[1] 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

DAVID H. NELSON, etc., et al., ) 

 ) 

Plaintiffs, ) 

 ) 

v. ) CIVIL ACTION 09-0520-WS-B 

 ) 

WHIRLPOOL CORPORATION, et al., ) 

 ) 

Defendants. ) 

ORDER 

This matter is before the Court on the plaintiffs’ motion for leave to amend the 

complaint. (Doc. 47). Embedded in the motion is a motion to remand the action to state 

court. (Id. at 6). The parties have submitted briefs in support of their respective 

positions, (Docs. 47, 50, 51, 55, 73, 82, 83, 85), and the motion is ripe for resolution. 

After carefully considering the foregoing and other relevant material in the file, the Court 

concludes that the motion for leave to amend is due to be granted and that the motion to 

remand is due to be denied. 

BACKGROUND 

 On January 30, 2009, a combination air conditioner/heater window unit 

manufactured by defendant Whirlpool Corporation (“Whirlpool”) exploded and/or caught 

fire, setting afire the home of the plaintiffs. They escaped the conflagration, but their 

three minor children did not. In this lawsuit, the plaintiffs, as the personal representatives 

of their children’s estates, sue for their wrongful deaths under Alabama law, alleging 

claims of negligence, wantonness and products liability. 

 At the time of removal, the defendants were Whirlpool, Lowe’s Home Centers, 

Inc. (“Lowe’s”), and Clarke-Washington Electric Membership Corporation (“Clarke”). 

Removal was effected by Whirlpool and Lowe’s on the basis of diversity of citizenship. 

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Although Clarke, like the plaintiffs, is an Alabama citizen, the removing defendants 

argued that its citizenship could be ignored because it was fraudulently joined. The Court 

denied the plaintiffs’ motion to remand, concluding that Clarke was fraudulently joined 

and that the amount in controversy exceeds $75,000. (Doc. 17). The Court approved 

interlocutory appeal of the latter ruling but not of its fraudulent joinder decision. (Doc. 

34). The Court declined the request of Whirlpool and Lowe’s to dismiss Clarke as a 

defendant because Clarke (which had appeared and defended, (Doc. 1 at 113)), had not 

requested such relief and because the movants did not assert or demonstrate standing to 

seek a non-moving co-defendant’s dismissal. (Doc. 17 at 12). 

 Only Count III of the amended complaint, under which removal was undertaken, 

is asserted against Clarke. It alleges that Clarke: 

 negligently and/or wantonly breached its duty by: 

 a. Failing to properly operate, maintain and inspect the 

 electrical distribution lines and/or distribution transformer 

 servicing the Plaintiffs’ home; 

 b. Failing to provide proper and adequate over-current and 

 surge protection to the electrical distribution lines and/or 

 distribution transformer servicing the Plaintiffs’ home; 

 c. Failing to properly operate, maintain and inspect the 

 overhead service entrance cable to the Plaintiffs’ home; 

 d. Failing to provide proper and adequate over-current and 

 surge protection to the overhead service entrance cable 

 to the Plaintiffs’ home; 

 e. Failing to properly operate, maintain and inspect the meter 

 box and meter set servicing the Plaintiffs’ home; and/or 

 f. Failing to provide proper and adequate over-current and 

 surge protection to the meter box and meter set servicing 

 the Plaintiffs’ home. 

(Doc. 1 at 56). 

 The Court ruled that Clarke’s joinder was fraudulent because the plaintiffs 

admitted they had no evidence there was anything wrong with any of the components and 

no evidence that any of the components experienced a surge or similar event. The Court 

further ruled that, using the test proposed by the defendants and unchallenged by the 

plaintiffs, their lack of evidence was inexcusable because they had not performed an 

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investigation reasonable under the circumstances before suing Clarke and because they 

did not assert that appropriate examinations and testing (none had been done when Clarke 

was sued) were likely to uncover evidence of Clarke’s culpability. On the contrary, their 

own expert admitted it would be impossible “to even begin to evaluate” whether Clarke 

could be liable until after future examination, testing and disassembly was accomplished. 

(Doc. 17 at 9-11). 

 The plaintiffs also attempted to justify remand by relying on an affidavit from a 

second expert, who noted the open and obvious existence of improper wiring outside the 

house and below the meter box and on Alabama law that an electrical utility can be liable 

if it supplies electricity to a residence with actual knowledge of a defective or dangerous 

condition in the home’s wiring, even though that wiring is the direct responsibility of the 

homeowner and not the utility. The Court rejected this argument because, whatever the 

law and whatever the evidence, fraudulent joinder must be assessed “‘under the 

circumstances alleged in the complaint.’” (Doc. 17 at 11 (quoting Florence v. Crescent 

Resources, LLC, 484 F.3d 1293, 1299 (11th Cir. 2007)). The amended complaint 

provided a limited and exclusive list of Clarke’s allegedly negligent conduct, and that list 

was confined to the meter box and components above the meter box (all of which are the 

direct responsibility of the utility) and did not include providing electricity to a home 

with knowledge of the home’s defective or dangerous wiring. 

