Opinion
No. CV 06-2037-PHX-RCB.
January 22, 2008
ORDER
The following motions are currently pending before the court: (1) plaintiff's "Amended Motion to Consolidate" (doc. 24); (2) a "Motion to Enforce Agreement to Dismiss" (doc. 25) by defendant Bullhead City Hospital, a Tennessee corporation doing business in Arizona as Western Arizona Regional Medical Center ("WARMC"); and (3) defendant WARMC's "Motion to Dismiss Plaintiff's Second Amended Complaint" (doc. 41). If defendant prevails on its motion to dismiss, obviously the other two motions would be rendered moot. Therefore, although filed subsequent to the motions to consolidate and to enforce, the court will first address the motion to dismiss. Then, if need be, the court will go on to consider the motions to enforce and to consolidate.
Background
The court assumes familiarity with the rather convoluted procedural history of this action and its related state and federal court actions. A few aspects of that history bear repeating though as they place the pending motions in context. "This medical malpractice action is one of three which plaintiffs filed arising out of the death of David Nichols." Lacombe v. Bullhead City Hospital Corp., 2007 WL 2702005, at *1 (D.Ariz. Sept. 12, 2007) (footnote omitted) ("Lacombe I"). Allegedly "Mr. Nichols' death was due to the administration of a broad spectrum antibiotic which is in the same general class as penicillin." Id. (Internal quotation marks and citation omitted). Mr. Nichols purportedly "had a known allergy to penicillin." Id. (internal quotation marks and citation omitted).
Plaintiffs filed their first action in Nevada state court on July 11, 2006, naming as defendants a host of health care providers and entities. "Plaintiffs' filed this second action, on August 21, 2006, against substantially all of the defendants whom they named in the original state court action." Id. at *1 n. 1. On September 1, 2006, plaintiffs filed a second federal court action naming as a defendant, among others, Mark E. Luce, M.D. That second federal court action was necessitated by plaintiffs' "inadvertent" failure to originally name Dr. Luce as a defendant in this action. WARMC's Reply (doc. 32), exh. A (doc. 32-2) thereto at 3.
Evidently yet a third federal court action was filed against Dr. Luce in Nevada. Mot. (doc. 41) at 5, n. 4; see also Def. Luce Resp. Mot. to Consolidate (doc. 28) at 3-4, n. 1.
As a result of either motion practice or voluntary dismissal, WARMC is the only remaining defendant in this action, as the second amended complaint ("the complaint") reflects. WARMC promptly moved for dismissal of that complaint on several grounds — failure to properly plead diversity jurisdiction; failure to join indispensable parties; and impermissibly stating a "sum certain ($2,000,000) as damages in violation of Arizona rules." Mot. (doc. 41) at 2. In its Reply, WARMC explicitly withdrew its objections pertaining to alleged lack of diversity. Reply (doc. 43) at 1-2. The court will, accordingly, limit its analysis to the indispensable party issue and the pleading of a sum certain.
Discussion
I. Dismissal
Pursuant to Fed.R.Civ.P. 12(b)(7), WARMC is moving to dismiss the complaint for "failure to join a party under Rule 19." Rule 19, in turn, governs "joinder of persons needed for just adjudication." "A [R]ule 12(b)(7) motion to dismiss for failure to join a party will be granted only if the court determines: (1) joinder of the party is not possible, and (2) the party is `indispensable.'" Brosnahan v. Pozgay, 2007 WL 173969, at *2 (S.D.Cal. Jan. 17, 2007) (citing Shermoen v. United States, 982 F.2d 1312, 1317 (9th Cir. 1992)) (emphasis added). The moving party "bear[s] the burden [of] producing evidence in support of the motion." Mintel Learning Technology v. Beijing Kaidi Education, 2007 WL 2288329, at *13 (N.D.Cal. Aug. 9, 2007) (citation omitted); see also Brosnahan, 2007 WL 173969, at *2 (internal quotation marks and citation omitted) ("The moving party [on a Rule 12(b)(7) motion] has the burden of persuasion in arguing for dismissal.") As more fully discussed below, WARMC has not met this burden.
