Order | Filed: August 24, 2026
| Entered: August 24, 2026
El Habbal et al v. Costco Wholesale Corporation et al
P.I.: Other | Connecticut
Order
ORDER: The plaintiffs have filed a motion to join an additional defendant, Cherry Hill Construction Corp. ("Cherry Hill"). ECF No. 26. Plaintiffs contend that Cherry Hill is a Connecticut corporation, and therefore that joinder would negate the Court's jurisdiction over this matter, requiring remand to state court. Id.
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 the State court." Under Fed. R. Civ. P. 20(a), defendants "may be joined... if: (A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all defendants will arise in the action."
Because the plaintiffs' claims against all of the defendants in this action arise from a single incident in which the plaintiffs were injured in a Costco parking lot when a temporary construction fence and metal post fell and struck them, and Cherry Hill was "the contractor hired to install the temporary construction fence" at the location of the incident, ECF No. 26 at 2, all of the proposed defendants may be properly joined in one action under Rule 20.
When considering whether to permit joinder and remand to state court under 28 U.S.C. § 1447(e), courts "consider factors such as (1) any delay, as well as the reason for delay, in seeking joinder; (2) resulting prejudice to defendant; (3) likelihood of multiple litigation; and (4) plaintiff[s'] motivation for the amendment." Sweeting v. Dollar Tree Stores, Inc., 2023 WL 4043918, at *4 (D. Conn. June 16, 2023) (internal quotation marks omitted). Here, there has been no delay, as plaintiffs first learned of the potential involvement of the proposed defendant on July 28, 2026, and that involvement was confirmed on August 17, 2026, through Costco's initial disclosures. ECF No. 26 at 2. Both events occurred within the last few weeks. Plaintiffs' motivation for amendment is plainly proper because they seek to add as a defendant "the contractor hired to install the temporary construction fence" that they allege fell, hit, and injured them. Id. The Court is unaware of any facts that would indicate that any defendant would be prejudiced. And without joinder, there is a likelihood of needlessly duplicative litigation.
Finally, there are no facts to suggest that the plaintiffs are seeking "fraudulent joinder," or to "defeat a federal court's diversity jurisdiction and a defendant's right of removal by merely joining as defendants parties with no real connection with the controversy." Pampillonia v. RJR Nabisco, Inc., 138 F.3d 459, 460-61 (2d Cir. 1998). For the reasons set forth above, the proposed defendant has a real connection with the controversy, and it appears that the plaintiffs will be able to state a claim against that defendant in state court. The plaintiffs contend that their claim or claims against Cherry Hill will "rest on the identical factual and legal theory" already pending against defendant Peak Construction Group, LLC "for erecting, installing, securing, inspecting, and maintaining this same temporary construction fence." ECF No. 26 at 4.
If defendant Costco opposes joinder and remand, it should file a memorandum explaining its position on or before August 31, 2026. Any memorandum in opposition should bear in mind the defendant's "heavy burden": "In order to show that naming a non-diverse defendant is a 'fraudulent joinder' effected to defeat diversity, the defendant must demonstrate, by clear and convincing evidence, either that there has been outright fraud committed in the plaintiff's pleadings, or that there is no possibility, based on the pleadings, that a plaintiff can state a cause of action against the non-diverse defendant in state court. The defendant seeking removal bears a heavy burden of proving fraudulent joiner, and all factual and legal issues must be resolved in favor of the plaintiff." Pampillonia, 138 F.3d at 461.
Signed by Judge Michael P Shea on 8/24/2026.(RR)