UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF FLORIDA 

TALLAHASSEE DIVISION 

 

DEBORAH HILL and ROBERT 

HILL, her husband, 

 Plaintiffs, CASE NO.: 4:20-cv-00524-MW-MAF 

vs. 

DIEBOLD NIXDORF, INC., 

 Defendant. 

 / 

DEFENDANT DIEBOLD NIXDORF INC.’S OPPOSITION TO 

PLAINTIFFS’ MOTION FOR LEAVE TO FILE SECOND AMENDED 

COMPLAINT AND MOTION TO REMAND 

I. INTRODUCTION 

 Defendant Diebold Nixdorf, Inc. (“Diebold”), by and through its undersigned 

counsel and pursuant to 28 U.S.C. § 1447(e), submits this Opposition to Plaintiffs’ 

Motion for Leave to File Second Amended Complaint (“Motion for Leave”) and 

Motion to Remand (collectively, “Plaintiffs’ Motions”). Six weeks after the Court’s 

February 26, 2021 deadline to amend pleadings, Plaintiffs have belatedly sought 

leave to amend their Complaint to add a non-diverse defendant (Bryan Trimmer) in 

an effort to destroy this Court’s subject matter jurisdiction. Since day one, however, 

Plaintiffs’ claims have centered on the actions of Diebold’s “employees and agents.” 

Moreover, since at least December 2020, Plaintiffs have been aware of 

Mr. Trimmer’s identity as the service technician who performed the repairs that 

Case 4:20-cv-00524-MW-MAF Document 32 Filed 04/19/21 Page 1 of 14
 2 

Plaintiffs claim created the hazardous condition. Yet, Plaintiffs waited over three 

years after the fall, five months after removal to federal court, three months after 

Diebold disclosed Mr. Trimmer’s identity, and six weeks after the deadline to join 

additional parties to seek leave to add Mr. Trimmer. 

 Plaintiffs’ motions should be denied because: (1) the sole purpose of 

Plaintiffs’ proposed amendment is to destroy diversity jurisdiction in this Court; (2) 

Plaintiffs were dilatory in seeking to join Mr. Trimmer; (3) Plaintiffs will not suffer 

any prejudice if the amendment is not allowed; and (4) a balance of the equities does 

not support joinder of a non-diverse defendant. Accordingly, Diebold respectfully 

requests that this Court deny Plaintiffs’ Motion to Amend and Motion to Remand. 

II. PROCEDURAL AND FACTUAL BACKGROUND 

 This case arises from an alleged slip-and-fall that occurred on October 2, 

2017, at Centennial Bank in Apalachicola, Florida. Plaintiffs allege that Mrs. Hill 

sustained injuries after slipping on “lubricants, cleaners, or other substances . . . that 

were negligently left on the floor having been used by Diebold and its employees 

or agents.” (Doc. 7, Pl. Am. Compl., ¶ 19) (emphasis added). Indeed, Plaintiffs’ 

Amended Complaint (filed as recently as November 12, 2020) makes it clear that 

her claims arose from the alleged conduct of Diebold’s “employees or agents”: 

Case 4:20-cv-00524-MW-MAF Document 32 Filed 04/19/21 Page 2 of 14
 3 

(Doc. 7, Pl. Am. Compl., ¶¶ 12-16). Yet, Plaintiffs chose to proceed against only 

Diebold as a defendant—not the employee that serviced the bank and allegedly 

created the hazardous condition nor a John Doe. On November 3, 2020, Diebold 

removed the case, which was originally filed in state court, on the basis of diversity 

jurisdiction. (Doc. 1). On November 12, 2020, Plaintiffs filed an Amended 

Complaint to correct a non-substantive error. (Doc. 7). 

Case 4:20-cv-00524-MW-MAF Document 32 Filed 04/19/21 Page 3 of 14
 4 

 Not only did Plaintiffs’ allegations focus on the conduct of Diebold’s 

employee, but Diebold disclosed the identity of the service technician at the outset 

of discovery. On December 21, 2020, Diebold stated in its Rule 26 Initial 

Disclosures that: 

(Ex. A, Diebold’s Rule 26(a)(1) Initial Disclosures). Diebold also produced 

Mr. Trimmer’s timecard and call log as part of its Initial Disclosures. (Ex. B, 

DIEBOLD0006-12). These documents further demonstrated that Mr. Trimmer 

cleaned and serviced the vault door on October 2, 2017 (the day prior to the alleged 

incident). Plaintiffs even relied on this disclosure when requesting Mr. Trimmer’s 

deposition. (Ex. C, 2/14/21 Email from D. Rash to S. Fox) (“In the meantime, we 

would like to take the deposition of Bryan Trimmer, Diebold’s Senior Service 

Technician disclosed in Diebold’s Initial Disclosures.”). 

