Opinion
12 Civ. 3816 (LGS) (DF)
05-24-2013
MALIKA GRAVES, Plaintiff, v. HOME DEPOT U.S.A., INC., Defendant.
MEMORANDUM AND ORDER
DEBRA FREEMAN, United States Magistrate Judge :
Currently before the Court is a letter motion submitted by plaintiff Malika Graves ("Plaintiff"), seeking leave to amend her Complaint to join an additional defendant and, because the joinder of that defendant would destroy diversity jurisdiction, seeking an order remanding this matter to state court, from which it was originally removed. (See Letter to the Court from Brian P. Wright, Esq., dated Apr. 5, 2013 ("Pl. Mot.") (Dkt. 11).) For the reasons set forth herein, Plaintiff's motion to amend and for joinder is granted. Further, by separate Report and Recommendation of today's date, this Court is recommending to the Honorable Lorna G. Schofield that Plaintiff's application for remand be granted, as well.
BACKGROUND
This personal-injury action, involving a slip-and-fall by Plaintiff, a resident of the Bronx, in a Home Depot store in the Bronx, was originally commenced by Plaintiff in the Supreme Court of the State of New York, Bronx County. Defendant Home Depot U.S.A., Inc. ("Home Depot"), a Delaware corporation with a principal place of business in Georgia, removed the action to this Court on May 14, 2012, on the basis of diversity jurisdiction. (Dkt. 1.)
Some time later, Home Depot disclosed that the area of the store in which Plaintiff claimed to have fallen - the store's indoor gardening section - was serviced, managed, and/or operated by an outside vendor, Kurt Weiss Florist, Inc., a/k/a Kurt Weiss Greenhouses Inc. ("Kurt Weiss"), which is apparently a New York corporation. The parties, however, dispute whether Home Depot's disclosure about Kurt Weiss was timely or adequately made, and whether Plaintiff should be permitted, at this point, to add this non-party as a defendant.
Home Depot argues that its initial disclosures under Rule 26(a)(1) of the Federal Rules of Civil Procedure, dated July 20, 2012, provided ample information to enable Plaintiff to seek amendment, and suggests that Plaintiff has unduly delayed in bringing this motion. (See Letter to the Court from Arturo M. Boutin, Esq., dated Apr. 22, 2013 ("Def. Opp.") (Dkt. 12), at 2.) Home Depot further contends that Plaintiff's sole motive for seeking leave to amend is to destroy diversity jurisdiction, so that she may litigate in her preferred state-court forum, and that this Court should not countenance such forum shopping. (See id.) Plaintiff, for her part, argues that Kurt Weiss is a "necessary" party to this action, that the information that Home Depot provided in its Rule 26(a) disclosures was insufficient to enable her to ascertain either the correct identity and corporate citizenship of Kurt Weiss or its relationship to Home Depot, and that Home Depot withheld relevant information about Kurt Weiss until March 2013. (See Letter to the Court from Brian P. Wright, Esq., dated Apr. 24, 2013 ("Pl. Reply") (Dkt. 13), at 2.) Although Plaintiff thus seeks to place on Home Depot the principal blame for any delay, Plaintiff's counsel also states that Hurricane Sandy "devastated" his office, rendering it "virtually inoperable" for the four months from the end of October, 2012, through the end of February, 2013. (Id.)
DISCUSSION
I. APPLICABLE LEGAL STANDARDS
As a general matter, Rule 15(a) of the Federal Rules of Civil Procedure provides that "[t]he court should freely give leave [to amend] when justice so requires," Fed. R. Civ. P. 15(a)(2). When deciding motions to join additional parties under Rule 21 of the Federal Rules of Civil Procedure, courts follow "'the same standard of liberality afforded to motions to amend under Rule 15.'" Newton v. City of New York, 07 Civ. 6211 (SAS), 2010 U.S. Dist. LEXIS 6998, at *5 (S.D.N.Y. Jan. 27, 2010) (quoting Sly Magazine, LLC v. Weider Publ'ns LLC, 241 F.R.D. 527, 532 (S.D.N.Y. 2007)); see also Fed. R. Civ. P. 21 ("the court may at any time, on just terms, add or drop a party").