 The proposed second amended complaint removes the allegations quoted from the 

first amended complaint. In their place, the plaintiffs would allege liability based on the 

evidence from its second expert: 

 Upon information and belief, Defendant, Clarke-Washington, had 

 actual notice of a dangerous electrical condition in the Plaintiffs’ home and/or 

 in the electrical supply lines or other equipment providing electricity to 

 Plaintiffs’ home. Despite that knowledge, Clarke-Washington negligently 

 and/or wantonly supplied electricity to Plaintiffs’ home. 

(Doc. 47, Attachment at 5). 

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DISCUSSION 

 Three primary questions emerge from the plaintiffs’ motions: what test should be 

applied in evaluating whether to allow amendment, how that test should be administered, 

and whether the case should be remanded if amendment is allowed. The Court concludes 

that the last question should be addressed first, since the answer to the first question flows 

from it. 

 

I. The Effect of Amendment. 

 The plaintiffs maintain that granting their motion to amend would require remand 

under two provisions of the federal removal statute. The Court considers them in turn. 

A. Section 1447(e). 

 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 the State court. 

28 U.S.C. § 1447(e). Joining a non-diverse defendant would destroy subject matter 

jurisdiction. Ingram v. CSX Transportation, Inc., 146 F.3d 858, 861-62 (11th Cir. 1998).1

 

It would thus require remand under Section 1447(e). Id. at 862. 

 By its terms, Section 1447(e) applies only when an “additional” defendant is 

“join[ed].” The plaintiffs, however, do not seek to join an additional defendant; Clarke 

has not been dismissed from this lawsuit, and the plaintiffs acknowledge that Clarke 

“remains as a Defendant in this case.” (Doc. 47 at 2).2

 Their purpose is not to join 

Clarke as a defendant but “to clarify their allegations against” Clarke, an existing party. 

 1

 “When the district court granted Ingram’s motion to add the City as a defendant, 

complete diversity no longer existed between the parties, thereby destroying subject matter 

jurisdiction.” Id. 

2

 Every brief filed by the plaintiffs acknowledges this obvious fact. (Doc. 55 at 9 

(“Clarke-Washington is still a party to this case.”); Doc. 73 at 2 (Clarke “appears to be a party 

because it has never been dismissed”); Doc. 85 at 10 (Clarke “remains a party”)). 

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(Doc. 47 at 1; accord Doc. 73 at 6-7). Under such circumstances, “§ 1447(e) has no 

application.” Herring v. Beasley, 2005 WL 1475304 at *6 n.8 (S.D. Ala. 2005). 

 The plaintiffs fault the Court for not dismissing Clarke when it found Clarke to be 

fraudulently joined. According to the plaintiffs, the Eleventh Circuit has “held” that, 

“when a court finds that a defendant has been fraudulently joined, it must dismiss the 

defendant from the action.” (Doc. 73 at 5 (boldface and italics in original)). Because 

“the proper result should have been to dismiss” Clarke, the plaintiffs argue that the Court 

should treat Clarke as if it had been dismissed and conclude that their motion to amend 

seeks joinder of an additional defendant for purposes of Section 1447(e). (Id. at 6; Doc. 

85 at 10). 

 The problems with this argument are myriad. As a threshold matter, the plaintiffs 

have not shown that a district court is required to dismiss a fraudulently joined defendant. 

The plaintiffs rely exclusively on Florence, where the appellate court stated that, “[i]n 

that situation [fraudulent joinder], the federal court must dismiss the non-diverse 

defendant” and deny the motion to remand. 484 F.3d at 1297. The quoted statement in 

Florence is dicta (not holding, as the plaintiffs represent), since the Eleventh Circuit ruled 

that the non-diverse defendant was not fraudulently joined. Id. at 1299. It is also 

unsupported by Henderson v. Washington National Insurance Co., 454 F.3d 1278 (11th

Cir. 2006), the only authority the Florence Court cited as requiring the dismissal of a 

fraudulently joined defendant. 

 Even had the Eleventh Circuit held that dismissal of a fraudulently joined 

defendant is required, it has not held that such dismissal is required absent a request from 

the fraudulently joined defendant for that relief. Such a rule would be unlikely, since the 

continued presence of the fraudulently joined defendant does not affect the Court’s 

subject matter jurisdiction and since a defendant can elect to defend a claim that appears 

to have no chance of success. Indeed, that is precisely the situation here. Clarke not only 

failed to support removal but, once the plaintiffs’ motion to remand was denied, it filed 

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its own motion to reconsider that denial and insisted that, “under the governing law, 

Clarke-Washington was not fraudulently joined.” (Doc. 20 at 3).3

 

 It must be noted that nothing prevented the plaintiffs, if they thought Clarke’s 

dismissal tactically significant, from moving the Court to dismiss Clarke, either pursuant 

to Florence’s dicta or under Rule 41(a). Instead, the plaintiffs remained silent for six 

months after the Court’s denial of remand before asserting that the Court “should have” 

dismissed Clarke. Even now, the plaintiffs have not moved for Clarke’s dismissal. 

