544 F. Supp. 2d 496

Maxamilleon M. DOBBS, Plaintiff, v. JBC OF NORFOLK, VA, INC., a/k/a Jillian’s, and John Does, 1, 2, 3, 4, and 5, Persons Unknown, Defendants.

Civil Action No. 2:07cv427.

United States District Court, E.D. Virginia, Norfolk Division.

April 3, 2008.

*497Wesley B. Simon, Esquire, Rabinowitz Swartz Taliaferro Swartz & Goodove, Norfolk, VA, for Plaintiff.

Sarah M. Floyd, Esquire, William B. Tiller, Esquire, Tiller Law Group, Richmond, VA, for Defendants.

MEMORANDUM REMAND ORDER

REBECCA BEACH SMITH, District Judge.

This matter comes before the court on the plaintiffs motion to amend his complaint and his motion to remand this action to the Circuit Court of the City of Norfolk, Virginia. For the reasons set forth below, the plaintiffs motions are GRANTED.

I. Factual and Procedural History

This is a personal injury action arising from injuries sustained during a brawl at a nightclub which took place on September 1, 2006. On the night in question, the plaintiff, Maxamilleon M. Dobbs (“Dobbs”), was a patron at a nightclub owned by defendant JBC of Norfolk, Virginia, Inc. (“JBC”). At some point during the evening, a fracas broke out at the nightclub. According to his complaint, Dobbs was swept up in the mayhem, and was attacked by a group of people comprised of other patrons as well as JBC security personnel. Dobbs sustained injuries as a result, and now brings the following claims against JBC: assault and battery, negligent hiring and improper training, negligent supervision, and a premises security claim. He also seeks punitive damages.

Dobbs initially filed this action against JBC in the Circuit Court of the City of Norfolk, Virginia, on August 13, 2007, without service on JBC. On September 17, 2007, JBC removed the action to this court on the basis of diversity jurisdiction. See 28 U.S.C. §§ 1332, 1441.1 JBC filed an answer on September 19, 2007.

On November 7, 2007, the court granted Dobbs’s motion to amend his complaint to add defendants known only as “John Does 1 through 5” (the “John Does”).2 In a Memorandum Order filed on November 13, 2007 (the “November 13, 2007 Memorandum Order”), the court denied Dobbs’s motion to remand this action, which he filed on the basis that discovery would show that the presence of the John Does would destroy complete diversity. In denying Dobbs’s motion to remand, the court found that “the John Does fall into 28 U.S.C. § 1441(a)’s category of persons sued under fictitious names whose citizenship shall be disregarded for purposes of removal.” Dobbs v. JBC of Norfolk, VA Inc., 521 F.Supp.2d 531, 532 (E.D.Va.2007) (internal quotation marks and citations omitted). The court noted that Dobbs would “not lose his opportunity to remand the case, if it is determined during discovery that the presence [of] any of the John Does destroys diversity.” Id. (noting that the parties or the court may raise an objection to the court’s subject matter jurisdiction at any time). On November 15, *4982007, JBC filed an answer to Dobbs’s amended complaint.

On March 11, 2008, Dobbs filed a motion to amend his complaint for the second time, in order to add the following three defendants, all of whom were employed by JBC on September 1, 2006: Nathan Hilton (“Hilton”) and Dennis Benson (“Benson”), whom Dobbs claims directly injured him during the brawl, and Frank Melvin (“Melvin”), whom Dobbs claims was negligent in his hiring, training, and supervision of the employees who injured Dobbs on the night in question. Also on March 11, 2008, Dobbs filed a second motion to remand this action, because Hilton, Benson, and Melvin are Virginia citizens whose presence destroys complete diversity, and therefore adding them as defendants divests this court of subject matter jurisdiction. JBC filed a response in opposition to Dobbs’s motions to amend and remand on March 24, 2008,3 and Dobbs replied on March 26, 2008. The matter is ripe for review, and oral argument is not necessary for determination. See E.D. Va. Local Civ. R. 7(J).

