The opinion of the court was delivered by: GOETTEL
The plaintiff Crawford Shaw brought this action against Griffin Bell, Thomas Tivnan, and Dillard Munford alleging, inter alia, that the defendants tortiously interfered with his child custody rights. He originally commenced this action in New York State Supreme Court, Westchester County. Shortly thereafter, the defendants removed the case to federal court on the basis of diversity of citizenship.
See 28 U.S.C. § 1441 (1976). Before this Court is plaintiff's motion to remand the case to state court or, in the alternative, to amend his complaint to add additional defendants-Vincent Malone and the law firm of Parker, Duryee, Zunino, Malone & Carter (the Law Firm)-whose presence would divest the Court of diversity jurisdiction.
Prior to addressing the legal questions raised by this motion, a brief review of the unusual circumstances surrounding this lawsuit is appropriate. In 1978, the plaintiff and Danne Brokaw Munford were divorced. Incorporated by reference in the divorce decree was a separation agreement that resolved several issues arising from the dissolution of the marriage. Of particular relevance to this case is the provision dealing with the custody of the couple's minor children.
According to the agreement, the children would reside with their mother in Westchester County.
She could not remove the children from the county, however, without the plaintiff's permission or a court order of the New York State Supreme Court, Westchester County.
For about two years, these provisions apparently posed no problems for the parties. Early in 1980, however, the former Mrs. Shaw announced her engagement to Dillard Munford, a resident of Georgia. She then requested plaintiff's permission to move the children with her to Atlanta. He refused, and an emotional custody battle that spawned this lawsuit ensued.
The first salvos were fired by Mrs. Munford. On April 29, 1980, she sought a court order granting her sole and exclusive custody of the children and permitting her to move them to Atlanta. The plaintiff responded by applying for sole custody of the children and by moving for a preliminary injunction precluding removal of the children to Atlanta pending resolution of the custody question. On June 16, 1980, Justice Gurahian of the New York State Supreme Court, Westchester County, granted the motion for a preliminary injunction and directed that a plenary hearing on the custody issue be held.
Several weeks following this decision, Justice Gurahian received a letter signed by Griffin Bell, a former Attorney General of the United States. In essence, it stated that, if the children were allowed to move to Atlanta with their mother, Bell would assure their return upon the determination of custody. Neither the plaintiff nor his counsel, however, received a copy of this letter. They were apprised of it only when Mrs. Munford moved for another order permitting her to take the children to Atlanta. (A copy of the letter was attached to the moving affidavit of her attorney, Thomas Tivnan, a partner in the Law Firm.) The plaintiff was incensed by this incident because of the ex parte nature of the communication and because of his perception that, if the children had been allowed to move to Atlanta, the court presiding over the custody hearing would have been reluctant to uproot the children by awarding custody to the plaintiff. Stated otherwise, he viewed the letter as an unethical attempt to deal him a fait accompli with respect to the issue of custody. It apparently offended him to such an extent that, even though the letter ultimately had no effect on his custody rights,
he deemed it fitting to commence this civil action in the New York State court.
Shortly after filing his complaint, the plaintiff received information that led him to believe that additional defendants should be brought into the lawsuit. First, he received a letter from Griffin Bell to Justice Barrett Hickman of the New York State Supreme Court.
Essentially, it stated that Bell had not communicated ex parte with Justice Gurahian nor had he authorized anyone to do so on his behalf. Bell wrote that he had placed the letter in the hands of Vincent Malone, a partner in the Law Firm, with the intention that it be used in lieu of his testimony when Mrs. Munford sought an order permitting her to move the children to Atlanta. Second, he received copies of correspondence between Bell and Malone. This correspondence indicated that Malone had prepared a draft of the letter to Justice Gurahian and had sent it to Bell for his approval. It also confirmed Bell's assertion that he had placed the letter in Malone's hands. Third, Thomas Tivnan informed the plaintiff that he personally had nothing to do with sending the letter to Justice Gurahian. According to the plaintiff, this information indicated that Vincent Malone and others in the Law Firm may also have been involved in the allegedly tortious conduct. Consequently, he moved in state court to add Malone and the Law Firm as additional defendants on July 31, 1981. No action could be taken on the motion, however, because the defendants had removed the case to this Court on July 30, 1981. (Because notice of removal was effectuated by mail, the plaintiff claims to have had no actual notice of the removal until August 3, 1981.)
It is against this unusual backdrop that we now view plaintiff's motion to remand or, in the alternative, to add additional parties. For the reasons stated below, the plaintiff will be permitted to add the additional defendants. Moreover, because such joinder will divest this Court of diversity jurisdiction, this case will be remanded to state court.
