UNITED STATES DISTRICT COURT 

 SOUTHERN DISTRICT OF FLORIDA 

CASE NO. 20-80965-CIV-ALTMAN 

CHOON TAN, 

Plaintiff, 

v. 

JOHN BIRKBECK and 

PITTSBURGH ASSOCIATES LP, 

Defendant.

_________________________________________/ 

ORDER GRANTING MOTION TO AMEND

Before the Hon. Roy K. Altman: 

John Birkbeck is a scout for the Pittsburgh Pirates. See Response to Motion to Amend [ECF 

No. 16] at 4. While he was working as a scout in Florida, he got into a car accident with the 

Plaintiff, who sued him for negligence in state court. See Notice of Removal [ECF No. 1] ¶ 2. On 

June 19, 2020, the Defendants, Birkbeck and Pittsburgh Associates LP (Birkbeck’s employer), 

removed this action to federal court. Id. 

The parties agree that, as of that day, this Court had diversity jurisdiction over the case 

because the Defendants are from Ohio and Pennsylvania, respectively, and the Plaintiff is from 

Florida. See Motion to Amend [ECF No. 8] at 6 (“Plaintiff admits that because Defendants 

deprived the state court of the opportunity to rule upon the Motion to Amend [Exhibit 3], diversity 

of citizenship existed at the time of removal.”). Now, however, the Plaintiff has filed a Motion to 

Amend her Complaint, through which she hopes to add two non-diverse Defendants (the “nondiverse Defendants”). See generally id. The Defendants oppose the amendment. Because the 

Plaintiff should be permitted to amend her Complaint, the parties are no longer diverse, and the 

case must be remanded. 

Case 9:20-cv-80965-RKA Document 18 Entered on FLSD Docket 07/09/2020 Page 1 of 9
 

2 

THE FACTS 

The Plaintiff’s state-court Complaint included negligence claims against an entity called 

Pittsburgh Associates of Florida, LLC (“Pittsburgh-Florida”). See Notice of Removal at 3. After 

the Plaintiff filed her Complaint, the Defendants sent her an affidavit from Marcy McGovern—an 

employee of Pittsburgh Associates, LP (one of the two Defendants in this case). In that Affidavit, 

Ms. McGovern attested that “John Birkbeck is not employed by Pittsburgh Associates of Florida, 

LLC.” McGovern Aff. [ECF No. 1-3] ¶ 5. Because of that representation, the Plaintiff withdrew 

her claim against Pittsburgh-Florida and filed an amended complaint that dropped that entity from 

the case. See Notice of Removal ¶ 9. 

Some time later, the Plaintiff realized that, under Florida law, Pittsburgh-Florida could be 

vicariously liable for John Birkbeck’s conduct, even if Birkbeck was only the company’s agent—

and not its employee. See Mot. at 8; cf. Villazon v. Prudential Health Care Plan, Inc., 843 So. 2d 

842, 852–53 (Fla. 2003) (finding that Florida law holds principals vicariously liable for the actions 

of their agents and noting that “the existence of an agency relationship is normally one for the trier 

of fact to decide”). The Plaintiff also noticed that the McGovern Affidavit, which the Defendants 

attached to their Notice of Removal, never disclaimed any such principal-agent relationship. See 

generally McGovern Aff. Moreover, because McGovern signed the Affidavit in Pennsylvania, the 

Plaintiff thought it possible that McGovern simply did not know about Birkbeck’s work for 

Pittsburgh-Florida. See Mot. at 3. 

After coming to these two realizations, the Plaintiff—still in state court—moved to amend 

her complaint to rejoin Pittsburgh-Florida. See Mot. Ex. 4. At the same time, the Plaintiff served a 

supplemental interrogatory on the Defendant, in which she asked for information about the 

relationship between Pittsburgh-Florida, the Pirates of Florida Inc., and Pittsburgh Associates L.P. 

Case 9:20-cv-80965-RKA Document 18 Entered on FLSD Docket 07/09/2020 Page 2 of 9
 

3 

See Mot. Ex. 5. Two days later—before responding to the discovery and before the state court 

could rule on the motion to amend—the Defendants removed the case to this Court. See generally 

Notice of Removal. 

