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GLENDORA v. MALONE

February 26, 1996

GLENDORA, Plaintiff, against JOHN C. MALONE, et al., Defendants.


The opinion of the court was delivered by: CONNER

 CONNER, Senior D.J.:

 BACKGROUND

 Plaintiff Glendora filed this pro se action on January 10, 1996. A number of defendants have moved to dismiss on grounds of insufficiency of process, insufficiency of service of process, lack of personal jurisdiction or misjoinder. The facts set forth below are not disputed, unless otherwise noted. They are drawn from affidavits submitted by plaintiff and by counsel for defendants. See Affidavit of Glendora, dated February 5, 1996; Affidavit of Ben Wiles, dated January 30, 1996.

 Glendora produces a public access cable television program that is currently broadcast, along with a number of other public access programs, on Channel 8 of the cable system that serves southern Westchester County. The cable system covers approximately twenty municipalities; public access programming broadcast on Channel 8 is aired simultaneously in all of them. In addition to Channel 8, each municipality retains control over one or more public access channels that broadcast programming only within that municipality. The cable system operator has announced plans to change the distribution of programming among the channels carried on its system. Under the proposed channel allocation, Channel 8 would no longer be used for public access but would instead carry the programming of WRNN, a local television station not currently assigned a channel on the cable system. *fn1" Each municipality would have the authority to determine whether the programming currently seen on Channel 8 would be broadcast on its local public access channels. As a result, public access programs currently broadcast simultaneously throughout the system might be broadcast on different channels and in different time slots in the various municipalities, or it might not be broadcast at all in some areas. Plaintiff alleges that the proposed channel allocation violates her First and Fourteenth Amendment rights and her rights under the federal and state laws that govern the provision of public access channels. She has brought claims under 42 U.S.C. § 1983 and 47 U.S.C. § 531(e), as well as various pendent state law claims.

 Plaintiff's complaint, as originally filed, named seventeen defendants--sixteen individuals and Tele-Communications, Inc. ("TCI"). At a conference held on January 23, 1996, *fn2" counsel for defendants represented to the court that UA-Columbia Cablevision of Westchester, Inc. d/b/a/ TCI Cable of Westchester ("TCI-Westchester"), a New York corporation with its principal place of business in Mamaroneck, New York, operates the cable system at issue here. We therefore directed plaintiff to serve TCI-Westchester.

 DISCUSSION

 I. Defendants' Motion

 A. Misjoinder

 All of the defendants, except for TCI-Westchester, have moved to dismiss on the ground that they are improperly joined in this action. To cure misjoinder, "parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just." Fed. R. Civ. P. 21. The Federal Rules of Civil Procedure do not define misjoinder, but the cases make clear that misjoinder of parties occurs when they fail to satisfy the conditions for permissive joinder under Fed. R. Civ. P. 20(a). See Benson v. RMJ Securities Corp., 683 F. Supp. 359, 377 (S.D.N.Y. 1988); 7 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1683, at 443 (1986). Therefore, parties are misjoined if the claims asserted against them "do not arise out of the same transaction or occurrence or do not present some common question of law or fact." American Fidelity Fire Insur. Co. v. Construcciones Werl, Inc., 407 F. Supp. 164, 190 (D.V.I. 1975). The district court has broad discretion in ruling on a motion brought under Rule 21. *fn3" See Benson, 683 F. Supp. at 378; 7 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1688, at 471 (1986).

 Plaintiff has brought claims for injunctive relief and monetary damages arising out of the decision to reallocate Channel 8. Therefore, in order for defendants to be properly joined in this action, plaintiff must be asserting claims against them on the basis of their alleged involvement in making that decision. In evaluating defendants' arguments, we are mindful that plaintiff is proceeding pro se and has not yet had the opportunity for discovery. Therefore, we will not dismiss any defendant unless it is clear that discovery would not likely reveal facts demonstrating that the defendant participated in deciding to reallocate Channel 8.

 The complaint alleges that TCI is responsible for the decision to reallocate Channel 8. See, e.g., Complaint, at PP 33, 48, 50, 52. Plaintiff appears to have named TCI inadvertently, however, as the complaint describes TCI as "the only cable system serving these 21 municipalities in Westchester County." Complaint, at P 9. Defendants have established to the court's satisfaction that TCI-Westchester, rather than TCI, is the company that operates the cable system serving the municipalities in southern Westchester County. Defendants have represented to the court that TCI-Westchester is the entity that signed the cable franchise agreements with each municipality. Furthermore, TCI-Westchester holds the relevant New York State cable television certificates and is the registered system operator on file with the Federal Communications Commission. See Wiles Aff., at P 9; Defendants' Memorandum of Law, at 3-4. TCI-Westchester, as operator of the cable system, is the entity that has the power to allocate channels and to make programming decisions.

 TCI-Westchester is only distantly related to TCI in the corporate family tree: TCI-Westchester is a subsidiary of TCI of Northern New Jersey, Inc., which is a subsidiary of United Artists Cablesystems Corporation, which is a subsidiary of United Artists Holdings, Inc., which is a subsidiary of United Artists Entertainment Company, which is a subsidiary of TCI Communications, Inc. ("TCI-Comm"), which is a subsidiary of TCI. TCI is a holding company that has no responsibility for the operation of the cable system run by TCI-Westchester. See Wiles Aff., at PP 9-10. Hence, this action should proceed against TCI-Westchester, rather than against TCI. See Petroleum Data Servs., Inc. v. First City Bancorporation of Texas, Inc., 622 F. Supp. 1022, 1026 (D. Kan. 1985) (relying on Rule 21 to delete defendant parent corporation and permitting breach of contract action to proceed against subsidiary that actually signed contracts at issue).

 Furthermore, individual defendants Malone, Bob Magness, Cloustan, Thomson, Fisher, Gallivan, Kim Magness, and Naify are officers and/or directors of TCI or TCI-Comm. See Wiles Aff., at PP 11-14, 16-17. Defendant O'Brien was a director of TCI until his death in February 1995. See id., at P 18. These defendants are not officers or directors of TCI-Westchester and do not have any responsibility for the operation of TCI-Westchester's cable system. Accordingly, they did not participate in the decision to reallocate Channel 8. See id., at PP ...


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