1 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

CINDY COLLETTI as Personal 

Representative for the Estate of 

RICHARD COLLETTI, Deceased, 

 Plaintiff, Case No. 14-cv-13538 

 Hon. Matthew F. Leitman 

v. 

MENARD, INC. and JOHN DOE, 

 Defendants. 

_________________________________/ 

OPINION AND ORDER GRANTING PLAINTIFF’S MOTIONS TO 

AMEND COMPLAINT AND MOTIONS TO REMAND 

Background 

 On August 30, 2014, Richard Colletti (“Colletti”) died in a tragic accident at 

a retail store owned and operated by Defendant Menard, Inc. (“Menard”) in 

Macomb County, Michigan. A wooden pallet containing ceramic tile appears to 

have fallen off a shelf, landed on top of Colletti, and killed him. Following 

Colletti’s death, the Macomb County Probate Court appointed Colletti’s wife, 

Cindy (“Mrs. Colletti”), as Personal Representative for his estate. 

 On September 4, 2014, Mrs. Colletti, through counsel, filed two civil actions 

against Menard in the Macomb County Circuit Court. Both actions arose out of 

Colletti’s death. Mrs. Colletti filed the first action in her capacity as Personal 

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Representative, and she sought damages on behalf of Colletti’s estate. See Cindy 

Colletti, as Personal Representative for the Estate of Richard Colletti, Deceased v. 

Menard, Inc., Macomb County Circuit Court Case No. 14-3444-NO. Mrs. Colletti 

filed the second action on her own behalf and sought damages for negligent 

infliction of emotional distress. See Cindy Colletti v. Menard, Inc., Macomb 

County Circuit Court Case No. 14-3447-NO. 

 The “General Allegations” sections of Mrs. Colletti’s two state-court 

complaints were essentially identical. In each complaint, Mrs. Colletti alleged that 

an unidentified Menard employee was negligent and/or grossly negligent in 

placing the pallet on the shelf and that Colletti’s injuries and death were caused by 

that negligence. Menard was the sole defendant in both state-court actions; neither 

complaint named a Menard employee or a John Doe as an individual defendant. 

 On September 11, 2014, Menard removed both state-court actions to this 

Court, and they were assigned civil action numbers 14-cv-13538 and 14-cv-13539 

(collectively the “Federal Actions”). Menard invoked this Court’s diversity 

jurisdiction pursuant to 28 U.S.C. § 1332(a). At the time of removal, complete 

diversity existed between the parties. Menard is a citizen of the State of 

Wisconsin; Mrs. Colletti – both personally and in her capacity as Personal 

Representative – is a citizen of Michigan. 

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 On September 23, 2014, Mrs. Colletti (purporting to act pursuant to Rule 

15(a)(1) of the Federal Rules of Civil Procedure) filed First Amended Complaints 

in the Federal Actions. The First Amended Complaints added a new defendant: 

John Doe. Mrs. Colletti alleged that John Doe – whom she alleged to be a 

Michigan citizen – is the Menard employee who negligently “placed the pallet” 

that fell on Colletti. The First Amended Complaints added a claim for 

negligence/gross negligence against John Doe individually. In addition, the First 

Amended Complaint in the action Mrs. Colletti brought on her own behalf added a 

count against John Doe individually titled “Negligence Infliction of Emotional 

Distress.” 

 On September 24, 2014, Mrs. Colletti filed motions to remand the Federal 

Actions to state court. In these motions, Mrs. Colletti argues that the addition of 

John Doe as a defendant destroys diversity and divests this Court of subject-matter 

jurisdiction. (See id.) 

 On November 5, 2014 (while the remand motions were still pending), Mrs. 

Colletti filed motions to amend her First Amended Complaints. In these motions, 

Mrs. Colletti says that on or about October 21, 2014, she learned that John Doe’s 

name is actually Eric Davis (“Davis”) and that Davis is a Michigan citizen. Mrs. 

Colletti seeks to add Davis as a named defendant in place of John Doe. 

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 Menard opposed Mrs. Colletti’s motions to amend and remand. The Court 

heard oral argument the motions on January 7, 2015. 

Analysis 

Menard’s removals of the actions filed by Mrs. Colletti in state court were 

proper. At the time of the removals, complete diversity existed between Mrs. 

