Virginia Lawyers Weekly//July 25, 2022
Virginia Lawyers Weekly//July 25, 2022//
Where a plaintiff filed two separate suits, in different circuit courts, arising out of the same multi-vehicle accident, in an effort to maximize her recovery, her motion to now consolidate the suits in federal court — in order to have the federal action remanded to state court for lack of diversity — was denied.
On April 13, 2020, Lashawnda D. Whitfield’s car hydroplaned, causing her to run off the side of the road and to strike a guardrail. Another car operated by Kassa W. Giorgis, who was in the course of employment with Choice Transportation Inc., then struck the rear of Whitfield’s stationary vehicle.
Giorgis’s impact caused Whitfield’s own vehicle to strike her. That same impact also pushed Whitfield’s vehicle into the lanes of moving traffic, where it was struck by a tractor trailer owned by Walmart Transportation LLC and operated by Dennis E. Phillips.
On March 15, 2022, Whitfield filed and served a lawsuit against Giorgis and Choice seeking $1.2 million in the Petersburg Circuit Court. The next day, she filed a lawsuit against Walmart and Phillips in the Richmond Circuit Court, seeking $1.2 million. Without being served, Walmart and Phillips filed a notice of removal. That same day, Phillips and Walmart filed an answer in this court. Walmart and Phillips then filed a third-party complaint against Giorgis and Choice.
Whitfield now seeks leave to amend her complaint to join her claims in the Petersburg suit involving Giorgis and Choice with the action pending before the court against Walmart and Phillips. This amendment would result in remanding the action to state court because federal diversity jurisdiction would be destroyed.
When contemplating whether an amendment is intended to defeat federal jurisdiction, the court has held that nondiverse defendants may be added after removal when the plaintiff could not have identified all the defendants without discovery. Here, the record demonstrates that Whitfield had sufficient information to file an action against all defendants in the present matter.
Whitfield was aware multiple actions and defenses could arise from her present case if both were filed in state court. As Walmart and Phillips highlight, Whitfield appears to be aware that if she filed and then sought to consolidate the two actions in the same state court, all four defendants would have inevitably filed crossclaims against each other, effectively limiting each defendants’ liability and potentially reducing Whitfield’s recovery.
Thus, Whitfield initially was willing to litigate in two separate state courts to maximize her recovery. Hence, Whitfield’s filings create an inference that she thwarted judicial efficiency – and potentially sought two attempts at recovery from two different lawsuits – by filing the two separate suits in distinct state courts.
Whitfield correctly advises that she is “well within her rights to file two separate lawsuits.” Whitfield’s rationale neglects to explain, however, why she chose to file against Walmart and Phillis in Richmond Circuit Court rather than Petersburg Circuit Court. True, Whitfield need not procedurally do so under Virginia law, but this inconsistency calls into question what Whitfield’s actual motives were when commencing two separate actions arising from a common set of facts and legal questions in two distinct state courts.
Whitfield indicates that she would have consolidated the two state court actions but for Walmart and Phillis’s removal to federal court after learning of the filing. But combining the Richmond suit and the Petersburg suit in state court would have required Whitfield to complete several procedural hurdles, hindering efficient adjudication and escalating the costs of litigation in the process.
The court next considers whether plaintiff has been dilatory in asking for amendment. Here, Whitfield filed her motion within 30 days of removal. Therefore this factor supports granting the motion.
The next factor is whether the plaintiff will be significantly injured by denying the motion. Whitfield will likely suffer serious injury if the amendment is denied because she would be subject to “the danger of parallel lawsuits in federal and state court, which may spawn inconsistent results and inefficient use of judicial resources.” She would also likely incur significant costs in conducting concurrent litigation. Yet, this injury is self-inflicted by Whitfield’s own gamesmanship as described above.
Further, Walmart and Phillips will need to prove Giorgis’s negligence, and that is the “same proof Plaintiff must make in the Petersburg action, and if Mr. Giorgis and Choice were joined in this lawsuit it is the same proof Plaintiff would have to make against them here.” If proven, Giorgis and Choice would be collaterally estopped regarding negligence in future actions by Whitfield. Thus, on the surface, this factor appears to favor granting the motion, but when, considered against the backdrop of Whitfield’s stratagem, the factor appears less favorable.
Plaintiff’s motion to amend and remand denied.
Whitfield v. Phillips, Case No. 3:22-cv-245, July 1, 2022. EDVA at Richmond (Payne). VLW 022-3-284. 17 pp.