BOOKER v. THE KROGER CO (2026)

OPINION AND ORDER

This matter is before the Court on Plaintiff Erin Booker's motion for leave to join a nondiverse defendant [ECF 4] and her motion to remand [ECF 6]. After careful consideration, both motions are DENIED.

I. Background

On May 23, 2025, Booker initiated this action in the State Court of DeKalb County, Georgia, asserting various negligence claims against Defendant The Kroger Co. (Kroger).¹ Booker, a former employee of Kroger, alleges that she was sexually battered on three separate occasions while working at a Kroger store on Moreland Avenue in Atlanta.² She alleges that the same Kroger patron committed each battery and that Kroger was negligent in failing to institute reasonable precautions to safeguard against this risk.³

Kroger removed this action on April 13, 2026, invoking the Court's diversity jurisdiction.⁴ Kroger is a citizen of Ohio,⁵ Booker is a citizen of Georgia,⁶ and, according to Kroger, the amount in controversy is greater than or equal to $75,000.⁷ Kroger contends that its removal was timely because Booker did not plead a specific demand for damages and allegedly refused for some time to provide Kroger with her total amount of special damages, so the amount in controversy was not established until Booker's March 19, 2026 response to Kroger's third set of interrogatories.⁸

Booker seeks to remand this case for two reasons. First, she argues that the amount in controversy does not, contrary to Kroger's assertion, exceed $75,000.⁹ And second, she argues that the joinder she seeks will destroy complete diversity and requires remand.¹⁰

II. The Motion to Remand is denied.

A. Legal Standard

A civil action originally filed in state court can be removed to the federal district court embracing that state court if the district court has original jurisdiction over the case. 28 U.S.C. § 1441(a). “[W]hen an action is removed from state court, the district court first must determine whether it has original jurisdiction over the plaintiff's claims.” Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999). Under 28 U.S.C. § 1332, a federal district court has “original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between citizens of different States.” The party seeking removal “bears the burden of proving that federal jurisdiction exists.” Williams v. Best Buy Co., Inc., 269 F.3d 1316, 1319 (11th Cir. 2001).

To determine whether a case is removable from the face of the initial pleadings, a district court is permitted “to make reasonable deductions, reasonable inferences, or other reasonable extrapolations.” Roe v. Michelin N. Am., Inc., 613 F.3d 1058, 1061–62 (11th Cir. 2010). In other words, “a district court need not suspend reality or shelve common sense in determining whether the face of a complaint ․ establishes the jurisdictional amount.” Id. at 1062. Instead, “courts may use their judicial experience and common sense in determining whether the case stated in a complaint meets federal jurisdictional requirements.” Id. Removal statutes are construed narrowly, and all uncertainties are resolved in favor of remand. Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994).

B. Discussion

Neither party disputes that there is complete diversity between Booker and Kroger; rather, Booker argues that Kroger has not met its burden of showing that the amount in controversy is more than $75,000.¹¹ This argument is unavailing, as Kroger's notice of removal sufficiently establishes that the amount in controversy is well over $75,000.

Booker stated in discovery that she is seeking to recover $22,572.99 in medical expenses, $50,460 in lost wages, and an unspecified amount in attorney's fees under O.C.G.A. § 13-6-11.¹² This is in addition to the general damages (for pain and suffering and emotional distress) and punitive damages that she requests in the Complaint.¹³ Booker's medical expenses and lost wages alone total $73,032.99. From this, it is easy for the Court to make the “reasonable inference” that any number of her additional, unspecified damages amounts—be it her request for attorney's fees, punitive damages, or general damages—is more than $1,967.01, such that the amount in controversy exceeds $75,000.

Booker argues adamantly against this conclusion in her motion to remand, repeatedly misquoting Lowery v. Alabama Power Co., 483 F.3d 1184 (11th Cir. 2007) to argue, incorrectly, that courts cannot engage in inference-making—or, what she refers to as “unabashed speculation”—to determine the amount in controversy.¹⁴ Booker's assertions are misplaced. Courts certainly can, and often must, make reasonable inferences or deductions to determine the amount in controversy for jurisdictional purposes. See Roe, 613 F.3d at 1061–62 (permitting courts to make reasonable inferences to determine the amount in controversy). Lowery merely stands for the proposition that, when a notice of removal contains no allegations about the amount in controversy and lacks any facts from which the court may make reasonable deductions, the court may not guess at what the amount in controversy might be. 483 F.3d at 1210–11. None of that is the case here.

