Anzures v. Prologis Tex. I LLC, EP–11–CV–395–KC.

• Decision Date: 10 August 2012
• Docket Number: No. EP–11–CV–395–KC.,EP–11–CV–395–KC.
• Parties: Ivan ANZURES, Plaintiff, v. PROLOGIS TEXAS I LLC, Prologis Texas II LLC, Prologis NA2 Texas LLC, Prologis Management Incorporated and Elizabeth Rodriguez, Defendants.
• Court: U.S. District Court — Western District of Texas

886 F.Supp.2d 555

Ivan ANZURES, Plaintiff,

v.PROLOGIS TEXAS I LLC, Prologis Texas II LLC, Prologis NA2 Texas LLC, Prologis Management Incorporated and Elizabeth Rodriguez, Defendants.

No. EP–11–CV–395–KC.

United States District Court,

W.D. Texas,

El Paso Division.

Aug. 10, 2012.

James F. Scherr, Maxey M. Scherr, Sam J. Legate, Scherr & Legate, PLLC, El Paso, TX, for Plaintiff.

ORDER

KATHLEEN CARDONE, District Judge.

On this day, the Court considered Plaintiff's “Motion for Leave to File Plaintiff's Second Amended Complaint” (“Motion”), ECF No. 41, and “Defendant's Traditional and No–Evidence Motion for Summary Judgment” (“Motion for Summary Judgment”), ECF No. 62. For the reasons set forth herein, the Court GRANTS in part and DENIES in part the Motion. The Court DENIES the Motion for Summary Judgment as moot.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff was an employee of Empire Roofing, Ltd. (“Empire Roofing”). Pl.'s Original Petition (“Complaint”) 2–3, ECF No. 1.¹ In May of 2010, Plaintiff was measuring the roof of a building. Compl. 2–3. While on the roof, Plaintiff sustained injuries when he fell twenty-five feet to the ground through an uncovered skylight. Compl. 3.

Plaintiff commenced this action on August 24, 2011, in County Court at Law No. 6 of El Paso County, Texas. See Compl. Plaintiff's Complaint alleged state law negligence and premises liability claims. Compl. 3–4. Plaintiff also claimed that Prologis Texas I LLC, Prologis Texas II LLC, Prologis NA2 Texas LLC, and Prologis Management Inc. (“PMI”) owned the premises on which he was injured, and that Elizabeth Rodriguez (“Rodriguez”) managed the premises. ² Compl. 3–4. Consequently, the Complaint named Prologis Texas I LLC, Prologis Texas II LLC, Prologis NA2 Texas LLC, PMI, and Rodriguez as defendants. See Compl.

Those Defendants removed the lawsuit to this Court on September 28, 2011, based on diversity jurisdiction. Notice of Removal Under 28 U.S.C. § 1441(b) and 28 U.S.C. § 1332(a)(1) (Diversity of Citizenship) (“Notice of Removal”), ECF No. 1. On October 27, 2011, Plaintiff filed a motion requesting that the Court remand this action to state court for lack of subject matter jurisdiction because Rodriguez was a non-diverse defendant. Pl.'s Mot. to Remand, ECF No. 5. The Court denied this motion on January 31, 2012, and dismissed Rodriguez from the case after concluding she had been improperly joined. Order (“Remand Order”) 14, ECF No. 17 (signed on January 31, 2012, and docketed on February 1, 2012).

The Court entered a Scheduling Order on December 8, 2011. Scheduling Order, ECF No. 9. The Scheduling Order set the deadline for Plaintiff to join parties and amend his pleadings for March 9, 2012. Id.

On April 6, 2012, Defendants filed a motion requesting leave of the Court to designate Empire Roofing as a responsible third party under section 33.004 of the Texas Civil Practice and Remedies Code.³See Defs.' Mot. for Leave to Designate Empire Roofing, Ltd., as a Responsible Third Party (“RTP Motion”), ECF No. 34. Plaintiff did not oppose this Motion, and the Court added Empire Roofing as a responsible third party on April 23, 2012. Supplement to Defs.' Mot. for Leave to Designate Empire Roofing, Ltd. as a Responsible Third Party 1, ECF No. 36; Text Order (April 23, 2012).

On April 30, 2012, the parties filed a joint stipulation of dismissal of Defendants Prologis Texas I LLC, Prologis Texas II LLC, and Prologis NA2 Texas LLC. Joint Stipulation of Dismissal of Defs. Prologis Texas I LLC, Prologis Texas II LLC, and Prologis NA2 Texas LLC, ECF No. 42; Order of Dismissal, ECF No. 46. Consequently, PMI became the only remaining Defendant in this case.

Also on April 30, 2012, Plaintiff filed this Motion requesting leave to file an amended complaint. See Mot. Plaintiff filed the Motion after the deadline to join parties and amend pleadings set out in the Court's Scheduling Order. See Mot.; Scheduling Order 1. In the Motion, Plaintiff seeks leave to add three defendants: (1) Prologis, (2) Preservation Products, Inc., d/b/a Southern Roof Consultants (“Southern Roof”), and (3) Empire Roofing. See Mot. Ex. A (“Proposed Amended Complaint”), ECF No. 41–1.⁴ The Proposed Amended Complaint also includes a new claim against Prologis for negligent hiring.⁵ Proposed Am. Compl. 4.

PMI does not object to the addition of Prologis as a defendant. Def.'s Resp. in Opp'n to Pl.'s Mot. for Leave to File Pl.'s Second Am. Compl. (“Response”) 1, ECF No. 55. However, PMI objects to the addition of Southern Roof and Empire Roofing as defendants, as well as the addition of a claim for negligent hiring. Resp. 1–2.

