United States District Court, W.D. New York
June 3, 2004.
ANTHONY M. CONIGLIO, and PAMELA CONIGLIO, Plaintiffs,
THE ANDERSONS, INC., CSX TRANSPORTATION, INC., and TRANSCO RAILWAY PRODUCTS, INC. Defendants, Cross Claimants, and Cross Defendants.
The opinion of the court was delivered by: LESLIE FOSCHIO, Magistrate Judge
DECISION and ORDER
This action was referred to the undersigned by Honorable
Richard J. Arcara on May 16, 2003 for all pretrial matters. The
matter is presently before the court on motions filed by
Plaintiffs on May 2, 2003 to amend the Complaint and to remand
(Doc. No. 21), by Defendant CSX Transportation Inc. on July 10,
2003 for judgment on the pleadings (Doc. No. 26), by Defendant
The Andersons, Inc. on July 11, 2003 for judgment on the
pleadings (Doc. No. 30), and by Defendant Transco Railway
Products, Inc. on September 26, 2003 for an order precluding
Plaintiffs from presenting certain evidence at trial or,
alternatively, to compel discovery (Doc. No. 37).*fn1
BACKGROUND and FACTS*fn2
Plaintiffs Anthony M. Congilio ("Coniglio") and his wife,
Pamela Congilio ("Pamela Coniglio") (together, "Plaintiffs"),
commenced this personal injury action in New York Supreme Court,
Erie County on January 21, 2003, seeking monetary damages for
injuries Coniglio sustained in an accident on August 26, 2002,
resulting in the amputation of Coniglio's left foot. In
particular, Coniglio, then employed as a forklift operator with
General Mills, Inc. ("General Mills"), was injured while
assisting employees of employees of Transco Railway Products,
Inc. ("Transco") in moving railcars BAEX 256 and BAEX 198 on the
railroad track inside the General Mills flour warehouse ("the
flour warehouse track"), located at 54 South Michigan Avenue,
Buffalo, New York. The railcars were being moved to permit Transco employees to repair a
hole in the floor of railcar BAEX 198. Plaintiffs maintain that
the damage to railcar BAEX 198 occurred in New York City when
Brooklyn Sugar Company ("Brooklyn Sugar") was emptying such
railcar. After railcar BAEX 198 was emptied, Brooklyn Sugar
shipped the damaged railcar to General Mills in Buffalo to be
repaired. Coniglio was riding in railcar BAEX 256, when his left
foot became caught on the railcar's coupler and was crushed when
the coupler impacted the bumper at the end of the flour warehouse
track. Railcar BAEX 256 is owned by Defendant The Andersons, Inc.
("The Andersons"), and the floor warehouse track is owned by
Defendant CSX Transportation, Inc. ("CSX").
On February 24, 2003, Defendants removed the action to this
court on the basis of diversity jurisdiction. Answers to the
Complaint were filed by The Andersons on February 28, 2003 (Doc.
No. 2), Transco on March 11, 2003 (Doc. No. 7), and CSX on April
3, 2003 (Doc. No. 18). Each of the Defendants included in its
respective answer crossclaims seeking contribution and
indemnification from co-Defendants. Answers to The Andersons'
crossclaims were filed by Transco on March 17, 2003 (Doc. No.
12), and by CSX on March 20, 2003 (Doc. No. 15). CSX filed an
answer to Transco's crossclaims on March 20, 2003 (Doc. No.
16).*fn3 Answers to CSX's crossclaims were filed by Transco
on April 8, 2003 (Doc. No. 20) and by The Andersons on April 9,
2003 (Doc. No. 19).
On May 2, 2003, Plaintiffs filed a motion (Doc. No. 21) to
amend the Complaint, seeking to add as a defendant Brooklyn Sugar
Company ("Brooklyn Sugar"), and to remand the Amended Complaint as Brooklyn Sugar's addition as a
defendant would destroy diversity jurisdiction. Attached to the
motion were supporting papers, including a Brief in Support of
Plaintiffs' Motion to Amend the Complaint and Remand to State
Court ("Plaintiffs' Memorandum"), a copy of the Proposed Amended
Complaint ("Proposed Amended Complaint"), and exhibits. On July
10, 2003, CSX filed a crossmotion (Doc. No. 26) for judgment on
the pleadings, supported by the attached Attorney Affidavit of J.
