Ayarza v. Dollar Tree, Inc.

JONATHAN C.
v.
DOLLAR TREE,
First UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
AYARZA, §
§
Plaintiff, §
§
§ CIVIL ACTION NO.
§
INC., §
§
Defendant. §
MEMORANDUM OPINION AND ORDER
H-25-5247
Jonathan C. Ayarza ("Plaintiff") brought this action against
Dollar Tree, Inc. ("Defendant") in the 190th Judicial District
Court of Harris County, Texas.1 Defendant removed the action to
federal court.2 Pending before the court is Plaintiff's Motion to
Remand (Docket Entry No. 4) and Plaint f, Jonathan C. Ayarza's
Motion for Leave to Amend Complaint to Add a New Party
("Plaintiff's Motion to Amend") (Docket Entry No. 12). For the
reasons explained below, Plaintiff's motions to remand and to amend
will be denied.
I . Background
Plaintiff alleges that on February 18, 2025, he was assaulted
and shot in front of the Family Dollar store located at the 8400
1Plaintiff' s Original Petition and Jury Demand ("Original
Petition"), Exhibit A-1 to Notice of Removal, Docket Entry No. 1-1,
pp. 3, 6. For purposes of identification, all page numbers refer
to the pagination imprinted at the top of the page by the court's
Electronic Case Filing system.
2Notice of Removal, Docket Entry No. 1.
United States District Court
Southern District of Texas
ENTERED
January 28, 2026
Nathan Ochsner, Clerk
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block of Winkler Road by Defendant's security guard, Raul Cortez,
after he was suspected of attempting to shoplift from the store. 3
On April 2, 2025, Plaintiff brought his rst action against
Defendant in the 334th Judicial District Court of Harris County,
Texas. 4 On April 7, 2025, Plaintiff nonsuited his original state
court petition. 5 On September 12, 2025, plaintiff in an unrelated
case took an oral and videotaped deposition of Cortez. 6 In the
deposition Cortez was asked about the incident giving rise to this
action. 7
On September 24, 2025, Plaintiff brought his second action
against Defendant in the 190th Judicial District Court of
Harris County, Texas, alleging claims of common-law negligence,
premises liability, gross negligence, false imprisonment, civil
3Original Petition, Exhibit A-1 to Notice of Removal, Docket
Entry No. 1-1, p. 4; Plaintiff's First Amended Petition for Damages
("Plaintiff's First Amended Petition"), Exhibit B to Plaintiff's
Motion to Remand, Docket Entry No. 4-2, pp. 3-4.
4Plaintiff's Original Petition and Jury Demand, Exhibit 1 to
Dollar Tree's Response in Opposition to Plaintiff's Motion for
Leave Amend Complaint to Add a New Party (�Defendant's Response to
Plaintiff's Motion to Amend"), Docket Entry No. 16-1.
5Notice of Nonsuit, Exhibit 2 to Defendant's Response to
Plaintiff's Motion to Amend, Docket Entry No. 16-2.
6Plaintiff [John Odom]'s Notice of Intent to Take the Oral and
Video Deposition of Raul Cortez, Exhibit 4 to Defendant's Response
to Plaintiff's Motion to Amend, Docket Entry No. No. 16-4; Oral and
Videotaped Deposition of Raul Cortez ("Cortez Deposition"),
Exhibit 5 to Defendant's Response to Plaintiff's Motion to Amend,
Docket Entry No. 16-5.
7Cortez Deposition, Exhibit 5 to Defendant's Response to
Plaintiff's Motion to Amend, Docket Entry No. 16-5, p. 3.
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assault and battery, and negligence per se. 8 On November 3, 2025,
Defendant removed the action to this court on the basis of
diversity jurisdiction. 9
On November 7, 2025, Plaintiff amended s state court
petition to add Cortez, a citizen of Texas, as a party to the
action. 10 On November 17, 2025, Plaintiff filed a Motion to Remand,
arguing that the court's diversity jurisdiction was destroyed when
the state court petition was amended to add Cortez as a party. 11
Defendant filed its response to Plaintiff's Motion to Remand on
December 10, 2025, arguing that Plaintiff's motion should be denied
because Cortez had not been properly joined as a defendant. 12 On
December 17, 2025, Plaintiff filed a motion for leave to amend
seeking to add Cortez as a defendant. 13 Defendant filed its
response opposing Plaintiff's Motion to Amend on January 7, 2026. 14
8Original Petition, Exhibit A to Plaintiff's Motion to Remand,
Docket Entry No. 4-1, pp. 5-10.
9Notice of Removal, Docket Entry No. 1, p. 3. According to
the Notice of Removal, Defendant is a citizen of Virginia and
Plaintiff is a ci zen of Texas. Id.
