Opinion
No. 1:19-cv-00084-DAD-SKO
10-22-2019
BOLING AIR MEDIA, Plaintiff, v. PANALPINA INC.; EVA AIRWAYS CORP.; and DOES 1 through 50, Defendants.
ORDER ADOPTING FINDINGS AND RECOMMENDATION, GRANTING PLAINTIFF LEAVE TO AMEND
(Doc. No. 25)
Plaintiff Boling Air Media initiated this action in Fresno County Superior Court on December 18, 2018. (Doc. No. 1-1 at 2.) On January 17, 2019, defendants removed the case to this federal court on the basis of diversity jurisdiction. (Doc. No. 1 at 3-4.) The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302(a). (See Doc. No. 16.)
On May 28, 2019, plaintiff filed a motion for leave to file an amended complaint. (Doc. No. 12.) On June 14, 2019, plaintiff filed a revised motion for leave to file an amended complaint, thereby mooting its original motion. (Doc. Nos. 15, 17.) On June 20, 2019, the undersigned referred plaintiff's motion to amend to the assigned magistrate judge for issuance of findings and recommendations. (Doc. No. 17.) On August 13, 2019, the assigned magistrate judge issued findings and recommendations, recommending that plaintiff's motion be granted, and, upon filing of an amended complaint, that the case be remanded to Fresno County Superior Court. (Doc. No. 25.) The parties were provided until August 29, 2019, in which to file objections to the findings and recommendations. (Doc. No. 26.) Defendant EVA Airways Corporation ("EVA") filed its objections to the findings and recommendations on August 29, 2019 (Doc. No. 27), and plaintiff filed its reply thereto on September 12, 2019. (Doc. No. 28.) No objections were filed by defendant Panalpina Inc.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the undersigned has conducted a de novo review of this case. Having carefully reviewed the entire file, including the objections, the undersigned concludes the findings and recommendation are supported by the record and by proper analysis.
In its objections, EVA argues that the magistrate judge ignored the fact that plaintiff's amended motion for leave to amend was made pursuant to Rule 15 of the Federal Rules of Civil Procedure, an overly permissive standard, instead of 28 U.S.C. § 1447(e), which governs attempts to join non-diverse defendants that would destroy diversity jurisdiction. (Doc. No. 27 at 2-4.) EVA contends that plaintiff's invocation of the wrong standard is enough to render the motion ineffective. See Dooley v. Grancare, LLC, No. C 15-3038 SBA, 2015 WL 6746447, at *2 (N.D. Cal. Nov. 5, 2015) (finding that an amended complaint filed pursuant to Rule 15 but which destroys diversity jurisdiction is "legally ineffective").
However, the plaintiff in Dooley had filed an amended complaint without leave of court and failed to argue the motion to remand pursuant to § 1447(e). Id. Here, plaintiff has moved for leave to amend, (see Doc. No. 15), and both plaintiff and EVA have been provided the opportunity to fully brief for the court the application of § 1447(e) and its six factors to this case. (See Doc. Nos. 20, 21, 27, 28.) EVA's objections to the pending findings and recommendations are therefore unavailing. ///// ///// ///// /////
Accordingly,
1. The findings and recommendations issued on August 13, 2019 (Doc. No. 25) are adopted in full;IT IS SO ORDERED.
2. Plaintiff's motion to modify the scheduling order and amended motion for leave to file an amended complaint (Doc. No. 15) is granted;
3. Plaintiff shall file its First Amended Complaint, attached as Exhibit 1 to the Declaration of Steven R. Stoker (Doc. No. 15-1), within seven days of the date of this order; and
4. Because the joinder of the additional defendants in the First Amended Complaint destroys diversity jurisdiction, following the filing of the First Amended Complaint this action shall be remanded to the Fresno County Superior Court and the Clerk of the Court is directed to close this case at that time.
Dated: October 22 , 2019
/s/_________
UNITED STATES DISTRICT JUDGE