United States District Court, D. Oregon, Portland Division
FINDINGS AND RECOMMENDATIONS
Sharon Clark has brought suit against defendant Focus North
America Transportation, Inc. (“Focus”) for claims
arising out of a vehicular collision that occurred in Linn
County, Oregon, on May 1, 2017. According to the Complaint,
plaintiff was a passenger in an automobile driven by
third-party defendant, Dale Wilson (“Wilson”),
when Karl Ward (“Ward”) backed a semi-truck out
of a driveway, causing the automobile to collide with the
back end of the semi-truck. Compl. ¶ 5, ECF #1-1.
originally filed suit in Linn County against both Focus and
Ward. Plaintiff subsequently dismissed the Linn County suit
and filed in Multnomah County, omitting Ward as a defendant.
24, 2018, Focus removed this case to federal court based on
diversity jurisdiction. Plaintiff has filed a motion for
leave to file an amended complaint and motion to remand. ECF
#21. After considering the briefing and oral argument of the
parties,  this court recommends that plaintiff's
motions be granted for the reasons discussed below.
Amendment of Complaint
15(a) declares that leave to amend shall be freely given when
justice so requires; this mandate is to be heeded.”
Foman v. Davis, 371 U.S. 178, 182 (1962) (internal
quotation marks omitted). A ruling on a requested amendment
is reviewed for an abuse of discretion. Ariz.
Students' Ass'n v. Ariz. Bd. of Regents, 824
F.3d 858, 871 (9th Cir. 2016) (citations omitted). When
exercising its discretion on a motion to amend, the court
should be guided by the underlying purpose of FRCP 15(a),
which is “to facilitate decisions on merits, rather
than on the pleadings or technicalities.” Novak v.
United States, 795 F.3d 1012, 1020 (9th Cir. 2015)
(citation omitted). Thus, leave to amend is to be granted
with “extreme liberality.” Desertrain v. City
of Los Angeles, 754 F.3d 1147, 1154 (9th Cir. 2014);
see also Eminence Capital, LLC v. Aspeon,
Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (citation
court may consider factors “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” and
deny leave to amend on those or similar grounds.
Foman, 371 U.S. at 182. However, “outright
refusal to grant leave without any justifying reason
appearing for the denial is not an exercise of discretion; it
is merely abuse of that discretion and inconsistent with the
spirit of the Federal Rules.” Id.
prejudice, there is a strong presumption in favor of granting
leave to amend. Eminence Capital, 316 F.3d at 1052
(citation omitted). Nevertheless, futility may support denial
of a motion to amend if it is clear that the pleading, as
amended, is subject to dismissal and cannot be cured by
amendment. United States v. Corinthian Colleges, 655
F.3d 984, 995 (9th Cir. 2011) (citations omitted).
“Leave to amend is warranted if the deficiencies can be
cured with additional allegations that are consistent with
the challenged pleading and that do not contradict the
allegations in the original complaint.” Id.
(citation and internal quotation marks omitted).
motion for joinder of parties is governed by 28 U.S.C. §
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.
court's decision to permit joinder under § 1447(e)
is discretionary. Stevens v. Brink's Home
Sec., Inc., 378 F.3d 944, 949 (9th Cir. 2004);
Newcombe v. Adolph Coors Co., 157 F.3d 686, 691 (9th
Cir. 1998) (“The language of § 1447(e) is couched
in permissive terms and it clearly gives the district court
the discretion to deny joinder.”). In deciding whether
to permit joinder under § 1447(e), courts have
(1) whether the would-be defendants are necessary for just
adjudication of the controversy; (2) whether the plaintiff
still could bring an action in state court against the
putative defendants; (3) whether there has been any
unexplained delay in joinder; (4) whether it appears the
plaintiff is seeking to destroy diversity; (5) the apparent
merit of the claims against the new parties; and (6) whether
plaintiff would suffer prejudice without the joinder of the
Garrett v. New Hampshire Ins. Co., No.
3:11-CV-788-HZ, 2012 WL 426004, at *4 (D. Or. Feb. 9, 2012);
see also Clinco v. Roberts, 41 F.Supp.2d
1080, 1082 (C.D. Cal. 1999) (citing Schwarzer, et al.,
California Practice Guide: Federal Civil Procedure Before
Trial, ¶ 2:1078 (TRG 1998) (citing cases)). “Any
of the factors might prove decisive, and none is an
absolutely necessary condition for joinder.” Yang
v. Swissport USA, Inc., No. C 09-03823 SI, 2010 WL
2680800, at *3 (N.D. Cal. July 6, 2010).
Whether Ward is Necessary Defendant for Just
prevent joinder of a diversity-destroying defendant where the
defendant is only tangentially related to the cause of action
or would not prevent complete relief.” Falcon v.
Scottsdale Ins. Co., No. CV-06-122-FVS, 2006 WL 2434227,
at *2 (E.D. Wash. Aug. 21, 2006). Here, plaintiff seeks to
join Ward, the driver whose actions purportedly caused the
collision. Given that Ward's actions allegedly caused