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United States District Court, E.D. New York

June 4, 2004.

MICHAEL H. HALL, M.D.; PAUL A. GELLERT; ROBERT REDICAN; NORTH SHORE UNIVERSITY HOSPITAL; ETHICON ENDO-SURGERY, INC.; "JOHN DOE CORPORATION(S)," said name being fictitious and presently unknown to plaintiffs, but intended to represent the manufacturer, distributor, and/or seller of the wires described in this complaint in the event that defendants are the incorrect part(y) (ies); TYCO HEALTHCARE RETAIL GROUP, INC.; UNITED STATES SURGICAL CORPORATION; BAXTER HEALTHCARE CORPORATION; and ALLEGIANCE HEALTHCARE CORPORATION, a/k/a CARDINAL HEALTH 200, INC., Defendants.

The opinion of the court was delivered by: JOHN GLEESON, District Judge


Plaintiffs Joseph and Portia Lombardi brought this personal-injury action in state court against defendants Tyco Healthcare Retail Group, Inc. ("Tyco"), United States Surgical Corp. ("U.S. Surgical"), Baxter Healthcare Corp. ("Baxter"), and Allegiance Healthcare Corp. ("Allegiance") (collectively, the "manufacturer defendants"). On July 23, 2003, the manufacturer defendants removed the case to this Court pursuant to 28 U.S.C. § 1332 and 1441(a). Plaintiffs now move to join additional defendants and remand to state court. For the following reasons, their motion is granted and the case is remanded.


  On November 22, 2002, Plaintiffs brought an action in state court against defendants Michael H. Hall, Paul A. Gellert, Robert Redican, North Shore University Hospital ("North Shore"), and Ethicon Endo-Surgery, Inc. (collectively, the "New York defendants") for injuries allegedly sustained during the course of heart surgery performed at North Shore. After learning, during discovery, that allegedly defective suture wires used during the surgery may have been purchased through the manufacturer defendants, plaintiffs commenced a separate state action against them.*fn1

  On July 23, 2003, before plaintiffs could seek to consolidate the two state actions, the manufacturer defendants properly removed the case against them to this Court, as complete diversity existed between the parties to that case. At oral argument on February 13, 2004, I granted plaintiffs leave to amend their complaint to add the New York defendants, thereby destroying complete diversity. Plaintiffs now move to remand to state court.


  Pursuant to 28 U.S.C. § 1447(e), where, 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 State court." Here, joinder of the New York defendants is appropriate under Federal Rule of Civil Procedure 20(a), as plaintiffs assert a right to relief arising out of the same transaction or occurrence — the heart surgery — and questions of law or fact common to all defendants will arise in the case, e.g., whether the wires malfunctioned, whether the doctors using the wires were negligent, and the extent of plaintiffs' injuries. Legal questions, such as causation and liability, will also be common to all defendants. See Hunt v. Stryker Corp., No. 03 Civ. 7385, 2004 U.S. Dist. LEXIS 3896, at *4 (S.D.N.Y. Mar. 17, 2004); Dieng v. Smith & Nephew Dyonics, Inc., No. 02 CV 8201, 2003 U.S. Dist. LEXIS 17087, at *5-6 (S.D.N.Y. Sept. 29, 2003).

  However, I must also consider whether joinder and remand are consistent with the principles of fundamental fairness. Though the Second Circuit has not enunciated a test, district courts in this circuit consider four factors in these circumstances: "(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." Hunt, 2004 U.S. Dist. LEXIS 3896, at *5 (quotation marks omitted).

  Delay. "The only delay that is relevant to joinder considerations . . . is that between the removal of the case and the plaintiffs' motion for joinder and remand" Id. Here, the manufacturer defendants removed on July 23, 2003, and the plaintiffs discussed joinder at the parties' first conference before the Honorable Steven M. Gold, United States Magistrate Judge, on October 3, 2003. It was only after the parties could not resolve the issue consensually that plaintiffs moved for joinder and remand This minimal delay does not weigh against granting plaintiffs' motion.

  Prejudice. Despite the manufacturer defendants' contentions, joinder and remand will not substantially prejudice them. Plaintiffs submit that the only discovery to date has been the depositions of plaintiffs themselves. These depositions can of course be reproduced and/or the plaintiffs produced for further deposition. I therefore find no reason that the manufacturer defendants will not have adequate time to prepare.

  Multiple litigations. The risks of multiple litigations, and of an attendant waste of judicial resources, is great. "Denying joinder here would force [plaintiffs] to litigate the same issues simultaneously in federal and state courts. Such multiple litigation would serve neither the parties nor the courts." Dieng, 2003 U.S. Dist. LEXIS 17087, at *8; see also Hunt, 2004 U.S. Dist. LEXIS 3896, at *9-10.

  Plaintiffs' motivation. There is no evidence that plaintiffs seek to join the New York defendants simply to destroy diversity. Indeed, plaintiffs brought suit against the New York defendants in state court first. See id. at *6 ("The chronology of the case does not suggest an improper motive for joinder.") Rather, the much likelier explanation is that plaintiffs seek to join all defendants who may have contributed to the injuries they claim to have sustained in order to increase their chances of recovery, minimize costs, and expedite litigation. See Dieng, 2003 U.S. Dist. LEXIS 17087, at *8-9.

  Finally, I note that two district courts in this circuit have recently ordered joinder and remand on facts strikingly similar to these. See Hunt, 2004 U.S. Dist. LEXIS 3896; Dieng, 2003 U.S. Dist. LEXIS 17087. I have cited those cases frequently throughout my discussion, and find their reasoning persuasive.


  For the foregoing reasons, the plaintiffs' motion — which is permissible under Rule 20(a) and comports with the principles of fundamental fairness — is granted.

  So Ordered.

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