 Plaintiffs did not propound interrogatories or requests for admission seeking 

information about Mr. Trimmer or the service he performed. Rather, their written 

discovery efforts consisted of only 13 requests for production. Diebold responded to 

Case 4:20-cv-00524-MW-MAF Document 32 Filed 04/19/21 Page 4 of 14
 5 

these requests on January 8, 2021—49 days before the deadline to join additional 

parties. Diebold mentioned Mr. Trimmer’s name in its responses no less than eight 

times. (Ex. D, Diebold’s Responses to Pls.’ Requests for Production; see also Doc. 

11.). In regards to Mr. Trimmer, Diebold produced his training history and later 

supplemented its responses following the execution of a confidentiality agreement 

to include Mr. Trimmer’s personnel file. 

 On February 26, 2021, the deadline to join additional parties passed without 

Plaintiffs requesting an extension. The parties began deposing witnesses shortly 

thereafter. Plaintiffs sought a corporate witness from Diebold before requesting 

Mr. Trimmer’s deposition – despite their current position that they “still needed 

Mr. Trimmer” to determine whether they had an independent claim against him. 

(Motion to Amend, pp. 3-4.) Diebold produced two Rule 30(b)(6) witnesses, John 

Callen and Keith Hyser, on March 8, 2021. Mr. Callen provided testimony relating 

to Diebold’s training and safety policies, and Mr. Hyser provided testimony relating 

to his supervision of Mr. Trimmer in 2017. On March 23, 2021, Plaintiffs deposed 

Mr. Trimmer himself, and on April 1, 2021, Diebold deposed both Plaintiffs. 

Plaintiffs allege that they did not have an independent cause of action against 

Mr. Trimmer until these depositions were completed. (Motion to Amend, pp. 9-10.) 

Plaintiffs then filed their Motion to Amend and Motion to Remand six weeks after 

the deadline to join additional parties. 

Case 4:20-cv-00524-MW-MAF Document 32 Filed 04/19/21 Page 5 of 14
 6 

III. ARGUMENT 

Plaintiffs’ reliance on Federal Rule of Procedure 15(a) as support for leave to 

amend is misplaced. Rule 15(a) does not apply where a party seeks to add a nondiverse party in a removed case. Sharp v. K-Mart Corp., 991 F.Supp. 519, 521 (M.D. 

La. 1998) (“[T]he right to freely amend set forth in Rule 15 of the Federal Rules of 

Civil Procedure does not apply where a party seeks to add a non-diverse party in a 

removed case.”). Although Plaintiffs seek to add Mr. Trimmer as a defendant under 

Rule 15(a), the amendment amounts to, and should be characterized as, a “joinder” 

pursuant to Rule 20 of the Federal Rules of Civil Procedure. Ingram v. CSX 

Transportation, Inc., 146 F.3d 858 (11th Cir. 1998) (holding that an amendment 

amounted to joinder under Rule 20 because it sought to add claims against a new 

party that arose out of the same transaction or occurrence as her alleged right to relief 

against Defendant CSX). 

 Further, Section 1447(e) specifically contemplates joinder that destroys 

subject matter jurisdiction in cases that have already been removed from state to 

federal court. See 28 U.S.C. § 1447(e). Section 1447(e) provides that, “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 state court.” Id. (emphasis added). In determining whether 

to allow joinder under § 1447(e), courts are to examine the following factors: 

Case 4:20-cv-00524-MW-MAF Document 32 Filed 04/19/21 Page 6 of 14
 7 

(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 the 

amendment, 

(3) Whether the plaintiff will be significantly injured if the 

amendment is not allowed, and 

(4) Any other factors bearing on the equities. 

Heininger v. Wecare Distributors, Inc., 706 F. Supp. 860, 862 (S.D. Fla. 1989) 

(adopting Hensgens v. Deere & Co., 833 F.2d 1179,1182 (5th Cir. 1987), cert. 

denied, 493 U.S. 851, 110 S.Ct. 150, 107 L.Ed.2d 108 (1989)). 

 As demonstrated below, all four factors weigh against amendment to add 

Mr. Trimmer as a defendant. 

A. Plaintiffs are seeking a second amendment to their Complaint 

solely for the purpose of destroying this Court’s subject matter 

jurisdiction. 

The timing and substance of the proposed amendment strongly support a 

finding that Plaintiffs’ sole motivation is to destroy this Court’s subject matter 

jurisdiction. As to timing, courts have found that attempts to add a non-diverse 

defendant following removal, coupled with circumstances under which the plaintiff 

knew or should have known the identity of the would-be defendant at an earlier time, 

“strongly indicates that the purpose of the plaintiff's amendment is to defeat federal 

jurisdiction.” Smith v. White Consol. Ind., Inc., 229 F.Supp.2d 1275, 1280 (N.D. Ala. 

