The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge
This matter is before the court on plaintiffs David Barbieri and Gail Barbieri's (collectively "plaintiffs") motion for leave to file a first amended complaint in order to join non-diverse defendants pursuant to Federal Rules of Civil Procedure ("FRCP") Rule 15(a)(2). Defendant Ford Motor Company ("Ford") opposes this motion arguing, inter alia, that plaintiffs' motion is brought for the sole purpose of destroying diversity jurisdiction and that the court should deny the motion pursuant to its discretionary powers under 28 U.S.C. § 1447(e). For the reasons set forth below,*fn1 plaintiffs' motion for leave to amend their complaint to join Harold Ford is GRANTED.*fn2
This matter arises out of injuries sustained to plaintiff David Barbeiri during a car collision in Sacramento, California on September 13, 2007. On October 29, 2008, plaintiffs filed a suit in Sacramento Superior Court against the State of California, the Department of Transportation, the County of Sacramento, the City of Sacramento and the City of Rancho Cordova, seeking damages for injuries allegedly sustained in the car collision. (Ex. A to Decl. of Mia O. Hernandez in Supp. of Def.'s Opp'n ("Hernandez Decl."), filed Feb. 26, 2010.) The complaint alleged that the negligent construction, maintenance, operation, control and design of the highway allowed another vehicle to drift off road and travel down an embankment where it struck David Barbeiri's 2001 Ford Taurus head-on. (Id.) As a result of this dangerous condition, Mr. Barbeiri suffered injuries including right frontal intraparechymal hemorrhage, right periorbital and front pneumocephalus, multiple facial fractures, including nasal, orbital and ethmoid fractures, post-traumatic seizures, multiple rib fractures, right fifth digit laceration, and nose laceration. (Id.)
On September 2, 2009, plaintiffs filed a separate suit in Sacramento Superior court for damages resulting from the same accident. (Ex. B to Hernandez Decl.) Plaintiffs' complaint alleges claims for strict liability, negligence, and breach of warranty against defendants Ford, the manufacturer of the Ford Taurus, Autoliv ASP, Inc. ("Autoliv"), the manufacturer of the airbag module, and Key Safety Systems, Inc. ("Key Safety"), the manufacturer of the seat belt pretensioner. (Id.) It does not set forth any claim against Harrold Ford ("Harrold Ford"), the California dealership from which plaintiffs purchased the used 2001 Ford Taurus. (Id.) The complaint alleges substantially the same injuries as the complaint against the state but also includes non-economic injuries. (Id.)
On October 13, 2009, defendant Ford answered plaintiffs' state court complaint and filed a Notice of Removal to this court. (Hernandez Decl. ¶ 2.) On October 16, 2009, the court remanded the case to Sacramento Superior Court as Ford failed to demonstrate an amount in controversy that exceeded $75,000.00. (Ex. C to Hernandez Decl.)
On October 20, 2009, Ford served written discovery on plaintiffs in state court seeking a statement of damages from plaintiff. (Ex. D to Hernandez Decl.) Also, Ford contacted plaintiffs and suggested that the parties stipulate to an amount in controversy for less than $75,000.00. (Hernandez Decl. ¶ 6.) Plaintiffs did not provide a statement of damages and did not stipulate that the amount in controversy was less than $75,000.00. (Id. ¶ 7.) Based on the materials received from plaintiffs, including medical bills in excess of $200,000.00, Ford removed the case a second time on November 12, 2009. (Id.)
In the interim, on October 26, 2009, plaintiffs noticed the deposition of the person most knowledgeable at Harrold Ford. (Decl. of Scott Right-hand in Supp. of Pl.'s Mot. ("Right-hand Decl."), filed Dec. 14, 2009, ¶ 10.) After it was continued at the request of Harrold Ford, the deposition of William Bergaus, a parts and service director at Harrold Ford for the past 11 years, was taken on November 16, 2009. (Id. ¶¶ 10-11.) Plaintiffs claim that this deposition was the first time they discovered information that indicated Harrold Ford was negligent. (Id. ¶ 11.) Specifically, plaintiffs claim to have discovered that Harrold Ford negligently inspected the used 2001 Taurus before reselling it and misrepresented that the vehicle had undergone specific diagnostic tests when, in fact, it had not. (Id.) Based on the facts discovered at the deposition, plaintiffs claim there was sufficient basis upon which to add Harrold Ford as a defendant. On December 14, 2009, plaintiffs filed a Motion for Leave to File First Amended Complaint, which included a proposed First Amended Complaint. (See Ex. E to Right-hand Decl.)
Ford argues that plaintiffs' attempted amendment should not be permitted under 28 U.S.C. § 1447(e). Specifically, Ford contends that Harrold Ford is not needed for just adjudication, that plaintiffs would not be barred by any statutes of limitations and would be able to bring this claim in state court, that plaintiffs inexplicably delayed in bringing this claim, and that plaintiffs' motives in bringing the claim against Harrold Ford are based solely on defeating jurisdiction and not the result of any evolution of the case.
Under FRCP 15(a)(2), the court should "freely give leave" to amend a complaint "when justice so requires." However, this permissive standard does not apply "if a plaintiff seeks to amend a removed complaint in a manner that would destroy diversity . . . . " Clinco v. Roberts, 41 F. Supp. 2d 1080, 1082 (C.D. Cal. 1999). "To apply a permissive standard in this situation would allow a plaintiff to improperly manipulate the forum of an action." Chan v. Bucephalus Alternative Energy Group, LLC, No. 08-04537, 2009 WL 1108744 at *3 (N.D. Cal. Dec. 19, 2009) (quoting Clinco, 41 F. Supp. 2d 1080, 1086-87). When this situation arises, the court has full discretion to evaluate the motion pursuant to 28 U.S.C. § 1447(e). Clinco, 41 F. Supp 2d at 1082; Newcombe v. Adolf Coors Co., 157 F.3d 686, 691 (9th Cir. 1998).
Under 28 U.S.C. § 1447 (e), "[i]f 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 State court." The court generally applies a five factor test in determining whether to permit joinder under 28 U.S.C. § 1447 (e). These factors include:
(1) Whether the party sought to be joined is needed for just adjudication and would be joined under [FRCP] 19(a); (2) whether the statute of limitations would prevent the filing of a new action against the new defendant should the court deny joinder; (3) whether there has been unexplained delay in seeking joiner; (4) whether the joinder is solely for the purposes of defeating federal jurisdiction; (5) the strength of the claims against the new defendant.
Clinco, 41 F. Supp. 2d at 1082 (citing Schwarzer, et al., California Practice Guide: Federal Civil Procedure Before Trial ¶ 2:1078 (2002)); Chan, 2009 WL 1108744 at *3; Boon v. Allstate Ins. Co., 229 F. Supp. 2d 1016, 1020; see also IBC Aviation Servs., Inc. v. Compania ...