significantly injured if joinder is not allowed; and (4) any
other relevant equitable considerations.” Schur, 577 F.3d at 759.
In this instance, the presence of Grindstaff, whom Plaintiff alleges is a citizen of
Illinois (Doc. 40-1, ¶3), would destroy diversity jurisdiction. Neither party mentioned 28
U.S.C. § 1447(e) in their briefing or directly discussed the Schur factors (see Doc. 40; Doc.
42). Plaintiff did not even acknowledge the jurisdictional implications of joining
Grindstaff (see id.), or file a contemporaneous motion to remand. Rather, Plaintiff
innocuously asserted that “[t]his amendment is sought . . . only to name the correct party,
the store manager, an individual that Plaintiff has sought to name as a party from the
outset of the case.” (Id. at p. 2). Defendant’s only argument against joinder is an
unadorned assertion of fraudulent joinder, which bears on the first Schur factor regarding
Plaintiff’s motive for seeking joinder (see Doc. 42). Such a perfunctory argument does not
offer the Court any help in determining whether Plaintiff sought to join Grindstaff solely
to defeat diversity jurisdiction.
Consequently, the parties are ORDERED to submit supplemental briefing on
whether the Court should, in its discretion, permit joinder of a diversity-defeating party
and remand the suit to state court or why it should deny joinder and allow the case to
remain here. Plaintiff shall file her supplemental brief by July 24, 2023. Defendant’s
supplemental response is due fourteen days after Plaintiff’s supplemental brief is filed.
IT IS SO ORDERED.
DATED: July 10, 2023
s/ Mark A. Beatty
MARK A. BEATTY
United States Magistrate Judge