United States District Court, D. Maryland, Southern Division
J. Hazel United States District Judge.
Todd Levine ("Plaintiff or "Levine") moves to
amend his Complaint to add Jeannine Kokiko
("Kokiko") as a defendant in this action for
negligence. ECT No. 20. Defendant GBG. Inc.
("Defendant" or "GBG'") opposes
Plaintiffs Motion. ECF No. 22. No hearing is necessary.
See Loc. R. 105.6. Plaintiffs Motion for Leave to
Amend the Complaint. ECF No. 20. is hereby granted. However,
because the addition of this defendant voids this Court's
jurisdiction over the action, the case is remanded to the
Circuit Court for Montgomery County, Maryland.
case arises from bodily injuries Plaintiff allegedly
sustained at a Gold's Gym in Olney. Maryland, after a
spinning instructor "turned on the stereo ...
to an unreasonably high and dangerous volume, causing
acoustic trauma and injury to plaintiffs inner ear and
associated nervous system." ECF No. 2 at
Plaintiff filed a complaint against Defendant GBG Inc. t/a
Gold's Gym in the Circuit Court for Montgomery County.
Maryland (the "State Court") on April 15, 2016,
alleging one count of negligence. Defendant removed the
action to federal court on June 30. 2016. In its Notice of
Removal. Defendant alleged that the amount in controversy
exceeded $75, 000. and there existed complete diversity of
citizenship between the parties because Plaintiff is a
citizen of Maryland, and Defendant is "a business
incorporated under the laws of the State of Virginia with its
principal place of business in Dallas. Texas." ECF No. 1
at 1-2. A scheduling Order was issued, and the parties began
discovery on July 20. 2016. ECF No. 13.
November 3. 2016. Plaintiff tiled a Motion for Leave to Amend
the Complaint to include Jeannine Kokiko as a defendant in
his case. Plaintiff states that his counsel "received
executed discovery responses last week which identified the
spin class instructor/tortfeasor as Jeannine Kokiko. a
Maryland resident." ECF No. 20 ¶ 2. Plaintiff
further states. "Kokiko was required to have a
certification to teach the class, and was required to be
familiar with the Gold Gym's Group Fitness
Instructor's Manual. Said manual indicated that the music
volume for group fitness classes needed to be checked before
class was begun, and must be played at a safe level at all
times." Id. Thus. Plaintiff requested to
"amend f] his Complaint and add Jeannine Kokiko as a
party to this case." Id. ¶ 3. Defendant
submitted a brief Opposition to Plaintiffs Motion for Leave
to Amend the Complaint. ECF No. 22. Specifically. Defendant
argues that "[t]he Court should exercise its discretion
and decline to join Ms. Kokiko as a defendant since Plaintiff
has waived his right to make a claim against Ms.
begin, as we must in a diversity case, by examining the basis
for jurisdiction." Mayes v. Rapopori, 198 F.3d
457. 460 (4th Cir. 1999). "A defendant in a state civil
action may remove the case to federal court only if the
federal court can exercise original jurisdiction over at
least one of the asserted claims." Dean v. Navy Fed.
Credit Union, RDB 09-1989. 2009 WL 3817587. at *4 (D.
Md. Nov. 12. 2009} (citing 28 U.S.C. § 1441(a)-(c)
(2006)). "Federal courts have original jurisdiction over
two kinds of civil actions-those which are founded on a claim
or right arising under the Constitution, treaties or laws of
the United States, and those where the matter in controversy
exceeds $75, 000 and is between citizens of different
States." Id. at *5 (citing U.S. Const, art.
111. § 2; 28 U.S.C. §§ 1331. 1332(a)). Thus,
where a civil action is not based on a question of
constitutional or federal law. "a federal court may only
exercise original jurisdiction based on diversity of
citizenship." Id. "As the Supreme Court
has noted, "fi Incomplete diversity destroys original
jurisdiction with respect to all claims.'"
