McIntyre v. Codman & Shurtleff, Inc.

103 F.R.D. 619, 40 Fed. R. Serv. 2d 910, 1984 U.S. Dist. LEXIS 21347
CourtDistrict Court, S.D. New York
DecidedDecember 11, 1984
DocketNo. 84 Civ. 4763(CES)
StatusPublished
Cited by27 cases

This text of 103 F.R.D. 619 (McIntyre v. Codman & Shurtleff, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McIntyre v. Codman & Shurtleff, Inc., 103 F.R.D. 619, 40 Fed. R. Serv. 2d 910, 1984 U.S. Dist. LEXIS 21347 (S.D.N.Y. 1984).

Opinion

[620]*620MEMORANDUM DECISION

STEWART, District Judge:

This action was originally filed in New York Supreme Court, New York County, but was removed by defendant Codman & Shurtleff, Inc. (“Codman”). Plaintiff Carol McIntyre (“McIntyre”) now moves for an order to remand and to amend the complaint to add four new parties.

Currently pending in state court is a companion lawsuit, which alleges that New York University Medical Center (“NYU Medical Center”), Joseph Ransohoff, M.D., and two John Doe defendants committed medical malpractice upon the plaintiff during a neurosurgical procedure which was performed on January 4,1983. The instant lawsuit is against the manufacturer of the neurosurgical perforator and driver used during the operation, and was brought a year after the malpractice action, once the plaintiff identified the manufacturer through discovery. Plaintiff alleged that this product was defective and unreasonably dangerous, and named only Codman as a defendant. She now seeks to add NYU Medical Center, Joseph Ransohoff, M.D., Jeffrey Wishoff, and Jane Roe (an unknown nurse), arguing that they are indispensable parties to the lawsuit. The addition of those defendants would defeat diversity jurisdiction and require a remand.

Plaintiff initially argues that the removal of this lawsuit was “improvident” within the meaning of the statute because the petition for removal ignored the pendency of the companion action. The remand statute states:

If at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case____

28 U.S.C. § 1447(c) (1976). Further, the removal statute provides that diversity cases

... shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.

28 U.S.C. § 1441(b) (1976). Plaintiff cites no case law holding that the citizenship of defendants in a related action should be considered in determining the removability of a separate lawsuit. There are cases which state that the court can consider the citizenship of unserved defendants, since it is unrealistic to assume that there will be simultaneous service on multiple defendants, and that to disregard the existence of unserved resident defendants creates “needless jurisdictional problems.” Castner v. Exxon Co., U.S.A., 563 F.Supp. 684, 686 (E.D.Pa.1983), quoting 1A Moore’s Federal Practice ¶0.108 [3-2-2], at 552-54 (2d ed. 1983). See also, Sands v. Geller, 321 F.Supp. 558, 562 (S.D.N.Y.1971); Pecherski v. General Motors, 636 F.2d 1156, 1160 (8th Cir.1981); Preaseau v. Prudential Insurance Co., 591 F.2d 74, 78-79 (9th Cir.1979); Chappell v. SCA Services, Inc., 540 F.Supp. 1087, 1090-91 (C.D.Ill.1982). It is a great leap to apply those cases to these facts, involving unnamed defendants who were only served in a separate lawsuit. We decline to extend those cases in that manner.

The motion to amend the complaint presents more serious questions, since allowance of the amendment would destroy diversity jurisdiction. Codman argues that the propriety of removal is to be judged solely at the time of removal, and a plaintiff cannot amend a complaint so as to force a remand. Defendant’s general position is supported by ample authority. In re Merrimack Mutual Fire Insurance Co., 587 F.2d 642 (5th Cir.1978); Wallace v. Knapp-Monarch Co., 234 F.2d 853 (8th Cir.1956); Skinner v. American Oil Co., 470 F.Supp. 229 (D.Iowa 1979); Perimeter Lighting Inc. v. Karlton, 456 F.Supp. 355 (N.D.Ga.1978); Barrett v. McDonald’s of Oklahoma City, 419 F.Supp. 792 (D.Okla.1976). See also 14 Wright, Miller & Cooper, Federal Practice and Procedure § 3721 (1976); 1A Moore’s Federal Practice ¶ 0.161 [1.-3] (1983).

Nonetheless, another line of authority exists holding that there are situations where it is appropriate to allow the addition of a party, even though diversity jurisdic[621]*621tion would be destroyed. Even the authorities cited by the defendant acknowledge that if the additional party is indispensable, then joinder is allowed. In re Merrimack Mutual Fire Insurance Co., 587 F.2d 642, 647 (5th Cir.1978). Plaintiff argues that NYU Medical Center is an indispensable party because of her allegations that Cod-man and NYU Medical Center were engaged in a joint venture with respect to the neurosurgical device. However, we need not decide whether or not the additional parties are indispensable, since we find that the additional parties are proper ones, and after consideration of all the relevant factors, a remand is appropriate.

The Fifth Circuit stands alone in maintaining that the only viable ground for allowing joinder that would result in remand is when the additional parties are indispensable. In re Merrimack Mutual Fire Insurance Co., 587 F.2d 642, 647 (5th Cir.1978). Even the rigidity of that holding has been put somewhat in doubt by IMFC Professional Services of Florida, Inc. v. Latin American Home Health Inc., 676 F.2d 152, 159 n. 14 (5th Cir.1982). The Ninth Circuit implicitly rejected that approach in Desert Empire Bank v. Insurance Co. of North America, 628 F.2d 1371 (9th Cir.1980), which allowed the permissive joinder of a new party, despite the fact that it would destroy diversity jurisdiction. We have found no Second Circuit authority directly on point.

Since we reject the approach that a party must be indispensable to allow joinder, we must determine whether the amendment of the complaint and the joinder of additional parties is appropriate under Fed.R.Civ.P. 15 and 20. The amended complaint contains six causes of action. The first cause of action charges the hospital, Drs. Ransohoff and Wishoff, and Jane Roe with medical malpractice; the second cause of action alleges that the same four defendants failed to properly inform the plaintiff about the procedure and obtain her informed consent; the third cause of action alleges that Codman and NYU Medical Center were mutual beneficiaries of each other’s business dealings, and through Codman’s negligence, plaintiff was injured in the course of the operation; the fourth cause of action alleges breach of express and implied warranties with respect to the product; the fifth cause of action alleges that all the defendants are strictly liable in tort; and the last cause of action states that the product was inherently dangerous.

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Bluebook (online)
103 F.R.D. 619, 40 Fed. R. Serv. 2d 910, 1984 U.S. Dist. LEXIS 21347, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcintyre-v-codman-shurtleff-inc-nysd-1984.