Rule 19 provides "[t]he framework for determining whether a party is necessary and indispensable[.]" American Greyhound Racing, Inc. v. Hull, 305 F.3d 1015, 1022 (9th Cir. 2002). "Rule 19(b), . . ., distinguishes between necessary and indispensable parties." Merrill Lynch, Pierce, Fenner Smith v. ENC Corp., 464 F.3d 885, 891 (9th Cir. 2006), cert. granted, 2007 WL 682016 (U.S. Dec. 3, 2007). Thus, "[t]he proper approach" under Rule 19 "is first to decide whether the [absent parties] are, in the traditional terminology, `necessary' parties who should normally be joined under the standards of Rule 19(a)." American Greyhound Racing, 305 F.3d at 1022. If the absent party is not deemed "necessary" for Rule 19 purposes, that ends the inquiry. See Hendricks v. Bank of America, N.A., 408 F.3d 1127, 1136 (9th Cir. 2005) (internal quotation marks and citation omitted) ("Having rejected Mutual's challenge to the district court's necessary party analysis, we need not decide whether in equity and good conscience Mutual qualifies as an indispensable party under Rule 19(b).")
On the other hand, if the absent parties "are necessary parties, the . . . court must then determine whether [they] are `indispensable' `that is, `whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed." American Greyhound Racing, 305 F.3d at 1022 (internal quotation marks and citations omitted). This equitable determination is based upon a "variety of factors[.]" Hendricks, 408 F.3d at 1136. Those factors include: prejudice to existing parties; the extent to which such prejudice can be "lessened or avoided;" the adequacy of the judgment in the person's absence; and "whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder." Id. (quoting Fed.R.Civ.P. 19(b)). The Ninth Circuit has cautioned that "Rule 19's necessary and indispensable party `inquiry is a practical, fact-specific one, designed to avoid the harsh results of rigid application."Id. (internal quotation marks and citation omitted).
1. Necessary Party
A party is "necessary" within the meaning of Rule 19 if "(1) in [its] absence complete relief cannot be afforded among those already parties, or (2) [it] claims an interest relating to the subject of the action and is so situated that the disposition of the action in [its] absence may (i) as a practical matter impair or impede [its] ability to protect that interest, or (ii) leave any of the persons already parties subject to a substantial risk of incurring . . . inconsistent obligations." Fed.R.Civ.P. 19(a) (emphasis added). If the absent parties fall into either of these "alternative" categories, they are "necessary to the instant litigation[,]" and the analysis shifts to indispensability. See Dawavendewa v. Salt River Project Agricultural Improvement and Power District, 276 F.3d 1150, 1155 (9th Cir. 2002) (citation omitted).
a. Complete Relief
WARMC focuses exclusively on the first factor under Rule 19(a), arguing that complete relief cannot be afforded without "the other healthcare providers[,]" i.e. the defendants in the Nevada state court action. Mot. (doc. 41) at 5. WARMC posits that if those providers are not parties to this action, there is a "substantial risk" that it will "incur more than its share of damages because the case would proceed against WARMC only in this Court and in Nevada state court against all of the health providers." Id. (citing Fed.R.Civ.P. 19). WARMC further posits that because under "Arizona's comparative negligence law, each tortfeasor is only liable for that defendant's relative degree of fault[,] . . . complete relief is not possible" without the presence of the Nevada defendants. Reply (doc. 16) at 6. As will be discussed more fully below, in making this argument, WARMC fails to take into account Arizona's entire comparative negligence statutory scheme.
WARMC specifically incorporated this argument from its prior motion to dismiss. See Mot. (doc. 41) at 5.
Plaintiffs counter that "WARMC is free to allege that" the Nevada defendants "are non-parties at fault[,]" which will "ensure that WARMC only incurs its share of damages." Resp. (doc. 42) at 4. Although unstated, evidently it is plaintiff's position that in light of the foregoing, the Nevada defendants are not necessary parties to this litigation. Hence, the court should deny WARMC's motion to dismiss for failure to join those defendants in the present action.
