1

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

CINDY COLLETTI, 

 Plaintiff, Case No. 14-cv-13539 

 Hon. Matthew F. Leitman 

v. 

MENARD, INC. and JOHN DOE, 

 Defendants 

_________________________________/ 

ORDER REQUIRING THE PARTIES TO SUBMIT SUPPLEMENTAL 

BRIEFS WITH RESPECT TO PLAINTIFF’S 

MOTION TO REMAND (ECF #3) 

 On September 4, 2014, Plaintiff Cindy Colletti (“Plaintiff”) filed the instant 

negligence action in the Macomb County Circuit Court against Defendant Menard, 

Inc. (“Menard”). (See Complaint, ECF #1-2.) Menard thereafter timely removed 

the action to this Court. (See Notice of Removal, ECF #1.) There is no dispute 

that, at the time of removal, removal was proper and this Court had subject-matter 

jurisdiction over this action. 

 Following removal, Plaintiff filed a First Amended Complaint. (See First 

Am. Compl., ECF #2.) Plaintiff filed this amended pleading within twenty-one 

days of service of the Complaint and before Menard filed a responsive pleading. It 

appears Plaintiff believed she had the right to file this amended pleading pursuant 

to Federal Rule of Civil Procedure 15(a)(1)(A). In her First Amended Complaint, 

2:14-cv-13539-MFL-DRG Doc # 9 Filed 10/28/14 Pg 1 of 4 Pg ID 82
2

Plaintiff added a second defendant, a then-unknown Menard’s employee identified 

only as “John Doe.” (See ECF #2.) Plaintiff alleged that this “John Doe” 

Defendant is a Macomb County, Michigan resident. (See id. at ¶4.) Plaintiff 

further alleged that the “John Doe” Defendant acted negligently and breached 

certain duties owed to Richard Colletti, the decedent in this action. (See id. at 

¶¶20-25.) 

 On September 24, 2014, Plaintiff filed her instant Motion to Remand. (See 

ECF #3.) Plaintiff argues that the “John Doe” Defendant’s Michigan citizenship 

“destroys the complete diversity [] Menard’s claimed in their Notice of 

Removal....” (Id. at 2, Pg. ID 39.) Thus, Plaintiff claims, this Court now lacks 

subject-matter jurisdiction to hear this action. In response, Menard made a single 

argument: that “[p]ursuant to 28 U.S.C. § 1441(b), the citizenship of a “John Doe” 

defendant is disregarded when determining whether diversity jurisdiction exists 

under 28 U.S.C.§ 1332(a).” (Def.’s Brief at 2, Pg. ID 63.) In her reply brief, 

Plaintiff says that she has now identified the “John Doe” Defendant, that she has 

confirmed that he resides in Michigan, and that she will soon request leave to file a 

Second Amended Complaint replacing the “John Doe” Defendant with the name of 

the newly-identified Menard’s employee. (See ECF #7.) 

 The Court has reviewed the parties’ filings with respect to Plaintiff’s Motion 

to Remand and conducted its own independent research. There appears to be some 

2:14-cv-13539-MFL-DRG Doc # 9 Filed 10/28/14 Pg 2 of 4 Pg ID 83
3

authority for the proposition that where, as here, following removal a plaintiff 

amends her Complaint as a matter of course to add a non-diverse Defendant, the 

Court need not automatically remand the action. This authority suggests that 

pursuant to 28 U.S.C. § 1447(e), the Court may “deny joinder[] or permit joinder 

and remand the action to the State Court.” Id. (emphasis added). See also PhillipStubbs v. Walmart Supercenter, 12-cv-10707, 2012 WL 1952444 at *3-*4 (E.D. 

Mich. May 25, 2012); Mayes v. Rapoport, 198 F.3d 457, 461-463 (4th Cir. 1999). 

 The Court would benefit from additional briefing on the applicability of 28 

U.S.C. § 1447(e) and whether it should deny or permit joinder of the added 

Defendant in this case.1

 Accordingly, IT IS HEREBY ORDERED THAT the 

parties shall submit supplemental briefing, not to exceed 15 pages, addressing the 

following: 

 1) Whether 28 U.S.C. § 1447(e) applies under current procedural posture 

of this action; and 

                                                            

1

 The Court believes that given Plaintiff’s identification of the non-diverse 

individual Defendant, Menard’s argument related to whether the Court should 

disregard the citizenship of a “John Doe” defendant is no longer relevant to the 

decision on whether to remand this action. Even if the Court were to decide that it 

should disregard the citizenship of a “John Doe” defendant and were to deny 

Plaintiff’s Motion to Remand on that ground, the Court would then immediately be 

confronted with a motion from Plaintiff requesting leave to amend the First 

Amended Complaint to replace “John Doe” with the now-identified name of the 

Menard employee. The Court would then find itself in the same position it is in 

now – confronting whether it should permit Plaintiff to join the additional nondiverse individual Defendant in this action and whether to remand this action to 

state court. 

2:14-cv-13539-MFL-DRG Doc # 9 Filed 10/28/14 Pg 3 of 4 Pg ID 84
4

 2) Whether the Court should permit or deny Plaintiff’s amendment 

joining the additional non-diverse individual Defendant in this action. Among 

other factors, the parties shall address “(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; [] (4) any other factors bearing on the equities;” and (5) 

“the diverse defendant’s interest in selecting a federal forum.” Phillip-Stubbs, 

2012 WL 1952444 at *4. 

 While the parties are free to cite any authority in their supplemental briefs, 

the Court is most interested in decisions from the United States Supreme Court, the 

United States Court of Appeals for the Sixth Circuit, and this Court. 

 Plaintiff shall file her supplemental brief no later than November 5, 2014. 

Defendants shall file their supplemental brief within fourteen (14) days after 

Plaintiff’s filing. 

       s/Matthew F. Leitman 

 MATTHEW F. LEITMAN 

 UNITED STATES DISTRICT JUDGE 

Dated: October 28, 2014 

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

and/or counsel of record on October 28, 2014, by electronic means and/or ordinary 

mail. 

 s/Holly A. Monda 

 Case Manager 

 (313) 234-5113 

2:14-cv-13539-MFL-DRG Doc # 9 Filed 10/28/14 Pg 4 of 4 Pg ID 85