Accordingly, Booker's motion to remand for lack of subject matter jurisdiction is DENIED.

III. The motion for leave to join a nondiverse defendant is denied.

Having determined that removal was proper and that diversity jurisdiction exists, the Court now turns to Booker's motion for leave to amend her Complaint to add a nondiverse party. Booker seeks to add former Kroger manager Harrison Fair as a defendant.¹⁵ She premises her proposed amendment on Fed. R. Civ. P. 15, which provides that “[t]he court should freely give leave [to amend] when justice so requires,” and Fed. R. Civ. P. 21, which provides that, “[o]n motion or on its own, the court may at any time, on just terms, add or drop a party.”¹⁶ Booker argues that Fair should be joined because he was the store manager on duty when Booker was assaulted for the third time; according to Booker, Fair's alleged failure to file an incident report constitutes an independent act of negligence.¹⁷ Kroger opposes joinder on the ground that it is fraudulent—proposed only to defeat this Court's jurisdiction.¹⁸ Booker counters that she was unable to determine Fair's identity until recently because Kroger withheld this information.¹⁹

A. Legal Standard

Because Booker filed her motion to amend after Kroger timely removed the case, and because the proposed amendment would eliminate the Court's jurisdiction, the Court must apply 28 U.S.C. § 1447(e). This subsection 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.” Id.; see also Ingram v. CSX Transp., 146 F.3d 858, 862 (11th Cir. 1998) (“Because section 1447(e) was applicable here, the district court was left with only two options: (1) deny joinder; or (2) permit joinder and remand Ingram's case to state court.”); Smith v. White Consol. Indus., 229 F. Supp. 2d 1275, 1278 (N.D. Ala. 2002) (“What the court cannot do [under § 1447(e)] is allow an amendment that destroys federal jurisdiction and exercise jurisdiction over the case.”).

“Courts have regularly held that the liberal amendment standard in Rule 15 must yield to the more specific rule governing joinder after removal in Section 1447(e).” Liberacki v. Kroger Co., 2013 WL 12061882, at *2 (N.D. Ga. Apr. 18, 2013); see also Ascension Enters., Inc. v. Allied Signal, Inc., 969 F. Supp. 359, 360 (M.D. La. 1997) (“Thus, § 1447(e) trumps Rule 15(a).”). The Court must “scrutinize more closely an amended pleading that would name a new nondiverse defendant in a removed case because justice requires that the district court also balance the defendant's interests in maintaining the federal forum.” Dever v. Family Dollar Stores of Ga., LLC, 755 F. App'x 866, 869 (11th Cir. 2018). See also Reyes v. BJ's Rest., Inc., 774 F. App'x 514, 517 (11th Cir. 2019).

Ultimately, “the decision to join a non-diverse party is within the discretion of the court.” Johnson v. Lincoln Harris, LLC, 2016 WL 2733425, at *2 (N.D. Ga. May 10, 2016); see also 14C WRIGHT & MILLER'S FEDERAL PRACTICE & PROCEDURE § 3739.1 (rev. 4th ed. 2018) (“Thus, the statute, as amended, leaves the joinder issue to the discretion of the district court.”). However, the Court's discretion “does not imply that § 1447(e) amendments should be granted as a matter of course.” Sexton v. Progressive Preferred Ins. Co., 2009 WL 10664783, at *2 (N.D. Ga. July 28, 2009). When considering such proposed amendments, the Eleventh Circuit has applied the four-factor balancing test articulated by the Fifth Circuit in Hensgens v. Deere & Co., 833 F.2d 1179 (5th Cir. 1987). The Court should weigh:

(1) the plaintiff's motive for seeking joinder; (2) the timeliness of the request to amend; (3) whether the plaintiff will be significantly injured if amendment is not allowed; and (4) any other relevant equitable considerations.

