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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-13670
Non-Argument Calendar
________________________
D.C. Docket No. 1:18-cv-01199-WMR
ADORACION HICKERSON,
CALVIN MOORE,
CHRISTIAN MOORE,
ADORACION HICKERSON,
as next friend
Cxxxx Mxxxx
as guardian of
Cxxxx Mxxxx,
ADORACION HICKERSON,
as next friend
Cxxxxx Mxxxx,
Plaintiffs - Appellants,
versus
ENTERPRISE LEASING COMPANY OF GEORGIA, LLC,
EAN HOLDINGS, LLC,
Defendants - Appellees,
TIMOTHY G. GENTRY,
Defendant.
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________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(June 11, 2020)
Before WILSON, JILL PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Plaintiffs-appellants Adoracion Hickerson, Calvin Moore, Christian Moore,
and two minors for whom Adoracion Hickerson is the next friend (the “plaintiffs”),
all Georgia residents, appeal the district court’s denial of their motion for
reconsideration of the denials of their motions for leave to amend their complaint
and to remand to state court.1 They contend that the district court lacked subject
matter jurisdiction over this dispute because (1) none of their claims satisfied the
amount-in controversy-requirement for diversity jurisdiction and (2) they should
have been allowed to amend their complaint to add Bryce Melancon, a Georgia
1
In their notice of appeal, the plaintiffs indicated their intent to appeal the district court’s
order granting the defendants’ motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).
In their briefing on appeal, the only issue they raise relevant to the motion to dismiss is whether
Mississippi law or Georgia law should have been applied to their negligent entrustment claim.
But the district court, in dismissing this claim, explicitly relied on both Georgia and Mississippi
law. Thus, this argument is meritless. Because the plaintiffs do not address the district court’s
dismissal of their claims under Rule 12(b)(6) beyond this argument, we deem any other
challenges on the merits of the dismissal to have been abandoned. See Access Now, Inc. v. Sw.
Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (“[T]he law is by now well settled in this
Circuit that a legal claim or argument that has not been briefed before the court is deemed
abandoned and its merits will not be addressed.”).
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resident, as a defendant, which would defeat diversity jurisdiction. After careful
review, we conclude that the district court had subject matter jurisdiction and did
not abuse its discretion in denying the plaintiffs’ motion for reconsideration.
I. BACKGROUND
In March 2016, the plaintiffs suffered injuries in a motor vehicle accident as
passengers in a truck rented and driven by Melancon. Melancon—a relative of all
the plaintiffs—had rented the truck from defendants Enterprise Leasing Company
of Georgia, LLC and EAN Holdings (collectively, “Enterprise”), business entities
organized under Delaware state law with their principal places of business in
Missouri. Melancon was uninsured at the time of the accident.
Almost two years later, the plaintiffs filed a negligence lawsuit against
Enterprise in the Superior Court of Fulton County, Georgia for negligently renting
a vehicle to Melancon without discovering that he had no insurance and without
offering him insurance for purchase.2 The plaintiffs alleged that they suffered
extensive bodily injuries and traumatic brain injuries as a result of the accident and
all except one minor plaintiff endured months of pain and suffering.
Enterprise timely removed this case to the United States District Court for
the Northern District of Georgia based on diversity jurisdiction under 28 U.S.C.
2
The plaintiffs also sued the other driver, Timothy Gentry, for negligence. The district
court dismissed the entire case because the plaintiffs failed to effect service on Gentry. The
court then reinstated the case as to Enterprise but not as to Gentry.
3
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§ 1332. Fifteen days after Enterprise removed the case, the plaintiffs filed a
motion for leave to file an amended complaint, seeking to add Melancon as a
defendant. Because the joinder of Melancon, a Georgia resident, would destroy
diversity jurisdiction, they also filed a motion to remand to state court. The district
court denied both motions on the ground that the purpose of the proposed
amendment was to defeat federal subject matter jurisdiction.
The case was then reassigned to another judge. The plaintiffs filed a motion
for reconsideration before the new judge, requesting that the court reconsider the
denial of their motion to amend their complaint and their motion to remand. At the
hearing on this motion, they also argued—for the first time—that the district court
lacked subject matter jurisdiction over the case because the plaintiffs’ claims did
not meet § 1332’s amount-in-controversy requirement. After allowing the parties
to brief that issue, the district court denied the motion, concluding that the court
had jurisdiction because the plaintiffs’ claims met the amount-in-controversy
requirement and that the plaintiffs had shown “no clear error in fact or law or
intervening development in controlling law” to merit reconsideration. Doc. 53 at
10.3 This appeal followed.
3
Citations in the form “Doc. #” refer to district court docket entries.