Roy Nunn, Esq. ("Nunn Affidavit"), and a Memorandum In Support of
Defendant CSX's Crossmotion for Judgment on the Pleadings and in
Opposition to Plaintiffs' Motion for Leave to Add Alleged
Nondiverse Party and to Remand (Doc. No. 27) ("CSX's
Memorandum"). On July 11, 2003, Transco filed the Affidavit in
Opposition to Motion to Amend of Stanley J. Sliwa, Esq. (Doc. No.
28) ("Sliwa Affidavit"), and Defendant Transco Railway Products,
Inc.'s Memorandum of Law in Opposition to Plaintiffs' Motion to
Amend Their Complaint and to Remand the Action to State Court
(Doc. No. 29) ("Transco's Memorandum"), and The Andersons filed a
crossmotion (Doc. No. 30) for judgment on the pleadings,
supported by the attached Declaration of Charles E. Graney, Esq.
("Graney Declaration"), and a Memorandum of Law (Doc. No. 31)
("The Andersons' Memorandum").
On August 8, 2003, Plaintiffs filed, in further support of the
motion to amend and in opposition to the motions for judgment on
the pleadings, the Attorney Affidavit of Shawn W. Carey, Esq.
(Doc. No. 33) ("Carey Affidavit"), and a Memorandum of Law in
Further Support of Plaintiffs' Motion to Amend and Remand and in
Opposition to Defendants' Motions to Dismiss (Doc. No. 34)
("Plaintiffs' Reply"). On August 22, 2003, CSX filed a Reply
Memorandum in Support of Defendant CSX's Crossmotion for Judgment on the Pleadings (Doc. No. 35) ("CSX's Reply"). On
August 25, 2003, The Andersons filed the Reply Declaration of
Charles E. Graney, Esq., in Support of the Andersons Inc.'s
Crossmotion Dismissing Plaintiffs' First Cause of Action (Doc.
No. 36) ("Graney Reply Declaration"). On September 26, 2003,
Transco filed a motion (Doc. No. 37), seeking an order
prohibiting Plaintiffs from presenting as evidence at trial any
information Plaintiffs failed to disclose pursuant to
Fed.R.Civ.P. 26(a)(1) or, alternatively, an order pursuant to
Fed.R.Civ.P. 37(a)(2)(A) compelling the disclosure of such
evidence or, as a further alternative, compelling Plaintiffs to
provide answers to interrogatories. The motion is supported by
the attached affidavit of Stanley J. Sliwa, Esq. ("Second Sliwa
Oral argument was deemed unnecessary.
Based on the following, Plaintiffs' motion to amend the
Complaint (Doc. No. 21) is GRANTED and Defendant Transco's motion
(Doc. No. 37), is DENIED insofar as it seeks an order compelling
discovery. As the proposed amendment to the Complaint will
destroy diversity jurisdiction, the case is to be remanded to
state court upon the filing of the amended Complaint. The
remaining motions for judgment on the pleadings (Doc. Nos. 26 and
30), are DISMISSED as moot, and Defendant Transco's motion (Doc.
No. 37), insofar as it seeks an order precluding Plaintiffs from
presenting certain evidence at trial, is DISMISSED as moot.
Fed.R.Civ.P. 15 provides that leave to amend a pleading "shall
be freely granted when justice so requires." An amended complaint may be filed
pursuant to Fed.R.Civ.P. 15(a) where the new allegations do not
unduly prejudice an opponent, are not the result of undue delay
or bad faith, and are not futile. Foman v. Davis, 371 U.S. 178,
181 (1962). Absent a showing that significant additional
discovery burdens will be incurred or that the trial of the
matter will be significantly delayed, amendment should be
permitted. Block v. First Blood Associates, 988 F.2d 344, 350
(2d Cir. 1993). Where, however, an amendment is futile, "it is
not an abuse of discretion to deny leave to amend" to the moving
party. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir.
1993). A determination that a proposed claim is futile is made
under the same standards that govern a motion to dismiss under
Rule 12(b)(6). A.V. By Versace, Inc. v. Gianni Versace, S.p.A.,
160 F. Supp.2d 657, 666 (S.D.N.Y. 2001). An amendment is futile
"if the proposed amended complaint would be subject to `immediate
dismissal' for failure to state a claim or on some other ground."