Reyes, 774 F. App'x at 517; see also Dever, 755 F. App'x at 869.

B. Hengsens Analysis

1. Booker's Motive for Seeking Joinder

Booker's motivation for seeking joinder seems primarily, if not solely, based on defeating federal diversity jurisdiction. For starters, the parties had been litigating this case for nearly a year when Booker filed her initial motion to add Fair as a defendant—three days after Kroger removed the case.²⁰ Booker argues the only reason she did not seek to add Fair earlier is because Kroger withheld Fair's identity. This argument is unavailing for many reasons. Booker named her assailant as a John Doe defendant in her original Complaint.²¹ If Booker had wanted to assert claims against a supposedly unknown store manager from the outset, presumably she would have named another John Doe defendant, but she did not. See George v. Caribou Coffee, Inc., 2020 WL 13594963, at *3 (N.D. Ga. Oct. 20, 2020) (the plaintiff's intent to assert claims against an unknown defendant was made obvious by her naming that person as a John Doe defendant in the original complaint, prior to removal). Moreover, Fair and Booker were coworkers at a grocery store—it is hard for the Court to believe that she did not know the store manager's identity or that she had no way of discerning it other than through Kroger's disclosure of documents in discovery. In addition, the assertion that Kroger long withheld Fair's identity is simply unsupported by the record; discovery documents, discussed in more detail below, make clear that Fair's identity was established sometime in 2025, many months before Booker sought to add him as a defendant.²² As such, Booker's delay in moving for such leave strongly suggests that her motive for amendment is to defeat jurisdiction.

Also suggestive of an improper motive is the lack of clarity over what claims Booker intends to assert against Fair. She did not attach a proposed amended complaint to her motion. In briefing, Booker says she intends to assert a negligence claim against Fair for his failure to create a required incident report following the third alleged assault Booker experienced; she insists that this is “a cognizable claim under Georgia law,” yet she cites no authority in support of her assertion.²³ She also argues that she should be allowed to add Fair because his failure to create an incident report is the reason her assailant's identity is unknown and the reason that she is “left ․ without a remedy against the primary assailant.”²⁴ Whether Booker intends to assert a cause of action based on this theory or just poses it as an equitable argument in support of her proposed amendment is unclear; if the former, she has not specified any Georgia law that would permit such a claim. That Booker failed to attach a proposed amended complaint, coupled with how she struggles to articulate in briefing what claims she intends to assert against Fair, suggests that her true motive in seeking joinder is to force a remand, rather than to obtain relief.

Therefore, this first factor weighs against granting Booker's motion.

2. The Timeliness of Booker's Request to Amend

Booker's delay in seeking to join Fair also heavily weighs against her motion to amend. As mentioned, Booker waited nearly a year to request amendment and only did so after removal. Booker's attempts to justify her delay by claiming that Kroger had long withheld Fair's identity are unconvincing—especially considering that Fair's identity was established in this litigation as early as July 21, 2025 when Kroger named him in its first interrogatory responses.²⁵ Booker herself identified Fair as early as October 23, 2025 in her own interrogatory responses: When asked to identify “individual[s] likely to have discoverable information,” Booker twice identified “the Manager's [sic] on duty on the dates on the incidents ․ including․ Mr. Harrison (Manager).”²⁶

Given that Booker was aware of Fair's identity by July 2025, she could have sought joinder much sooner. But she did not, and she instead waited until just a few days after the case was removed to file her motion.

Therefore, this second factor weighs against granting Booker's motion.

3. Whether Booker Will Be Significantly Injured if Amendment Is Not Permitted

Booker argues she will be prejudiced if Fair is not joined because: (1) his status as only a nonparty witness will render certain discovery tools unavailable, and (2) claims against him could be barred by the statute of limitations.²⁷ Neither argument is convincing.

