as a defendant. While the plaintiffs may not eventually prevail on their claims against Nelson Maintenance, they have asserted ample bases on which to pursue them at the pleading stage. See Rodriguez v. Abbott Labs., 151 F.R.D. 529, 532 n.3 (S.D.N.Y. 1993) (joint tortfeasors are permissive, not indispensable, parties). Moreover, as explained below, allowing Nelson Maintenance to be joined as a defendant comports with principles of fundamental fairness. See, e.g., Wilson v. Famatex GmbH Fabrik Fuer Textilausruestungsmaschinen, 726 F. Supp. 950, 952 (S.D.N.Y. 1989) (Lasker, J.) (permissive joinder must comport with principles of fundamental fairness, especially where the joinder of the party will destroy diversity and necessitate a remand).
Under Section 1447(e), courts have discretion either to deny joinder of a non-diverse defendant and retain jurisdiction, or to permit joinder and remand the case to state court. DiNardi v. Ethicon, Inc., 145 F.R.D. 294, 297 (N.D.N.Y. 1993). In exercising their discretion and determining whether permitting joinder will comport with principles of fundamental fairness, courts consult the following factors: (1) any delay, and the reasons for the delay, in seeking to amend; (2) any resulting prejudice to the defendant; (3) the likelihood of multiple litigation; and (4) the plaintiffs' motivation in moving to amend. Id. at 297-98 (citing Gursky, 139 F.R.D. at 282).
Each of the relevant factors weighs in favor of joinder in this case. First, the plaintiffs did not contribute to any delay; rather, they brought their motion to add Nelson Maintenance as a party within two weeks of their discovering that Nelson Maintenance is responsible for maintenance of the floor where Susan Wyant allegedly fell. (Pls.' Aff. Supp. Mot. at P 3.)
Second, there is no appreciable prejudice to the defendant. While Amtrak complains that discovery is almost complete, courts have rejected such arguments as insufficient to preclude joinder and remand. See, e.g., Rodriguez, 151 F.R.D. at 533; Gursky, 139 F.R.D. at 283. Third, despite Amtrak's argument that permitting joinder will frustrate the policy of judicial economy, (Def.'s Supplem. Mem. Opp'n at 9), if the plaintiffs are not permitted to add Nelson Maintenance as a defendant, they will be forced to litigate in two different fora to bring their claims against all potential tortfeasors, resulting in an inefficient use of judicial resources. Fourth, the plaintiffs appear to be motivated not solely by a desire to defeat diversity jurisdiction, but rather by a good faith desire to seek recovery from those parties they contend are liable to them. See, e.g., Short v. Bulk-Matic Transp. Co., 1994 U.S. Dist. LEXIS 9478, No. 93 Civ. 6040, 1994 WL 363941, *2 (S.D.N.Y. July 13, 1994) (Haight, J.) ("Unless a plaintiff seeks to add a non-diverse party solely to destroy the court's basis for diversity jurisdiction, the court is required to remand the action to state court.").
Amtrak initially did not oppose the joinder of Nelson Maintenance as a party, provided that the case was not remanded. (Def.'s Aff. Opp'n at P 7.) At that time, Amtrak based its argument that the case should not be remanded on two grounds. First, it argued that because diversity between the plaintiffs and the defendant existed at the time the case was removed, the Court's jurisdiction would not be destroyed by the joinder of a non-diverse defendant. Second, it argued that the Court possesses an independent basis for jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1349 that would not be destroyed by the addition of a non-diverse defendant. Amtrak cannot defeat the plaintiffs' motion with either of these arguments.
Amtrak argues that pursuant to 28 U.S.C. § 1447, remand is permitted only where the removal was, at the time it occurred, improvident and without federal jurisdiction. (Def.'s Mem. Opp'n at 2.) However, all of the cases that Amtrak cites in support of this proposition predate the enactment of the current Section 1447(e) in 1988. See, e.g., Skinner v. American Oil Co., 470 F. Supp. 229, 234 (S.D. Iowa 1979) (so long as the removal was proper at the time the case was removed, the court retains jurisdiction following joinder of a non-diverse defendant).
