United States District Court, S.D. New York
March 10, 2004.
NAOMI HUNT and WILLIAM HUNT, Plaintiffs, -against- STRYKER CORPORATION and HOWMEDICA OSTEONICS CORP., Defendants
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
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.
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
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
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).
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
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
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.
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,
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
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
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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