Jones v. New York Div. of Military & Naval Affairs,
166 F.3d 45, 55 (2d Cir. 1999).
Here, Plaintiffs have moved to amend the Complaint to add
Brooklyn Sugar as a Defendant asserting that Brooklyn Sugar
negligently damaged railcar BAEX 198, therefore setting into
motion the chain of events whereby Coniglio was injured.
Plaintiffs' Memorandum at 1-3. According to Plaintiffs, the
allegedly negligent actions of Brooklyn Sugar and its employees
in damaging railcar BAEX 198 "were a substantial factor in
causing [Coniglio's] injury" such that Brooklyn Sugar is a
necessary party to this action. Id. at 3. Plaintiffs further
maintain that Brooklyn Sugar is a New York corporation and, as
such, the addition of Brooklyn Sugar as a Defendant will destroy
diversity jurisdiction and require that the action be remanded to
state court. Id. at 4-5. Defendants oppose the addition of Brooklyn Sugar as a defendant
because it is unlikely Plaintiffs will prevail against Brooklyn
Sugar because even assuming, arguendo, that Brooklyn Sugar did
negligently damage the subject railcar, such negligence was not
the legal or proximate cause of Coniglio's injuries. Nunn
Affidavit ¶ 7; CSX's Memorandum at 6-12; Sliwa Affidavit ¶¶
20-24; Transco's Memorandum at 2-7; Graney Declaration ¶ 9;
Graney Reply Declaration ¶¶ 7-13; The Andersons' Memorandum at
2-5. Defendants further maintain that Plaintiffs seek to add
Brooklyn Sugar as a Defendant as a tactical maneuver to destroy
diversity jurisdiction and cause the case to be remanded to New
York Supreme Court. Sliwa Affidavit ¶¶ 25-26; Transco's
Memorandum at 11-15; Graney Declaration ¶ 7; The Andersons'
Memroandum at 11-14. Defendants also maintains that the record is
devoid of any evidence tending to establish that railcar BAEX 198
was not damaged when it left the General Mills plant on Buffalo
on August 15, 2002, and that it was, in fact, damaged while being
unloaded by Brooklyn Sugar and, as such, Plaintiffs' proposed
claim against Brooklyn Sugar is futile. Nunn Affidavit ¶ 8; Sliwa
Affidavit ¶¶ 14-18; Transco's Memorandum at 7-11; Graney
Declaration ¶ 7; The Andersons' Memorandum at 10.
Plaintiffs argue in further support of the motion to amend that
the proposed claim against Brooklyn Sugar is not predicated
merely on the allegation that Brooklyn Sugar negligently damaged
railcar BAEX 198, thereby setting into motion the chain of events
whereby Coniglio was injured but, rather, that Brooklyn Sugar,
after damaging the railcar, placed railcar BAEX 198 back in
service by shipping it to General Mills in Buffalo with the
railcar's doors closed, thereby concealing the damage, and also
placing the railcar among a group of four other railcars,
including railcar BAEX 256. Carey Affidavit ¶¶ 10-13; Plaintiffs' Reply at 2-3. Plaintiffs maintain that it
is unlikely Brooklyn Sugar was unaware of the damage to BAEZ 198
as to tear a hole in the steel floor of the railcar required a
significant impact. Carey Affidavit ¶ 12. General Mills, upon
accepting the delivery of railcar BAEX 198, assumed
responsibility for repairing the damage to the railcar, including
removing the railcar from between the other three railcars on the
flour warehouse loading track and placing BAEX 198 on another
track where the railcar would remain out of service pending
repair. Carey Affidavit ¶¶ 14-15; Plaintiff's Reply at 2.
Moreover, because General Mills was unaware of the damage to
railcar BAEX 198 until after General Mills had loaded flour into
railcar BAEX 256, an urgent situation was created whereby General
Mills had to quickly repair BAEX 198 or remove it to another
track as it blocked BAEX 256 from being shipped. Carey Affidavit
¶¶ 16-18. Accordingly, Plaintiffs maintain that "[b]ut for the
damage, exacerbated by its concealment, the Plaintiff [Coniglio]
would not have been engaged in the movement of the car which
injured him." Plaintiffs' Reply at 2.
Removal of a case from state court to federal court is
permitted where there is complete diversity between all
plaintiffs and defendants. Cushing v. Moore, 970 F.2d 1103,
1106 (2d Cir. 1992). That requirement is satisfied in the instant
case. Specifically, Plaintiffs are citizens of New York and each
of the Defendant corporations is "deemed to be a citizen of any
State by which is has been incorporated and of the State where it
has its principal place of business." 28 U.S.C. § 1332(c).