Section 1447(e), which was enacted as part of the Judicial Improvements and Access to Justice Act of 1988, explicitly provides that where a court permits the joinder of a defendant whose citizenship destroys diversity, the court is required to remand the case. See, e.g., Amon, 1992 U.S. Dist. LEXIS 280, 1992 WL 8337, at *5 n.3 ("Prior to the enactment of § 1447(e), some courts had retained jurisdiction after joining a non-diverse party. Absent an independent basis for federal jurisdiction, § 1447(e) now clearly prohibits this type of pendent party jurisdiction.") (citation omitted).
The cases upon which Amtrak relies, therefore, do not provide authority for the proposition that this Court's diversity jurisdiction is not destroyed by the addition of Nelson Maintenance as a defendant.
Amtrak also argues that even if diversity jurisdiction were destroyed by virtue of the joinder of Nelson Maintenance, the Court retains federal question jurisdiction. It alleges that because it is a District of Columbia corporation that was created by an act of Congress, pursuant to 45 U.S.C. § 501 et seq.
, and more than one-half of its capital stock is owned by the United States, the Court retains subject matter jurisdiction over the action under 28 U.S.C. §§ 1441, 1331 and 1349 even after diversity is destroyed.
Amtrak is correct that the law is well-settled that federal courts have federal question jurisdiction over suits by or against Amtrak under 28 U.S.C. § 1331. See, e.g., Lofurno v. Amtrak Nat'l R.R. Corp., 1992 U.S. Dist. LEXIS 9520, No. 91 Civ. 5978, 1992 WL 170646, *1-2 (S.D.N.Y. July 8, 1992) (Leval, J.) (denying plaintiff's motion for remand); Boone v. National R.R. Passenger Corp., 1993 U.S. Dist. LEXIS 3973, No. Civ. A. 93-0770, 1993 WL 93946, *2 (E.D. Pa. March 30, 1993) (same) Estate of Wright v. Illinois Cent. R.R. Co., 831 F. Supp. 574, 574 (S.D. Miss. 1993) (federal court had jurisdiction over case against Amtrak). However, Amtrak faces the insurmountable problem that in its petition for removal, it did not assert federal question jurisdiction as a basis for removal; rather, it asserted only diversity jurisdiction.
A notice of removal is required to contain a "short and plain statement of the grounds for removal." 28 U.S.C. § 1446(a). The notice of removal generally must be filed within thirty days after the receipt of the initial state court pleading. 28 U.S.C. § 1446(b). A defendant may not amend its notice of removal after this thirty-day period to remedy a substantive defect in the petition. In Stuart v. Adelphi Univ., 1994 U.S. Dist. LEXIS 11803, No. 94 Civ. 4698, 1994 WL 455181 (S.D.N.Y. Aug. 19, 1994), the court explained:
Courts generally agree that such leave [to amend a notice of removal] should be given only [when] the proposed amendments are technical in nature or merely serve to clarify what was contained in the original notice for removal, but not when the proposed amendment aims to remedy a fundamental defect in the original notice of removal or attempts to add a new ground for removal.
Id. at *1 (citations omitted) (emphasis added); see also In re CBS Inc., 762 F. Supp. 71, 73 (S.D.N.Y. 1991) ("A petition for removal may be amended freely within the statutory 30-day period calculated from the date of service of the initial state court pleading. Thereafter it may be amended to set forth more specifically grounds for removal which were imperfectly stated in the original petition. The prior decisions have made a distinction between an 'imperfect' or 'defective' allegation and a wholly missing allegation, which cannot be supplied by amendment after the 30-day period has run."); Ryan v. Dow Chem. Co., 781 F. Supp. 934, 939 (E.D.N.Y. 1992) (Weinstein, J.) ("As applied to removal petitions, section 1653 [of Title 28] allows parties to clarify pleadings after filing. It does not sanction the addition of new substantive allegations.") (citations omitted).
Amtrak did not assert its federal question basis for removal in its notice of removal in any way. This Court cannot now, six months after the filing of the notice of removal and more than seven months after the filing of the complaint, permit it to add this new substantive ground for removal.
For all of the foregoing reasons, the plaintiffs' motions are granted. The defendant's request for leave to amend the notice of removal is denied. The plaintiffs are directed to serve and file an amended complaint within thirty (30) days of the date of this opinion. Immediately upon filing and service of the amended complaint, the Clerk of the Court is directed to remand the case to the New York State Supreme Court, New York County.
John G. Koeltl
United States District Judge
Dated: New York, New York
April 7, 1995