As to the first, while it is true that certain discovery tools are not available against nonparties, this inconvenience is not enough to show that Booker will suffer a significant injury if she cannot add Fair as a party. Under the facts of this case, it is unclear what relevant evidence Booker would need from Fair that she could not seek from him as a nonparty witness or otherwise obtain from Kroger. And as to Booker's second argument about the limitations period, that is a problem of her own making. Booker could have amended her pleading without leave of court any time before removal. O.C.G.A. § 9-11-15(a). Instead, she waited. That a claim against Fair might now be time-barred is the result of Booker's chosen litigation strategy.

Accordingly, this third factor weighs against granting Booker's motion.

4. Other Relevant Equitable Considerations

Lastly, as to the fourth factor, courts in this circuit have stated that “[i]n balancing the equities, the parties do not start out on an equal footing. This is because of the diverse defendant's right to choose between a state or federal forum. Giving diverse defendants the option of choosing the federal forum is the very purpose of the removal statutes.” Smith, 229 F. Supp. 2d at 1282 (citing Hensgens, 833 F.2d at 1181). Specifically,

[d]iversity jurisdiction and the right of removal exist to give non-resident defendants the right to litigate in an unbiased form. Just as plaintiffs have the right to choose to sue in state court when complete diversity does not exist, non-resident defendants have the right to remove to and litigate in federal court when diversity of citizenship does exist.

Id. Here, this policy favors Kroger, since granting Booker's motion to amend would deprive Kroger of its right to litigate in a federal forum that was properly available to it when the case was removed. Thus, Kroger's interest in its choice to remove to a federal forum weighs against permitting amendment.

* * * *

In sum, the Court finds that all four Hensgens factors weigh against permitting amendment. Accordingly, Booker's motion for leave to amend is DENIED.

IV. Plaintiff's Counsel's Misrepresentations to the Court

The Court will now address Plaintiff's counsel's repeated misrepresentations in briefing the instant motions. In both the remand and amendment motions, counsel misrepresents legal authorities, either by citing cases for propositions they do not contain, mispairing case titles and citations, or citing cases that do not exist at all. These are the hallmarks of a misplaced reliance on artificial intelligence tools and an utter carelessness about checking AI-generated work. But when undersigned specifically asked counsel about this during a June 26, 2026 status conference, counsel insisted that he “did not” use artificial intelligence tools in drafting the remand and amendment briefs. Apparently, then, the miscited, misrepresented, and made-up cases littered throughout Plaintiff's briefs are counsel's own creations. Counsel apparently prefers that the Court believe the fake cases, fake citations, and fake quotes are the byproduct of his own creative spin on brief-writing—where lawyers make up cases and quotes as they please. But whether imagined by AI or counsel himself, this is still an obvious violation of Fed. R. Civ. P. 11(b)(2), which requires that all legal contentions presented to the Court by lawyers “be warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.” Violations of this rule are subject to appropriate sanctions, monetary or otherwise, which may be imposed on the Court's own initiative after notice and an opportunity to respond. See Fed. R. Civ. P. 11(c). This Order serves as that notice.

The most major discrepancies that appear in Plaintiff's briefs are as follows:

Gardani. Plaintiff quotes “Gardani v. Target Corp., 914 F. Supp. 2d 1292, 1300 (S.D. Fla. 2012)” as stating that “the amount in controversy includes only the amount of attorney's fees accrued at the time of removal, not a projection of the amount of fees that may eventually be awarded.”²⁸ However, there is no case captioned “Gardani v. Target Corp.”—not in the Southern District of Florida or any other court that undersigned could readily find. The case that appears at “914 F. Supp. 2d 1292” is Cline v. Advanced Neuromodulation Systems, Inc., 914 F. Supp. 2d 1290 (N.D. Ga. 2012), which has nothing to do with the amount in controversy requirement.

Ingram. Plaintiff cites “Ingram v. CSX Transp., Inc., 679 F.3d 1280, 1287 (11th Cir. 2012)” for the proposition that the court “allow[ed] a post-removal amendment that destroy[ed] diversity.”²⁹ Here, too, the case as cited does not exist. The cite “679 F.3d 1280” is for Lanfear v. Home Depot, Inc., 679 F.3d 1267, 1280 (11th Cir. 2012). There is an actual opinion called Ingram v. CSX Transp., Inc., at 146 F.3d 858 (11th Cir. 1998), but it does not stand for what Plaintiff's counsel claims it does.

