whether these remaining causes of action should be dismissed pursuant to Fed. R. Civ. P. 12(b)(7) for failure to join an indispensable party.
Failure to Join an Indispensable Party
A motion to dismiss, pursuant to Fed. R. Civ. P. 12(b)(7), is appropriate when the plaintiff "fails to join a party under Rule 19" (Id.). In Associated Dry Goods v. Towers Financial Corp., 920 F.2d 1121, 1123 (2d Cir. 1990), in addressing a motion pursuant to Fed. R. Civ. P. 12(b)(7), the Second Circuit stated that the district court must first make a threshold determination about whether the party at issue should be joined in the action according to Fed. R. Civ. P. 19(a) as a necessary party (Id.). Such a determination is within the sound discretion of the district court (See Arkwright-Boston Mfrs. Mutual v. City of New York, 762 F.2d 205, 209 [2d Cir. 1985]).
Fed. R. Civ. P. 19(a) states, that:
"A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring multiple, or otherwise inconsistent obligations by reason of the claimed interest" (Id.).
The defendants contend that the failure to join Imperial as a party in the action requires that the entire complaint be dismissed pursuant to Fed. R. Civ. P. 12(b)(7) since full relief cannot be granted in Imperial's absence. This threshold determination by the Court must be based upon "the pleadings as they appear at the time of the proposed joinder" ( Associated Dry Goods, supra, 920 F.2d at 1124).
Although the complaint states that Imperial sold its assets to MDI Corp. and that MDI Corp. was "a successor of Imperial's business enterprise" (Complaint, at P 9), there is no request for relief from Imperial itself. In addition, no answer has as yet been filed. Given the fact that the "pleadings as they appear at the time of the proposed joinder" do not seek any relief against Imperial, the Court finds that the second and third causes of action should not be dismissed for failure to join Imperial as an indispensable party (See Arkwright, supra, 762 F.2d at pp. 208-09).
Based upon the forgoing, the Court makes the following determinations:
1) The motion to dismiss the Complaint for lack of subject matter jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(1), is denied;
2) The motion to dismiss the first cause of action, pursuant to Fed. R. Civ. P. 12(b)(6), is granted;
3) The motion to dismiss the second and third causes of action, pursuant to Fed. R. Civ. P. 12(b)(6), is denied;
4) The motion to dismiss the Complaint, pursuant to Fed. R. Civ. P. 12(b)(7), is denied; and
5) The motion to dismiss the Complaint on the pleadings, pursuant to Fed. R. Civ. P. 12(c), is denied.
Dated: Uniondale, New York
November 27, 1992
ARTHUR D. SPATT
United States District Judge
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