Curiously, the plaintiff has not structured his motion so that the Court would decide whether to grant permission to join the additional defendants before ruling on whether the case should be remanded. Rather, he has simply moved to remand or, in the alternative, for permission to add Malone and the Law Firm as defendants. The gist of his argument is as follows. If the state court had granted plaintiff's motion to join additional defendants, removal would have been precluded. Because plaintiff made the motion in state court before he knew of the removal, considerations of fairness compel this Court to exercise its discretion by remanding the case so that the motion can now be ruled upon in state court.
The plaintiff's attempt to justify remand on these grounds is without merit. A remand can be ordered only "(if) at any time before final judgment it appears that the case was removed improvidently and without jurisdiction." 28 U.S.C. § 1447(c) (1976); see Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 345, 96 S. Ct. 584, 590, 46 L. Ed. 2d 542 (1976) (the exclusive grounds for remanding a case to state court are established by section 1447(c)). Although the unusual sequence of events surrounding the plaintiff's motion in state court can be considered when determining whether the additional defendants can be joined, that removal would have been improvident if a motion had been filed earlier and granted clearly does not satisfy the statutory criteria. In this case, a remand would be justified only if this Court first grants plaintiff's motion to join the additional defendants, thereby destroying diversity jurisdiction. Accordingly, plaintiff's motion to remand under the theory proffered in his motion papers is denied.
II. Motion to Join Additional Defendants
The plaintiff's alternative motion to amend his complaint to join additional defendants cannot be disposed of as quickly as his motion to remand. At the threshold, the Court must determine whether the permissive joinder requirements of Rule 20 of the Federal Rules of Civil Procedure will be satisfied.
Desert Empire Bank v. Insurance Co. of North America, 623 F.2d 1371, 1375 (9th Cir. 1980). Rule 20(a) allows joinder of defendants in one action "if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action." Fed.R.Civ.P. 20(a). In this instance, these requisites clearly are satisfied. The plaintiff seeks damages from the defendants because of their alleged participation in the same transaction-the ex parte communication with Justice Gurahian. Moreover, there are questions of law and fact common to all defendants. To cite but one example, there will be a question as to whether the plaintiff sustained any compensable damages as a result of the ex parte communication.
Fulfillment of the specific requirements of Rule 20, however, is not enough to warrant granting the plaintiff's motion. Permissive joinder rests with the sound discretion of the Court, which must determine if joinder "will comport with the principles of fundamental fairness." Desert Empire Bank v. Insurance Co. of North America, supra, 623 F.2d at 1375. This presents a particularly difficult question in the case at bar because joinder will destroy this Court's diversity jurisdiction.
In opposition to the plaintiff's motion, the defendants have pointed to the oft stated general rule that the plaintiff cannot act so as to divest a court of jurisdiction over a case that has been properly removed. See Comstock v. Morgan, 165 F. Supp. 798, 801 (W.D.Mo.1958); 1A Moore's Federal Practice P 0.161(1), at 208-10 (2d ed. 1981); 14 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3723, at 598-99 (1976). Indeed, when joinder will necessitate a remand to state court, a trial court should pay particular attention to the motive underlying the plaintiff's motion because he "may well be inclined to add a new defendant only to have his action remanded to the state forum, the one that he had originally chosen as best suited to his purposes." Desert Empire Bank v. Insurance Co. of North America, supra, 623 F.2d at 1376. That a court should be cautious, however, should not require it to preclude summarily any action that would divest the court of jurisdiction.
Rather, when there is no showing that the plaintiff seeks to join the additional defendants solely to effectuate a remand, the better rule seems to be that "in the exercise of ... sound discretion the court may permit a new party to be added, although his citizenship destroys diversity and requires a remand." 1A Moore's Federal Practice, supra, P 0.161(1), at 209; accord, Desert Empire Bank v. Insurance Co. of North America, supra, (plaintiff permitted to join additional defendant whose presence destroyed diversity jurisdiction and necessitated a remand); Soam Corp. v. Trane Co., 506 F. Supp. 302 (S.D.N.Y.1980) (same); Miller v. Davis, 464 F. Supp. 458 (D.D.C.1978) (same); Harper Financial Corp. v. Hanson Oil Corp., 403 F. Supp. 1405 (W.D.Tenn.1975) (same): see J.L. Stanhope v. Ford Motor Credit Co., 483 F. Supp. 275, 278-79 (W.D.Ark.1980) (when there was no evidence that the plaintiff was attempting to ...