10 Plaintiff's First Amended Petition, Exhibit B to Plaintiff's
Motion to Remand, Docket Entry No. 4-2, p. 2.
11 Plaintiff's Motion to Remand, Docket Entry No. 4, pp. 2-5.
12Dollar Tree's Response in Opposition to Plaintiff's Motion
to Remand ("Defendant's Response to Plaintiff's Motion to Remand"),
Docket Entry No. 11, p. 1.
13 Plaintiff's Motion to Amend, Docket Entry No. 12, pp. 1-2.
14Defendant's Response to Plaintiff's Motion to Amend, Docket
Entry No. 16.
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II. Legal Standard
"If 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." 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."' Moore v. Manns, 732 F.3d 454, 456 (5th Cir. 2013)
(quoting 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.
(quoting Hensgens, 833 F.2d at 1182).
III. Analysis
Plaintiff has moved to amend the complaint to add Cortez as a
defendant.15 Because Cortez is a citizen of Texas, diversity would
be defeated if Plaintiff is allowed to amend.16 The court will
therefore apply the Hensgens-factor analysis.
15 Plaintiff' s Motion to Amend, Docket Entry No. 12, p. 1;
Plaintiff's First Amended Petition, Exhibit B to Plaintiff's Motion
to Remand, Docket Entry No. 4-2, p. 2.
16 Plaintiff's First Amended Petition, Exhibit B to Plaintiff's
Motion to Remand, Docket Entry No. 4-2, p. 2.
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A. Purpose of the Amendment
The first Hensgens factor is the "extent to which the purpose
of the amendment is to defeat federal jurisdiction." Hensgens, 833
F.2d at 1182. "This factor has been described as the most
important factor." Ekberg v. Polytec Inc., l:24-CV-284-DII, 2024
WL 2933421, at * 2 (W.D. Tex. June 11, 2024). When evaluating the
first Hensgens factor, "courts within the Fifth Circuit frequently
look at whether the plaintiff knew the identity of the party to be
joined and the facts underlying the claim against that party when
filing the original complaint." Irigoyen v. State Farm Lloyds,
No. CA-C-03-324-H, 2004 WL 398553, at *3 (S.D. Tex. Jan. 5, 2004).
" ' when the plaintiff knew about the nondiverse party's
activities at the time the suit was originally brought in state
court but still chose not to include that party as an original
defendant, courts have viewed any later attempt to add the
nondiverse party as a defendant as nothing more than an attempt to
destroy diversity.'" Id. (quoting In re Norplant Contraceptive
Products Liability Litigation, 898 F.Supp. 433, 435 (E.D. Tex.
1995)). "[C]ourts in this circuit routinely deny leave to amend
upon a finding that the plaintiff's primary purpose is to defeat
jurisdiction." Canales v. Michaux, l:18-CV-507-RP,·2018 WL 6040258,
at *3 (W.D. Tex. Nov. �6, 2018).
Plaintiff knew of Cortez's identity and the facts underlying
his claims against Cortez when he filed this action in state court.
Not only did Plaintiff plead facts relating to Cortez's role in the
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assault in his original state court petition, 17 plaintiff Odom asked
Cortez questions about the assault on Ayarza in a deposition that
was taken in an unrelated case just twelve days before Ayarza filed
this second state court action.18
Plaintiff states that he did not want to join Cortez as a
defendant until "it became clear that criminal prosecution would
not be pursued against [Cortez] ."19 However, Plaintiff fails to
explain why Cortez's criminal prosecution is relevant to his
joinder in this case. The court is not convinced that this
explanation is a sufficient reason for Plaintiff's failure to name
Cortez in his state court petition.20
Although Plaintiff knew Cortez's identity and the facts
underlying Cortez's role in the incident, Plaintiff chose not to
17Original Petition, Exhibit A-1 to Notice of Removal, Docket
Entry No. 1-1, p. 4.
18 Cortez Deposition, Exhibit 5 to Defendant's Response to
Plaintiff's Motion to Amend, Docket Entry No. 16-5, p. 3.
19 Plaintiff's Motion to Amend, Docket Entry No. 12, p. 3 � 2.4.
20 The court has not allowed joinder in similar cases. In Berry
v. Wal-Mart Stores Texas, LLC, Civil Action No. H-18-4619, 2019
WL 1407212 (S.D. Tex. Mar. 28, 2019), a plaintiff was attacked by
a customer while shopping in Wal-Mart. Id. at *l. Plaintiff sued
Wal-Mart in state court for its negligence related to the attack.