Colletti and Menard (the only parties then in the case), and the amount in 

controversy in each action exceeded $75,000.00. Thus, this Court had subjectmatter jurisdiction at that time, see 28 U.S.C. § 1332(a), and Menard had the right 

to remove the actions to this Court. See 28 U.S.C. § 1446. 

While Rule 15(a) of the Federal Rules of Civil Procedure generally governs 

the amendment of complaints, the rule does not apply to post-removal amendments 

that would add a non-diverse defendant and divest a federal court of subject-matter 

jurisdiction. Post-removal efforts to add a non-diverse defendant are governed by 

28 U.S.C. § 1447(e). See, e.g., J. Lewis Cooper Co. v. Diageo North America, 

Inc., 370 F.Supp.2d 613, 618 (E.D. Mich. 2005) (“Because removal was proper, 

and the motion to amend the complaint seeks to add a party that would destroy 

complete diversity, the factors articulated by the decisional law construing section 

1447(e) should determine the propriety of allowing the amendment rather than the 

liberal amendment provisions of Rule 15(a)”); see also Phillip-Stubbs v. Walmart 

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Supercenter, 12-cv-10707, 2012 WL 1952444, at * 3 (E.D. Mich. May 25, 2012) 

(collecting cases). 

Section 1447(e) “appears to entrust the decision to allow joinder of a 

jurisdiction-destroying party to the court’s discretion.” J. Lewis Cooper, 370 

F.Supp.2d at 618. In exercising that discretion, a court must consider “the diverse 

defendant’s interest in selecting a federal forum, together with four other factors: 

‘(1) the extent to which the purpose of the amendment is to defeat jurisdiction; (2) 

whether the plaintiff was dilatory in seeking the amendment; (3) whether the 

plaintiff will be injured significantly if the amendment is not allowed; and (4) any 

other factors bearing on the equities.’” Id. (quoting Siedlik v. Stanley Works, Inc.,

205 F.Supp.2d 762, 765 (E.D. Mich. 2002)) (internal citations omitted). 

The Court begins its Section 1447(e) analysis with the recognition that 

Menard has a meaningful interest in having a federal court adjudicate these actions. 

Indeed, “Congress extends the benefits and safeguards of federal courts to ‘provide 

a separate forum for out-of-state citizens against the prejudices of local courts and 

local juries.’” Holston Inv., Inc. B.V.I. v. Lanlogistics Corp., 677 F.3d 1068, 1070 

(11th Cir. 2012) (quoting S.Rep. No. 1830, at 3 (1958), reprinted in 1958 

U.S.C.C.A.N. 3099, 3101-02). Here, Menard plausibly argues that, as a large 

foreign corporation accused of inflicting a mortal injury upon a local consumer, it 

may stand to benefit from the protections inherent in a federal forum. 

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On the other hand, the Supreme Court has recognized that the risk of 

prejudice to a foreign defendant hauled into a state court is lessened when that 

defendant stands trial alongside an in-state co-defendant – a result Mrs. Colletti 

seeks to achieve through her motions to amend. See Exxon Mobil Corp. v. 

Allapattah Serv., Inc., 545 U.S. 546, 554 (2005). Thus, allowing Mrs. Colletti’s 

proposed amendments and sending her two actions against both Menard and Davis 

back to state court would not necessarily subject Menard to substantial unfair 

prejudice. Indeed, had Mrs. Colletti known Davis’ identity and named him as a 

defendant in her original state-court complaints, Menard could not even arguably 

have sought the protections of a federal forum. Moreover, Menard’s interest in a 

federal forum is counterbalanced, at least to some degree, by Mrs. Colletti’s right, 

as plaintiff, to fashion her complaints, choose a forum, and prosecute her lawsuits 

against those defendants she deems proper. See, e.g., Pietrowsky v. Sam’s Club, 

11-cv-10999, 2011 WL 2433466, at *2 (E.D. Mich. June 13, 2011) (quoting J. 

Lewis Cooper, 370 F.Supp.2d at 618) (“[W]hile Defendant's preference for a 

federal forum militates against joinder, this consideration is offset by Plaintiffs’ 

‘right to fashion their lawsuit, select their causes of action, and advance theories 

against the parties of their choosing’”). On balance, this first factor favors Menard, 

but not overwhelmingly. 

