IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION

ANUM SADRUDDIN ALI, individually and 

as representative of the Estate of Sarafaz 

Karawadia, and as next friend of AK, a 

minor, KULSUMBEN KAROWADIA, SIMI 

ALTAF KASOWADIA, individual and as 

representative of the Estate of Alta 

Kasowadia, and as next friend of ZK, a 

minor, KURBANALI KAROWADIA,

Plaintiffs,

v.

H.W. LOCHNER, INC. and ROBERT 

CAGLE,

Defendants.

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CIVIL ACTION NO. 1:23-CV-126-MJT-CLS

REPORT AND RECOMMENDATION ON PLAINTIFFS’ 

MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT (Doc. #7)

Pursuant to 28 U.S.C. § 636 and the Local Rules of Court for the Assignment of Duties to 

United States Magistrate Judges, the district court referred this proceeding to the undersigned 

United States magistrate judge to conduct all pretrial proceedings, to enter findings of fact and 

recommend disposition on case-dispositive matters, and to determine non-dispositive matters. 

28 U.S.C. § 636(b)(1); E.D. TEX. LOCAL R. CV-72. Pending before the court is Plaintiff’s Motion 

for Leave to File First Amended Complaint, in which Plaintiff seeks to join non-diverse defendants 

and remand this suit to state court pursuant to 28 U.S.C. § 1447(e). (Doc. #7.) After review, the 

undersigned recommends granting the motion, joining the non-diverse defendants, and remanding 

this suit to state court. 

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I. Background

The court received this case through Defendants’ Notice of Removal, filed on March 29, 

2023. (Doc. #1.) However, the relevant background begins over a year prior. 

This suit arises from a crane collapse that occurred on April 22, 2021. On April 4, 2022, 

Plaintiffs filed an amended petition1in state court in the 136th District Court of Jefferson County

[hereinafter “136th Case”], Texas, alleging negligence claims against various defendants relating 

to the crane collapse, including against Defendant H.W. Lochner, Inc. (“Lochner”).

2

 (Doc. #7-1.) 

Eight months later, on October 12, 2022, Lochner moved to dismiss Plaintiffs’ claims against it 

on the ground that Plaintiffs failed to attach to the petition a certificate of merit allegedly required 

under section 150.002 of the Texas Civil Practice and Remedies Code. (Doc. #7 at 3.) Plaintiffs 

contend that a certificate of merit was not required but, nonetheless, chose to voluntarily nonsuit 

Lochner without prejudice on December 29, 2022 (doc. #7-2), with the intention of (1) refiling

suit in state court against Lochner with a certificate of merit attached to the new petition and (2) 

consolidating the 136th Case with the refiled case. (Doc. #7 at 3-4.) Lochner’s motion to dismiss 

was denied as moot on January 23, 2023. (Doc. #7-3). 

On March 21, 2023, Plaintiffs filed the Original Petition to the instant suit in state court in 

the 172nd District Court of Jefferson County, Texas, naming Lochner and Robert Cagle as 

Defendants and alleging the same negligence claims relating to the crane collapse as in the 136th 

Case. (Doc. #2.) On March 23, 2023, Plaintiffs filed a Motion to Consolidate the two cases. (Doc. 

#7-4.) However, before the 172nd District Court ruled on the Motion to Consolidate, Lochner 

1 The parties have not provided the original petition for that suit in the briefing before the court. However, the amended 

petition is sufficient for the court to consider Plaintiff’s pending motion, as it establishes the pertinent fact that Lochner 

was a named defendant in the ongoing 136th Case at least as early as April 4, 2022. 