Further, Defendant The Andersons, was incorporated and maintains
its principal place of business in Ohio, Defendant CSX is a
Virginia Corporation maintaining its principal place of business
in Florida, and Defendant Transco is a Delaware corporation maintaining its principal place of business in Illinois.
Therefore, complete diversity between Plaintiffs and the three
Defendants to the original Complaint exists. Brooklyn Sugar,
however, was incorporated and maintains its principal place of
business in New York. Accordingly, the addition of Brooklyn Sugar
as a Defendant would destroy diversity jurisdiction in this
action. Significantly, it is well established that if the
district court permits joinder of a nondiverse party, diversity
jurisdiction is destroyed, and the case must be remanded to state
court. 28 U.S.C. § 1447(c) ("If at any time before final judgment
it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.") (underlining
added); 28 U.S.C. § 1332(a)(1) (district courts have personal
jurisdiction in all civil actions were amount in controversy
exceeds $75,000 and is between "citizens of different states.")
(underlining added); Cushing v. Moore, 970 F.2d 1103, 1106 (2d
Cir. 1992) (complete diversity is required between all plaintiffs
As diversity jurisdiction in this court will be destroyed by
adding Brooklyn Sugar, a New York company, as a defendant, and as
there is no other basis for jurisdiction over the matter in this
court, Brooklyn Sugar's addition as a Defendant will necessitate
remanding the case. Nevertheless, absent a showing showing that a
plaintiff seeks to amend a complaint to add a nondiverse
defendant solely to effectuate a remand from federal court to
state court by destroying diversity, the amendment may be
permitted even though diversity jurisdiction is thereby
destroyed. Shaw v. Mumford, 526 F. Supp. 1209, 1213-14 (S.D.N.Y.
1981). See also 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."). See STEVEN BAICKER-McGEE, WILLIAM M. JANSSEN &
JOHN B. CORR, FEDERAL CIVIL RULES HANDBOOK § 2.17a at 101 (2004).
In addition to Rule 15's provision that leave to amend "be freely
granted when justice so requires," where a plaintiff seeks to
amend a Complaint that has been removed to District Court, and
where the proposed amendment includes the addition of a party
that will destroy diversity jurisdiction, closer scrutiny of the
proposed amendment is necessary. Hensgens v. Deere & Company,
833 F.2d 1179, 1182 (5th Cir. 1987). Although the Second
Circuit has not addressed this issue, district courts within the
Second Circuit have used the Hensgens analysis in applying
28 U.S.C. § 1447(e), which was enacted in 1988. See Frelund v.
Nationwide Mutual Fire Insurance Company, 2000 WL 1773473, * 4
(W.D.N.Y. Nov. 30, 2000); Wyatt v. National R.R. Passenger
Corp., 881 F. Supp. 919, 923 (S.D.N.Y. 1995); DiNardi v.
Ethicon, Inc., 145 F.R.D. 294, 297 (N.D.N.Y. 1993); and Gursky
v. Northwestern Mutual Life Ins. Co., 139 F.R.D. 279, 282
(E.D.N.Y. 1991). In deciding whether to allow a plaintiff to
amend a complaint to add a nondiverse party, resulting in remand,
the court considers four factors, including (1) whether the
plaintiff delayed in moving to amend; (2) the resulting prejudice
to defendants from joinder; (3) the likelihood of multiple
litigation; and (4) plaintiff's motivation in moving to amend.
Gursky, supra, at 282 (citing cases).
In the instant case, Defendants proffer no argument with
respect to the first three factors; rather, Defendants oppose the
addition of Brooklyn Sugar as a Defendant on the basis that the
proposed claims against Brooklyn Sugar are futile and Plaintiffs'
motivation for such addition is solely to destroy diversity
jurisdiction and force a remand to state court. There is no merit
to Defendants' argument in opposition to Plaintiffs' motion to amend the Complaint to add Brooklyn Sugar as a
Defendant because it is possible to find that Brooklyn Sugar's
alleged negligence in unloading railcar BAEX 198, thereby
damaging said railcar, set in motion the chain of events by which
Coniglio was injured.