Case 4:20-cv-00524-MW-MAF Document 32 Filed 04/19/21 Page 7 of 14
 8 

Oct. 22, 2002) (finding that plaintiff’s amendment to add a non-diverse defendant 

nine months after removal was intended only to defeat diversity jurisdiction.) 

 Here, Plaintiffs were aware since no later than December 2020 that 

Mr. Trimmer was the service technician who worked on Centennial Bank’s vault on 

October 2, 2017. (Ex. A, Diebold’s Rule 26(a)(1) Initial Disclosures.) They 

possessed this knowledge for three months before the amendment deadline and had 

three years from the date of the incident to discover this information on their own. 

In short, Plaintiffs had ample time to discover Mr. Trimmer’s identity, his conduct 

on that day, and add him as a defendant to their Complaint. 

 Further, Mrs. Hill’s deposition testimony directly undermines Plaintiffs’ 

contention that their delay in joining Mr. Trimmer was because they just discovered 

“the way he directly performed his job duties” and that “he was personally involved 

in negligently creating the danger causing Mrs. Hill to slip and fall.” (Motion to 

Amend, p. 4). To the contrary, Plaintiffs state in their Motion to Amend that 

Mrs. Hill “testified that the Diebold service technician, who we now know was 

Mr. Trimmer, was spraying what she believed she recognized by smell to be WD-40 

on the front and back of the bank vault door, which opened toward the direction of 

where she slipped and fell.” (Motion to Amend, p. 9).1 Thus, Mrs. Hill had a 

long-held belief that the technician’s conduct caused the hazardous condition. 

1 Mrs. Hill’s deposition transcript is not yet available. 

Case 4:20-cv-00524-MW-MAF Document 32 Filed 04/19/21 Page 8 of 14
 9 

 There is no justification for Plaintiffs’ failing to assert claims against 

Mr. Trimmer once they know of his identity. In many ways, this would be akin to a 

plaintiff in a motor vehicle accident case claiming to be unaware of a potential claim 

against the driver of a company vehicle. The potential claim against Mr. Trimmer 

was clear and obvious before the deadline to join parties passed on February 26, 

2021, and the timing of Plaintiffs’ Motion to Amend six weeks after that date 

indicates that Plaintiffs’ sole purpose is to destroy diversity jurisdiction. 

B. Plaintiffs were dilatory in seeking to amend their Complaint to add 

a non-diverse defendant. 

 In Linares v. Home Depot, the plaintiff sought leave to amend to join the store 

manager of defendant Home Depot. The Court noted that the original complaint 

against the store and the proposed complaint adding the store manager were 

“substantially similar,” which meant that “[c]learly, an extensive investigation was 

not required to ascertain the claim against [the store manager].” Linares v. Home 

Depot U.S.A., Inc., No. 12-60308-CIV, 2012 WL 1441577, at *2 (S.D. Fla. Apr. 26, 

2012). For this reason, the Court found that “while Plaintiff was not dilatory in 

asking for amendment two months after the initial filing of the Complaint, Plaintiff 

was dilatory in alleging a claim against [the store manager] when the accident 

occurred over a year before he sought to add this party as a defendant.” Id. at *2, 

n.3. 

Case 4:20-cv-00524-MW-MAF Document 32 Filed 04/19/21 Page 9 of 14
 10 

 Here, the time difference is much starker than in Linares. Plaintiffs first sought 

to add Mr. Trimmer as a defendant more than three years after the fall, five months 

after removal to federal court, three months after Diebold disclosed Mr. Trimmer’s 

identity in its Initial Disclosures, and six weeks after the deadline to amend 

pleadings. See also Turner v. Wal-Mart Stores E., L.P., No. 7:11-cv-181, 2012 WL 

6048949, at *2 (M.D. Ga. Dec. 5, 2012) (finding almost eleven months after removal 

and two months before discovery ended as dilatory); D.N. v. Dreamland 

Amusements, Inc., 2011 WL 2269411, at *3 (S.D. Ga. Apr. 20, 2011) (finding that a 

request to add parties approximately two months after removal, ten months after 

filing a complaint in state court, and more than four years after the events alleged in 

the complaint to be dilatory).

 During this time, Plaintiffs could have engaged in an investigation or written 

discovery to explore whether they had an independent claim against Mr. Trimmer. 

They chose not to do so. Instead, they waited until after the deposition of 

Mr. Trimmer, himself, to make their claim. Plaintiff could have also named a John 

Doe defendant until it was able to confirm the identity of the relevant employee(s) 

and then amended to replace the John Doe when they had sufficient information. 

