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United States District Court, S.D. New York

March 10, 2004.


The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge


Plaintiffs Naomi Hunt ("Ms. Hunt") and William Hunt ("Mr. Hunt") have moved (1) to join additional defendants pursuant to Fed.R.Civ.P. 20; and (2) to remand this action to New York State Court pursuant to 28 U.S.C. § 1447 (e). For the reasons set forth below, the motion is granted.

  Background and Prior Proceedings

  On May 9, 2000, in the Supreme Court of the State of New York, New York County, the plaintiffs filed a summons with notice against Steven Stuchin, M.D. ("Dr. Stuchin") and the Hospital for Joint Diseases (the "Hospital") (collectively, the "medical malpractice defendants"), describing the case as a medical malpractice and negligence action. See Naomi Hunt and William Hunt v. Steven Stuchin, M.D. and Hospital for Joint Diseases, N.Y. County Index No. 00/110459. On February 6, 2001, plaintiffs filed a verified complaint.

  The complaint alleges that the medical malpractice defendants were negligent in providing medical treatment in connection with a total hip replacement performed on Ms. Hunt in November 1997. On August 18, 2000, Dr. Stuchin advised Ms. Hunt that the device implanted during the November surgery had fractured and failed. Page 2

  On April 25, 2002, during his deposition, Dr. Stuchin testified that he would not have expected the device in Ms. Hunt's hip to have failed within three years of implementation. Dr. Stuchin suggested that the product was defective.

  The state court action proceeded through the completion of discovery. By order dated March 19, 2002, New York Supreme Court Justice Ellen Bransten required that plaintiffs file a note of issue on or before May 7, 2002 certifying that discovery was complete and the case ready for trial. By letter dated November 8, 2002, plaintiffs' counsel sought adjournment of a court conference in order to continue investigating a claim against the manufacturer of the implant. On February 19, 2003, the parties to the state court action entered into a stipulation vacating the note of issue.

  On August 6, 2003, plaintiffs commenced another action in the Supreme Court of the State of New York, New York County, captioned Naomi Hunt and William Hunt v. Stryker Corporation and Howmedia Osteonics Corp., Index No. 114092-03. Stryker removed the case to this Court pursuant to 28 U.S.C. § 1441 (b) and Local Civil Rule 81.1 on September 22, 2003.

  On October 15, 2003, plaintiffs moved to join to this action defendants Dr. Stuchin and the Hospital. Plaintiffs' motion also seeks an order remanding the action to state court on the grounds that joinder of the state court medical malpractice Page 3 defendants, who are New York residents, will divest this Court of subject matter jurisdiction because complete diversity will* be lacking. After submission of briefs, the motion was fully submitted on November 19, 2003.


  Section 1447(e) of Title 28 of the United States Code provides:

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.
28 U.S.C. § 1447 (e). "Joinder and remand under 1447(e) must first satisfy Fed.R.Civ.P. 20, which permits a joinder of multiple defendants in one action 'if there is asserted against [the defendants] any right to relief in respect of or arising out of the same transaction or occurrences and if any question of law or fact common to all defendants will arise in the action.'" Nazario v. Deere & Co., 295 F. Supp.2d 360, 363 (S.D.N.Y. 2003) (quoting Fed.R. Civ. P. 20(a)). It is clear that those requirements are satisfied, as both suits arise out of Ms. Hunt's November 1997 hip replacement. Further, medical malpractice and product liability claims arising out of the same medical procedure raise common questions of law and fact. See Rodriguez v. Abbott Laboratories, 151 F.R.D. 529, 533 (S.D.N.Y. 1993). Page 4

  While the requirements of Rule 20 are necessary, they are not sufficient when joinder would destroy diversity. District courts in this Circuit will only permit joinder under such circumstances if it is consistent with the principles of fundamental fairness. Id. In making this determination, the factors to be considered include:

(1) any delay, as well as the reason for delay, in seeking joinder; (2) resulting prejudice to defendant; (3) likelihood of multiple' litigation; and (4) plaintiff's motivation for the amendment.
Id. (citing Soto v. Barnitt, 00 Civ. 3453, 2000 WL 1206603 at *3 (S.D.N.Y. Aug. 23, 2000); Gursky v. Northwestern Mutual Life Ins. Co., 139 F.R.D. 279, 282 (E.D.N.Y. 1991)).

  Defendants argue that plaintiffs have unduly delayed because plaintiffs have known about their potential claims against Stryker for three years, or at least since the Dr. Stuchin's deposition a year before this suit was filed. These delays relate to the length of time plaintiffs took to bring their action against the defendants. The only delay that is relevant to joinder considerations, however, is that between the removal of the case and the plaintiffs' motion for joinder and remand. See id. at 363 ("Delay in seeking amendment is measured from the date of removal. "); Juliano v. Toyota Motor Sales. U.S.A., Inc., 20 F. Supp.2d 573, 576 (S.D.N.Y. 1998) (same). Plaintiffs moved to join the medical malpractice defendants less than four weeks after this case Page 5 was removed. Further, plaintiffs have stated that it had intended to consolidate this case with the prior state court action, and "has provided a stipulation from the medical malpractice defendants showing their consent to the proposed consolidation. No delay, and therefore no resulting prejudice, has been shown.