 Even were there a rule requiring the Court unilaterally to dismiss Clarke despite 

Clarke’s disinterest in dismissal without prejudice and the plaintiffs’ failure to seek 

dismissal, the plaintiffs have not shown that Section 1447(e) would apply to a postdismissal motion to amend the complaint as to Clarke. As noted, Section 1447(e) applies 

 3

 Clarke concluded its lengthy briefing on motion to reconsider with a perfunctory 

alternative motion for an order dismissing all claims against it with prejudice. (Doc. 20 at 10-

11). The Court denied this alternative motion because it was unaccompanied by the briefing 

required by Local Rule 7.1(a). (Doc. 21). This was entirely appropriate, as controlling law 

confirms that the failure to submit a brief required by local rules justifies summary denial of the 

motion. Layfield v. Bill Heard Chevrolet Co., 607 F.2d 1097, 1099 (5th Cir. 1979); see also 

Reese v. Herbert, 527 F.3d 1253, 1264 n.17 (11th Cir. 2008) (“The court was by no means 

obligated to overlook this violation of the local rules.”) (citing Layfield). Briefing was especially 

necessary on this motion, since it implausibly sought dismissal with prejudice (which would 

preclude the plaintiffs from ever suing Clarke in connection with the decedents’ deaths), even 

though the Court had concluded only that the plaintiffs presently had no evidence to support the 

claims asserted against Clarke in the amended complaint, not that they could never develop such 

evidence or that they had no evidence to support other, unalleged claims. The plaintiffs have 

suggested no scenario under which the Court could have legitimately dismissed Clarke with 

prejudice. 

Although the denial was explicitly made without prejudice to Clarke’s ability to file a 

second motion complying with the District’s briefing requirement, Clarke never again sought 

dismissal. It did, however, file a 14-page supplemental brief in support of remand. (Doc. 31). 

Clarke therein confirmed that it had no interest in a dismissal without prejudice (the only kind it 

legitimately could have obtained), because such a dismissal would leave it exposed to a new 

lawsuit by the plaintiffs. (Id. at 6-7). This admission and the other surrounding circumstances 

reflect that Clarke was never serious about its alternative motion to dismiss and preferred to 

litigate instead. The plaintiffs offer no authority supporting its position that a court has no choice 

but to dismiss a fraudulently joined defendant that does not wish to be dismissed. 

 

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to the “joinder” of “additional” defendants. According to the plaintiffs, any dismissal of 

Clarke would have to be with leave to amend, (Doc. 73 at 6), and it is not intuitively 

obvious that an amended complaint as to a defendant dismissed with leave to amend 

would accomplish the “joinder” of that already-named defendant or that such a defendant 

would constitute an “additional” defendant.4 The plaintiffs simply assume the 

conclusion, and that is inadequate to sustain their position. 

 Finally, whatever the result might have been had Clarke been dismissed, the 

reality is that Clarke has not been dismissed. The Court cannot simply pretend that 

Clarke has been dismissed in order to implicate Section 1447(e). 

 As the Court noted in its order denying remand, (Doc. 17 at 14), when a defendant 

has been fraudulently joined, its citizenship is immaterial to the determination of 

diversity jurisdiction and must be ignored. Henderson, 454 F.3d at 1281. The plaintiffs 

assert that, “if the Court is ‘ignoring’ Clarke-Washington for the purposes of diversity 

jurisdiction, then granting leave to amend could be a de facto joinder or re-joinder of 

Clarke-Washington.” (Doc. 85 at 3). They cite, and the Court can locate, no case 

acknowledging such an animal as “de facto joinder.” Nor have they explained how an 

existing defendant can be “joined” as an “additional” defendant for purposes of Section 

1447(e). According to the plaintiffs, analysis is unnecessary because this Court has 

already “held” that, if a party is being ignored for diversity purposes, then adding that 

party would be a de facto addition of a new party. (Doc. 85 at 10). Herring, on which 

the plaintiffs rely, does not remotely support that proposition, much less express it as a 

holding. Nor does Davis ex rel. Davis v. General Motors Corp., 353 F. Supp. 2d 1203 

(M.D. Ala. 2005), the only other authority cited by the plaintiffs.5

 4

 For example, joinder of a defendant generally triggers an obligation to serve the 

defendant with process, but the plaintiffs have identified no requirement that a served defendant 

that has received dismissal with leave to amend is entitled to fresh service of process merely 

because an amended complaint is filed. 

5

 The plaintiffs also argue that the Court’s denial of remand is in “conflic[t]” with 

Herring, because in Herring the Court considered the plaintiff’s affidavit containing specific 

(Continued) 

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 In short, Section 1447(e) does not apply here, and granting the plaintiffs leave to 

amend cannot force a remand under that section. 

B. Section 1447(c). 

 “If at any time before final judgment it appears that the district court lacks subject 

matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). Despite its 

seemingly broader language, Section 1447(c) generally “prohibits courts from relying on 

post-removal events in examining subject matter jurisdiction.” Poore v. AmericanAmicable Life Insurance Co., 218 F.3d 1287, 1290 (11th Cir. 2000), overruled in part on 

other grounds, Alvarez v. Uniroyal Tire Co., 508 F.3d 639, 641 (11th Cir. 2007). 