The Plaintiff now asks this Court for leave to rejoin Pittsburgh-Florida, and to add a fourth 

defendant, the Pirates of Florida, Inc., d/b/a the Bradenton Marauders.1 See generally Mot. 

THE LAW 

“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.” 28 U.S.C. § 1447(e). District courts “have broad discretion to decide 

whether, after removal, to permit joinder of a new defendant who would destroy diversity.” 

Hickerson v. Enter. Leasing Co. of Ga., LLC, 2020 WL 3119069, at *4 (11th Cir. June 11, 2020); 

see also Alvarez v. Uniroyal Tire Co., 508 F.3d 639, 641 (11th Cir. 2007) (“Under the Supreme 

Court’s decision in Powerex, a remand for lack of subject matter jurisdiction under § 1447(e), 

which arises post-removal, and a remand for lack of subject matter jurisdiction under § 1447(c), 

which may arise at the time of removal or post-removal, are indistinguishable for purposes of 

determining whether § 1447(d)’s bar to appellate review applies.”).

 Although the Eleventh Circuit has never propounded its own framework for removals 

arising under § 1447(e), the court has cited with approval the test the Fifth Circuit applied in 

Hensgens v. Deer & Co., 833 F.2d 1179, 1182 (5th Cir. 1987). See Hickerson, 2020 WL 3119069, 

at *4. Under that test, district courts should consider four factors in deciding whether to grant leave 

 

1 The Pirates of Florida, Inc., is the Florida-based minor league affiliate of the Pittsburgh Pirates. 

Pittsburgh-Florida is the minor league team’s scouting arm. See Resp. at 4–5; Garland Aff. [ECF 

No. 16-1] ¶¶ 6–7. The Defendants concede that both are Florida entities—and that their joinder 

would destroy diversity. Resp. at 5. 

Case 9:20-cv-80965-RKA Document 18 Entered on FLSD Docket 07/09/2020 Page 3 of 9
 

4 

to amend: 

(1) “the extent to which the purpose of the amendment is to defeat federal 

jurisdiction,” (2) “whether plaintiff has been dilatory in asking for amendment,” (3) 

“whether plaintiff will be significantly injured if amendment is not allowed,” and 

(4) “any other factors bearing on the equities.” 

Id. (quoting Hensgens, 833 F.2d at 1182). 

 In considering “the extent to which the purpose of the amendment is to defeat federal 

jurisdiction,” this Court has said that the “fraudulent joinder doctrine . . . is not the applicable 

standard on the joinder of a non-diverse defendant after removal.” Ibis Villas at Miami Gardens 

Condo Ass’n, Inc. v. Aspen Specialty Ins. Co., 799 F. Supp. 2d 1333, 1337 n.1 (S.D. Fla. 2011) 

(Jordan, J.). In other words, the “answer to the fraudulent joinder inquiry alone is not dispositive 

of a plaintiff’s motives for purposes of post-removal joinder.” Id. (citation omitted). That said, 

while “the fraudulent joinder doctrine is not directly applicable to the post-removal context, it can 

be a relevant factor.” Id. (citation omitted). 

When a removing defendant alleges fraudulent joinder, “the removing party has the burden 

of proving that either: (1) there is no possibility the plaintiff can establish a cause of action against 

the resident defendant; or (2) the plaintiff has fraudulently pled jurisdictional facts.” Crowe v. 

Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997). This burden is a “heavy one.” B, Inc. v. Miller 

Brewing Co., 663 F.2d 545, 549 (5th Cir. Unit A 1981). Indeed, “federal courts are not to weigh 

the merits of a plaintiff’s claim beyond determining whether it is an arguable one under state law.” 

Crowe, 113 F.3d at 1538. “If there is even a possibility that a state court would find that the 

complaint states a cause of action against any one of the resident defendants, the federal court must 

find that joinder was proper and remand the case to state court.” Coker v. Amoco Oil Co., 709 F.2d 

1433, 1440–41 (11th Cir. 1983) (emphasis added). 

Case 9:20-cv-80965-RKA Document 18 Entered on FLSD Docket 07/09/2020 Page 4 of 9
 

5 

ANALYSIS 

 All four of the Hensgens factors weigh strongly in favor of allowing the Plaintiff to 

amend her Complaint here. 