Under New York law, "[t]he threshold question in any negligence
action is: does the defendant owe a legally recognized duty of
care to plaintiff?" Hamilton v. Beretta U.S.A. Corp.,
750 N.E.2d 1055, 1060 (N.Y. 2001). "[T]he existence of a duty is a
`legal, policy-laden declaration reserved for judges.'" In re
September 11 Litigation, 280 F. Supp.2d 279, (S.D.N.Y. 2003)
(quoting Palka v. Servicemaster Mgmt. Servs. Corp.,
634 N.E.2d 189, 192 (N.Y. 1994)). To establish the existence of a legal
duty, "[t]he injured party must show that a defendant owed not
merely a general duty to society but a specific duty to the
particular claimant, for `without a duty running directly to the
injured person there can be no liability in damages, however
careless the conduct or foreseeable the harm.'" In re September
11 Litigation, supra (quoting Lauer v. City of New York,
733 N.E.2d 184, 187 (N.Y. 2000)). So-called "balancing factors"
traditionally used by courts to "`fix the duty point . . .
includ[e] the reasonable expectations of parties and society
generally, the proliferation of claims, the likelihood of
unlimited or insurer-like liability, disproportionate risk and
reparation allocation, and public policies affecting the
expansion or limitation of new channels of liability.'" In re
September 11 Litigation, supra at (quoting Palka, supra, at
193). In the instant case, the applicable balancing factors,
established by New York caselaw, fix a duty running between
Brooklyn Sugar and Plaintiffs assuming, arguendo, the facts at
trial demonstrate that Brooklyn Sugar negligently or
intentionally returned the railcar to General Mills in Buffalo with the damage concealed, regardless of
whether Brooklyn Sugar caused the damage.
In particular, Brooklyn Sugar was the last entity to have
control over railcar BAEX 198 and, therefore, controlled the
manner in which the railcar was returned to General Mills in
Buffalo. Significantly, Brooklyn Sugar could have left the
railcar's doors open such that the damage to the railcar would
have been apparent to co-Defendants, allowing for the railcar to
be taken out of service and placed on a separate track before any
of the other railcars were loaded with flour and thereby rendered
heavier and more difficult to move without worker intervention.
The sheer bulky size and mobility of railcars also renders them
dangerous and weighs in favor of finding a duty running between
persons routinely handling railcars or who are anticipated to
come into contact with railcars. The court takes judicial notice
that railroad crossings are marked not only with a stop sign, but
with a bar that lowers across and blocks the road when a train is
approaching so as to ensure that travelers do not mistakenly
cross the tracks in the path of an oncoming train. It is also
conceivable that Brooklyn Sugar could have alerted General Mills
of the damage to railcar BAEX 198 prior to returning the railcar.
Such advance notice of the damage would have enabled General
Mills to move the railcar to a separate track as soon as it was
returned to Buffalo and may have also resulted in Transco having
adequate personnel and equipment available to make the necessary
repairs without enlisting the help of General Mills employees,
such as Coniglio. Accordingly, the balancing factors demonstrate
that Brooklyn Sugar owed a legal duty to anyone involved in the
repair of railcar BAEX 198.
Once the court determines that the defendant owed a legal duty
to the plaintiff, the finder of fact must determine whether the actions complained
of were within the scope or foreseeability of such legal duty,
although the court may dismiss cases whether the risks are, as a
matter of law, unforeseeable. In re September 11 Litigation,
supra, at 295 (citing Sanchez v. State of New York,
784 N.E.2d 675, 678 (N.Y. 2002)). The scope of a duty "depends on the
relationship to plaintiffs, whether plaintiffs were within a zone
of foreseeable harm, and whether the harm was within the class of
reasonably foreseeable hazards that the duty exists to prevent."
In re September 11 Litigation, supra, at 295 (citing DiPonzio
v. Riordan, 679 N.E.2d 616, 618 (N.Y. 1997)). To be considered
foreseeable, however, "the precise manner in which the harm was
inflicted need not be perfectly predicted, but `no liability will
result when the occurrence is not one that is normally associated
with such hazards.'" Id. (citing and quoting DiPonzio, supra,
at 619). The nature of the duty owed and the injury sustained
must be closely examined to determine if the injury was within a
class of foreseeable risks. Id.
Here, construing the factual allegations proposed as against
Brooklyn Sugar in the light most favorable to Plaintiffs, as
required on a motion to amend, Mroz v. City of Tonawanda, 999
F.SUpp. 436, 466 (W.D.N.Y. 1998); the court finds that the
injuries sustained by Plaintiffs are within the class normally
associated with the hazards posed by defective railcars.
