AUSTIN MILLER SABRINA MILLER v. BELLSOUTH TELECOMMUNICATIONS LLC AT LOUISIANA ET AL (2023)

RULING AND ORDER

Before the Court is the Plaintiffs' Unopposed Motion for Leave to File First Amended Complaint, filed by Austin and Sabrina Miller.¹ Plaintiffs seek leave to clarify that the correct name of Defendant AT&T Corp. is “BellSouth Telecommunications LLC d/b/a AT&T Louisiana,” as pleaded in AT&T's Answer, and to add DEMCO Energy Services, LLC and Dixie Electric Membership Corporation (collectively, “DEMCO”) as defendants.²

Notably, AT&T does not oppose the Motion. As the Motion was filed after the amendment deadline has passed,³ Fed. R. Civ. P. 16 applies and consideration of the Fed. R. Civ. P. 16 factors support amendment.⁴ Plaintiffs have provided an adequate explanation for the delay in seeking amendment, as they were not apprised of the involvement of DEMCO until after the deadline.⁵ Plaintiff then sought leave just over two months after the deadline. Further, the addition of DEMCO is important, as it is alleged to potentially bear liability to Plaintiffs, and adding DEMCO will not prejudice AT&T.⁶ For these same reasons, the Court finds that Plaintiffs have established good cause to amend under Fed. R. Civ. P. 15.⁷ Accordingly, the Motion will be granted, permitting Plaintiffs to name DEMCO as a party in this case and to correct the name of AT&T to “BellSouth Communications, LLC ⁸ d/b/a AT&T Louisiana.”

As Plaintiffs recognize, DEMCO is a Louisiana citizen and thus not diverse from Plaintiffs.⁹ The addition of DEMCO destroys diversity subject matter jurisdiction, and no other basis for the Court's jurisdiction has been alleged. According to 28 U.S.C § 1447(c), “If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.”¹⁰ The statute also specifically provides that, “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.”¹¹ This means that, where diversity is the only basis for the court's subject matter jurisdiction and a district court permits joinder of a non-diverse defendant, the case must be remanded to the state court.¹²

Since Plaintiffs will be granted leave to amend their Complaint to name DEMCO, two non-diverse entities, as defendants, § 1447(e) requires this Court to remand the matter to the Twenty-First Judicial District Court for the Parish of Livingston, State of Louisiana, for lack of subject matter jurisdiction under 28 U.S.C. § 1332.¹³

Accordingly,

IT IS ORDERED that Plaintiffs' Unopposed Motion for Leave to File First Amended Complaint, filed by Austin and Sabrina Miller,¹⁴ is HEREBY GRANTED. The Clerk of Court is directed to docket the First Amended Complaint at R. Doc. 12-1 into the record of this matter.

IT IS FURTHER ORDERED that, once the First Amended Complaint is docketed, this matter be REMANDED to the Twenty-First Judicial District Court for the Parish of Livingston, State of Louisiana, for lack of subject matter jurisdiction.

IT IS FURTHER ORDERED that the Clerk of Court shall TERMINATE this matter on the Court's docket.

Judgment shall be entered accordingly.

IT IS SO ORDERED.

Baton Rouge, Louisiana, this 7th day of November, 2023.

FOOTNOTES

1.   R. Doc. 12.

2.   R. Doc. 12, p. 1, R. Doc. 12-1 (First amended Complaint), and R. Doc. 5, introductory paragraph (Answer).

3.   R. Doc. 10.

4.   In determining “good cause,” a court must consider the following four factors: (1) the explanation for the failure to timely move for leave to amend; (2) the importance of the amendment; (3) potential prejudice in allowing the amendment; and (4) the availability of a continuance to cure such prejudice. S&W Enterprises, L.L.C. v. South Trust Bank of Alabama, NA, 315 F.3d 533, 536 (5th Cir. 2003) (citations omitted).

5.   R. Doc. 12, pp. 2-3.

6.   See, e.g., Dantin on Behalf of Templeton v. S. Home Care Serv., Inc., No. CV 16-692-SDD-EWD, 2017 WL 5762433, (M.D. La. Nov. 7, 2017), report and recommendation adopted, No. CV 16-692-SDD-EWD, 2017 WL 5760872 (M.D. La. Nov. 28, 2017).

7.   When determining whether to grant leave to amend pursuant to Fed. R. Civ. P. 15, a district court may consider the following factors: “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of amendment.’’ Dantin, 2017 WL 5762433 at *5, quoting Rhodes v. Amarillo Hosp. Dist., 654 F.2d 1148, 1153 (5th Cir. 1981).

8.   This amendment raises another jurisdictional issue, which is that the citizenship of BellSouth Communications, LLC has not been pleaded, so it is unclear whether that entity is diverse from Plaintiffs. However, this issue need not be reached because the case is being remanded as newly-added party, DEMCO, is not diverse from Plaintiffs.

9.   R. Doc. 12, p. 4.

10.   Dantin on Behalf of Templeton, 2017 WL 5762433 at *6, citing 28 U.S.C. § 1447(c).

11.   Dantin on Behalf of Templeton, 2017 WL 5762433 at *6, citing 28 U.S.C. § 1447(e).

12.   Dantin on Behalf of Templeton, 2017 WL 5762433 at *6, citing Cobb v. Delta Exports, Inc., 186 F.3d 675, 677 (5th Cir. 1999) (citing 28 U.S.C. § 1447(e)).

13.   Dantin on Behalf of Templeton, 2017 WL 5762433 at *6, citing Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir. 1987).

14.   R. Doc. 12.

SHELLY D. DICK CHIEF DISTRICT JUDGE MIDDLE DISTRICT OF LOUISIANA