A. The Purpose of the Amendment 

 First, on these facts, there is no (plausible) indication that the “purpose of the amendment 

is to defeat federal jurisdiction.” To the contrary, in her Motion, the Plaintiff argues convincingly 

that her decision to drop the non-diverse Defendant (Pittsburgh-Florida) from the state-court case 

was animated, at least in large part, by her lawyer’s legal error. See generally Mot. And the 

Plaintiff’s position makes sense. After all, while the Plaintiff may have doubted the viability of her 

claim against Pittsburgh-Florida, it is undisputed that the Plaintiff always knew PittsburghFlorida’s citizenship. In other words, the Plaintiff dropped Pittsburgh-Florida from the state-court 

case, even though doing so rendered the state-court parties completely diverse. 

 Against this backdrop, the Defendants claim that the Plaintiff’s proposed emendation is 

“fraudulent.” See generally Response. They even attach to their Response an Affidavit from 

Frankie Garland—an employee of the Pittsburgh Pirates—who swears that “Birkbeck has no 

agency or employee relationship” with either of the non-diverse Defendants. Garland Aff. ¶ 4. But 

a defendant may not defeat an (otherwise) properly-pled claim by simply disagreeing with the 

Plaintiff’s account of the facts. We have trials for that. At the pleading stage, a plaintiff need only 

“plausibly suggest an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009). And the 

Plaintiff’s allegation that Birkbeck “is part of a joint venture” between the diverse and non-diverse 

Defendants, see Mot. at 1, is not at all implausible. Birkbeck, after all, was acting as a scout for 

the Pittsburgh Pirates in Florida when he crashed into the Plaintiff’s car. See Resp. at 4. It is thus 

certainly “plausible” that the Pirates’ Florida subsidiary and its Florida scouting arm were 

Case 9:20-cv-80965-RKA Document 18 Entered on FLSD Docket 07/09/2020 Page 5 of 9
 

6 

somehow involved in his Florida scouting work. Cf. Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 

1260 (11th Cir. 2009) (“In evaluating the sufficiency of a plaintiff’s pleadings, we make reasonable 

inferences in Plaintiff’s favor . . . .”). Because there is—at the very least—a “possibility that a state 

court would find that the complaint states a cause of action against any one of the resident 

defendants,” this Court “must find that joinder was proper and remand the case to state court.” 

Coker, 709 F.2d at 1440–41 (emphasis added). 

 In either event, the Defendants’ position is belied by the timing of their fraudulent joinder 

arguments. The Defendants, it goes without saying, had every opportunity to challenge the 

Plaintiff’s claims against Pittsburgh-Florida in state court. But, rather than move to dismiss 

Pittsburgh-Florida from the state-court case, the Defendants elected to answer the Plaintiff’s 

Complaint. See State Court Answer [ECF No. 1-2]. Indeed, even in the defenses they proffered in 

their Answer, the Defendants never suggested, as they do now, that the Plaintiff had failed to state 

a viable claim against Pittsburgh-Florida. See id. at 2–3. The Defendants’ objection, then, seems 

rooted—not in any deficiency in the Plaintiff’s proposed amendments—but in their desire to 

litigate this case in federal, rather than in state, court. But the “plaintiff has the right to select the 

forum, to elect whether to sue joint tortfeasors and to prosecute his own suit in his own way to a 

final determination.” Crowe, 113 F.3d at 1538 (citing Parks v. The New York Times Co., 308 F.2d 

474, 478 (5th Cir. 1962)). 

 The Defendants also (notably) failed to remove the case before the Plaintiff dismissed 

Pittsburgh-Florida from the Complaint. In their Notice of Removal, they justified their failure to 

remove the case within 30 days of being served with the Complaint—as they were required to do 

under 28 U.S.C. § 1446(b)(2)(B)—by arguing that the case did not become removable until 

Pittsburgh-Florida was dismissed, see Notice of Removal at 3–4; Removal Report [ECF No. 15] 

Case 9:20-cv-80965-RKA Document 18 Entered on FLSD Docket 07/09/2020 Page 6 of 9
 

7 

at 3. But, in saying so, the Defendants impliedly recognized that there was nothing fraudulent 

about Pittsburgh-Florida’s inclusion in the original Complaint. Otherwise—if, that is, PittsburghFlorida’s inclusion had been fraudulent from the beginning—nothing would have prevented the 

Defendants from removing the case within 30 days. And so, if Pittsburgh-Florida’s joinder in the 

original Complaint really had been fraudulent, then the Defendants’ removal would have been 

untimely. See 28 U.S.C. § 1446(b)(2)(B). The Defendants cannot have their cake and eat it too. 