 

allegations of wrongdoing by the resident defendant, while in this case the Court did not consider 

an affidavit from the plaintiffs’ second expert containing evidence concerning the wrongdoing 

alleged in the proposed second amended complaint. (Doc. 73 at 1-2). According to the 

plaintiffs, under Herring “the Court is required to remand this case.” (Id. at 9). As a threshold 

matter, this argument was not raised on motion to remand or even on motion to reconsider, and 

its present assertion comes over half a year too late. 

 Nor is the argument well founded. In Herring, the complaint contained general 

allegations of negligence by the resident defendant but failed to specify just what the defendant 

had done, and the plaintiff sought to explain what he meant by negligence. That is, the language 

of the complaint left room for explanation. Here, in contrast, the complaint by its terms provided 

an exclusive catalog of how Clarke was negligent, leaving no room for additional assertions of 

negligence. As the Court noted, Eleventh Circuit law on fraudulent joinder explicitly requires 

that the Court consider only “the circumstances alleged in the complaint.” (Doc. 17 at 11). The 

plaintiffs’ choice of language in the amended complaint did not leave open the possibility that 

other forms of negligence were “alleged in the complaint,” and it thus precluded later annotation 

by affidavit or otherwise. The plaintiffs have persistently described their post-removal conduct 

as efforts to “clarify” the amended complaint, but it is in fact an attempt to add new forms of 

negligence to a pleading that unambiguously rules out such allegations. Nothing in Herring, or 

in any authority brought to the Court’s attention, remotely supports such an effort. On the 

contrary, the Fifth Circuit has rejected a gambit similar to that employed by the plaintiffs here. 

In Cavallini v. State Farm Mutual Auto Insurance Co., 44 F.3d 256 (5th Cir. 1995), the plaintiffs 

sued the non-diverse defendant for breach of contract and of the duty of good faith and fair 

dealing, claims that patently could not succeed under Texas law. After removal, the plaintiffs 

presented an affidavit to support a claim of misrepresentation against the non-diverse defendant. 

The Fifth Circuit held that the affidavit could not be considered “to determine whether a claim 

has been stated against the nondiverse defendant under a legal theory not alleged in the state 

court complaint.” Id. at 263. 

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Whirlpool argues that when, as here, subject matter jurisdiction exists at the time of 

removal, it cannot (outside Section 1447(e)) be lost by post-removal changes. 

 Whirlpool is certainly correct as a general matter. Thus, “events occurring after 

removal which may reduce the damages recoverable below the amount in controversy 

requirement do not oust the district court’s jurisdiction.” Poore, 218 F.3d at 1291. This 

rule extends to post-removal amendments to the complaint to reduce the damages 

claimed. Id. at 1289, 1291. Similarly, “when a defendant removes a case to federal court 

based on the presence of a federal claim, an amendment eliminating the original basis for 

federal jurisdiction generally does not defeat jurisdiction.” Rockwell International Corp. 

v. United States, 549 U.S. 457, 474 n.6 (2007); accord IMFC Professional Services, Inc. 

v. Latin American Home Health, Inc., 676 F.2d 152, 157 (old 5th Cir. 1982); Smith v. 

Wynfield Development Co., 238 Fed. Appx. 451, 455 (11th Cir. 2007). 

 The existence of a federal question is essential for removal jurisdiction based on 

28 U.S.C. § 1331, and the existence of a threshold amount in controversy is essential for 

removal jurisdiction based on 28 U.S.C. § 1332. Since post-removal elimination of these 

essentials does not deprive the federal court of subject matter jurisdiction, it would be 

reasonable to extrapolate that post-removal elimination of complete diversity of 

citizenship likewise does not adversely impact subject matter jurisdiction. 

 And this is largely true. Thus, “[i]t is well established that the only citizenship of 

the original parties that matters for purposes of determining whether diversity jurisdiction 

exists is their citizenship at the time the lawsuit if filed; any changes in a party’s 

citizenship that occur after filing are irrelevant.” Harris v. Garner, 216 F.3d 970, 983 

(11th Cir. 2000); accord Freeport–McMoRan, Inc. v. K N Energy, Inc., 498 U.S. 426, 428 

(1991) (“‘Jurisdiction once acquired ... is not divested by a subsequent change in the 

citizenship of the parties.’”) (quoting Wichita Railroad & Light Co. v. Public Utilities 

Commission, 260 U.S. 48, 54 (1922)); see also Grupo Dataflux v. Atlas Global Group, 

L.P., 541 U.S. 567, 568, 570 (2004) (because “the jurisdiction of the court depends upon 

the state of things at the time of the action brought,” answering in the negative “the 

question whether a party’s post-filing change in citizenship can cure a lack of subjectCase 1:09-cv-00520-WS-B Document 107 Filed 08/04/10 Page 9 of 18
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matter jurisdiction that existed at the time of filing”) (internal quotes omitted). Each of 

these cases was originally filed in federal court, but the same rule applies to removal 

actions. See Wisconsin Department of Corrections v. Schacht, 524 U.S. 381, 391 (1998) 

(“a federal court will keep a removed case” after “the change in citizenship of a party”). 