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Next, there is a fair question here as to whether Mrs. Colletti seeks to add 

Davis as a defendant in order to destroy this Court’s diversity jurisdiction. Menard 

insists that the timing of the proposed amendment – only after Menard invoked this 

Court’s diversity jurisdiction – confirms that the addition of Davis is intended to 

divest this Court of jurisdiction. Menard highlights that Mrs. Colletti’s state-court 

complaints did not name any unidentified Menard employees as John Doe 

defendants, and Menard insists that this omission proves that, until removal, Mrs. 

Colletti never had any intention of asserting claims against any individual Menard 

employees. 

When confronted with Menard’s arguments at the hearing on these motions, 

Mrs. Colletti’s counsel represented to the Court that he always intended to name 

the relevant Menard employee as a defendant. Counsel said that he would have 

named that employee as a defendant in the original state-court complaints but was 

unable do so because the employee’s identity was then-unknown. Counsel also 

confessed that he made a mistake in failing to include claims against a John Doe 

defendant. Counsel said that he was instructed to file the complaints very quickly 

and that he overlooked the John Doe issue in his haste to draft and file.1

 Counsel 

further pointed out that the original state-court complaints did refer to allegedly-

 

1

 Colletti was killed on Saturday, August 30, 2014. Mrs. Colletti filed her initial 

state-court complaints just three business days later on September 4, 2014. 

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negligent acts by a Menard employee and that the addition of claims against that 

employee would not materially change Mrs. Colletti’s theory of the case. The 

Court had the opportunity to hear these arguments directly from counsel on the 

record in open court, and the Court found counsel to be credible and 

straightforward. Moreover, the Court is inclined to believe a representation made 

by an officer of the Court on the record.2

 The Court therefore does not find that the 

purpose of the proposed amendments is to divest the Court of jurisdiction. The 

purpose-of-amendment factor favors Mrs. Colletti. 

Likewise, the Court does not find that Mrs. Colletti unduly delayed in 

seeking to add Davis as a defendant. Mrs. Colletti moved to add Davis to the 

Federal Actions less than two weeks after learning his identity. And Mrs. Colletti 

had already purported to add the John Doe Defendant six weeks earlier, putting 

Menard on notice shortly after removal that she wanted to add the allegedlynegligent employee as a defendant. There has been no discovery, and thus 

Menard’s litigation position would not be prejudiced by the addition of Davis now. 

The timeliness factor favors Mrs. Colletti. 

 

2

 In a future case involving the same law firm, the Court may attach more 

significance to the omission of a John Doe defendant. The firm should now be on 

notice that if it wishes to remove any doubts about its intention to assert claims 

against individuals whose identities are unknown at the time it files a complaint, it 

should include John Doe defendants in its initial complaint.

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The prejudice factor favors Menard. The Court does not believe that Mrs. 

Colletti would suffer serious prejudice if the Court barred her from adding Davis as 

a defendant. Menard has conceded that it is liable for the acts and omissions of 

Davis with respect to the pallet in question, and that undercuts any need Mrs. 

Colletti may otherwise have had to include Davis in this action. Mrs. Colletti 

counters that she needs to sue Davis and Menard in order to maximize her chances 

of collecting a favorable judgment. But she has presented the Court with no reason 

to question Menard’s collectability for the full amount of even the large judgments 

that Mrs. Colletti will undoubtedly seek.3

 Nor has Mrs. Colletti shown that adding 

Davis to this action would do anything to enhance her chances of collection if 

Menard somehow became uncollectible. Menard’s counsel, who also represents 

Davis in a limited capacity, represented to the Court (based on his direct 

communications with Davis) that Davis is a recent college graduate burdened by 

student loans, that Davis lacks any meaningful assets, and, perhaps most 

importantly, that Davis has no insurance coverage that could be available to Mrs. 

 

3 Forbes lists Menard as the 43rd largest privately-held company in the United 

States. Forbes estimates that Menard employed 43,000 workers and earned $8.3 

billion in yearly revenue as of October 2014. (See Forbes “America’s Largest 

Private Companies” list, available at: http://www.forbes.com/largest-privatecompanies/list/.) 

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Colletti if she were to secure a judgment against him.4

 Mrs. Colletti has not 

offered the Court any reason to doubt these representations concerning Davis’ lack 

of assets. 