They cannot, in justifying the timeliness of their removal, rely on Pittsburgh-Florida’s (proper) 

presence in the case, see Notice of Removal ¶ 13, and then—when the timeliness of their removal 

is no longer at issue—challenge the propriety of Pittsburgh-Florida’s joinder, see generally Resp. 

B. Delay 

Second, the Plaintiff “has not been dilatory in asking for amendment.” This is not a case 

where the Plaintiff—caught off-guard by the removal—asks for an amendment she had not thought 

of before. Cf. Ibis Villas, 799 F. Supp. 2d at 1335 (noting that the plaintiff “cannot reasonably 

argue that it did not know or should not have known of its potential claims against the brokers and/ 

or agents at the time it filed the complaint or before the case was removed”). To the contrary, the 

case’s procedural history suggests that the Plaintiff initially brought a facially-viable claim against 

a non-diverse Defendant, that she then dropped that claim because of a legal error, and that she 

has now (timely) asked the Court for leave to rejoin that same claim against that very same 

Defendant here. This factor, then, likewise tilts in the Plaintiff’s favor. 

C. Prejudice 

Third, the Plaintiff will be severely prejudiced if the Court denies her leave to amend. In 

Ibis Villas, Judge Jordan weighed this factor against the plaintiff because its claims against the 

non-diverse brokers would “not accrue until [the plaintiff’s] proceedings against the insurers have 

Case 9:20-cv-80965-RKA Document 18 Entered on FLSD Docket 07/09/2020 Page 7 of 9
 

8 

concluded.” Id. at 1336–37. That is simply not the case here. The Defendants never suggest—nor 

can they—that Tan’s claims against the non-diverse Defendants would not begin to accrue until 

this Court resolves her case against the current Defendants. To the contrary, it seems clear that, if 

the Court were to deny her request for leave, she would have two choices (both bad): either forego 

her claims against the non-diverse Defendants or else sue them separately in state court. In the 

latter scenario, she would have to prosecute—and the civil justice system would have to bear—

two identical actions, one in state court against the non-diverse Defendants and the second here 

against the current Defendants, at the same time. That tremendously unnecessary (and inefficient) 

duplication of effort might well result in inconsistent rulings—on everything from discovery 

disputes to dispositive motions—and incongruous verdicts. This factor, in sum, weighs heavily in 

favor of remand. 

D. Other Factors 

Fourth, neither party has identified any “other factors” that might tilt the scales one way or 

the other. Nevertheless, the Court feels compelled to say that it would be unjust in the extreme to 

penalize Ms. Tan for her attorney’s error—especially where, as noted, the Defendants had several 

(prior) opportunities to challenge her allegations against Pittsburgh-Florida and chose not to do so. 

*** 

 The Plaintiff, in short, shall be permitted to amend her complaint. And, because there is no 

dispute that the proposed amendment would destroy diversity, the case must be remanded for lack 

of subject matter jurisdiction. See Alvarez, 508 F.3d at 641. 

 Being fully advised, the Court hereby 

ORDERS AND ADJUDGES that the Motion to Amend [ECF No. 8] is GRANTED as 

follows: 

Case 9:20-cv-80965-RKA Document 18 Entered on FLSD Docket 07/09/2020 Page 8 of 9
 

9 

1. The Proposed Second Amended Complaint [ECF No. 8-6] is hereby deemed FILED. 

2. The Clerk of Court is directed to REMAND this case to the 15th Judicial Circuit in 

and for Palm Beach County, Florida. 

3. The Clerk of Court shall CLOSE this case. Any pending motions are DENIED AS 

MOOT. All pending deadlines and hearings are TERMINATED. 

DONE AND ORDERED in Fort Lauderdale, Florida this 8th day of July 2020. 

 _________________________________ 

 ROY K. ALTMAN 

 UNITED STATES DISTRICT JUDGE

cc: counsel of record 

Case 9:20-cv-80965-RKA Document 18 Entered on FLSD Docket 07/09/2020 Page 9 of 9