 The foregoing cases address post-removal alterations in the citizenship of the 

original parties, but even changes in the identity of the parties are subject to a similar 

rule. Thus, “‘jurisdiction [is not] defeated by the intervention, by leave of court, of a 

party whose presence is not essential to a decision of the controversy between the original 

parties.’” Freeport-McMoRan, 498 U.S. at 428 (quoting Wichita Railroad). Similarly, 

jurisdiction is not lost by the substitution of a non-diverse party for a diverse party. See 

Ingram, 146 F.3d at 861 (construing Freeport-McMoRan). While Freeport-McMoRan

and Wichita Railroad are not removal cases, the same rule obtains in that context. IMFC, 

676 F.2d at 157 (intervention); Ingram, 146 F.3d at 861 (accepting that FreeportMcMoRan applies in removal cases). 

 On the other hand, and as discussed in Part I.A, the post-removal addition of a 

new, non-diverse party “destroy[s] subject matter jurisdiction.” Ingram, 146 F.3d at 861-

62. Older cases suggested this was true only in the case of indispensable parties,6

 but 

Ingram makes clear that it applies as well to the joinder of non-indispensable parties. See 

id. at 861 n.2 (the addition of a “dispensable” joint tortfeasor destroyed subject matter 

jurisdiction and required remand under Section 1447(e)). As discussed in Part I.A, 

Ingram does not govern here because the plaintiffs do not seek to add a new party, but it 

does establish that there are situations in which subject matter jurisdiction existing at the 

 6 See In re: Merrimack Mutual Fire Insurance Co., 587 F.2d 642, 647 (5th Cir. 1978) 

(remand is “clearly proper” when the parties joined are indispensable and “clearly improper” 

when they are not). Merrimack discussed Jett v. Zink, 362 F.2d 723 (5th Cir. 1966), which 

explained the unique nature of indispensable parties. “The law is clearly settled that in diversity 

cases the question of indispensable parties is inherent in the issue of federal jurisdiction and that 

indispensable parties must be joined, sua sponte by the court if need be, even though to do so 

destroys complete diversity of citizenship of the parties and ousts federal courts of jurisdiction 

....” Id. at 726. 

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time of removal is lost by a post-removal loss of complete diversity. Whether the present 

situation is one of them remains to be determined. 

 The Supreme Court has repeatedly emphasized the insignificance of the loss of 

complete diversity on continuing subject matter jurisdiction. In Freeport-McMoRan, the 

Court repeated the “well-established rule that diversity of citizenship is assessed at the 

time the action is filed. We have consistently held that if jurisdiction exists at the time an 

action is commenced, such jurisdiction may not be divested by subsequent events.” 498 

U.S. at 428. In particular, “[d]iversity jurisdiction, once established, is not defeated by 

the addition of a nondiverse party to the action. A contrary rule ... is not in any way 

required to accomplish the purposes of diversity jurisdiction.” Id. at 428-29 (emphasis 

added). 

 Similarly sweeping is the High Court’s pronouncement that its jurisprudence 

“measures all challenges to subject-matter jurisdiction premised upon diversity of 

citizenship against the state of facts that existed at the time of filing ....” Grupo 

Dataflux, 541 U.S. at 571 (emphasis added). While both Freeport-McMoRan and Grupo 

Dataflux involved original actions, there is no obvious reason that a different rule would 

obtain in removal cases, especially given the “forum-manipulation concerns” that exist in 

that context. Rockwell, 549 U.S. at 474 n.6. 

 Despite its apparent breadth, the Eleventh Circuit has limited the reach of 

Freeport-McMoRan to the substitution context. Ingram, 146 F.3d at 861.7

 It is 

nevertheless clear that the post-removal loss of complete diversity generally does not 

eliminate subject matter jurisdiction. It is equally clear that post-removal loss of subject 

matter jurisdiction when a plaintiff amends its complaint to state a viable cause of action 

against a fraudulently joined defendant would represent an exception to the general rule. 

 The parties have presented the Court with no case that would require remand 

under the circumstances presented here. The plaintiffs, (Doc. 73 at 8-9; Doc. 85 at 6-7), 

 7

 The appellate court has not addressed the proper construction of Grupo Dataflux. 

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focus on Ingram and Owen Equipment and Erection Co. v. Kroger, 437 U.S. 365 (1978), 

but both involved the naming of a new defendant and so are inapplicable here.8

 The 

plaintiffs also proffer Davis and Herring, but in both cases amendment of the complaint 

was allowed before the Court ruled on the fraudulent joinder issue, and the amendment 

merely clarified the situation existing at the point of removal. The plaintiffs’ proposed 

amendment, in contrast, is immaterial to the existence of diversity when the case was 

removed, which has already been determined. Clarke (which sides with the plaintiffs on 

this issue) cites Town of Gordon v. Great American Insurance Co., 331 F. Supp. 2d 1357 

(M.D. Ala. 2004), which is but a particular application of Owen, and four district court 

cases from other circuits, all of which involved the addition of new defendants. 