Further, if they believed that they had a potential claim against Mr. Trimmer and 

simply needed additional time to complete their investigation, they could have 

requested an extension of the deadline to amend pleadings. They did not make any 

Case 4:20-cv-00524-MW-MAF Document 32 Filed 04/19/21 Page 10 of 14
 11 

such effort. Thus, this second factor weighs against permitting this belated 

amendment. 

C. Plaintiffs will not be prejudiced or injured in any way if the 

amendment is not allowed. 

 Plaintiffs will not be prejudiced if Mr. Trimmer is not joined. Plaintiffs do 

not contend that they will be unable to obtain a judgment from Diebold without 

Mr. Trimmer’s presence; nor have they alleged that Diebold will be unable to 

provide complete relief for their injuries if they prevail. See Sexton v. G & K Servs., 

Inc., 51 F.Supp.2d 1311, 1313-14 (M.D. Ala. 1999) (finding no significant injury 

where plaintiff sought to join non-diverse employee of defendant company as 

additional defendant because plaintiff did not show that recovery from defendant 

company would be incomplete). Therefore, there is no indication that Plaintiffs will 

be prejudiced if Mr. Trimmer is not joined, which weighs against adding him as a 

defendant in this case. 

D. Diebold’s interest in retaining the federal forum favors denial of 

Plaintiffs’ Motion to Amend. 

 Finally, in determining whether joinder pursuant to § 1447(e) is appropriate, 

the Court must consider “any other factors bearing on the equities.” Sexton, 51 F. 

Supp. 2d at 1312. “In 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.” Id. at 1313. 

Case 4:20-cv-00524-MW-MAF Document 32 Filed 04/19/21 Page 11 of 14
 12 

 As a diverse defendant, Diebold has an interest in retaining the federal forum. 

Heininger, 706 F. Supp. at 862 (the diverse defendant has an interest in keeping the 

action in federal court). As recently explained by another District Court: 

Giving diverse defendants the option of choosing the federal forum is 

the very purpose of the removal statutes. Just as plaintiffs have the right 

to sue in state court when complete diversity does not exist, nonresident defendants have the right to remove to federal court when there 

is diversity. Therefore, the district court, when faced with an 

amended pleading naming a new non-diverse defendant in a 

removed case, should scrutinize that amendment more closely than 

an ordinary amendment.

Sexton, 51 F. Supp. 2d at 1313 (internal citations omitted) (emphasis added). The 

balance of the equities here weighs against allowing amendment because Diebold is 

a fully solvent defendant who will be vicariously liable for any of Mr. Trimmer’s 

negligent conduct and who has chosen to litigate in federal court. See Linares, 2012 

WL 1441577, at *3. 

IV. CONCLUSION 

Plaintiffs’ request to add Mr. Trimmer as a defendant is markedly late, 

designed solely to destroy subject matter jurisdiction, and will have no effect on the 

relief available to Plaintiffs. Accordingly, Diebold respectfully requests that the 

Court deny Plaintiffs’ Motion for Leave to File Second Amended Complaint and 

Motion to Remand. 

Case 4:20-cv-00524-MW-MAF Document 32 Filed 04/19/21 Page 12 of 14
 13 

Dated: April 19, 2021. Respectfully submitted, 

/s/ Jon J. Hernan 

Jon J. Hernan 

Florida Bar No.: 658588 

BOWMAN AND BROOKE LLP 

Four Northpoint Center 

1064 Greenwood Blvd., Suite 212 

Lake Mary, FL 32746-5419 

Telephone: (407) 585-7600 

Facsimile: (407) 585-7610 

jon.hernan@bowmanandbrooke.com 

Clifford S. Mendelsohn 

(admitted pro hac vice) 

Savannah M. Fox 

(admitted pro hac vice) 

TUCKER ELLIS LLP 

950 Main Avenue 

Suite 1100 

Cleveland, OH 44113-7213 

Telephone: (216) 592-5000 

Facsimile: (216) 592-5009 

clifford.mendelsohn@tuckerellis.com 

savannah.fox@tuckerellis.com 

Attorneys for Defendant, 

Diebold Nixdorf, Inc. 

Case 4:20-cv-00524-MW-MAF Document 32 Filed 04/19/21 Page 13 of 14
 14 

CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that on April 19, 2021, I electronically filed the foregoing 

document with the Clerk of the Court using CM/ECF system, which will send a notice 

of electronic filing to the following counsel of record: 

David C. Rash 

DAVID C. RASH, P.A. 

1655 North Commerce Parkway 

Suite 303 

Weston, Florida 

david@dcrashlaw.com 

jeff@dcrashlaw.com 

maileidys@dcrashlaw.com

Counsel for Plaintiffs, 

Deborah and Robert Hill 

/s/ Jon J. Hernan 

Jon J. Hernan

Case 4:20-cv-00524-MW-MAF Document 32 Filed 04/19/21 Page 14 of 14