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Colletti v. Menard, Inc.

United States District Court, E.D. Michigan, Southern Division

January 29, 2015

MENARD, INC. and JOHN DOE, Defendants.


MATTHEW F. LEITMAN, District Judge.


On August 30, 2014, Richard Colletti ("Colletti") died in a tragic accident at a retail store owned and operated by Defendant Menard, Inc. ("Menard") in Macomb County, Michigan. A wooden pallet containing ceramic tile appears to have fallen off a shelf, landed on top of Colletti, and killed him. Following Colletti's death, the Macomb County Probate Court appointed Colletti's wife, Cindy ("Mrs. Colletti"), as Personal Representative for his estate.

On September 4, 2014, Mrs. Colletti, through counsel, filed two civil actions against Menard in the Macomb County Circuit Court. Both actions arose out of Colletti's death. Mrs. Colletti filed the first action in her capacity as Personal Representative, and she sought damages on behalf of Colletti's estate. See Cindy Colletti, as Personal Representative for the Estate of Richard Colletti, Deceased v. Menard, Inc., Macomb County Circuit Court Case No. 14-3444-NO. Mrs. Colletti filed the second action on her own behalf and sought damages for negligent infliction of emotional distress. See Cindy Colletti v. Menard, Inc., Macomb County Circuit Court Case No. 14-3447-NO.

The "General Allegations" sections of Mrs. Colletti's two state-court complaints were essentially identical. In each complaint, Mrs. Colletti alleged that an unidentified Menard employee was negligent and/or grossly negligent in placing the pallet on the shelf and that Colletti's injuries and death were caused by that negligence. Menard was the sole defendant in both state-court actions; neither complaint named a Menard employee or a John Doe as an individual defendant.

On September 11, 2014, Menard removed both state-court actions to this Court, and they were assigned civil action numbers 14-cv-13538 and 14-cv-13539 (collectively the "Federal Actions"). Menard invoked this Court's diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). At the time of removal, complete diversity existed between the parties. Menard is a citizen of the State of Wisconsin; Mrs. Colletti - both personally and in her capacity as Personal Representative - is a citizen of Michigan.

On September 23, 2014, Mrs. Colletti (purporting to act pursuant to Rule 15(a)(1) of the Federal Rules of Civil Procedure) filed First Amended Complaints in the Federal Actions. The First Amended Complaints added a new defendant: John Doe. Mrs. Colletti alleged that John Doe - whom she alleged to be a Michigan citizen - is the Menard employee who negligently "placed the pallet" that fell on Colletti. The First Amended Complaints added a claim for negligence/gross negligence against John Doe individually. In addition, the First Amended Complaint in the action Mrs. Colletti brought on her own behalf added a count against John Doe individually titled "Negligence Infliction of Emotional Distress."

On September 24, 2014, Mrs. Colletti filed motions to remand the Federal Actions to state court. In these motions, Mrs. Colletti argues that the addition of John Doe as a defendant destroys diversity and divests this Court of subject-matter jurisdiction. ( See id. )

On November 5, 2014 (while the remand motions were still pending), Mrs. Colletti filed motions to amend her First Amended Complaints. In these motions, Mrs. Colletti says that on or about October 21, 2014, she learned that John Doe's name is actually Eric Davis ("Davis") and that Davis is a Michigan citizen. Mrs. Colletti seeks to add Davis as a named defendant in place of John Doe.

Menard opposed Mrs. Colletti's motions to amend and remand. The Court heard oral argument the motions on January 7, 2015.


Menard's removals of the actions filed by Mrs. Colletti in state court were proper. At the time of the removals, complete diversity existed between Mrs. Colletti and Menard (the only parties then in the case), and the amount in controversy in each action exceeded $75, 000.00. Thus, this Court had subject-matter jurisdiction at that time, see 28 U.S.C. § 1332(a), and Menard had the right to remove the actions to this Court. See 28 U.S.C. § 1446.

While Rule 15(a) of the Federal Rules of Civil Procedure generally governs the amendment of complaints, the rule does not apply to post-removal amendments that would add a non-diverse defendant and divest a federal court of subject-matter jurisdiction. Post-removal efforts to add a non-diverse defendant are governed by 28 U.S.C. § 1447(e). See, e.g., J. Lewis Cooper Co. v. Diageo North America, Inc ., 370 F.Supp.2d 613, 618 (E.D. Mich. 2005) ("Because removal was proper, and the motion to amend the complaint seeks to add a party that would destroy complete diversity, the factors articulated by the decisional law construing section 1447(e) should determine the propriety of allowing the amendment rather than the liberal amendment provisions of Rule 15(a)"); see also Phillip-Stubbs v. Walmart Supercent er, 12-cv-10707, 2012 WL 1952444, at * 3 (E.D. Mich. May 25, 2012) (collecting cases).

Section 1447(e) "appears to entrust the decision to allow joinder of a jurisdiction-destroying party to the court's discretion." J. Lewis Cooper, 370 F.Supp.2d at 618. In exercising that discretion, a court must consider "the diverse defendant's interest in selecting a federal forum, together with four other factors: (1) the extent to which the purpose of the amendment is to defeat jurisdiction; (2) whether the plaintiff was dilatory in seeking the amendment; (3) whether the plaintiff will be injured significantly if the amendment is not allowed; and (4) any other ...

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