II. Standard of Review

In cases such as this, where the plaintiff seeks to join nondiverse defendants after the case has been removed, the analysis begins with 28 U.S.C. § 1447(e). Mayes v. Rapoport, 198 F.3d 457, 461 (4th Cir.1999).4 Section 1447(e) 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 the State court.” Once the court determines that joinder is appropriate, remand is automatic: “the statute does not allow a district court to retain jurisdiction once it permits a nondiverse defendant to be joined.” Mayes, 198 F.3d at 462.

Under § 1447(e), the decision of whether to permit joinder “is committed to the sound discretion of the district court.” Id.; see also Coley, 138 F.R.D. at 467 (“Congress intended the courts to have broad discretion to allow joinder even though remand may-result.”). In exercising its discretion under the statute, the court will 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, *499198 F.3d at 462 (internal quotation marks and citations omitted). In deciding whether to allow the plaintiff to join nondiverse defendants, the court conducts a “balancing of the equities.” Id. at 463.

III. Analysis

The first factor that the court will examine is whether Dobbs seeks to join Hilton, Benson, and Melvin to this action for the specific purpose of avoiding federal jurisdiction. Mayes, 198 F.3d at 462-63. Dobbs does not appear to be seeking to avoid this court’s jurisdiction by requesting to add these defendants to this action. Because the events giving rise to Dobbs’s injuries took place in the midst of a chaotic barroom brawl, it is reasonable that Dobbs was unaware of the identities of these defendants at the time he filed his action in state court. It is also reasonable to assume that the only way that Dobbs could learn the identities of these defendants would be through discovery. Indeed, that appears to be what happened in this case.5 Compare id. at 463 (“[Wjhere ... a plaintiff seeks to add a nondiverse defendant immediately after removal but before any additional discovery has taken place, district courts should be wary that the amendment sought is for the specific purpose of avoiding federal jurisdiction.”).

Importantly, the allegations against Hilton, Benson, and Melvin, like the allegations against JBC, arise from the events of September 1, 2006. Because Dobbs seeks to add defendants whose identities he learned during the course of discovery, and whose actions are generally not distinct from the alleged actions of JBC, it is unfair to characterize Dobbs’s request for joinder as made for the specific purpose of avoiding federal jurisdiction. Compare McCaulley v. Purdue Pharma, L.P., 172 F.Supp.2d 803, 809-10 (W.D.Va.2001) (refusing to join a nondiverse defendant whom the court believed the plaintiff was trying to “squeeze” into the existing causes of action for the purpose of destroying diversity); Gum v. Gen. Elec. Co., 5 F.Supp.2d 412, 415 (S.D.W.Va.l998)(refus-ing to join defendants whose actions were distinct in fact and in theory from the actions of the initial defendants). JBC does not argue that Dobbs’s inclusion of Hilton, Benson, and Melvin amounts to fraudulent joinder. See Mayes, 198 F.3d at 463. If these defendants, along with defendant JBC, contributed to the injuries of which Dobbs complains, then Dobbs is entitled to join them as defendants to this action. See Fed.R.Civ.P. 20(a)(2). Accordingly, the court finds that Dobbs’s request to join Hilton, Benson, and Melvin is not made for the specific purpose of avoiding federal jurisdiction.

The next question the court asks is whether Dobbs was dilatory in requesting to join Hilton, Benson, and Melvin to this action. Mayes, 198 F.3d at 462. JBC points out that Dobbs was aware of the identities of Hilton and Melvin as early as November 1, 2007, and that Dobbs learned *500of the identity of Benson on February 6, 2008. JBC also notes that Dobbs did not seek to depose these witnesses prior to the deadline of Dobbs’s discovery period, which was February 19, 2008.6

JBC is correct in pointing out that Dobbs was not especially timely in seeking to join Hilton, Benson, and Melvin. However, in light of the apparent confusion surrounding the availability of JBC’s witnesses,7 and in light of the fact that Dobbs filed the instant motions approximately one month after learning of Benson’s identity,8 Dobbs’s apparent untimeliness, while weighing against him in the equation, is not so egregious as to foreclose the possibility of still ultimately ruling in his favor.9 Finally, in light of the court’s November 13, 2007 Memorandum Order, in which it was made explicit that Dobbs could re-file a motion to remand at the appropriate time, the court disagrees with JBC’s assertion that Dobbs filed the present motions solely for the purpose of avoiding an adverse ruling on JBC’s motion for summary judgment.10