Id. Wal-Mart removed the case to federal court on diversity
jurisdiction. Id. Upon removal, plaintiff amended her state court
petition to include her attacker, which would have destroyed
diversity jurisdiction. However, because the plaintiff knew
of the attacker's identity at the time she filed the state court
action, the court found that the plaintiff's purpose in adding the
attacker was to destroy diversity and accordingly denied the
plaintiff's motion to amend. Id. at *2-*3, *5.
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include Cortez as a defendant when he filed his second action
against Defendant. The court therefore concludes that the primary
purpose of Plaintiff's amendment is to defeat federal diversity
jurisdiction. Accordingly, the first and most important Hensgens
factor weighs heavily against granting Plaintiff's Motion to Amend.
B. Plaintiff's Delay
"In addressing the second Hensgens factor, courts look to
(i) the amount of time between the original state court action and
the request to amend, and the time between removal and the request;
and (ii) the stage of the proceedings at the time of the
amendment." Agyei v. Endurance Power Products, Inc., 198 F.Supp.3d
764, 776 (S.D. Tex. 2016).
Here, Plaintiff filed his First Amended Petition less than
three months after the state court suit was filed and approximately
five weeks after the case was removed. "Courts have refused to
find comparable timeframes dilatory." Id. "Moreover, at the time
Plaintiff filed the amended complaint, 'no pretrial or trial dates
ha[d] been scheduled and no significant activity beyond the
pleadings ha (d] occurred.'" Id. (quoting Gallegos v. Safeco
Insurance Co. of Indiana, Civil Action No. 09-2777, 2009
WL 4730570, at *4 (S.D. Tex. Dec. 7, 2009). Therefore, the second
factor weighs in favor of granting Plaintiff's Motion to Amend.
C. Prejudice to Plaintiff
"Courts analyzing the third Hensgens factor look to
(i) whether the already named diverse defendant would be unable to
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satisfy a future judgment, and (ii) whether the possibility of a
separate state court proceeding weighs against denying the proposed
amendment because of the inefficiency of parallel proceedings or
because such proceedings would place a financial burden on the
plaintiff." Id. at 777.
Plaintiff has not argued that Defendant would be unable to
satisfy a future judgment, and there is no indication that
Defendant could not satisfy a judgment in this case.
The court agrees that a separate state court suit "would
result in parallel judicial proceedings that would increase costs,
lead to judicial inefficiency, and may produce conflicting
results."21 Id. However, because "there is no evidence that
[Defendant is] unable to afford . . complete relief in either
action," the third Hensgens factor "weighs only slightly in favor
of" granting Plainti 's Motion to Amend. - Canales, 2018
WL 6040258, at *3; see also Martinez v. Holzknecht, 701 F.Supp.2d
886, 892 (S.D. Tex. 2010) (holding that the additional expense of
parallel proceedings "does not constitute significant prejudice" on
own).
21 Although Defendant argues that there is no risk of parallel
litigation because Plaintiff's claims against it are "entirely
distinct from Plaintiff's claims against Cortez," Defendant's
Response to Plaintiff's Motion to Amend, Docket Entry No. 16, p. 4,
the court finds that parallel litigation is likely because
Plaintiff's claims involve the same parties, stem from the same
incident, and have significant factual overlap. Costs and expenses
can be reduced by an agreement among the parties to conduct joint
discovery in the overlapping cases.
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D. Other Factors Weighing on the Equities
"The fourth Hensgens factor requires courts to analyze other
equitable factors." Agyei, 198 F.Supp.3d at 776. "Although
equitable factors include whether granting leave to amend would
deprive a defendant of a properly invoked federal forum . . . and
whether denying leave to amend would result in parallel state court
proceedings . these factors are likely to be present whenever
a plaintiff in a removed case seeks to add a nondiverse defendant."
Id. Because "[t]hose factors have already been analyzed in
considering the first three Hensgens factors" and "[b]ecause
neither party points to additional equitable factors beyond these
considerations, the fourth Hensgens factor is neutral." Id.
IV. Conclusion and Order
Although the second and third Hensgens factors weigh slightly
in favor of granting Plaintiff's Motion to Amend, the first and
most important Hensgens factor weighs heavily against granting
Plaintiff's Motion to Amend. The court concludes that the balance
tips against granting Plaintiff's Motion to Amend. See Canales,
2018 WL 6040258, at *4 (denying plaintiff's motion to amend
although the second and third Hensgens factors weighed in the
plaintiff's favor because the plaintiff knew the identity of the
non-diverse defendant when he filed his state court petition).
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For the reasons explained above, Plaintiff, Jonathan c.
Ayarza's Motion for Leave to Amend Complaint to Add a New Party
(Docket Entry No. 12) and Motion to Remand (Docket Entry No. 4) are
DENIED.
SIGNED at Houston, Texas, on this 28th day of January, 2026.
7 SIM LAKE
SENIOR UNITED STATES DISTRICT JUDGE
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