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Tolley v. Menard, Inc.

United States District Court, S.D. Ohio, Western Division, Dayton

January 8, 2018

DALE TOLLEY, et al., Plaintiffs,
v.
MENARD, INC., et al., Defendants.

         ENTRY AND ORDER GRANTING MOTION FOR LEAVE TO FILE AMENDED COMPLAINT (DOC. 17), GRANTING SECOND MOTION TO REMAND TO STATE COURT FOR LACK OF JURISDICTION (DOC. 20), TERMINATING MOTION FOR SUMMARY JUDGMENT (DOC. 16) AND MOTION FOR LEAVE TO SERVE ADDITIONAL DISCOVERY (DOC. 19) FOR LACK OF JURISDICTION, REMANDING CASE TO MONTGOMERY COUNTY COURT OF COMMON PLEAS, AND TERMINATING THIS CASE

          THOMAS M. ROSE UNITED STATES DISTRICT JUDGE

         This case is before the Court on the Motion for Leave to File First Amended Complaint (“Motion to Amend”) (Doc. 17) and Second Motion to Remand for Lack of Subject Matter Jurisdiction (“Motion to Remand”) (Doc. 20) filed by Plaintiffs Dale and Charlene Tolley (“Plaintiffs”). Defendant Menard, Inc. (“Menard”) filed a consolidated Memorandum in Opposition (Doc. 23) to the Motion to Amend and Motion to Remand, in response to which Plaintiffs filed a consolidated Reply (Doc. 24). These Motions are therefore ripe for review.

         I. BACKGROUND

         The following facts are taken from Plaintiffs' Complaint. (Doc. 1-1.) On or about June 30, 2016, Plaintiff Dale Tolley, a truck driver, arrived at Menard's Distribution Center in Holiday City, Ohio where Defendant John Doe I, a Menard's employee, loaded lumber onto a trailer attached to Dale Tolley's truck. (Id. at ¶ 1.) Tolley drove the trailer to a Menard's warehouse in Miami Township, Ohio to deliver the lumber. (Id. at ¶ 2.) Defendant John Doe II, a Menard employee, operated a forklift to unload the lumber from Dale Tolley's trailer. (Id.) During the unloading process, John Doe II allegedly knocked a stack of lumber off the trailer, causing it to fall onto Dale Tolley's leg. (Id.)

         Plaintiffs claim that John Doe I negligently loaded the lumber onto Dale Tolley's trailer and that John Doe II negligently unloaded the lumber. Dale Tolley has allegedly suffered physical and mental pain and suffering due to the injury to his leg. (Id. at ¶ 10, 19.) He further alleges that he “lost the ability to perform usual activities, resulting in a diminished quality of life.” (Id.) Dale Tolley's wife, Charlene Tolley, claims that she lost her husband's companionship, services and consortium due to the incident. (Id. at ¶ 26.)

         Plaintiffs brought this case in the Montgomery County Court of Common Pleas. Menard removed the case to this Court based on its diversity jurisdiction. (Doc. 1.) Through discovery, Plaintiffs obtained the name and address of John Doe II: Cody Brandenburg of 108 W. Center Street, Farmersville, OH 45325. Plaintiffs also requested the name and address of John Doe I from Menard, but have not received it. The reason why Plaintiffs have not received that information is not completely clear, but Plaintiffs' Motion for Leave to Serve Additional Discovery (Doc. 19) appears directed, at least in part, to that issue.

         Plaintiffs moved for leave to file a First Amended Complaint that names Brandenburg in the place of John Doe II and includes additional Defendants that may have a subrogated interest in the proceeds of the litigation. The substantive allegations regarding the incident that caused Dale Tolley's injuries are otherwise the same as those in the Complaint.

         Plaintiffs assert nine causes of action in the proposed First Amended Complaint: (1) negligence against John Doe I, (2) negligence against Brandenburg, (3) respondeat superior negligence against Menard, (4) negligent hiring and supervision against Menard, (5) loss of consortium claim against all Defendants, (6) a subrogation-related claim against Inhealth Mutual, (7) a subrogation-related claim against Healthscope Benefits, (8) a subrogation-related claim against the Ohio Bureau of Workers' Compensation, and (9) a subrogation-related claim against Anthem Direct Access. (Doc. 17-1.)

         As both Plaintiffs and Brandenburg are Ohio residents, upon the filing of the First Amended Complaint, there would no longer be complete diversity between the parties to support federal jurisdiction over this case. As a result, Plaintiffs also move to remand the case to the Montgomery County Court of Common Pleas should the Motion to Amend be granted.

         II. ANALYSIS

         Federal Rule of Civil Procedure 15 governs the filing of amended complaints. It provides, in pertinent part, that “[t]he court should freely give leave [to amend] where justice so requires.” Fed.R.Civ.P. 15(a)(2). When considering a motion for leave to amend, the Sixth Circuit has advised courts to consider “the delay in filing, the lack of notice to the opposing party, bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of amendments.” American Elect. Power Fuel Supply, Inc., 246 F.3d 593, 605 (6th Cir. 2001).

         Menard argues that Plaintiffs' request for leave to amend should be denied under 28 U.S.C. § 1447(e) because its sole purpose is to destroy federal jurisdiction. Section 1447(e) provides that, “[i]f 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 ...


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