2 To the court’s knowledge, Defendant Robert Cagle is not a defendant in the 136th Case. 

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removed the suit to federal court on March 29, 2023, alleging that non-diverse Defendant Cagle 

was improperly joined in the instant suit.3 

On April 4, 2023, Plaintiffs filed the pending Motion for Leave, seeking to add the 

following non-diverse defendants as additional parties to this suit: (1) Johnson Bros. Corporation, 

a Southland Corporation; (2) Southland Holdings, LLC; (3) Southland Contracting, Inc.; and (4) 

Heritage Materials, LLC [hereinafter “proposed defendants”]. (Doc. #7-5.) The proposed 

defendants are all named defendants in the ongoing 136th Case. (Doc. #7-1.) Plaintiffs seek to 

join the proposed defendants pursuant to 28 U.S.C. § 1447(e), have the instant suit remanded back 

to the 172nd District Court, and then move to consolidate the instant remanded suit with the 136th 

Case. Defendants timely responded to the Motion for Leave on April 13, 2023 (doc. #10), and 

Plaintiffs replied4on June 13, 2023 (doc. #17). 

II. Legal Standard

Rule 15 of the Federal Rules of Civil Procedure ordinarily governs pretrial amendments to 

pleadings, providing that “[a] party may amend its pleading once as a matter of course within . . . 

if the pleading is one to which a responsive pleading is required, 21 days after service of a 

responsive pleading.” FED. R. CIV. P. 15(b). When, however, the proposed amendment would 

join a new, nondiverse defendant after the case has been removed to federal court, 28 U.S.C. §

1447(e) governs, which provides that “[i]f after removal the plaintiff seeks to join additional 

3 The court does not address in this motion whether Defendant Cagle was improperly joined, as the improper joinder 

(or “fraudulent joinder”) analysis does not apply to the relief sought by the pending motion (doc. #7), which seeks to 

join defendants after removal. Cobb v. Delta Exports, Inc., 186 F.3d 675, 677-78 (5th Cir. 1999). 

4 To be considered timely, Plaintiffs’ reply was due by April 20, 2023. E.D. TEX. LOCAL R. CV-7(f). The undersigned 

also notes that Plaintiffs’ Motion for Leave (doc. #7) does not comply with Local Rule CV-7(k), which states that 

“[m]options for leave to file a document should be filed separately and immediately before the document for which 

leave is sought,” and it is not clear from the motion’s certificate of conference (doc. #7 at 13) whether the parties 

complied with this district’s meet and confer requirement under Local Rule CV-7(h). The undersigned will not 

consider the untimely reply.

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defendants whose joinder would destroy subject matter jurisdiction,” the court may either (1) deny 

joinder or (2) permit joinder and remand the action to state court. 28 U.S.C. § 1447(e); see also

Kopczynski v. Wal-Mart Stores Tex., LP, No. H-10-4507, 2011 WL 902237, at *2 (S.D. Tex. Mar. 

14, 2011) (citing Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir. 1987)). In determining 

whether to permit or deny joinder under 28 U.S.C. § 1447(e), the court must balance the 

defendant’s interest in maintaining the federal forum with the plaintiff’s competing interest of not 

having parallel lawsuits. Kopczynski, 2011 WL 902237, at *2 (citing Hensgens, 833 F.2d at 1182). 

The balance does not hinge on a “rigid distinction of whether the proposed added party is an 

indispensable or permissive party.” Hensgens, 833 F.2d at 1182. “Instead, the district court . . . 

should use its discretion” in deciding whether to permit joinder and remand the suit under 28 

U.S.C. § 1447(e). Id. Courts therefore use the following factors to balance these competing 

interests and determine whether to permit or deny joinder under 28 U.S.C. § 1447(e): (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 significantly injured 

if amendment is not allowed; and (4) any other factors bearing on the equities. Kopczynski, 2011 

WL 902237, at *2 (citing Hensgens, 833 F.2d at 1182). 

III. Discussion

A. Factor 1 – Purpose of the Amendment

In determining the purpose of the proposed amendment, courts consider (1) whether, prior 

to removal, the plaintiff knew or should have known of the nondiverse defendant’s identity and 

activities, and (2) whether the plaintiff has a viable cause of action against the nondiverse 

defendant they seek to join. Kopczynski, 2011 WL 902237, at *3 (citations omitted). 

