     Case: 12-31265        Document: 00512400962          Page: 1     Date Filed: 10/08/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                              FILED
                                                                            October 8, 2013
                                        No. 12-31265
                                                                             Lyle W. Cayce
                                                                                  Clerk
LARRY J. MOORE,

                                                    Plaintiff-Appellant
v.

JONATHAN P. MANNS; PPG INDUSTRIES, INCORPORATED;
RON WILLIAMS CONSTRUCTION, INCORPORATED;
ANGELA NEUGENT; MARK RHOADS,

                                                    Defendants-Appellees



                     Appeal from the United States District Court
                        for the Western District of Louisiana


Before DAVIS and JONES, Circuit Judges, and MILAZZO, District Judge*.
PER CURIAM:
      Plaintiff-Appellant Larry Moore challenges the district court’s denial of his
motion for leave to amend his complaint. Finding that the district court did not
abuse its discretion in denying Moore’s motion, we AFFIRM.
                                     BACKGROUND
      Moore, a Louisiana citizen, alleges that he was “seriously and permanently
injured” by a piece of falling equipment at the Lake Charles Chemical Complex
in Westlake, Louisiana. Moore filed suit in Louisiana state court against PPG
Industries, Inc. (“PPG”), a Pennsylvania corporation; Ron Williams Construction,



      *
          District Judge of the Eastern District of Louisiana, sitting by designation.
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Incorporated, a Louisiana corporation; Jonathan Manns, Angela Neugent, and
Mark Rhoads, Louisiana citizens; and several fictitious parties. The defendants
removed the case to federal court under 28 U.S.C. § 1441(b) on the basis that all
defendants except PPG were fraudulently joined to defeat diversity. Moore
moved to remand, and the district court entered an order staying consideration
of the motion while Moore conducted additional jurisdictional discovery. At the
close of discovery, Moore moved for leave to amend his complaint to add three
additional defendants, PPG employees David Boyett, Mark Landry, and Terry
Messenger, all of whom were Louisiana citizens. Moore alleged that those
individuals were responsible for the safety of the premises where he was injured.
The district court referred both the motion to remand and the motion for leave
to amend to a magistrate judge.         The magistrate issued a report and
recommendation, opining that (1) the nondiverse parties had been improperly
joined in the case because Moore had no reasonable possibility of recovery
against them, and (2) allowing Moore to amend his complaint to add Boyett,
Landry, and Messenger as defendants would do nothing more than defeat
diversity. Thus, the magistrate recommended that the district court deny both
motions. The district court accepted the magistrate judge’s recommendation,
denied Moore’s motions, and dismissed the nondiverse defendants with
prejudice. Moore timely appealed the district court’s order, challenging only the
denial of his motion for leave to amend.
                                 DISCUSSION
      We review the district court’s denial of a motion for leave to amend for
abuse of discretion. Wilson v. Bruks-Klockner, Inc., 602 F.3d 363, 368 (5th Cir.
2010). “[A] court should freely give leave” to amend pleadings “when justice so
requires.” Fed. R. Civ. P. 15(a)(2). Such leave is not automatic, however, and is
at the discretion of the district court. Muttathottil v. Mansfield, 831 F. App’x
454, 457 (5th Cir. 2010). “If after removal the plaintiff seeks to join additional
defendants whose joinder would destroy subject matter jurisdiction, the court

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may deny joinder, or permit joinder and remand the action to the State court.”
28 U.S.C. § 1447(e). The district court should scrutinize an amended pleading
naming a new nondiverse defendant in a removed case “more closely than an
ordinary amendment.” Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir.
1987). In deciding whether to allow leave to amend, a court should consider
several factors, including “the extent to which the purpose of the amendment is
to defeat federal jurisdiction, whether plaintiff has been dilatory in asking for
amendment, whether plaintiff will be significantly injured if amendment is not
allowed, and any other factors bearing on the equities.” Id. See also Priester v.
JP Morgan Chase Bank, N.A., 708 F.3d 667, 679 (5th Cir. 2013) (noting that
Hensgens is the “correct legal standard” to apply in determining whether joinder
of nondiverse parties should be permitted after removal).
      Under Louisiana law, an employee is personally liable if (1) the employer
owes a duty of care to a third person; (2) the employer delegated that duty to a
defendant-employee; (3) and the defendant-employee breached the duty through
his own fault and lack of ordinary care. Canter v. Koehring Co., 283 So.2d
716,721 (La. 1973), superseded on other grounds by statute, La. Rev. Stat. Ann.
§ 23.1032 (1998). See also In re 1994 Exxon Chem. Fire, 558 F.3d 378, 385-86
(5th Cir. 2009) (noting that Canter’s multi-part test is used to determine whether
an employee is individually liable to third persons, even if they are not co-
employees).     However, a defendant-employee’s “general administrative
responsibility” is insufficient to impose personal liability. Canter, 283 So.2d at
721. In rejecting Moore’s proposed amendment, the district court found that
Moore’s allegations were general in nature, he had offered no evidence of
personal fault on behalf of the PPG employees, and, therefore, his amendment
served only to destroy diversity. Cf. Tillman v. CSX Transp., Inc., 929 F.2d
1023, 1029 (5th Cir. 1991) (determining that an amendment’s principal purpose
was not to defeat jurisdiction where a valid cause of action existed). We agree
that Moore’s proffered amendment relied on the proposed parties’ general

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responsibilities to oversee safety rather than on evidence of personal fault, as
required to trigger individual liability under Louisiana law. See Canter, 283 So.
2d at 721-22. Furthermore, we concur with the district court’s conclusion that
the amendment only served to defeat diversity jurisdiction.
      Although the district court did not expressly examine the other Hensgens
factors—Moore’s timing; whether he would be significantly injured if the
additional parties were not added; and additional equitable considerations—we
cannot conclude, upon review of the briefs and record, that any of those factors
tip the scale for Moore. Therefore, the district court did not abuse its discretion
in denying his motion for leave to amend.
      For the foregoing reasons, the district court’s judgment is AFFIRMED.




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