In its Reply, WARMC did not respond to plaintiffs' non-party at fault argument. Instead, analyzing the indispensability element of Rule 19(b), WARMC addressed the equitable factors enumerated therein. Of course, as noted earlier, unless WARMC can show that the Nevada defendants are "necessary" parties, the indispensability element falls by the wayside.
WARMC's argument that "complete, fair and equitable [relief] cannot be fashioned" in the absence of the Nevada tortfeasors ignores the fact that "`[it] has long been the rule that it is not necessary for all joint tortfeasors to be named as defendants in a single lawsuit.'" Mintel Learning, 2007 WL 2288329, at *13 (quoting Temple v. Synthes Corp. Ltd., 498 U.S. 5, 7 (1990)). Indeed, "`[t]he Advisory Committee Notes to Rule 19(a) explicitly state that `a tortfeasor with the usual `joint-and-several' liability is merely a permissive party to an action against another with like liability.'" Id. (quoting Temple, 498 U.S. at 7). Accordingly, "[b]ecause the liability of joint tortfeasors is both joint and several, a plaintiff can sue one without suing the others, and the court can afford a plaintiff complete relief in the absence of all the joint tortfeasors in the same lawsuit."Id. The foregoing completely erodes WARMC's theory that complete relief cannot be afforded here in the absence of the Nevada tortfeasors.
Reply (doc. 43) at 3.
Arizona's "Uniform Contribution Among Tortfeasors Act ("UCATA"), A.R.S. § 12-2501 et seq., further undermines WARMC's theory that the Nevada tortfeasors are necessary parties to this action. As WARMC correctly notes, under the UCATA, "the liability of tortfeasors is several and each defendant is liable only for the amount of damages allocated to that defendant in direct proportion to that defendant's percentage of fault." Pooley v. National Hole-In-One Association, 89 F.Supp.2d 1108, 1114 (D.Ariz. 2000) (citing A.R.S. § 12-2506(A) (West 2000)). By the same token though, the UCATA unequivocally states that "[i]n assessing percentages of fault the trier of fact shall consider the fault of all persons who contributed to the alleged injury, [or] death . . ., regardless of whether the person was, or could have been named as a party to the suit." A.R.S. § 12-2506(B) (West 2003) (emphasis added). It is this aspect of the UCATA which WARMC does not address.
In this diversity jurisdiction case, the court applies "state substantive law, but . . . federal procedural law." See Nitco Holding Corp. v. Boujikian, 491 F.3d 1086, 1089 (9th Cir. 2007) (citation omitted).
In accordance with the UCATA, a jury in the present case must necessarily consider the "fault" of the other healthcare providers involved in Mr. Nichols' medical care during the relevant time frame. Therefore, although WARMC contends otherwise, complete relief can be "accorded among those already parties" to this action. See Bremenkamp v. Beverly Enterprises-Kansas, Inc., 1989 WL 103643, at *2 (D.Kan. 1989) (citation omitted) (finding Rule 19(a)(1) "inapplicable" because "complete relief could be accorded among those already parties" in that "under . . . Kansas['] comparative negligence statute, in determining [defendant's] negligence the court may take into account the negligence of non-parties such as the three physicians and [the] Medical Center"). In reaching this conclusion, the court also finds significant the fact that even though plaintiffs have elected to proceed solely against WARMC in this action, that does not preclude WARMC from pursuing its statutory rights of contribution, if ultimately applicable. See A.R.S. §§ 12-501 — 12-503 (West 2003).
