McIntosh v. Costco Wholesale Corporation
2:18-cv-09825
E.D. La.Jun 5, 2019Background
- McIntosh slipped and fell at a New Orleans Costco on June 10, 2018 and sued Costco and a named employee (Boedding) in state court for negligence. Costco removed to federal court based on diversity.
- The individual employee Boedding was later dismissed; McIntosh sought leave to amend to substitute/add three Costco employees ("B.C.T.", Sheila Brewer, Adrian McDonald), all Louisiana domiciliaries, which would destroy diversity.
- McIntosh moved to amend after learning the employees’ identities from Costco’s discovery responses and argued the amendment related back under Fed. R. Civ. P. 15(c) and would not prejudice defendants.
- Costco opposed; the court evaluated both Rule 15(a) principles and 28 U.S.C. § 1447(e) (joinder after removal), applying the Fifth Circuit’s Hensgens factors and the Canter standard for employee personal liability under Louisiana law.
- The magistrate judge concluded McIntosh alleged only general managerial/floor‑walk responsibilities, not personal duties or specific acts of fault required by Canter, and found the amendment motivated to defeat federal jurisdiction; the motion to amend was denied as futile and improper under Hensgens/§1447(e).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff may amend to add non‑diverse employees after removal (joinder that would destroy diversity) | Amendment relates back; learned names only after discovery; no prejudice; timely filed | Joinder is improper because it would defeat federal jurisdiction and allegations are insufficient to show personal liability | Denied — court exercised §1447(e) discretion under Hensgens to refuse joinder because motive was to defeat jurisdiction and allegations were insufficient |
| Whether leave to amend should be granted under Fed. R. Civ. P. 15(a) | Rule 15 favors liberal amendment; no undue delay; before scheduling deadline | Amendment is futile because allegations fail to state individual liability under Louisiana law (Canter) | Denied — Rule 15 factors weigh against amendment due to futility (no specific factual allegations of personal fault) |
| Whether plaintiff pleaded personal liability of the proposed employees under Louisiana law (Canter test) | Employees failed to conduct/ensure proper floor‑walks causing hazard | Plaintiff alleges only general supervisory/managerial duties, not delegation or personal fault | Held insufficient — general administrative duties do not establish personal liability; Canter requirements unmet |
| Whether plaintiff would be significantly injured if joinder denied (Hensgens third factor) | Prefers resolving all claims together in one forum; adding employees would allow suits in state court | Costco is primary liable; respondeat superior covers employee conduct; denying joinder does not cause significant prejudice | Denied — plaintiff not significantly injured; amendment unnecessary for complete relief and would be meritless |
Key Cases Cited
- Moore v. Manns, 732 F.3d 454 (5th Cir. 2013) (courts should scrutinize post‑removal amendments that add nondiverse defendants; factual allegations of personal fault required)
- Hensgens v. Deere & Co., 833 F.2d 1179 (5th Cir. 1987) (factors to weigh when joinder after removal would destroy jurisdiction)
- Priester v. JP Morgan Chase Bank, N.A., 708 F.3d 667 (5th Cir. 2013) (approving application of Hensgens factors)
- Tillman v. CSX Transp., Inc., 929 F.2d 1023 (5th Cir. 1991) (discussing standards for post‑removal joinder decisions)
- Foman v. Davis, 371 U.S. 178 (U.S. 1962) (Rule 15(a) policy favoring liberal amendment absent substantial reasons to deny)
- Canter v. Koehring Co., 283 So. 2d 716 (La. 1973) (establishes Louisiana test for personal liability of employee: delegation and personal breach of duty required)