The relevant factors here are evenly balanced: two favor Menard and two 

favor Mrs. Colletti. The resolution of Mrs. Colletti’s motions to amend really 

could go either way. For three reasons, the Court concludes that granting the 

motions and allowing the addition of Davis as a defendant is a proper exercise of 

the Court’s discretion. First, this Court has granted a motion to add a diverse 

defendant and remand under identical circumstances. See Pietrowsky, supra

(plaintiff sued defendant retailer in state court for personal injury and did not name 

a John Doe defendant; retailer removed to federal court; plaintiff sought to add 

non-diverse employee of the retailer as a second defendant and to remand action to 

state court; and Court granted motion). Menard has not shown that Mrs. Colletti’s 

motions to amend and remand are distinguishable in any way from those in 

Pietrowsky, nor has Menard given the Court any reason to question the analysis or 

holding of that case. The Court finds Pietrowsky to be persuasive. 

 

4 At oral argument, counsel for Mrs. Colletti did not appear interested in obtaining 

a financial affidavit and/or taking a creditor’s examination of Davis to confirm 

these representations.

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Second, Menard has not cited a single Section 1447(e) case in which a 

federal court has prevented a plaintiff from adding a non-diverse defendant where, 

as here, the plaintiff did not know the defendant’s identity when the plaintiff filed 

her initial complaint. In every case cited by Menard in which the proposed 

diversity-destroying amendment was denied, the plaintiff knew the defendant’s 

identity when the complaint was filed, and the courts frequently cited that 

knowledge as a key factor in the decision to deny the proposed amendment. See, 

e.g., Wells v. Certainteed Corp., 950 F.Supp. 200, 201 (E.D. Mich. 1997) 

(“Plaintiff has asserted no reason why Epstein was not named as a defendant in the 

original action....Plaintiff was [] aware of Epstein's alleged involvement when she 

filed the complaint in September, 1996. She chose, at that time, not to include him 

as a defendant. It was only after defendant removed the case to federal court, that 

she sought to add him as a defendant”) (emphasis in original); Eastman v. The 

Peggs Co., Inc., 08-cv-12036, 2008 WL 2714429, at *2 (E.D. Mich. July 8, 2008) 

(denying plaintiff’s motion to add an individual defendant in part because 

“Plaintiff's original complaint [made] over twenty references to [the individual 

defendant], identifying him as Defendant's district manager, alleging that he made 

repeated racially derogatory remarks at work and claiming that he actually 

assaulted Plaintiff on the job. Therefore, at the time the case was filed in state 

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court, Plaintiff had every reason to know of [the defendant] and any potential 

claims against him individually”). 

Finally, it is well-established that any doubts concerning the propriety of 

remand should be resolved in favor of remand, and that rule weighs in favor of 

remanding where, as here, the balance under Section 1447(e) is so close. See, e.g., 

Phillip-Stubbs, 2012 WL 1952444, at *5 (invoking rule that “the Court must 

resolve all doubts in favor of remand” under a Section 1447(e) analysis). 

The Court will thus allow Mrs. Colletti to file a Second Amended Complaint 

in the Federal Actions adding Davis as an additional defendant. Because Davis is a 

Michigan citizen, once Mrs. Colletti files her Second Amended Complaints, 

complete diversity will no longer exist. At that point, the Court will no longer 

have subject-matter jurisdiction over the Federal Actions, and it will then remand 

both actions to state court. This Court is confident that the Macomb County 

Circuit Court will provide a fair forum for the litigation of the claims and defenses 

in these actions. 

Conclusion 

For all of the reasons explained above, IT IS HEREBY ORDERED that 

Mrs. Colletti’s Motions to Amend and Motions to Remand are GRANTED. Mrs. 

Colletti may, within fourteen days of the date of this Opinion and Order, file a 

Second Amended Complaint in each of the Federal Actions adding her claims 

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against Davis individually. Upon the filing of the Second Amended Complaints, 

the Court will enter an order remanding the Federal Actions to the Macomb 

County Circuit Court. 

 s/Matthew F. Leitman 

 MATTHEW F. LEITMAN 

 UNITED STATES DISTRICT JUDGE 

Dated: January 29, 2015 

 I hereby certify that a copy of the foregoing document was served upon the 

parties and/or counsel of record on January 29, 2015, by electronic means and/or 

ordinary mail. 

 s/Holly A. Monda 

 Case Manager 

 (313) 234-5113

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