In this case a security guard allegedly had repeatedly confronted an African-American and Muslim family in a shopping mall, ordering the mother to remove her traditional Muslim headgear or be forcefully removed. In the second confrontation, the security guard allegedly pulled a knife while violently yelling, among other things, "Come on . . . come on . . . I have not tasted blood in a long time." (The security guard eventually plead guilty to criminal charges of second degree assault and assault with a dangerous weapon.)
Woods v. AlliedBarton Security Services, LLC, No. 11-2831 (D. Maryland Feb. 9, 2012)(unpublished) is a suit by the terrified family against the security guard, his employer, and the firm that hired them, that started off in the Circuit Court for Baltimore City. After the action was pending for many months and the plaintiffs failed to serve the security guard, the Circuit Court dismissed the security guard as a defendant "without prejudice."
At that point, the remaining two defendants seized their opportunity, and removed the case to federal court based on diversity jurisdiction. By doing so, the remaining defendants would be able to try the case while pointing at an "empty chair" as the truly culpable party, and would also be able to subject the plaintiffs' damages experts to the rigors of a Daubert challenge.
The first thing that the plaintiffs did after removal was to serve the security guard with the Circuit Court summons, and then move to remand the case to State court. The District Court denied that motion, on the grounds that such service was ineffective because the prior removal had deprived the Circuit Court of jurisdiction to re-issue the summons.
Next, the plaintiffs then moved for leave to file an amended complaint to rejoin the security guard as a party defendant. The two other defendants opposed that motion, which gave U.S. District Judge Catherine C. Blake the occasion to review the relevant factors that a federal court will consider in deciding under Section 1447(e) whether to deny joinder, or permit joinder which destroys diversity jurisdiction and remand the action to State court. The Court pointed out that the statute "does not allow a district court to retain jurisdiction once it permits a nondiverse defendant to be jointed in the case."
To make this discretionary decision, the District Court considers four factors: (1) the extent to which the purpose of the amendment is to defeat federal jurisdiction; (2) whether the plaintiff has been dilatory in asking for amendment; (3) whether the plaintiff will be significant injured if amendment is not allowed; and (4) any other factors bearing on the equities. The District Court will also consider the danger of parallel suits in state and federal courts, resulting inconsistent results and judicial inefficiency, and the defendant's interest in a federal forum.
In this analysis, courts take into consideration the strength of the substantive claim against the party to be joined. If it is a weak or frivolous claim, then a court may infer the impermissible purpose of forum shopping.
In this case the claim against the security guard was strong, and in fact was the central claim of the case.
Further, the plaintiffs' actions in State court demonstrated that they had been interested in suing the security guard long before the case was removed to federal court and removal or remand was at issue. The other defendants had been on notice from the outset that the suit could properly be heard in State court.
The District Court noted that the most plausible inference is that the Circuit Court's dismissal of the security guard "without prejudice" lulled plaintiffs' counsel into believing he had time to rectify the situation before trial. "In such a situation, the proper action is the one taken here -- for the plaintiffs to immediately notify this court of the mistake and to attemnpt to rejoin the defendant before taking unnecessary and duplicative measures in federal court."
The District Court concluded that the plaintiffs should be allowed to amend their complaint, that his joinder destroys complete diversity among the parties, and that the case must be remanded to the Circuit Court for Baltimore City.
This case is a good illustration of the counter-moves that a plaintiff can make when the defendants in a State court proceeding remove a case under diversity jurisdiction prior to service of the non-diverse defendant, and the analysis that the District Court will undertake.