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II. STANDARD OF REVIEW
We review de novo questions of subject matter jurisdiction. See United
States v. Al–Arian, 514 F.3d 1184, 1189 (11th Cir. 2008). We review a district
court's ruling on a motion for reconsideration for an abuse of discretion.
Richardson v. Johnson, 598 F.3d 734, 740 (11th Cir. 2010). “A district court
abuses its discretion when its factual findings are clearly erroneous, when it
follows improper procedures, when it applies the incorrect legal standard, or when
it applies the law in an unreasonable or incorrect manner.” Wreal, LLC v.
Amazon.com, Inc., 840 F.3d 1244, 1247 (11th Cir. 2016).
III. DISCUSSION
Federal courts are courts of limited jurisdiction; jurisdiction lies only when a
controversy involves either a question of federal law or diversity of citizenship
between the parties. See 28 U.S.C. §§ 1331–32. Removal statutes are strictly
construed, and courts should remand to state court cases where federal subject
matter jurisdiction is in doubt. See Syngenta Crop Prot. Inc. v. Henson, 537 U.S.
28, 32 (2002); Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 411 (11th Cir.
1999). Because the parties here do not contend that their dispute involves a
question of federal law, the district court had jurisdiction over the instant case only
if diversity jurisdiction existed. Diversity jurisdiction exists when the suit is
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between citizens of different states and the amount in controversy exceeds
$75,000, exclusive of interest and costs. See 28 U.S.C. § 1332.
A. The District Court Had Jurisdiction Because the Amount-in-
Controversy Requirement Was Met.
The plaintiffs argue that the district court lacked jurisdiction over this case
because the damages they sought in their complaint did not meet the amount-in-
controversy requirement. They point out that none of the plaintiffs’ individual
claims sought more than $75,000. The plaintiffs alleged non-specific damages for
their miscellaneous injuries, traumatic brain injuries, and pain and suffering. The
complaint also sought special damages in specific dollar amounts for medical
expenses the plaintiffs had incurred but noted that they would supplement the
amounts as additional expenses continued to accrue.
When there are multiple plaintiffs in an action, as there are here, federal
subject matter jurisdiction exists over all the plaintiffs’ claims arising from the
same case or controversy if just one plaintiff meets the jurisdictional amount.
Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 549 (2005). The
damages resulting from the plaintiffs’ claims may not be aggregated to reach the
jurisdictional amount unless the claims seek to enforce a single, undivided title or
right—which is not the case here. Zahn v. Int’l Paper Co., 414 U.S. 291, 294-95
(1973); Leonard v. Enterprise Rent-A-Car, 279 F.3d 967, 974 (11th Cir. 2002).
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“When the complaint does not claim a specific amount of damages, removal
from state court is jurisdictionally proper if it is facially apparent from the
complaint that the amount in controversy exceeds the jurisdictional requirement.”
Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 754 (11th Cir. 2010) (internal
quotation marks and citation omitted and alterations adopted). If the jurisdictional
amount is not facially apparent, “the court should look to the notice of removal and
may require evidence relevant to the amount in controversy at the time the case
was removed.” Id. (internal quotation marks omitted).
When, as in this case, a defendant contends that removability is apparent
from the face of the complaint, the court must evaluate whether the complaint itself
satisfies the defendant’s jurisdictional burden. In making this determination,
district courts may make “reasonable deductions, reasonable inferences, or other
reasonable extrapolations from the pleadings to determine whether it is facially
apparent that a case is removable.” See Roe v. Michelin N. Am., 613 F.3d 1058,
1061-62 (11th Cir. 2010) (internal quotation marks omitted). “[C]ourts may use
their judicial experience and common sense in determining whether the case stated
in a complaint meets federal jurisdictional requirements.” Id. at 1062.
Complaints alleging serious, lasting physical injuries are typically removable
because it is facially apparent that these claims are worth more than $75,000. See,
e.g., Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000)
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(concluding that plaintiff’s unspecified damages, including permanent
disfigurement as well as pain and suffering, satisfied the “facially apparent”
inquiry); Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999) (holding
that plaintiff’s alleged damages for property damage, travel expenses, an
emergency ambulance trip, a stay in the hospital, and pain and suffering met the
jurisdictional amount). 4 Where, by contrast, plaintiffs alleged minor, short-term
injuries or the pleadings provided no specific facts to support removal, we have
held that removal would be based on speculation and thus improper. Lowery v.
Ala. Power Co., 483 F.3d 1184, 1213-15 (11th Cir. 2007).
Enterprise argues that it is facially apparent that the damages alleged in the
plaintiffs’ complaint satisfy the amount-in-controversy requirement. 5 The
plaintiffs alleged that each plaintiff suffered substantial bodily and “traumatic brain
injur[ies]” and listed as damages continuing medical expenses due to these injuries.
