The opinion of the court was delivered by: LESLIE FOSCHIO, Magistrate Judge
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
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 ...