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CONIGLIO v. ANDERSONS

June 3, 2004.

ANTHONY M. CONIGLIO, and PAMELA CONIGLIO, Plaintiffs,
v.
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

JURISDICTION

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 Affidavit").

  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.

  DISCUSSION

  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 ...


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