A motion to amend a pleading under Rule 15(a) (or for joinder under Rule 21) should be denied, however, "if there is an 'apparent or declared reason - such as undue delay, bad faith or dilatory motive . . . repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of the allowance of an amendment, [or] futility of amendment.'" Dluhos v. Floating and Abandoned Vessel, Known as "New York," 162 F.3d 63, 69 (2d Cir. 1998) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)); accord Richardson Greenshields Sec., Inc. v. Lau, 825 F.2d 647, 653 n.6 (2d Cir. 1987) (citation omitted). Further, in the specific context of a proposed joinder that, if allowed, would destroy diversity, a court should not only look to the general Rule 15(a) standard, but should also consider whether the amendment would "comport with principles of fundamental fairness." See, e.g., Soto v. Barnett, No. 00 Civ. 3453 (DLC), 2000 WL 1206603, at *3 (S.D.N.Y. Aug. 23, 2000).
Towards such a determination, a court generally considers the following four factors: (1) any delay, and the reasons for the delay, in seeking to amend; (2) any resulting prejudice to the
defendant; (3) the likelihood of multiple litigation; and (4) the plaintiff's motivation in moving to amend.Id. (citation omitted).
"[A]dditional non-diverse parties need not be indispensable to be joined," Gursky v. Northwestern Mutual Life Ins. Co., 139 F.R.D. 279, 281 (E.D.N.Y. 1991) (citations omitted); instead, courts have only required that joinder be "permissible" under Rule 20 of the Federal Rules of Civil Procedure, and that the factors cited above weigh in favor of joinder, id. Ultimately, the decision as to whether to grant a motion to amend or for joinder rests in the court's discretion. Id.
II. PLAINTIFF'S MOTION
A. Proposed Joinder
Plaintiff seeks leave to join, as an additional defendant in this action, the vendor that allegedly contracted with Home Depot to provide services for the indoor-gardening section of the Home Depot store where Plaintiff allegedly slipped and fell. Based on the allegations of the proposed Amended Complaint, Plaintiff seeks to claim that, pursuant to its contract with Home Depot, Kurt Weiss shared control over that section of the store. (See Proposed Amended Complaint, dated Apr. 5, 2013 ("Proposed Am. Compl.") (attached to Pl. Mot.), at ¶ 9.) According to Plaintiff, potted plants in that section were not kept in trays, and, when the plants were watered, both water and dirt tended to be discharged onto the store's vinyl floor, causing a slippery and unsafe condition for customers walking in the area. (See id., at ¶ 14.) Plaintiff seeks to allege that, when the plants were watered, customers were not notified of the resulting hazard; the unsafe area of the store was not cordoned off; and neither Home Depot nor Kurt Weiss took any other reasonable steps to prevent customer injury. (Id.)
Based on these proposed allegations, Plaintiff appears to have a viable negligence claim against Kurt Weiss, as well as against Home Depot. Certainly, the proposed claim against Kurt Weiss does not appear to be futile, on its face, and Home Depot does not argue otherwise. In opposing Plaintiff's motion to amend, Home Depot primarily argues that the motion should be denied based on Plaintiff's purported undue delay and improper motive in seeking joinder. A review of all of the relevant factors, however, shows little support for Home Depot's arguments.
1. Delay
As to the factor of "delay," the Court first notes that, even in cases relied upon by Home Depot, delays equivalent in length to that at issue here have, without more, been found insufficient to justify denial of a motion for joinder. See Ambac Assurance Corp. v. EMC Mortgage Corp., No. 08 Civ. 9464 (RMB) (THK), 2011 WL 566776, at *3 (S.D.N.Y. Feb. 8, 2011) (delay of more than a year and a half was not unreasonable, where plaintiff was not in possession of the full facts when it first filed suit) (cited by Home Depot in Def. Opp., at 3); Da Cruz v. Towmasters of New Jersey, Inc., 217 F.R.D. 126, 134-36 (E.D.N.Y. 2003) (delay of more than two years, while weighing against joinder, was insufficient to justify denial of motion, where there was no evidence of ill motive and other factors were neutral) (cited by Home Depot in Def. Opp., at 2).