Specifically, Plaintiffs' description, if true, of how railcar
BEAX 198 was returned to General Mills in Buffalo with the damage
concealed and in the midst of several other cars demonstrates an
increased likelihood that the circumstances in which the damage
to the railcar was discovered and the manner in which the repair
of said railcar was undertaken would result in injury.
Finally, even where a legal duty exists and the defendant's
actions are within the scope of such duty, a supervening cause will sever the link
between the defendant's negligence and the plaintiff's damages.
In re September 11 Litigation, supra, at 301. In the instant
case, Defendants point to no indisputable supervening cause
completely severing any link between Brooklyn Sugar's alleged
negligence and Plaintiffs' injuries.
Accordingly, the court finds, for the purposes of Plaintiffs'
motion, that Brooklyn Sugar owed a legal duty to Plaintiffs, that
it is not inconceivable that a finder of fact could find
Plaintiffs' injuries were foreseeable as a result of Brooklyn
Sugar's alleged breach of the legal duty owed to Plaintiffs, and
that the record does not at this time establish a supervening
cause completely severing the causal connection between Brooklyn
Sugar's alleged negligence and Plaintiffs' injuries. As such,
there is no merit to Defendants' arguments that Plaintiffs'
proposed claims against Brooklyn Sugar, whom Plaintiffs seek to
add as a Defendant, are futile. Because Defendants rely only on
the asserted futility of Plaintiffs' proposed claim against
Brooklyn Sugar, a contention rejected by the court, Defendants
fail to demonstrate Plaintiffs' motion to amend is solely
motivated by a desire to destroy diversity jurisdiction. Gursky,
supra, at 282.
The court is also without jurisdiction to address Transco's
alternative request that, in the event Plaintiffs' motion to
amend the Complaint is granted and the case is remanded to state
court, the court issue an order directing Plaintiffs, who have
already been deposed, to also answer interrogatories which
Transco has already served yet Plaintiffs have refused to answer.
Second Sliwa Affidavit ¶¶ 11-25. Transco maintains that because
it has deposed Plaintiffs, if the case is remanded to state
court, Transco will not be permitted to obtain from Plaintiffs
answers to interrogatories. Id. Transco's request is based on
New York Civil Practice Law and Rules § 3130 which provides that "[i]n the case of an action to recover damages for personal
injury . . . predicated solely on a cause or causes of action for
negligence, a party shall not be permitted to serve
interrogatories on and conduct a deposition of the same person
. . . without leave of court." N.Y. Civ. Prac. L. & R. § 3130.2.
(McKinney 1991). Transco, however, references no legal authority
supporting the idea that a federal court may issue orders
governing the procedural aspects of an action in state court, and
the court's research reveals none. Transco also fails to explain
how it will be prejudiced if § 3130 governs its discovery of
Plaintiffs. Accordingly, upon remand, Transco must seek an order
from New York Supreme Court, Erie County, directing Plaintiffs to
answer interrogatories despite already having been deposed.
Transco's motion, insofar as it seeks an order compelling
discovery, is DENIED.
As the court is granting Plaintiffs' motion to amend the
Complaint, and as the filing and serving of the Amended Complaint
will add Brooklyn Sugar as a Defendant to this action, thereby
destroying diversity jurisdiction and require remanding the
action to New York Supreme Court, Erie County, the remaining
motions, including the motions for judgment on the pleadings
filed by The Andersons and CSX, and Transco's motion for an order
precluding Plaintiffs from proffering certain evidence at trial,
are DISMISSED as moot. CONCLUSION
Based on the foregoing, Plaintiffs' motion to amend the
Complaint (Doc. No. 21) is GRANTED, and Defendant Transco's
motion (Doc. No. 37), insofar as it seeks an order compelling
discovery, is DENIED. As the proposed amendment to the Complaint
will destroy diversity jurisdiction, the Clerk of the Court is
directed to remand the matter to New York Supreme Court, Erie
County, upon the filing of the amended Complaint and completion
of service. The remaining motions for judgment on the pleadings
(Doc. Nos. 26 and 30), are DISMISSED, without prejudice, as moot,
and Defendant Transco's motion (Doc. No. 37), insofar as it seeks
an order precluding Plaintiffs from presenting certain evidence
at trial, is DISMISSED, without prejudice, as moot.