United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
ROBERT BLAKEY, UNITED STATES DISTRICT JUDGE
Ulisses Calzoncit fell on some ice or snow in a Menard's
parking lot in March 2016 and sustained injuries. On January
11, 2017, he and his wife, Plaintiff Karla Contreras, sued
Defendant Menard, Inc. in the Circuit Court of Lake County,
alleging negligence and loss of consortium. Menard timely
removed the case to this Court. At the time of removal, this
Court unquestionably had subject matter jurisdiction based
upon the parties' diversity of citizenship: Plaintiffs
are both Illinois citizens, and Defendant, a Wisconsin
corporation, is a Wisconsin citizen. The parties agree that
Plaintiffs' damages exceed $75, 000.
January 12, 2018, Plaintiffs filed a motion seeking leave to
amend their complaint to add McGill Landscaping, Inc., an
Illinois corporation, as a Defendant. See .
Plaintiffs argue that McGill may have been contractually
obligated to provide snow and ice removal services to
Defendant on the date of the incident, and may, therefore, be
liable to Plaintiffs. Defendant opposes the motion.
Federal Rule of Civil Procedure 15(a)(2), courts should
“freely give leave [to amend] when justice so
requires”; generally, leave to amend should be given
unless amendment would be futile, would cause undue delay or
undue prejudice, or unless the party seeking leave does so in
bad faith. E.g., Life Plans, Inc. v. Security Life of
Denver Ins. Co. 800 F.3d 343, 357-58 (7th Cir. 2015)
(quoting Forman v. Davis, 371 U.S. 178, 182
the requested amendment seeks to add a nondiverse party whose
presence in the lawsuit would destroy subject matter
jurisdiction, however, 28 U.S.C. § 1447(e) governs. That
statute provides a court faced with a motion like
Plaintiffs' with two options: the court can either deny
joinder or permit joinder and remand the case to state court.
Schur v. L.A. Weight Loss Centers, Inc., 577 F.3d
752, 759 (7th Cir. 2009) (citing Jass v. Prudential
Health Care Plan, Inc., 88 F.3d 1482, 1486 (7th Cir.
1996)). “These are the only options; the district court
may not permit joinder of a nondiverse defendant and retain
jurisdiction.” Schur, 577 F.3d at
759. In deciding which option to choose, this Court
must “balance the equities” and consider: (1)
whether the plaintiff seeks joinder to defeat federal
jurisdiction; (2) whether the request to amend is timely; (3)
whether denying joinder will significantly injure the
plaintiff; and (4) whether there are other relevant equitable
factors counseling in favor of amendment or against.
this Court has no reason to doubt Plaintiffs' motive in
seeking leave to amend. Plaintiffs did not challenge the
removal of this action, and did not seek leave to join McGill
until it became clear in discovery that joinder was
appropriate. By August 30, 2017, Plaintiffs had a copy of the
“Per Inch Snow Plowing and Ice Removal Agreement”
executed by Menard and McGill on December 19, 2015. [41-2].
Under that contract, McGill agreed to perform “snow
plowing, ice removal, and related services” at
Menard's “place of business including parking
lot” when “a snow or ice event occurs, ”
unless Menard told it in writing not to perform such
services. Id. The contract obligated McGill
“to use the appropriate amount of salt and ice melt to
maintain a safe parking lot and yard for Menard customers and
employees.” Id. ¶ 5. To this end,
“[s]alt and ice melt will be applied after all snow
events and in the event of freezing rain or ice accumulations
to keep the lots safe for all customers and Menard employees.
At the discretion of [McGill], a de-icing agent may be used
before all ice or freezing rain events.” Id.
Finally, the contract required McGill to “defend,
indemnify and hold harmless Menard, its agents and its
employees from any liability, damages, expenses, claims,
demands, actions or causes of action, including attorney
fees, arising out of performance of the work hereunder . . .
.” Id. ¶ 16. These contractual provisions
give rise to a valid theory of liability against McGill.
Indeed, looking at the contract alone, it would appear that
Plaintiffs jeopardize any potential recovery in this lawsuit
if they don't join McGill.
appears to have taken the position in discovery that any
liability for Plaintiffs' injuries would rest with it,
and not with McGill. Indeed, at oral argument on
Plaintiffs' motion, Defendant represented that Menard,
and not McGill, would “fall on the sword” for the
alleged incident. These representations do not stem from the
contract-indeed, they ostensibly conflict with the contract
and lack confirmation in any other documentation. As a
result, this Court cannot say that Plaintiffs' attempt to
pursue claims against McGill is baseless.
the Court say that Plaintiffs waited too long to bring this
motion. Plaintiffs argue that they did not realize they
needed to add McGill until November 3, 2017, when they
deposed Menard's general manager, who testified
concerning Menard's interpretation of the relevant
contract provisions. Menard argues that Plaintiffs knew about
the contract by August 30, 2017. Either way, the Court finds
that Plaintiffs timely sought leave to join McGill. Given
Menard's position on the issue, Plaintiffs reasonably
took time to digest any inconsistencies between the
contractual provisions and the parties' interpretation of
Court turns next to any prejudice that could potentially
result from its decision on this motion. First, allowing the
amendment would require the Court to remand, thereby
depriving Menard of its chosen forum. “Defendant's
interest in a federal forum is obviously legitimate and is
institutionalized in our federal laws.” Roberts v.
Standard Ins. Co., No. 04 C 2027, 2004 WL 2367741, at *5
(N.D. Ill. Oct. 15, 2004). On the other hand, denying
amendment puts Plaintiffs in the unenviable position of
having to pursue a parallel state court action against McGill
to preserve their right to recover for the injuries alleged
in this lawsuit. Menard suggests that Plaintiffs need not
pursue McGill because it has assumed responsibility for the
maintenance of the parking lot on the date of the incident.
But given the language of the contract, and the lack of
documentation to support Menard's position, it would be
unreasonable to expect Plaintiffs to refrain from protecting
its rights, and pursuing its claims against McGill, solely
because of Menard's oral assurances. Indeed, although
Menard has represented that it will “fall on the sword,
” it continues to contest liability. In short, this
Court's ruling will prejudice one side no matter what.
But the prejudice to Plaintiffs from a denial of joinder is
greater than the prejudice to Menard from allowing it.
reasons explained above, the Court finds that the equitable
factors relating to 28 U.S.C. § 1447(e) favor
Plaintiffs. Accordingly, the Court grants Plaintiffs'
motion for leave to amend their complaint to join McGill as a
defendant in this action , and thus, remands the case to