 On the other side, Whirlpool relies on the sweeping pronouncement in Poore that 

Section 1447(c) “prohibits courts from relying on post-removal events in examining 

subject matter jurisdiction.” 218 F.3d at 1290. For several reasons, the Court does not 

consider Poore dispositive. First, Poore did not address the actual effect on subject 

matter jurisdiction of various post-removal developments but only whether Section 

1447(c) allows courts to consider post-removal developments as a basis for remand under 

Section 1447(c). Second, Poore did not address IMFC, which stated that “we conclude 

that § 1447(c) does not preclude examination of post-removal developments to determine 

whether jurisdiction has been lost.” 676 F.2d at 158. Third, while Whirlpool’s proffered 

quote appears all-encompassing, Poore itself recognized that some post-removal events 

“may divest the district court of jurisdiction.” 218 F.3d at 1291 n.2 (citing Merrimack). 

 The old Fifth Circuit in IMFC employed several tools in determining whether a 

post-removal development (the dismissal of a third-party complaint against a federal 

defendant) stripped the trial court of subject matter jurisdiction. First, the Court 

 8 Owen is different only in that the defendant filed a third-party complaint against the 

non-diverse party before the plaintiff amended the complaint in order to sue the non-diverse 

party. Despite this wrinkle, the plaintiff’s action still constituted the addition of a new defendant 

vis-à-vis the plaintiff, as the Supreme Court recognized. 437 U.S. at 368 (“[T]he respondent was 

granted leave to file an amended complaint naming Owen as an additional defendant.”). 

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“[d]r[ew] from precedents in analogous situations.” 676 F.2d at 158. Second, the Court 

concluded that “[p]olicy favors the retention of jurisdiction.” Id. at 159. Third, the Court 

noted that “all other courts that have considered this issue have reached the same 

conclusion ....” Id. This Court follows the same path. 

 In the situation most analogous to the present one, subject matter jurisdiction is not 

lost. Because Clarke was fraudulently joined, its citizenship was ignored in determining 

the existence of complete diversity at the time of removal. Regardless of its actual 

citizenship, for diversity purposes Clarke is considered not to be a citizen of Alabama. 

The proposed amendment, if granted, would require the Court to consider Clarke to be a 

citizen of Alabama. But as noted above, a post-removal change in the citizenship of an 

existing party does not divest a court of jurisdiction. Because amendment would 

accomplish only a post-removal change in the citizenship of an existing party (from 

nothing to Alabama), it cannot divest the Court of subject matter jurisdiction. 

 Allowing a post-removal amendment to eliminate jurisdiction that existed at the 

time of removal would also nullify the well-established rule that “[t]he determination of 

whether a resident defendant has been fraudulently joined must be based upon the 

plaintiff’s pleadings at the time of removal ....” Legg, 428 F.3d at 1322 (internal quotes 

omitted). That rule prevents a plaintiff from avoiding a fraudulent joinder determination 

(and thus securing remand) by amending the complaint, before a ruling on the fraudulent 

joinder issue, to insert a previously excluded viable claim. But the rule would be 

rendered pointless if a plaintiff could simply wait until after a fraudulent joinder 

determination, then make the same amendment and thereby secure remand. Nothing 

presented to the Court commends such an implausibly tortured result. 

 Policy also favors the retention of jurisdiction. As the Supreme Court has noted, 

“removal cases raise forum-manipulation concerns” when a plaintiff involuntarily 

dragged into federal court attempts to “plead away jurisdiction through amendment.” 

Rockwell, 549 U.S. at 474 n.6. A rule that would reward such conduct should not easily 

be embraced, since “‘Congress did not extend such protection [removal] with one hand 

and with the other give plaintiffs a bag of tricks to overcome it.’” Pretka v. Kolter City 

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Plaza II, Inc., 608 F.3d 744, 766 (11th Cir. 2010) (quoting Legg v. Wyeth, 428 F.3d 1317, 

1325 (11th Cir. 2005)). It is immaterial whether these particular plaintiffs harbor any such 

intent, since the governing rule must apply in all cases. 

 Finally, the only two cases known to the Court that have addressed the effect of a 

plaintiff’s post-removal amendment of its complaint to state a viable cause of action 

against an existing, fraudulently joined defendant both concluded that amendment would 

not divest the court of jurisdiction. 

 In Cavallini v. State Farm Mutual Auto Insurance Co., 44 F.3d 256 (5th Cir. 1995), 

the complaint asserted no claim against the non-diverse defendant. After removal, the 

plaintiffs moved to amend the complaint to rectify that deficiency. The trial court ruled 

that it would be futile to grant the motion, “because a complaint amended post-removal 

cannot divest a federal court of jurisdiction.” Id. at 264. The Fifth Circuit affirmed. 

