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JULIANO v. TOYOTA MOTOR SALES

September 11, 1998

MARY JULIANO and WAYNE JULIANO, Plaintiffs, against TOYOTA MOTOR SALES, U.S.A., INC., TOYOTA DISTRIBUTORS, INC., and TOYOTA MOTOR CORPORATION, Defendants.


The opinion of the court was delivered by: PARKER

MEMORANDUM DECISION AND ORDER

 BARRINGTON D. PARKER, JR., U.S.D.J.

 BACKGROUND

 On January 11, 1996, the 1993 Lexus LS400 that Mary Juliano was driving skidded into a snow embankment. The driver's side airbag inflated and Juliano was injured. The vehicle was leased to Mary Juliano's husband, Wayne Juliano, through Ray Catena Corporation, d/b/a Ray Catena Lexus ("Ray Catena"), and Toyota Motor Credit Corporation.

 On March 4, 1997, Mary and Wayne Juliano filed suit in Supreme Court, New York County against Lexus Toyota; Lexus, Inc.; Ray Catena Corporation, d/b/a Ray Catena Lexus; and Toyota Motor Credit Corporation, for injuries arising out of the accident. Plaintiffs asserted claims for breach of express and implied warranties; marketing of an unreasonably safe product and failure to warn; and negligent design, manufacture, assembly, installation, and distribution of the Lexus airbags and vehicle itself. In addition, Wayne Juliano claimed that he was deprived of the society, comfort, services, and consortium of Mary Juliano, and that he incurred necessary medical expenses for Mary Juliano's care and treatment. Plaintiffs sought damages of $ 31 million.

 On November 21, 1997, plaintiffs commenced a separate action in Supreme Court, New York County, against Toyota Motor Sales U.S.A., Inc.; Toyota Motor Distributors, Inc.; and Toyota Motor Corporation, based on the same accident, and asserting the same causes of action and damages. Plaintiffs contend that they originally intended to move to consolidate the two actions in New York state court. Counsel for Toyota Motor Sales, U.S.A., Inc., however, timely filed a notice of removal in this Court on the grounds of complete diversity. See 28 U.S.C. § 1332.

 Plaintiffs now seek to join Ray Catena, the Lexus dealer, asserting that Ray Catena is necessary to fully litigate this action. *fn1" See Fed. R. Civ. P. 19, 20. Because Ray Catena's joinder would defeat diversity, plaintiffs also seek remand of this action to state court. See 28 U.S.C. § 1447(e). For the reasons set forth below, plaintiffs' motion is granted.

 DISCUSSION

 After removal of an action, joinder of additional defendants is governed by 28 U.S.C. § 1447(e):

 
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.

 A court thus has discretion to decide whether to allow joinder of such parties. Rosenthal v. Life Fitness Co., 977 F. Supp. 597, 599-600 (E.D.N.Y. 1997); Lederman v. Marriott Corp., 834 F. Supp. 112, 114 (S.D.N.Y. 1993). In exercising its discretion, the court must first determine whether the additional defendant may be joined under Fed. R. Civ. P. 20(a), which provides in relevant part:

 
All persons . . . may be joined in one action as defendants 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.

 In this case, plaintiffs move to join Ray Catena, alleging that Ray Catena may have installed and adjusted the airbag in the Julianos' car, and that it had a duty to warn the Julianos of the danger of airbags to people who are small in stature. In response, defendants submit the affidavit of John D'Innocenzo, Ray Catena's Service Manager, who states that the airbag system in the Julianos' Lexus was already installed when Ray Catena took possession of the car, and that Ray Catena did not adjust, service, maintain, or repair the airbag system from the time the Julianos took possession of the car until the time of the accident. *fn2" In addition, defendants submit the affidavit of Mark W. Jakstis, a Technical Analysis Manager at Toyota Motor Sales, U.S.A., Inc., who states that Ray Catena lacked "any responsibility or involvement in the design, manufacture, installation, specifications, or composition of the airbag system originally installed" in the Lexus leased by the Julianos. Defendants' contentions, however, are largely irrelevant, as plaintiffs emphasize that their action against Ray Catena sounds in failure to warn.

 Plaintiffs contend that Ray Catena, as the vehicle's retailer, had a duty to warn plaintiffs of the dangers the airbag posed to small adults and children. As a retailer, Ray Catena had a duty to warn of known dangers in the use of its product. See, e.g., Prosser and Keeton, Torts, § 96, at 685 [5th ed.] ("A manufacturer or other seller is subject to liability for failing either to warn or adequately to warn about a risk or hazard inherent in the way a product is designed that is related to the intended uses as well as the reasonably foreseeable uses that may be made of the product it sells."); Oza v. Sinatra, 176 A.D.2d 926, 575 N.Y.S.2d 540, 543 (2d Dept. 1991) (Miller, J., concurring in part and dissenting in part); Young v. Elmira Transit Mix, Inc., 52 A.D.2d 202, 383 N.Y.S.2d 729, 731 (4th Dept. 1976). There is, however, no duty to warn of obvious dangers, or of risks likely to be appreciated by the user. Prosser & Keeton, Torts, § 96 at 686-87; Jackson v. ...


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