1The appropriate defendant appears to be MetLife Investors

USA Insurance Company.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Jennifer Knight

v. Civil No. 08-cv-354-JM

MetLife Investors USA

Insurance Company, et al

O R D E R

Plaintiff moves to amend its complaint, to change the

identity of Defendant,1 to add a non-diverse party as a defendant

to the action, and to remand to the state court. Defendant

objects.

BACKGROUND

Plaintiff Jennifer Knight alleges that her settlor, her late 

husband, applied for an individual $500,000 life insurance policy

on April 15, 2006. He made his prior medical records available

to MetLife and submitted to a paramedical examination at

MetLife’s request on April 24, 2006. On May 1, 2006, MetLife

informed Mr. Knight that the insurance policy was “all set.” 

Case 1:08-cv-00354-JM Document 28 Filed 11/14/08 Page 1 of 5
2

Instead of issuing the policy, MetLife asked in June for an old

echocardiogram and later in June for Mr. Knight’s driving records

and for some further beneficiary information. MetLife finally

issued the policy, effective April 1, 2006, on July 13, 2006,

eight days after Mr. Knight learned that he had cancer. Mr.

Knight subsequently died, and MetLife has refused to pay

plaintiff under the policy.

Plaintiff sued MetLife in state court. After MetLife

removed the case to this court, the plaintiff filed this motion

to amend the complaint and remand to state court. The effect of

the amendment, if granted, would be to destroy diversity

jurisdiction.

DISCUSSION

Plaintiff’s motion requests that she be allowed to amend her

complaint “as a matter of course.” However, when a party amends

its complaint to add a party, even before a responsive pleading

is served, it is not an amendment as of right. Leave to amend

must be obtained to add a new defendant. See Moore v. Indiana,

999 F.2d 1125, 1128 (7th Cir. 1993); Woodruff v. Mueller III,

2004 WL 724886, *5 (N.D. Cal.). That is particularly true when

the party in question, if added, would destroy the court’s

Case 1:08-cv-00354-JM Document 28 Filed 11/14/08 Page 2 of 5
3

diversity jurisdiction. See 28 U.S.C. § 1447(e). Nevertheless,

the court has discretion to add a party even though the result

would be to destroy diversity jurisdiction. See Casas Office

Machs., Inc. v. Mita Copystar Am., 42 F.3d 668, 675 n. 8 (1st

Cir. 1994).

In making the determination of whether a non-diverse party

may be added, the court must consider a number of factors: (1)

the extent to which the purpose of the Amended Declaration is to

defeat jurisdiction; (2) whether plaintiff has been dilatory in

seeking the amendment; and (3) whether plaintiff will be

significantly injured if the Amended Declaration is not allowed. 

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

The First Circuit has adopted the Hensgens factors test. See

Casas Office Machines, Inc., 42 F.3d at 675 n. 8.

It is obvious that plaintiff prefers to be in state court. 

Plaintiff candidly states that she had always intended to include

Halla-Lulya and/or Ask Brokerage in the same suit as MetLife if

discovery of MetLife’s files showed they were appropriate

defendants. That could only be done in state court. Adding

Halla-Lulya in this court was at least in part to defeat

jurisdiction and send the case to a jurisdiction where plaintiff

Case 1:08-cv-00354-JM Document 28 Filed 11/14/08 Page 3 of 5
4

could include all of the parties it desired to sue. 

While Halla-Lulya was not initially made a party, the motion

to add it was filed promptly after removal and less than sixty

(60) days after service of the initial writ. Plaintiff was not

dilatory.

Defendant argues that plaintiff will not be significantly

injured if her motion is denied because she can pursue HallaLulya in a parallel suit in state court. MetLife claims it will,

however, suffer injury if the motion is granted because it will

be denied its choice of forum if the resulting mandatory remand

is made. Plaintiff, on the other hand, says it will be injured

because of increased cost, but more importantly because of the

“danger of parallel lawsuits in federal and state court, which

may spawn inconsistent results and inefficient use of judicial

resources.” Mayes v. Rapaport, 198 F.3d 457 (4th Cir. 1999). One

need only look at the alleged statement of May 1, 2006 in which

MetLife supposedly told Mr. Knight that the policy was “all set”

to see the danger of inconsistent results. Two juries could find

differently on whether it was said, by whom it was said, to whom

it was said and the effect of it being said. That poses too

great a threat of injury to plaintiff in contrast to the de

Case 1:08-cv-00354-JM Document 28 Filed 11/14/08 Page 4 of 5
5

minimus threat of injury to MetLife posed by a remand.

This is a case where it is appropriate to add the party even

though it destroys diversity. Plaintiff’s motion to amend

pleadings (document no. 10) is granted. The motion to remand

(document no. 13) is granted. Defendant’s motion to strike

(document no. 17) is denied.

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: November 14, 2008

cc: David S.V. Shirley, Esq.

 Edmund J. Waters, Jr., Esq.

 James J. Ciapciak, Esq.

Case 1:08-cv-00354-JM Document 28 Filed 11/14/08 Page 5 of 5