As mentioned at the outset, WARMC's Rule 19(a)(1) analysis is limited to the issue of whether complete relief can "be afforded among those already parties[.]" See Fed.R.Civ.P. 19(a)(1). The court has similarly limited its analysis. However, WARMC has also raised the specter of prejudice if a "judgment [is] rendered [herein] in the absence of the [Nevada] tortfeasors[.]" Reply (doc. 43) at 3. The court thus is compelled to observe that in part because of the mechanisms available to WARMC under the UCATC, there is not "a substantial risk of [WARMC] incurring . . . inconsistent obligations" if the Nevada defendants are not joined in this action. See Fed.R.Civ.P. 19(a)(1). In sum, WARMC has not met its burden of showing that the Nevada tortfeasors are necessary parties within the meaning of Rule 19(a)(1).
2. Indispensable Party
Because the court has found that WARMC is not a necessary party for Rule 19 purposes, that ends the analysis. The court therefore must deny WARMC's motion to dismiss for failure to join a party under Rule 19. See Mintel Learning, 2007 WL 2288329, at *13 — *14 (denying motion to dismiss for failure to join an indispensable party where defendants did not establish that the absent person was "necessary" under Rule 19(a)(1)).
B. Pleading a "Sum Certain"
WARMC accurately notes that Arizona Rule of Civil Procedure 8(g) prohibits pleading "dollar amount[s] or figure[s] for damages[,]" except where a party is seeking a "sum certain[.]" ARCP 8(g). WARMC contends that because plaintiffs expressly allege in their complaint that "the amount in controversy is $2,000,000.00[,]" they have violated that state court rule. See Co. (doc. 40) at 1, ¶ 1. WARMC further contends that it has been prejudiced by the fact that plaintiffs have alleged damages in a specific dollar amount. The court is construing this as an additional bases for dismissal, even though WARMC did not explicitly move for dismissal on this basis.
Perhaps WARMC is not specifically moving for dismissal on this basis because it realizes the futility of proceeding on that theory. "`Under the doctrine of Erie R.R. v. Tompkins, 304 U.S. 64, . . . (1938), a federal court sitting in diversity must apply the Federal Rules of Civil Procedure.'" Harris Technical Sales, Inc. v. Eagle Test Systems, Inc., 2007 WL 1888865, at *1 (D.Ariz. June 29, 2007) (quoting Knievel v. ESPN, 393 F.3d 1068, 1073 (9th Cir. 2005)). What is more, "for the purposes of Erie, pleading standards are considered procedural." Id. at *3 (internal quotation marks and citation omitted). Additionally, "where state law directly conflicts with applicable rules of the Federal Rules of Civil Procedure, federal courts must apply the Federal Rules — not state law." Id. (internal quotation marks and citations omitted) (emphasis added). As should be abundantly clear by now, Arizona's pleading requirements simply have no place in this federal court litigation. So, to the extent WARMC's motion can be read as arguing that dismissal is mandated due to a violation of an Arizona state court pleading requirement, this argument is without merit. Thus, the court denies in its entirety WARMC's motion to dismiss plaintiffs' complaint.
II. Motion to Enforce Agreement to Dismiss
Having denied WARMC's motion to dismiss, the court must next consider WARMC's motion to enforce a claimed agreement between it and plaintiffs. WARMC vigorously contends that on February 20, 2007, it agreed with plaintiffs that they would dismiss this action as against WARMC in exchange for WARMC submitting to jurisdiction in the Nevada state court action. See WARMC's Mot. to Enforce Agreement to Dismiss (doc. 25), exh. A thereto (Aff. of Mary C. Brooksby (April 19, 2007)) at 8-9, ¶¶ 3-6. WARMC's Arizona counsel, Ms. Brooksby, recalls that "[o]ther than submission to personal jurisdiction in Nevada, there were no contingencies" to the purported agreement. Id. at 9, ¶ 5. Contingencies were added after that initial conversation, however, according to Ms. Brooksby. In particular, during the February 26, 2007, scheduling conference, WARMC claims that plaintiffs' Arizona counsel, Mr. Wright, added the contingency of "approval of Plaintiff's [sic] Nevada counsel and his client."Id. at 9, ¶ 7. A few days later, WARMC claims that Mr. Wright added another contingency, "hing[ing] his offer on Dr. Luce's agreement to submit to Nevada jurisdiction." Id. at 2, ¶ 8. Plaintiffs allegedly added this contingency even though "Dr. Luce is not a WARMC employee and WARMC has no control over [him]." WARMC's Mot. to Enforce (doc. 25) at 2, ¶ 9.