Id. (citing Exxon Mobil Corp. v. Allapattah
Servs., 545 U.S. 546. 554 (2005)). Further:
When a plaintiff seeks to join a nondiverse defendant after
the case has been removed, the district court's analysis
begins with 28 U.S.C. § 1447(e). which provides the
district court with two options: "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." These are the only two options for a district
court faced with a post-removal attempt to join a nondiverse
defendant; the statute does not allow a district court to
retain jurisdiction once it permits a nondiverse defendant to
be joined in the case.
Mayes. 198 F.3d at 461-62. It is uncontested that
Jeannine Kokiko. as a citizen of Maryland. would void
complete diversity if added to Plaintiffs suit. Accordingly,
the Court must determine whether to deny joinder, or permit
joinder and remand the action to the State Court.
Rule of Civil Procedure 15(a) provides that leave to amend
shall be freely given "when justice so requires."
and Rule 20 permits the joinder of proper parties.
Fed.R.Civ.P. 15(a)(2). 20(a)(2). However, "when faced
with an amended pleading naming a new nondiverse defendant
[as Kokiko] in a removed case." the Court "should
scrutinize that amendment more closely than an ordinary
amendment and should conduct a balancing of the equities
involved.'" Coley v. Dragon Ltd.. 138
F.R.D. 460. 465 (E.D. Va. 1990) (citing Ilemgens v. Deere
& Co.. 833 F.2d 1179 (5th Cir.I987)). On one hand,
if the joinder of the nondiverse defendant is denied,
"there is the danger of parallel lawsuits in federal and
state court, which may spawn inconsistent results and
inefficient use of judicial resources." Coley,
138 F.R.D. at 465 (citing Heininger v. Wecare
Distributors. Inc.. 706 F.Supp. 860. 862 (S.D. Fla.
1989)). On the other hand, if the joinder is permitted and
the action is remanded, the diverse defendant loses its
potential "interest in keeping the action in federal
court." Id. In exercising its discretion under
28 U.S.C. § 1447(e), the Court may consider all relevant
factors, including: "the extent to which the purpose of
the amendment is to defeat federal jurisdiction, whether the
plaintiff has been dilatory in asking for amendment, whether
the plaintiff will be significantly injured if amendment is
not allowed, and any other factors bearing on the
equities." Mayes v. Rapoport. 198 F.3d at 462;
Coley, 138 F.R.D. at 465.
the proposed amendment has the effect of defeating federal
jurisdiction, the record does not show that this was the
purpose of the amendment, or that Plaintiff has been dilatory
in seeking leave. Plaintiff states in his Motion for Leave to
Amend that he "received executed discovery responses
last week which identified the spin class
instructor/tortfeasor as Jeannine Kokiko." HCF No. 20
¶ 2 (emphasis added). While Plaintiff makes no argument
in his Motion for Leave to Amend regarding "significant
injury'' if joinder of Kokiko were to be denied, the
Court recognizes that Plaintiff could be injured by such a
denial, because he would be required to maintain separate
cases in two jurisdictions to obtain complete relief.
Opposition to Plaintiffs Motion for Leave to Amend. Defendant
acknowledges that "Ms. Kokiko is a citizen of the State
of Maryland and joining her as defendant would void diversity
jurisdiction." and citing to Mayes v. Rapoport.
198 F.3d 457. 461-63 (4th Cir. 1999). argues that "[t]he
Court should exercise its discretion and decline to join Ms.
Kokiko as a defendant since Plaintiff has waived his right to
make a claim against Ms. Kokiko." ECF No. 22 ¶| 4.
However. Defendant's citation to Mayes points to
no principle supporting such a waiver argument, nor does
anything in the record indicate that Plaintiff has waived his
rights to amend his Complaint.
extent that Defendant is intimating "fraudulent
joinder" on the part of Plaintiff. "fraudulent
joinder must be alleged with particularity and proved by
clear and convincing evidence consisting of facts rightly
leading to that conclusion, apart from the deductions of the
pleader." Coley. 138 F.R.D. at 465 (citing
Wilson v. Republic Iron & Sleel Co.. 257 U.S. 92
(1921)). The Fourth Circuit has made clear:
In order to establish that a nondiverse defendant has been
fraudulently joined, the removing party must establish
either: [t]hat there is no possibility that the
plaintiff would be able to establish a cause of action
against the in-state defendant in state court; or [t]hat
there has ...