Doc. 1-1 at 4-6. For example, Christian Moore “suffered various lacerations to her
face and also broke her right forearm which sustained a closed reduction fracture
4
As noted in Roe, Eleventh Circuit precedent in this area of the law is relatively sparse.
613 F.3d at 1062. Given this lack of in-circuit authority, we find Fifth Circuit precedent
instructive because it, like our precedent, employs a court-conducted “facially apparent” inquiry
in determining the removability of a claim without a specific damages request. Id. at 1062-63.
5
In support of their arguments, the plaintiffs cite cases that turn on whether additional
evidence provided by the defendants was sufficient to establish the amount in controversy.
These cases are irrelevant to our analysis, however, because Enterprise argues that it was facially
apparent that the amount-in-controversy requirement was met.
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and required surgery,” including the insertion and then removal of an internal plate
to fix the fracture. Id. at 4. She also suffered a nasal bone fracture and a rib
fracture. According to the complaint, “[s]he has endured months of pain and
suffering [and] has sustained a traumatic brain injury.” Id. at 4-5. The complaint
identified over $25,000 in medical bills for Christian’s injuries while alleging that
additional medical bills were forthcoming and seeking damages for continued pain
and suffering. The alleged bodily injuries sustained by one of the minor
plaintiffs—hospitalization for three days with a fractured humerus, multiple facial
lacerations, and a pulmonary contusion of the lung—and by Calvin Moore—who
suffered “permanent disfigurement” including the loss of an ear—were similar in
severity. Id. at 4. And these plaintiffs, too, according to the complaint, suffered
traumatic brain injuries. Based on these allegations, Enterprise argues, it
reasonably can be inferred from the complaint that at least one plaintiff sustained
damages exceeding $75,000. We agree.
The plaintiffs alleged miscellaneous bodily injuries requiring surgery,
traumatic brain injuries, medical bills already in the tens of thousands of dollars
that are continuing to accrue, and sustained pain and suffering. On the face of the
complaint, these injuries were serious and long-lasting. From the alleged traumatic
brain injuries alone, the district court could reasonably infer or deduce that the cost
of treatment would satisfy the jurisdictional amount. Thus, applying “judicial
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experience and common sense,” we conclude that it is facially apparent that the
jurisdictional amount is satisfied. See Roe, 613 F.3d at 1062.
B. The District Court Did Not Abuse Its Discretion in Denying the
Plaintiffs’ Motion for Reconsideration of the Denial of Leave to Amend
Their Complaint.
The plaintiffs argue that the district court should have granted their motion
for reconsideration and allowed them to amend their complaint to join Melancon,
which would have destroyed complete diversity and stripped the district court of its
subject matter jurisdiction. We see no abuse of the district court’s discretion.6
The decision whether to grant a motion for reconsideration is committed to
the sound discretion of the district court. Fla. Ass’n of Rehab. Facilities, Inc. v.
Fla. Dep’t of Health & Rehab. Servs., 225 F.3d 1208, 1216 (11th Cir. 2000). A
motion for reconsideration cannot be used to “relitigate old matters, raise argument
or present evidence that could have been raised prior to the entry of judgment.”
Michael Linet, Inc. v. Village of Wellington, Fla., 408 F.3d 757, 763 (11th Cir.
2005). In their motion for reconsideration, the plaintiffs’ arguments were identical
6
The plaintiffs also argue that because Melancon was the driver and party responsible for
obtaining insurance, he was a necessary and indispensable party under Federal Rule of Civil
Procedure 19. Not only is this argument conclusory, but it is readily apparent that Melancon
does not meet the “necessary” requirement of Rule 19(a) because his absence would not preclude
complete relief between the parties, nor did he “claim[] an interest relating to the subject of the
action.” Fed. R. Civ. Pro. 19(a). Thus, the district court was not required by Rule 19 to allow
Melancon’s joinder.
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to the arguments they made when they initially sought leave to amend—arguments
that were rejected by the district court. Thus, the court did not abuse its discretion
in denying the motion for reconsideration.
Beyond the plaintiffs’ repetition of their argument, their motion for
reconsideration also lacked merit. District courts have broad discretion to decide
whether, after removal, to permit joinder of a new defendant who would destroy
diversity: “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); see
Ingram v. CSX Transp., Inc., 146 F.3d 858, 862 (11th Cir. 1998). Our court has no
binding precedent that addresses how a district court should decide whether to
permit the joinder of a non-diverse defendant after removal. However, decisions
from other circuits are instructive.