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Given the background of this case and its inextricable connection to the 136th Case that 

has been ongoing for over a year alleging the same causes of action against the same defendants, 

it is undisputed that Plaintiffs knew of the proposed nondiverse defendants’ identities and activities

prior to Defendants’ removal. It is also undisputed that Plaintiffs have a viable cause of action 

against the proposed nondiverse defendants, which ordinarily weighs in favor of permitting 

joinder. In a typical case, a plaintiff’s knowledge of the proposed defendant’s identity and 

activities prior to removal would likely be countered by the finding that the plaintiff clearly has a 

viable cause of action against the proposed defendants, and a court could potentially conclude that

the purpose of the amendment is not solely to defeat federal jurisdiction—resulting in either a 

neutral finding on this factor or that this factor weighs in favor of permitting joinder. However, as 

discussed supra § I, this is not a typical case. Plaintiffs are seeking to join the proposed defendants 

for the purpose of defeating federal jurisdiction, and they do not pretend otherwise. Yet, the reason 

Plaintiffs seek to add defendants for the purpose of defeating federal jurisdiction is due to 

Defendants’ removal of a case to federal court that, for all practical intents and purposes under 

these circumstances,

5

should be tried in state court along with the other 136th Case defendants. 

As Plaintiffs point out, the purpose of the amendment is not solely to defeat federal jurisdiction; 

the ultimate goal of the amendment is to consolidate6this suit with the ongoing 136th Case in order 

avoid duplicative litigation and an unnecessary waste of judicial and litigant resources. 

5 The undersigned writes to make clear that the findings and conclusions of law discussed in this section and 

throughout the remainder of this report are highly contingent on the unique background of this case. This report should 

not be construed as supportive of bad-faith forum manipulation from any party, whether that be plaintiff or the 

defendant, in another case. 

6 As Plaintiffs correctly note (doc. #7 at 10), remanding this suit to state court is the only available route to consolidate 

this case with the 136th Case, as this court cannot consolidate a state case with a federal case. Fidelity & Deposit Co. 

of Md. v. Casablanca Constr., No. 5:19-CV-62-DCB-MTP, 2020 WL 1238194, at *1 (S.D. Tex. Mar. 13, 2020).

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The undersigned does not conclude that this first factor is neutral or favors joinder. The 

first factor weighs against permitting joinder given that its purpose is, indisputably, to defeat 

federal jurisdiction. However, the undersigned finds that it does not weigh significantly against 

permitting joinder given the circumstances. 

B. Factor 2 – Dilatory

In determining whether a plaintiff has been dilatory in seeking the amendment, courts 

consider (1) the amount of time between the filing of the original state court action

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and the motion 

for leave to amend, (2) the amount of time between the removal and the motion for leave to amend, 

and (3) the stage of the proceeding. Lowe v. Singh, No. H-10-1811, 2010 WL 3359525, at *2 (S.D. 

Tex. Aug. 23, 2010) (citations omitted). 

Here, the Motion for Leave (doc. #7) was filed only fourteen days after the original state 

court action (doc. #2) and just six days after the removal (doc. #1). Plaintiffs clearly have not been 

dilatory seeking the amendment.8 This factor thus weighs in favor of permitting joinder. 

C. Factor 3 – Injury to Plaintiff

In determining whether the plaintiff will be significantly injured if the amendment is not 

allowed, courts consider (1) whether the already named diverse defendant would be unable to 

satisfy a future judgment, and (2) whether the possibility of a separate state court proceeding 

weighs against denying the proposed amendment because of the inefficiency of parallel 

proceedings or because such proceedings would place a financial burden on the plaintiff. Agyei v. 

Endurance Power Prods., 198 F. Supp. 3d 764, 777 (S. D. Tex. 2016). 

7 For clarity, “original state court action” refers to the instant suit originally filed in the 172nd District Court, not the 

136th Case. 

8

In fact, Plaintiffs even filed a “Motion for Expedited Consideration” (doc. #8) of the amendment on April 5, 2023,

in which they request that the court issue an expedited ruling on this matter, further demonstrating that Plaintiffs have 

not been dilatory in seeking the amendment. 