  Defendants' concerns about delay are more appropriately interpreted as claims of improper motivation on the part of plaintiffs. If the plaintiff seeking joinder "is motivated primarily by a desire to force a remand to the forum of his choice," joinder may be denied on that basis. Rodriguez, 151 F.R.D. at 533 (quoting Wilson v. Famatex GmbH Fabrik Fuer Textilausruestungsmaschinen, 726 F. Supp. 950, 952 (S.D.N.Y. 1989)); but see Nazario, 295 F. Supp.2d at 365 n.11 (reviewing cases in this District in which courts "have granted joinder and remand notwithstanding the possibility that a plaintiff's sole motivation was the elimination of diversity of citizenship.").

  The chronology of the case does not suggest an improper motive for joinder. Plaintiffs first filed an action against Dr. Stuchin and the Hospital, and only considered a products liability action following Dr. Stuchin's deposition because Ms. Hunt's "symptomatology commenced immediately after the surgery and not after the failure" of the implant. Pl.'s Reply Mem. at 2. At the April 2002 deposition, Dr. Stuchin indicated that he believed the implant failed earlier than it should have. However, it was only Page 6 in subsequent conversations with Dr. Stuchin's counsel that plaintiffs became aware that the medical malpractice defendants would seek to attribute Ms. Hunt's injuries to the failed implant. See DiMartini Aff. ¶ 15.

  Plaintiffs notified the state court in November 2002 that they would undertake an investigation to determine whether a products liability claim would be commenced. The parties in that action then filed a stipulation in February 2003 vacating the note of issue. Id. 1 17. In that stipulation, plaintiffs stated that if they filed a new action they would "promptly seek to consolidate said matters upon the joinder of issue therein." Id. Following the filing of the products liability action in August 2003, Dr. Stuchin's counsel stated that he had no objection to the consolidation of the products liability action with the medical malpractice action. Id. ¶ 19.

  Defendants cite several cases in which plaintiffs brought new actions within a month or two after learning of the potential liability of additional parties. See Rodriguez, 151 F.R.D. at 533 (plaintiffs brought action one month after learning of drug company's alleged role in plaintiff's injuries); Young v. Simon Ladder Towers. Inc., No., 96-CV-0189E, 1996 WL 685753 (W.D.N.Y. Nov. 26, 1996) (new action filed "shortly after" discovering potential liability of new party); Dieng v. Smith & Nephew Dyonics, Inc., 02 Civ. 8201, 2003 WL 22240748, at *2 (S.D.N.Y. Sept. 29, Page 7 2003) (new suit filed two months later). While the plaintiffs did not bring suit as quickly after discovery as in those cashes, defendants have not provided evidence to suggest that the delay is the result of anything but the investigation into the claims.

  Defendants also argue that by seeking to join defendants in federal court, plaintiffs will have made an end run around what they assert is usual state procedure: asking the state court for leave to amend the pleadings under N.Y. CPLR § 3025(b). "While the Court notes that plaintiff [s] could have avoided the instant motion by simply joining [defendants] to the original action, the Court sees no reason why the two actions should not be consolidated now." Rodriguez, 151 F.R.D. at 533.

  Defendants argue that the state court action against the medical malpractice defendants would be significantly delayed by the remand of this action. Because the case has already been put on hold for plaintiffs to investigate their products liability action, any further delay is not a reason to deny joinder. If anything, the prior state court action may have been delayed by this motion, as the state court had scheduled a control date of October 28, 2003, when it had expected to enter a discovery order for all defendants in the consolidated action. DiMartini Aff. ¶ 19. The plaintiffs, by contrast,

  would be unfairly prejudiced by having to litigate in two different forums. Indeed, such dual litigation could Page 8 result in unnecessary expense and conflicting results. Moreover, the Court finds that multiple suits would constitute a clear waste of judicial resources particularly as common questions of fact would necessitate utilizing the same witnesses and documents in both cases.

 Rodriguez, 151 F.R.D. at 533; see also Dieng, 2003 WL 22240748, at *3 ("Any prejudice to Defendant that might remain is outweighed by the danger of multiple litigation and the concomitant waste of judicial resources.").


  In the interest of avoiding separate actions, as well as for the convenience of witnesses, counsel and the courts, plaintiffs' motion to join Dr. Stuchin and the Hospital is granted, and this action is remanded to state court for further proceedings.

  It is so ordered.


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