Karen Wells ROBY, U.S. Magistrate Judge.
On April 7, 2000, the plaintiff, Wilson Matthews, filed a Motion to Amend the Original Complaint (doc #8) contending that he should be permitted to amend the complaint by adding the City of New Orleans. The plaintiff contends that although joinder of the City might destroy diversity, he should be permitted to sue the City of New Orleans because it is jointly liable with other defendants.
The defendants, Star Freight, Inc., Kelly Transportation, Inc. and Great West Casualty Company oppose the plaintiffs request to file an amended complaint on the grounds that the plaintiff seeks to add the City solely to destroy diversity jurisdiction. In support of their position, the defendants contend that (1) the incident at issue occurred on November 24, 1998, and that the plaintiff filed suit on November 19, 1999; (2) the plaintiff had approximately one year prior to filing suit to investigate the incident; and (3) the plaintiff originally alleged that Robert C. Morton caused the accident when he turned down a "No Truck Route" street and hit a tree limb overhanging the street.
The City of New Orleans had previously designated the subject street as a no truck zone and the Morton drove his truck down the street.
Additionally, the defendants contend that since the filing of the suit, the plaintiff has not conducted any discovery which would suggest that the information was newly discovered or not apparent at the time of the original filing date of the lawsuit. The defendants further contend that the plaintiff will not be prejudiced if the City is not a party to the suit because they have not plead third party fault as an affirmative defense.
Federal Rules of Civil Procedure provide that "leave to amend shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). Although the District Court should liberally allow amendments, leave to amend is not automatic. Id. The decision to grant or deny leave is within the sound discretion of the District Court. Id.
On April 26, 2000, the plaintiff filed a reply memorandum in which he explained the reason for seeking to amend the complaint to add the City of New Orleans. First, the plaintiffs attorney states that contrary to the assertion of the defendants, he is the third plaintiff s attorney who was retained to represent the plaintiff and that he did not have a year to investigate the claim.
Second, the plaintiff anticipates that the defendants will attempt to shift some of the blame to the City because of the condition of the trees which would result in a reduction of the plaintiffs recovery. Third, that he seeks to add the City of New Orleans to protect his clients interest in order to enhance his chance of obtaining full recovery for his damages.
According to the proposed amended complaint, the plaintiff now alleges that the City of New Orleans, knew that tree limbs on Napoleon Avenue created a hazardous condition and failed to warn motorists and failed to maintain the right of way. It is because of this failure that the plaintiff seeks to sue the City.
In Hensgens v. Deere Company, 833 F.2d 1179 (5th Cir. 1979) the Fifth Circuit held that the District Court should consider the interest of the removed defendants and their choice of forum in deciding to permit an amendment that would destroy diversity. Additionally, the District Court should consider the extent to which the purpose of the amendment is to defeat federal jurisdiction, whether the plaintiff has been dilatory in asking for the amendment, whether the plaintiff will be significantly injured if the amendment is not allowed and any other factors bearing on the equities.
The record of this matter reveals that the lawsuit was filed in November 1999 and that at the time of filing the facts which form the basis of the proposed amendment were known to the plaintiff. The plaintiffs counsel did in fact file the suit on behalf of Mr. Mathews but chose not to sue the City of New Orleans nor was there an allegation that there were tree limbs protruding in the street that created a hazardous condition until the matter was removed to federal court. Although the plaintiff was a guest passenger in the truck driven by Morton, the condition of the tree limbs was known to him on the day of the accident.
On the other hand, while the City posted a sign of "No Truck Route", if it knew that trucks frequented the street and failed to maintain the area, the plaintiff would possibly be able to establish a cause of action against the City of New Orleans even though the value of the claim would be significantly reduced. While the plaintiff contends that the addition of the City is necessary to protect him from the defendant pointing the finger at the absent defendant, the City would have been a potential party from the date of the incident if the plaintiff observed tree limbs in the pathway of the truck. Further, the answer filed by the defendants does not contain an assertion of third party fault as a defense.
The Court finds that the plaintiff will not be significantly harmed if the amendment is not permitted because the defense of third party fault has not been raised. Therefore, there is no risk that the plaintiff will not be able to obtain full recovery from the defendants sued herein solely because the City is not a party. Considering the facts known by the plaintiff at the time of the accident, and the filing of the lawsuit, the equity considerations raised in Hensgens and that third party fault is not an issue, the Motion to Amend the Pleadings (doc# 8) is DENIED.