Here, there is no evidence that Plaintiff knew of Kurt Weiss or its vendor contract prior to commencing suit, and the evidence submitted by Home Depot is ambiguous, at best, as to whether its initial disclosures were sufficient to enable Plaintiff to discover Kurt Weiss's actual identity and the responsibility Kurt Weiss may have borne for the allegedly hazardous condition in Home Depot's store. Indeed, the Rule 26(a)(1) disclosure cited by Home Depot as evidence that Plaintiff could have moved sooner to add Kurt Weiss as a defendant does not even list Kurt Weiss (or, as best as can be gleaned from the disclosure itself, anyone associated with Kurt Weiss) as a witness with discoverable information relating to Home Depot's claims or defenses. (See Defendant Home Depot U.S.A., Inc.'s Rule 26 Automatic Disclosure, dated July 20, 2012 ("Def. Rule 26(a) Disclosure"), attached to Def. Opp.) While Home Depot points to a document produced as part of its initial disclosures, that document - a "General Liability Claim Worksheet" - says almost nothing about Kurt Weiss. In fact, in the only part of the form that relates to Kurt Weiss at all, Home Depot provided only the following, handwritten information (shown here in boldface):
| Name of product/store fixture/equipment/object etc.most closely associated with accident N/A | [illegible]N/A | If product, SKU #N/A |
|---|---|---|
| Vendor name Kurt Wise | Phone ( ) N/A | |
| Address N/A | City N/A | State/Zip N/A |
| Employees most closely associated with accident N/A | ||
| Was a third party involved with the accident _Yes x No | [illegible]N/A | Phone ( ) |
| Third party address N/A | City N/A | State/Zip N/A |
In filing its opposition papers, Home Depot redacted — apparently on confidentiality grounds - the entirety of the General Liability Claim Worksheet reproduced, in part, above. The Court, however, perceives no legitimate confidentiality interest in the particular information shown here, especially as it reveals nothing other than the misspelled name of the vendor at issue. --------
Meanwhile, Plaintiff's counsel states that he was first notified in March, 2013, that there was a New York corporation with which Home Depot had entered into an vendor agreement, that this "domestic corporation . . . shared responsibility with Home Deport regarding the operation of the indoor gardening section at [Home Depot's] Bronx store where [P]laintiff's accident occurred" (Pl. Mot., at 2), and that the vendor's proper identity was Kurt Weiss Florist Inc. (id., at 1-2).
Taken in its entirety, the evidence submitted by Home Depot does not support its position that Plaintiff's delay in seeking joinder has been unreasonable, especially as it appears that at least some meaningful portion of that delay was caused by Home Depot's own delay in providing Plaintiff with information - including the vendor contract - that Plaintiff needed to review in order to ascertain whether joinder was appropriate.
Finally, the Court accepts Plaintiff's counsel's representation regarding the significant hardship to his practice caused by Hurricane Sandy, and accordingly accepts that any delay by Plaintiff in seeking joinder is less than it would appear, by mere reference to a calendar. For this reason as well, the Court finds that the factor of "delay," while long enough to weigh at least somewhat against the allowance of Plaintiff's motion, would not render the proposed joinder "fundamentally unfair."
2. Prejudice
Despite the fact that time has passed since the removal of this action to this Court, Home Depot does not seriously contend that it would be prejudiced by the proposed joinder and any resulting remand, and the Court perceives no such prejudice here. See, e.g., Gursky, 139 F.R.D. at 283 (court noting that it found "nothing prejudicial in having to defend this action in state court"). Moreover, as Plaintiff points out (see generally Pl. Reply), any prejudice is, at least to some extent, of Home Depot's own making. While Plaintiff apparently lacked the means to know of Kurt Weiss's existence, proper name, contractual relationship with Home Depot, and corporate citizenship at the time this action was filed, Home Depot was presumably well aware of its vendor's identity - and of the fact that it was a New York corporation - at the time Home Depot removed this action to federal court. In choosing to remove the action without first disclosing relevant information about Kurt Weiss, Home Depot took the risk that, upon its later disclosure of information regarding this vendor, Plaintiff would seek to amend the Complaint and then to have the action remanded.
Overall, the "prejudice" factor weighs in favor of permitting joinder.
3. Likelihood of Multiple Litigation
At first blush, this factor appears neutral, as, to date, Plaintiff has not commenced a separate action against Kurt Weiss in state court, and it is not clear that Plaintiff would do so if joinder were to be denied. Plaintiff has, however, taken the position that, should the Court deny joinder and remand, then the Court should, in the alternative, dismiss the action against Home Depot without prejudice, so that Plaintiff may proceed to commence a single action against both defendants, in state court. (See Pl. Mot., at 2.) Certainly, as Plaintiff's claims against both Home Depot and Kurt Weiss arise out of the same facts, it would be inefficient for Plaintiff to be required to litigate against these two parties in two different actions.
In addition, Home Depot, itself, has raised the specter of multiple litigation, as it states, in its opposition, that "[a]ny claim that Home Depot has against Kurt Weiss, namely for contractual indemnification, can be brought by Home Depot against Kurt Weiss in a separate lawsuit . . . ." (Def. Opp., at 3.) This suggests that Home Depot is itself envisioning bringing Kurt Weiss into court, on claims arising out of Plaintiff's claims. Under the circumstances, this factor - the "likelihood of multiple litigation" - weighs in favor of joinder.