“[R]emoval jurisdiction [is determined] on the basis of claims in the state court complaint 

as it exists at the time of removal” because, “[w]ithout such a rule, disposition of the 

issue would never be final, but would instead have to be revisited every time the plaintiff 

sought to amend the complaint to assert a new cause of action against the nondiverse 

defendant, all at considerable expense and delay to the parties and the state and federal 

courts involved.” 44 F.3d at 264. 

 In Davenport v. Ford Motor Co., 2006 WL 2048308 (N.D. Ga. 2006), the Court 

found that the non-diverse defendant was fraudulently joined because the plaintiffs could 

not possibly prevail on their single claim for breach of warranty in light of their valid 

warranty disclaimers. Id. at *4. The plaintiffs moved to amend the complaint to add a 

negligence claim, but the Court held that jurisdiction must be measured as of the time of 

removal. Id. at *4-5. Because the only exception to this rule involves the joinder of new 

(indispensable) parties, the general rule applied. Id. at *5 n.7. The plaintiffs were given 

leave to amend, but the amendment did not divest the Court of jurisdiction. Id. at *6. 

 As in IMFC, the rule in analogous situations, considerations of policy, and the 

conclusions of other courts all reflect that the post-removal assertion of a viable cause of 

action against a fraudulently joined defendant does not strip the Court of subject matter 

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jurisdiction that existed at the time of removal. Because allowing the plaintiffs’ proposed 

amendment would not eliminate subject matter jurisdiction, remand cannot be ordered 

under Section 1447(c). 

II. The Standard for Evaluating the Plaintiffs’ Motion.

 The parties initially assumed that the Court should employ the factor analysis 

articulated in Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir. 1987). (Doc. 47 at 

3-5; Doc. 50 at 4-5; Doc. 51 at 5-6). The Hensgens Court recognized that Rule 15(a) 

provides that a court “should freely give [leave to amend] when justice so requires” and 

concluded that, when an amendment “will determine the continuance of ... jurisdiction,” 

assessing what “justice requires” dictates that a court “consider a number of factors to 

balance the defendant’s interests in maintaining the federal forum with the competing 

interests of not having parallel lawsuits.” 833 F.2d at 1182. These factors include “the 

extent to which the purpose of the amendment is to defeat federal jurisdiction, whether 

plaintiff has been dilatory is asking for amendment, whether plaintiff will be significantly 

injured if amendment is not allowed, and any other factors bearing on the equities.” Id. 

 As discussed in Part I, allowing the plaintiffs’ proposed amendment will not alter 

the Court’s continuing subject matter jurisdiction. There is thus no need to consider the 

Hensgens factors in order to protect against an improper attempt to divest the Court of 

jurisdiction. The parties, for reasons that do not entirely echo the Court’s, now agree that 

only the usual Rule 15 analysis, unamplified by Hensgens, should apply to the plaintiffs’ 

motion. (Doc. 55 at 8-9; Doc. 73 at 3-4, 6-7; Doc. 82 at 1-4; Doc. 83 at 4; Doc. 85 at 2). 

III. Evaluation of the Plaintiffs’ Motion.

 Eleventh Circuit law is clear that leave to amend should be given under Rule 15(a) 

“[i]n the absence of any apparent or declared reason - such as undue delay, bad faith or 

dilatory motive on the part of the movant, repeated failure to cure deficiencies by 

amendments previously allowed, undue prejudice to the opposing party by virtue of 

allowance of the amendment, futility of amendment, etc.” McKinley v. Kaplan, 177 F.3d 

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1253, 1258 (11th Cir. 1999) (internal quotes omitted). Whirlpool raises bad faith, and 

both it and Clarke assert futility of amendment. 

 Whirlpool announces that the plaintiffs’ request for amendment is in bad faith 

because it is being made “with the sole intent to deprive the federal court of diversity 

jurisdiction.” (Doc. 83 at 5). As the Court has concluded in Part I, amendment cannot 

work a divestiture of subject matter jurisdiction, so any bad faith by the plaintiffs will not 

be rewarded by amendment. 

 Whirlpool argues that amendment is futile because the plaintiffs lack evidence to 

support the proposed new allegations against Clarke. (Doc. 51 at 10-11; Doc. 83 at 6-7). 

However, Whirlpool concedes that “[f]utility is judged under the same criteria as a 

motion to dismiss.” (Doc. 83 at 6).9

 “When considering [such] a motion to dismiss, all 

facts set forth in the plaintiff=s complaint are to be accepted as true and the court limits its 

consideration to the pleadings and the exhibits attached thereto.” Grossman v. 

Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000) (internal quotes omitted). Thus, 

under Whirlpool’s own authorities, the Court in undertaking a Rule 15(a) futility analysis 

is precluded from assessing the strength or even existence of the plaintiffs’ evidence in 

support of their proposed new claim. Because Whirlpool does not assert that the 

plaintiffs’ allegations, if proved, would not support Clarke’s liability, their futility 

argument fails.10

 Clarke’s futility argument rests on the plaintiffs’ use of the term, “[u]pon 

information and belief.” According to Clarke, the second amended complaint would be 

subject to immediate dismissal because only matters particularly within the defendant’s 

 9

 This proposition is amply supported by Eleventh Circuit precedent. E.g., Hall v. United 

Insurance Co., 367 F.3d 1255, 1262-63 (11th Cir. 2004) (“This court has found that denial of 

leave to amend is justified by futility when the complaint as amended is still subject to 

dismissal.”) (internal quotes omitted). 

10 Whirlpool believes that Legg allows it to prevail by presenting evidence and pointing 

out the plaintiffs’ asserted lack of countering evidence. (Doc. 51 at 11-12). Legg addresses the 

procedure for deciding whether a non-diverse defendant was fraudulently joined, not the 

procedure for deciding Rule 15(a) motions. 

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knowledge can be alleged based on information and belief. (Doc. 50 at 7). Clarke’s 

single case does not support the proposition that proper usage of “information and belief” 

pleading is so limited. At any rate, the Court construes the proposed second amended 

complaint as employing this qualifier only with respect to the allegation of Clarke’s 

“actual notice” of a dangerous electrical condition, and Clarke’s awareness of the 

dangerous condition is something of which only Clarke could have personal knowledge. 

E.g., Brown v. Budz, 398 F.3d 904, 914 (7th Cir. 2005) (the plaintiff could properly allege 

the defendants’ knowledge based on information and belief). 

 In a related vein, Clarke argues that a plaintiff cannot properly invoke 

“information and belief” language in a pleading without setting forth the information on 

which the belief is based. (Doc. 50 at 7-8). Clarke relies only on two trial court 

decisions, neither of which arises within the Eleventh Circuit and neither of which clearly 

applies outside the Rule 9(b) context. Clarke has therefore not adequately supported its 

position that failure to identify such information is fatal to a motion to amend. At any 

rate, although the proposed second amended complaint does not list the facts underlying 

the plaintiffs’ belief that Clarke had actual notice of the home’s dangerous wiring, the 

affidavit of its expert does so. According to the affidavit, which the Court discussed in its 

order denying remand, at least some of the dangerous wiring was in plain view directly 

below the meter box and would have been open and obvious to Clarke representatives 

interacting with the meter box, which they would likely do on a regular basis. (Posey 

Affidavit, ¶ 8). The plaintiffs are thus capable of alleging the information underlying 

their belief that Clarke had actual notice of the dangerous electrical condition, and Clarke 

has not explained how it could secure dismissal of the second amended complaint given 

the ease with which the plaintiffs could amend it to add this material. The proposed 

second amended complaint is thus not futile. 

 Because the ordinary Rule 15(a) analysis applies, and because nothing that could 

justify denial of amendment under that analysis has been shown, the plaintiffs’ motion for 

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leave to amend is due to be granted. Because it is unnecessary to its decision, the Court 

leaves unresolved whether amendment would be allowed under the Hensgens analysis.11

CONCLUSION 

 For the reasons set forth above, the plaintiffs’ motion for leave to amend the 

complaint is granted, and the plaintiffs’ embedded motion to remand is denied. The 

plaintiffs are ordered to file and serve their second amended complaint on or before 

August 6, 2010. 

 DONE and ORDERED this 4th day of August, 2010. 

 s/ WILLIAM H. STEELE

 CHIEF UNITED STATES DISTRICT JUDGE 

 11 Buried in Whirlpool’s initial brief is a request for an award of fees and costs for the 

plaintiffs’ alleged violation of Rule 11 in propounding the proposed second amended complaint, 

(Doc. 51 at 13-15), which the Court construes as a motion for sanctions. See Fed. R. Civ. P. 

7(b)(1) (“A request for a court order must be made by motion.”). The motion is procedurally 

insupportable. First, “[a] motion for sanctions must be made separately from any other motion,” 

Fed. R. Civ. P. 11(c)(2), but Whirlpool did not file a separate motion devoted only to the subject 

of Rule 11. Second, “the motion must be served under Rule 5, but it must not be filed or be 

presented to the court if the challenged [material] is withdrawn or appropriately corrected within 

21 days after service or within another time the court sets,” id., and Whirlpool does not represent 

that it complied with this requirement. Failure to give the required 21-day notice “forecloses 

Rule 11 sanctions.” Macort v. Prem, Inc., 208 Fed. Appx. 781, 786 (11th Cir. 2006); accord In 

re: Schaefer Salt Recovery, Inc., 542 F.3d 90, 99 (3rd Cir. 2008); Anderson v. XYZ Correctional 

Health Services, Inc., 407 F.3d 674, 679 (4th Cir. 2005); In re: Pratt, 524 F.3d 580, 588 (5th Cir. 

2008); Winterrowd v. American General Annuity Insurance Co., 556 F.3d 815, 826 (9th Cir. 

2009); Roth v. Green, 466 F.3d 1179, 1192 (10th Cir. 2006). The motion is thus denied. The 

Court has and expresses no opinion on the substantive merits of Whirlpool’s Rule 11 argument. 

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