The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
The Plaintiffs in this case, John Vanderzalm and Janet Vanderzalm, his
wife, (collectively "the Plaintiffs") commenced this products
liability personal injury action in the Supreme Court of New York,
Suffolk County ("Products Liability Action") against Defendant
Sechrist Industries, Inc. ("Sechrist"). The complaint alleged that
John Vanderzalm was injured while undergoing medical treatment in a
hyperbaric oxygen chamber that was manufactured,
distributed, designed, and sold by Sechrist. The suit
was removed by Sechrist to this Court pursuant to 28 U.S.C. § 1332
based on diversity jurisdiction. Subsequently, the Plaintiffs amended
their complaint as a matter of right pursuant to Federal Rule of Civil
Procedure ("Fed. R. Civ. P.") 15(a) adding state law negligence claims against Orlando
Salcedo ("Salcedo" and together with Sechrist, "the Defendants"), the
technician of the hyperbaric oxygen chamber and a New York resident.
Presently before the Court are three motions. The first is a motion by the Plaintiffs' to remand the case pursuant 28 U.S.C. § 1447(c), which, as the Court held in its order of June 18, 2012, is properly construed as a motion to join Salcedo and his employer Brookhaven Memorial Hospital Medical Center ("Brookhaven Hospital") as defendants and to remand pursuant to 28 U.S.C. § 1447(e). (Docket Entry No. 14.) In addition, both Sechrist and Salcedo have separately moved to dismiss the amended complaint pursuant to Fed. R. Civ. P. 12(b)(6).
For the reasons set forth below, the Plaintiffs' motion to add Salcedo and Brookhaven Hospital and remand the Products Liability Action to the Supreme Court of New York, Suffolk County pursuant to 28 U.S.C. § 1447(e) is granted and the motions by Sechrist and the Salcedo to dismiss are denied as moot without prejudice to renew in state court.
From approximately November 18, 2008 until February 5, 2009, John Vanderzalm was being treated for multiple foot ulcers by Dr. Charles R. Dennis ("Dr. Dennis") at the Center for Wound Care and Hyperbaric Medicine, located at Brookhaven Memorial Hospital Medical Center. As part of his treatment, John Vanderzalm underwent hyperbaric oxygen therapy sessions in a hyperbaric oxygen chamber located at Brookhaven Hospital. According to the Plaintiffs, during a hyperbaric oxygen therapy session on December 2, 2008, John Vanderzalm sustained "significant injuries including pain and suffering, loss of consciousness, blurred vision, tinnitus, skin burn, [and] tremors", and had to undergo subsequent eye and ear surgery. (Am. Compl., ¶ 23.) The technician assigned to the administration of the treatment, pursuant to the medical orders of Dr. Dennis, was Orlando Salcedo.
On November 4, 2010, the Plaintiffs commenced a medical malpractice action in the Supreme Court of the State of New York, Suffolk County, against Dr. Dennis and Brookhaven Hospital ("the Hospital Defendants") asserting causes of action in negligence, strict liability, breach of express and implied warranty, and loss of consortium ("State Malpractice Action"). Vanderzalm v. Brookhaven Mem'l Hosp. Med. Ctr. & Charles M. Dennis, M.D., Index No. 40753/10 (Oct. 27, 2010). Although the Plaintiffs received medical records identifying Salcedo as the technician prior to the initiation of the State Malpractice Action, the Plaintiffs did not name Salcedo as a defendant.
Subsequent to the filling of the initial pleadings in the State Malpractice Action, the Plaintiffs' attorney requested from counsel for the Hospital Defendants the name of the manufacturer of the particular hyperbaric oxygen therapy equipment used during Vanderzalm's December 2, 2008 treatment. According to the Plaintiffs, this request followed informal discussions "where it was intimated by defendants' counsel that there was a malfunction with the hyperbaric oxygen therapy equipment". (Pierguidi Aff., ¶ 7.) On April 6, 2011, Brookhaven Hospital's counsel sent a letter to counsel for the Plaintiffs identifying the manufacturer as Sechrist Industries, Inc. Sechrist is a Delaware Corporation with its principal place of business in California. (Notice of Removal, ¶ 1.)
Four months later, on August 12, 2011, faced with an "impending statute of limitations," the Plaintiffs filed the Products Liability Action against Sechrist, in the Supreme Court of the State of New York, Suffolk County. (Pierguidi Aff., ¶ 9.). After commencing the Products Liability Action, the Plaintiffs subsequently moved to consolidate it with the earlier State Malpractice Action. Although dated August 31, 2011, the motion was filed on September 2, 2011. (Pierguidi Aff., ¶ 10.) Also on September 2, 2011, before the Plaintiffs' motion to consolidate the two cases before the Supreme Court could be decided, Sechrist removed the Products Liability Action to this Court pursuant to 28 U.S.C. § 1332 based on diversity jurisdiction. The parties do not dispute that the Plaintiffs subsequently withdrew the motion to consolidate on the ground that it was mooted by the removal of the Products Liability Action to federal court.
On September 8, 2011, following the failed consolidation attempt by the Plaintiffs and the removal by Sechrist, the Plaintiffs filed an amended complaint in this Products Liability Action pursuant to Rule 15(a) adding Salcedo as a defendant. The amended complaint asserts claims against Salcedo for negligently operating, managing, and controlling the hyperbaric oxygen equipment.
On September 16, 2011, based on the fact that the Plaintiffs and Salcedo are both residents of New York, the Plaintiffs moved to remand this Products Liability Action back to the Supreme Court of New York, Suffolk County pursuant to 28 U.S.C. § 1447(c), for lack of diversity subject matter jurisdiction. On June 18, 2012, this Court issued an order finding that the Plaintiffs' motion to remand the Products Liability Action to state court was properly construed as a motion to join Salcedo and remand pursuant to 28 U.S.C. § 1447(e). The Court also noted that it appeared that all parties considered the Plaintiffs' motion as one to also join Brookhaven Hospital as a defendant. As a result, the Court directed the Plaintiffs to submit a supplemental brief stating whether they also sought to join Brookhaven Hospital. The order also gave the parties an opportunity to submit a supplemental brief addressing the relevant factors for joinder and remand pursuant to § 1447(e). In response to the Court's June 18, 2012 order, the Plaintiffs submitted a brief confirming that, in addition to Salcedo, they also sought to add Brookhaven Hospital based on Brookhaven Hospital's alleged liability for the negligence of Salcedo and Dr. Dennis.
On September 23, 2011, Sechrist filed a cross-motion to dismiss the amended complaint. Sechrist's primary ground for seeking dismissal of the complaint was that the Plaintiffs allegedly fraudulently joined Salcedo as a defendant with the sole motivation of destroying diversity. Finally, on October 3, 2011, Salcedo moved pursuant to Rule 12(b)(6) to dismiss the amended complaint as against him due to the expiration of the applicable statue of limitations, or alternatively, for ...