United States District Court, E.D. New York
June 4, 2004.
JOSEPH LOMBARDI and PORTIA LOMBARDI, Plaintiffs,
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
MEMORANDUM AND ORDER
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
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
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.