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Here, neither party argues that Defendants Lochner or Cagle would be unable to satisfy a 

future judgment. There is, however, an obvious inefficiency caused by the ongoing 136th Case

that is a separate and identical9state court proceeding. Allowing this case to proceed in federal 

court while the 136th Case—which has been ongoing for over a year—proceeds in state court 

would certainly place a financial burden on Plaintiffs by requiring them to litigate two separate 

cases, over the exact same subject matter, at the same time. Denying joinder would also present a 

risk of inconsistent judgments regarding issues and/or facts common to all defendants between the 

two cases. In contrast, permitting joinder and remanding this suit would allow Plaintiffs to 

consolidate the two cases (which Plaintiffs have made clear is their ultimate goal and, with 

reasonable certainty, would be accomplished upon remand), thereby eliminating the duplicative 

litigation and the judicial inefficiency, financial burden, and risk of inconsistent judgments on 

along with it. 

This factor strongly weighs in favor of permitting joinder. 

D. Other Equitable Considerations

Permitting joinder would resolve a number of equitable considerations that have already 

been discussed in the context of the other three factors, including the Defendants’ removal of this 

suit before it could be consolidated with the 136th Case and the unnecessary delay and judicial

inefficiency that has already resulted from Defendants creating two parallel proceedings in federal 

and state court. The equitable considerations strongly weigh in favor of permitting joinder. 

Furthermore, Defendants have not articulated any specific reason as to why it would be inequitable 

for them to have to litigate this suit in state court (ultimately alongside its companion 136th Case

defendants) beyond the basic fact that they “timely and properly” removed this suit to federal court. 

9 The only difference between the 136th Case action and this action is the participation of Defendants Lochner and 

Cagle. 

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(Doc. #10 at 8.) The fact that a defendant “timely and properly” removed to federal court does not

present any unique equitable considerations; rather, it is an inherent prerequisite to undergoing the 

Hensgens analysis under 28 U.S.C. § 1447(e) that is present in nearly all cases where the plaintiff 

seeks to join non-diverse defendants post-removal. 

E. Conclusion

Considering all of the Hensgens factors in the context of this case—three of which favor 

or strongly favor permitting joinder—the undersigned finds that Plaintiffs’ Motion for Leave (doc. 

#7) should be granted, Plaintiffs should be permitted to join the proposed defendants, and this case 

should be remanded back to state court pursuant to 28 U.S.C. § 1447(e). 

IV. Recommendation

For the foregoing reasons, the undersigned recommends that Plaintiffs’ Motion for Leave 

to File First Amended Complaint (doc. #7) be GRANTED. Johnson Bros. Corporation, a 

Southland Corporation, Southland Holdings, LLC, Southland Contracting, Inc., and Heritage 

Materials, LLC should be JOINED as defendants, and this case should be REMANDED back to 

the 172nd District Court of Jefferson County pursuant to 28 U.S.C. § 1447(e). 

V. Objections

Within fourteen (14) days after service of the magistrate judge’s report, any party must 

serve and file specific written objections to the findings and recommendations of the magistrate 

judge. 28 U.S.C. § 636(b)(1)(C). To be specific, an objection must identify the specific finding 

or recommendation to which objection is made, state the basis for the objection, and specify the 

place in the magistrate judge’s report and recommendation where the disputed determination is 

found. An objection that merely incorporates by reference or refers to the briefing before the 

magistrate judge is not specific.

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Failure to file specific, written objections will bar the party from appealing the unobjectedto factual findings and legal conclusions of the magistrate judge that are accepted by the district 

court, except upon grounds of plain error, provided that the party has been served with notice that 

such consequences will result from a failure to object. Douglass v. United Services Auto. Ass’n, 

79 F.3d 1415, 1417 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C. 

§ 636(b)(1) (extending the time to file objections from ten to fourteen days). 

.

___________________________________

Christine L Stetson

UNITED STATES MAGISTRATE JUDGE SIGNED this the 15th day of June, 2023.

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