For instance, in Hensgens v. Deere & Co., the Fifth Circuit articulated a
balancing test for deciding whether to permit joinder of a party who would defeat
complete diversity. 833 F.2d 1179, 1182 (5th Cir. 1987). 7 In applying the test, the
Fifth Circuit directed, a court should consider the following factors: (1) “the extent
7
Hensgens was decided before the adoption of 28 U.S.C. § 1447(e), but numerous courts
have relied upon its analysis when determining whether joinder is proper under § 1447(e). See,
e.g., Alpers Jobbing Co. v. Northland Cas. Co., 173 F.R.D. 517, 520 n. 6 (E.D. Mo. 1997)
(collecting cases).
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to which the purpose of the amendment is to defeat federal jurisdiction,” (2)
“whether plaintiff has been dilatory in asking for amendment,” (3) “whether
plaintiff will be significantly injured if amendment is not allowed,” and (4) “any
other factors bearing on the equities.” Id. Other circuits have applied these or
similar factors. See, e.g., Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 759
(7th Cir. 2009); Bailey v. Bayer CropScience L.P., 563 F.3d 302, 309 (8th Cir.
2009); Mayes v. Rapoport, 198 F.3d 457, 462-63 (4th Cir. 1999). We now
consider these factors in determining whether the district court erred in rejecting
the plaintiffs’ amendment joining Melancon.
As to the first factor, in determining a plaintiff’s motive in seeking joinder,
courts consider whether the plaintiff knew about the non-diverse defendant before
removal and yet sought to add the party for the first time after removal. See, e.g.,
Bailey, 563 F.3d at 309 (noting that plaintiff knew about new parties before
removal). Here, despite having full knowledge of Melancon’s involvement in the
accident as the driver and renter of the vehicle in which they were riding, the
plaintiffs chose to include him in the lawsuit only after removal. They argue that it
was not their intention to add Melancon as a defendant to defeat diversity
jurisdiction; instead, when they filed their complaint they did not name him
because they thought the driver of the other vehicle was at fault. But the police
report of the accident identified Melancon as the party at fault, and the plaintiffs
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have failed to explain why they were unable to obtain the police report—which
was written in 2016, two years before they filed the lawsuit—before removal. We
note that the plaintiffs cite their familial relationship with Melancon as a reason
why they chose not to sue him initially. Appellant’s Br. at 17. This admission
suggests that the reason the plaintiffs changed their mind and sought to add him as
a defendant was to defeat removal. Taken together these circumstances indicate
that the plaintiffs’ motive in seeking to amend their complaint was to destroy
federal jurisdiction. Thus, this factor weighs in Enterprise’s favor.
Similar reasons support a conclusion that the second factor—whether the
plaintiffs were dilatory in seeking to amend—also tilts the balance in Enterprise’s
favor. A plaintiff is dilatory in adding a non-diverse party when the plaintiff waits
an unreasonable amount of time before asking for an amendment, despite having
been able to ascertain the party’s role in the suit all along. See Osgood v. Discount
Auto Parts, LLC, 955 F. Supp.2d 1352, 1356 (S.D. Fla. 2013) (finding a slip-and-
fall plaintiff dilatory in asking for amendment where he did not seek to add the
non-diverse party until over a year after the accident and six months after filing
suit). The plaintiffs argue that they were not dilatory in seeking an amendment to
join Melancon because they filed their motion only 15 days after removal. But the
swift filing does not necessarily indicate diligence. Again, the plaintiffs were
aware of Melancon’s role in the accident when it happened, more than two years
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before they filed the complaint. That they moved to add him only after removal
undermines the suggestion of diligence on the plaintiffs’ part.
As to the third factor, whether the plaintiffs would be significantly injured if
amendment were not allowed, the district court concluded that they would not be
denied a full remedy because they remained free to pursue claims against
Melancon in state court. The plaintiffs argue that having to pursue parallel
proceedings against Melancon in state court would amount to significant injury.
The district court previously rejected this argument, however, and the plaintiffs
have offered no persuasive argument that the district court erred in doing so.
Being made to litigate against Melancon in state court does not necessarily amount
to a significant injury—even if it results in duplicative efforts on the plaintiffs’
part—such that this factor weighs in the plaintiffs’ favor.
Applying the last factor—any other factors bearing on the equities—the
district court concluded that other equitable factors do not weigh substantially in
favor of either party. The plaintiffs have provided no reason to conclude
otherwise.
Given that these factors are either neutral or weigh in Enterprise’s favor, the
district court did not abuse its discretion in denying the plaintiffs’ motion for
reconsideration of the denial of their motion to amend to add Melancon as a
defendant. And because diversity jurisdiction was proper, the district court also
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did not err in denying the motion to reconsider on the denial of the plaintiffs’
motion to remand.
IV. CONCLUSION
For the above reasons, we affirm.
AFFIRMED.
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Adoracion Hickerson v. Enterprise Leasing Company of Georgia, LLC
Combined Opinion