4. Plaintiff's Motive
As to Plaintiff's motive for seeking joinder, it is again worth noting that the cases on which Home Depot relies (every one of which allowed joinder) do not support Home Depot's position. Those cases make clear that, where there is no evidence that the proposed joinder would be fraudulent or improper, the mere desire of a plaintiff to litigate in state court is insufficient to warrant denial of the plaintiff's motion. See Soto v. Barnitt, No. 00 Civ. 3453 (DLC), 2000 WL 1206603, at *3 (S.D.N.Y. Aug. 23, 2000) (defendant's bare assertion of plaintiff's improper motive inadequate to defeat joinder) (cited by Home Depot in Def. Opp., at 2); Rosenthal v. Life Fitness Co., 977 F. Supp. 597, 601 (E.D.N.Y. 1997) (where court had no reason to believe that sole motive for proposed joinder was a desire to destroy diversity jurisdiction, motion for joinder was granted) (cited by Home Depot in Def. Opp., at 3); Sonn v. Wal-Mart Stores, Inc., No. CV 06-1816 (FB) (JO), 2006 WL 2546545, at *3-7 (E.D.N.Y. Sept. 1, 2006) (where plaintiff had a plausible theory of liability against proposed new defendant and there was no evidence that joinder would be a sham, motion for joinder was granted) (cited by Home Depot in Def. Opp., at 3.)
The Sonn v. Wal-Mart case cited by Home Depot is particularly analogous to the case before this Court, and only highlights the flaws in Home Depot's argument. In that case, the plaintiff, having sued the corporate entity in whose store she had allegedly suffered a personal injury, sought leave to add, as a defendant, the individual store employee who she claimed had caused her accident. See generally Sonn, 2006 WL 2546545. The defendant, Wal-Mart, asserted that this diversity-destroying joinder should be disallowed because, in its view, the plaintiff was only seeking joinder as a means to return to state court, from which the action had been removed. Id., at *3. The court noted that joinder would be impermissible, if the proposed new defendant "lack[ed] a real connection with the controversy at issue," id. (citations omitted), or if "neither the facts of the case nor the applicable state law provide[d] a possibility of recovery against . . . [the] prospective defendant," id. (citation omitted). Wal-Mart, though, carried the burden of proof on the question of whether the proposed joinder was "without any reasonable basis in fact and [was] made without any purpose to prosecute the cause in good faith against [both defendants]," id., at *6, and failed to satisfy that burden, id. The plaintiff was found to have a plausible claim for relief against the store employee, and the mere fact that the plaintiff may have preferred to litigate in a state forum was insufficient to defeat the requested joinder. Id., at *7.
In this instance, Plaintiff appears to have a good faith and plausible basis for seeking leave to sue Kurt Weiss; i.e., Plaintiff has posited that Kurt Weiss had responsibility for servicing the area of the store that Plaintiff claims was dangerously ill-maintained. Regardless of whether Plaintiff's claims against this additional defendant will ultimately be successful, the proposed Amended Complaint in no manner suggests that the proposed joinder would be "fraudulent and sham." Id., at *6. Accordingly, despite Home Depot's assertions of improper motive, this factor does not weigh against allowing joinder in this case.
On balance, the four factors discussed above weigh in favor of permitting the requested joinder. The standard for permitting amendments and joinder remains a liberal one, and Home Depot has simply not shown sufficient reason why the requested joinder should be disallowed in this case. Accordingly, Plaintiff's motion for leave to amend and to join Kurt Weiss as a defendant is granted.
B. Requested Remand
The parties do not dispute that the joinder of Kurt Weiss as a defendant would, in fact, destroy diversity, which is the only basis of this Court's subject-matter jurisdiction in this case. As noted above, I am therefore recommending to Judge Schofield, by separate Report and Recommendation of this date, that Plaintiff's request for remand be granted, as well.
CONCLUSION
For the foregoing reasons, Plaintiff's motion to amend the Complaint, so as to add Kurt Weiss as a party defendant (Dkt. 11), is granted. Plaintiff is directed to file her Amended Complaint as a separate docket entry, and, upon such filing, the Clerk of Court is directed to issue an Amended Summons, so that Plaintiff may effect service of process on the newly named defendant, Kurt Weiss Florist, Inc., a/k/a Kurt Weiss Greenhouses Inc. Dated: New York, New York
May 24, 2013
SO ORDERED
/s/_________
DEBRA FREEMAN
United States Magistrate Judge Copies to: All parties (via ECF)