The court next considers the injury to Dobbs if his request to join Hilton, Benson, and Melvin is denied. Mayes, 198 F.3d at 462. The court finds that this injury would be significant. In denying Dobbs’s first motion to remand, the court made it clear that Dobbs retained the opportunity to seek remand of the case, if discovery determined the existence of non-diverse defendants. Dobbs, 521 F.Supp.2d at 532.11 More importantly, if Hilton, Benson, and Melvin did in fact contribute to his injuries, as he alleges, Dobbs is entitled to seek redress from them. Furthermore, because these additional defendants were employees of JBC at the time of the events in question, Dobbs has a significant interest in resolving the allegations against them at the same time that the allegations against JBC are resolved.12

*501Finally, the court considers all of the other factors bearing on the equities in this case. Mayes, 198 F.3d at 462. Here, “the danger of parallel lawsuits in federal and state court, which may spawn inconsistent results and inefficient use of judicial resources,” is considerable. Id. at 463 (internal quotation marks omitted). If Dobbs proceeds to sue Hilton, Benson, and Melvin in state court for their role in the same events for which Dobbs is suing JBC in this court, this is an inefficient use of judicial resources with the potential for inconsistent results; it is very likely that both a state court and this court would have to resolve issues surrounding what, if any, liability for these defendants’ actions is imposed on JBC under the doctrine of respondeat superior.

However, in balancing the equities, the court also must consider JBC’s interest in retaining this federal forum, Gum, 5 F.Supp.2d at 414, as well as any undue prejudice to JBC from the decision to allow joinder and remand. Cf. Davis v. Piper Aircraft Corp., 615 F.2d 606, 613 (4th Cir.1980) (noting that undue prejudice to the nonmovant is a factor that should be considered when deciding whether to grant leave to amend under Rule 15); Gum, 5 F.Supp.2d at 414 n. 6 (same). In this regard, JBC should have been aware from the outset of this action, based on the nature of Dobbs’s lawsuit originally filed in state court and involving only state law claims arising from a sudden, chaotic brawl involving numerous individuals at a nightclub, that Dobbs could not necessarily be expected to know the identities of all of his alleged assailants at the time he filed the action in state court. Furthermore, it was surely foreseeable to JBC that once the identities of these alleged assailants were determined in discovery, federal jurisdiction premised on diversity might be destroyed. This fact, coupled with the November 13, 2007 Memorandum Order, which made this point explicit, see Dobbs, 521 F.Supp.2d at 532, put JBC on notice that nondiverse defendants may be joined and the action remanded according to § 1447(e). Cf. Murray v. State Farm Fire and Cas. Co., 870 F.Supp. 123, 126 (S.D.W.Va.1994) (finding no prejudice to the defendants when the plaintiffs sought leave to amend their complaint to include a nondiverse defendant whom it was clear they meant to include from the outset of the action). Finally, Dobbs does not seek to modify his existing claims against JBC, nor does he seek to bring any new claims against JBC. Accordingly, JBC will not be unduly prejudiced by a remand to state court.13

*502In sum, in balancing the equities, the court finds that it is proper to allow join-der of Hilton, Benson, and Melvin to this action. After such joinder, remand is automatic under 28 U.S.C. § 1447(e). See Mayes, 198 F.3d at 462.

IV. Conclusion

For the reasons set forth above, Dobbs’s motion to amend his complaint to add Nathan Hilton, Dennis Benson, and Frank Melvin as defendants in this action is GRANTED, and Dobbs’s motion to remand is GRANTED. This case is REMANDED to the Circuit Court of the City of Norfolk, Virginia, for all further proceedings. The Clerk is DIRECTED to send a copy of this Memorandum Remand Order to counsel for the parties, and to the Circuit Court of the City of Norfolk. Further, the Clerk shall take the necessary steps to effect the remand to state court.

IT IS SO ORDERED.

Dobbs v. JBC of Norfolk, Va, Inc.
544 F. Supp. 2d 496

Case Details

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Dobbs v. JBC of Norfolk, Va, Inc.
Decision Date
Apr 3, 2008
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544 F. Supp. 2d 496

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United States

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