II. DISCUSSIONA. Standard

Rule 15(a) of the Federal Rules of Civil Procedure governs amendment of the pleadings before trial. Fed.R.Civ.P. 15(a). Rule 15(a) permits a party to amend a pleading with the opposing party's consent or the court's leave, and provides that leave should be “freely give[n] when justice so requires.” Id. The Fifth Circuit has repeatedly held that Rule 15(a) embodies a liberal amendment policy. See, e.g., Mayeaux v. La. Health Serv. & Indem. Co., 376 F.3d 420, 425 (5th Cir.2004) (“Fed.R.Civ.P. 15(a) evinces a bias in favor of granting leave to amend.”); Lowrey v. Tex. A & M Univ. Sys., 117 F.3d 242, 245 (5th Cir.1997) (“Rule 15(a) expresses a strong presumption in favor of liberal pleading”); Nance v. Gulf Oil Corp., 817 F.2d 1176, 1180 (5th Cir.1987) (“Federal Rule 15(a) counsels a liberal amendment policy”). A court should not deny a motion to amend, therefore, unless there is a substantial reason to do so, such as undue delay, bad faith, dilatory motive, repeated failures to cure deficiencies, or undue prejudice to the opposing party. United States ex rel. Willard v. Humana Health Plan of Tex., Inc., 336 F.3d 375, 387 (5th Cir.2003); Chitimacha Tribe of La. v. Harry L. Laws Co., Inc., 690 F.2d 1157, 1163 (5th Cir.1982).

When a party seeks to file an amended pleading after the scheduling order deadline for such amendments has passed, the party must first meet the more stringent requirements of Federal Rule of Civil Procedure 16(b) before the Court can apply the liberal Rule 15 standard. S & W Enters., L.L.C. v. SouthTrust Bank of Ala., NA, 315 F.3d 533, 536 (5th Cir.2003). Rule 16(b) provides that a scheduling order “may be modified only for good cause and with the judge's consent.” Fed.R.Civ.P. 16(b). Courts in the Fifth Circuit determine good cause by analyzing the following factors: (1) the explanation for the failure to timely move for leave to amend; (2) the importance of the amendment; (3) the potential prejudice in allowing the amendment; and (4) the availability of a continuance to cure such prejudice. S & W Enters., 315 F.3d at 536 ( quoting Reliance Ins. Co. v. La. Land & Exploration Co., 110 F.3d 253, 257 (5th Cir.1997)). Ultimately, a party must “give a persuasive reason why the dates originally set by the scheduling order ... could not reasonably be met despite the diligence of the party seeking the extension.” Argo v. Woods, 399 Fed.Appx. 1, 3 (5th Cir.2010) (internal quotations omitted).

B. Analysis

As discussed, Plaintiff seeks to amend his Complaint in four ways. See Mot.; Proposed Am. Compl. First, Plaintiff seeks to add Prologis as a party. See Proposed Am. Compl. Second, Plaintiff seeks to add Empire Roofing as a party. See id.; Mot. 1. Third, Plaintiff seeks to add Southern Roof as a party. See Proposed Am. Compl.; Mot. 1. Finally, Plaintiff seeks to add a negligent hiring claim against Prologis. See Proposed Am. Compl. 4. As PMI does not oppose Plaintiff's request to add Prologis as a party to the case, the Court grants Plaintiff's Motion with respect to Prologis. See Resp. 1. The Court therefore turns to Plaintiff's request to add Empire Roofing, Southern Roof, and a negligent hiring claim.

1. Empire Roofing

PMI objects to Plaintiff's Motion to amend with respect to Empire Roofing on three grounds. Resp. 3–12; Sur–Reply 1–5. First, PMI claims that joining Empire Roofing would destroy the Court's jurisdiction and, therefore, the Court should deny Plaintiff's request to add Empire Roofing for failing to meet the standards of § 1447(e). Sur–Reply 1–3. Second, PMI claims that Plaintiff has not shown good cause for permitting amendment after the expiration of the Court's Scheduling Order deadline. Resp. 3–11; Sur–Reply 3–4. Finally, PMI asserts that Plaintiff's claims against Empire Roofing are futile, and thus do not meet the Rule 15 standard for amendment. Resp. 11–12; Sur–Reply 5. Plaintiff counters that he has “exercised diligence in discovery and in determining potential liability of ... Empire Roofing.” Reply 3.

A court must have jurisdiction before determining the validity of a claim. Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 172 (5th Cir.1994). Consequently, the Court first addresses PMI's argument that adding Empire Roofing would destroy the Court's jurisdiction.

a. Title 28 U.S.C. § 1447(e)

When a court has jurisdiction based on diversity of citizenship under 28 U.S.C. § 1332, as is the case here, a party's request to amend a complaint in order to add a non-diverse defendant implicates concerns beyond those in the usual Rule 15 motion because the addition of a non-diverse defendant destroys a court's diversity jurisdiction. See Hensgens v. Deere & Co., 833 F.2d 1179, 1181–82 (5th Cir.1987). Thus, “[a] motion for leave to amend to add a nondiverse party whose inclusion would destroy diversity and divest the court of jurisdiction is governed by 28 U.S.C. § 1447(e), not Rule 15(a).” Gallegos v. Safeco Ins. Co. of Ind., No. H–09–2777, 2009 WL 4730570, at *2 (S.D.Tex. Dec. 7 2009) (quoting Arthur v. Stern, No. H–07–3742, 2008 WL 2620116, at *3 (S.D.Tex. June 26, 2008)); see Hensgens, 833 F.2d at 1182;Whitworth v. TNT Bestway Transp. Inc., 914 F.Supp. 1434, 1435 (E.D.Tex.1996).

Title 28 U.S.C. § 1447(e) states that “[i]f after removal the plaintiff seeks to join additional defendants whose joinder...