Mirras. Plaintiff cites Mirras v. Time Ins. Co., 578 F. Supp. 2d 1351 (M.D. Fla. 2008) for the proposition that “unearned attorney's fees are excluded from the amount in controversy as a matter of law.”³⁰ The case says no such thing; to the contrary, Mirras states that, “[w]hen a statute authorizes the recovery of attorney's fees, a reasonable amount of those fees is included in the amount in controversy.” 578 F. Supp. 2d at 1353.

Lowery. Plaintiff repeatedly relies on Lowery v. Alabama Power Co., 483 F.3d 1184 (11th Cir. 2007) to assert that a removing defendant bears a “heavy burden” to prove the amount in controversy because courts will not engage in “unabashed speculation” to determine whether diversity jurisdiction is satisfied. Lowery simply does not say these things—as discussed in detail above.

If Plaintiff's counsel did not use artificial intelligence to generate these inaccurate citations, then the only other seemingly plausible alternative is that he made them up out of thin air, which is even worse. Not only is misrepresenting case law a violation of Rule 11, it is also a violation of counsel's professional duties of candor and competency. Under Rule 3.3 of the Georgia Rules of Professional Conduct, “[a] lawyer shall not knowingly[ ] make a false statement of material fact or law to a tribunal.” And under Rule 1.1, “[a] lawyer shall provide competent representation to a client․ Competence requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

Plaintiff's counsel is ORDERED TO SHOW CAUSE in writing, within 14 DAYS of the date of this Order, why the citations identified above were accurate or explain the reasons for all the inaccuracies identified by the Court, and explain why sanctions should not be imposed. In doing so, among any other things counsel may wish to explain, counsel must specifically and explicitly confirm its previous representation to undersigned that no AI-assisted tools were utilized in preparing these filings. If, on the other hand, counsel's previous representation to undersigned concerning the use of AI was false, counsel must explain why he lied to the Court and how that complies with his obligations under Rule 11.

V. Conclusion

The Court DENIES Booker's motion to remand [ECF 6], as well as her motion for leave to amend the complaint and join a nondiverse defendant [ECF 4]. Further, Plaintiff's counsel is ORDERED to SHOW CAUSE, within 14 days, as explained above. The Clerk is DIRECTED to submit this Order to undersigned after 14 days.

SO ORDERED this 28th day of July, 2026.

FOOTNOTES

1.   ECF 1-4.

2.   Id. ¶ 3. Booker refers to this Kroger patron as “Defendant John Doe.” Id. However, “[a]s a general matter, fictitious-party pleading is not permitted in federal court.” Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010) (citing New v. Sports & Recreation, Inc., 114 F.3d 1092, 1094 n.1 (11th Cir. 1997)).

3.   ECF 1-4, ¶¶ 6–11.

4.   ECF 1, ¶ 2.

5.   Id. ¶ 4.

6.   Id.

7.   Id. ¶ 3.

8.   Id. ¶¶ 10–12.

9.   ECF 6.

10.   ECF 4.

11.   ECF 6.

12.   ECF 1, ¶¶ 10–11; ECF 1-1, at 6.

13.   ECF 1-4, ¶¶ 26, 32, 35–41.

14.   ECF 6, at 2–5.

15.   ECF 4, at 1–2.

16.   Id. at 2.

17.   Id. at 3–4.

18.   ECF 8, at 1.

19.   ECF 4, at 4.

20.   ECF 4.

21.   ECF 1-4, at 2.

22.   See, e.g., ECF 1-4, at 321; ECF 43-3, at 10; ECF 1-4, at 351, 360; ECF 43-4, at 5, 14.

23.   ECF 4, at 3–4.

24.   Id. at 5.

25.   ECF 1-4, at 321; ECF 43-3, at 10.

26.   ECF 1-4, at 351, 360; ECF 43-4, at 5, 14.

27.   ECF 4, at 6–7.

28.   ECF 6, at 3.

29.   ECF 4, at 4.

30.   ECF 6, at 3.

Steven D. Grimberg, United States District Judge