Despite the purported agreement of February 20, 2007, and even though WARMC did submit to personal jurisdiction in the Nevada state court action, plaintiffs have not dismissed this action as against WARMC. Consequently, WARMC is seeking a court "order enforcing Plaintiffs' counsel's agreement to dismiss this case as against [it]." Id. at 2.
Based upon the supposed February 20, 2007, agreement, WARMC's Nevada counsel entered a general appearance in the Nevada state court action. Mot. (doc. 25), exh. B thereto (Declaration of Michael A. Hagemeyer (April 28, 2007) at 1, ¶ 2. Prior to that "agreement," WARMC's Nevada counsel had only entered a special appearance in that action. Id.
Plaintiffs' counsel depicts the circumstances surrounding this purported agreement quite differently. He responds: "[T]here simply was no agreement to dismiss WARMC[;]" and WARMC's Arizona counsel "misunderstood" their conversation regarding the possibility of dismissing this action if WARMC would consent to jurisdiction in Nevada. Resp. (doc. 29) at 1. Contrary to how attorney Brooksby recalls their conversation, attorney Wright recalls that there was an additional "contingency" to dismissal. Not only would WARMC have to agree to submit to jurisdiction in Nevada, but Dr. Luce would have to agree to jurisdiction there as well. Id. at 1-2. When Dr. Luce would not so agree, attorney Wright advised WARMC that he "would not be able to work out the proposal to dismiss this action as to WARMC." Aff. of H. Micheal Wright (May 3, 2007) (doc. 29-2) at 2.
In its reply, WARMC is adamant that attorney Wright's "representations" to it regarding dismissal in exchange for submitting to jurisdiction in Nevada were "unequivocal and without contingency[.]" Reply (doc. 32) at 3. According to Ms. Brooksby, this issue was not the subject of ongoing negotiations; nor was it presented, as plaintiffs now suggest, as a "propos[al][.]" Id. To support its view of events, WARMC notes that at the February 26, 2007, scheduling conference plaintiffs' counsel, Mr. Wright, indicated that he and Ms. Brooksby had "been communicating about the issue of whether [WARMC] would agree to waive any contest of jurisdiction in Nevada, . . ., so that the matter against [WARMC] here need not proceed." Id., exh. A (doc. 32-2) thereto at 3-4. WARMC is quick to point out that at that time attorney Wright did not indicate to the court that the potential agreement was somehow contingent upon whether Dr. Luce also would agree to jurisdiction in Nevada.
At least in terms of judicial economy, at first glance WARMC's position that this action should proceed in one forum rather than two has some appeal. On the other hand, WARMC cites to no case law to support its motion to enforce the purported unwritten "agreement" between it and plaintiffs. Indeed WARMC does not even indicate which Federal Rule of Civil Procedure forms the basis for this motion. Accordingly, because WARMC has not, as LRCiv 7.2(b) requires, "set forth the points and authorities relied upon in support of [its] motion[,]" the court denies this motion to enforce the alleged agreement to dismiss.
Assuming for the sake of argument that WARMC is seeking summary judgment pursuant to Fed.R.Civ.P. 56, obviously the court would have to deny this motion because there are genuine issues of material fact as to the existence of an agreement in the first place, much less the terms of such agreement. See, e.g. Newtown, Inc. v. Top Heavy Clothing Co., Inc., 2006 WL 681039, at *3 (W.D.Wash. 2006) (denying motion for partial summary judgment where "a material issue of fact exist[ed] regarding whether the parties had a binding agreement"); Frontier Ford v. Technical Chemical Co., 1997 WL 266778, at *3 (N.D.Cal. 1997) (denying summary judgment on breach of contract claims because of factual disputes as to "[t]he existence and terms of an oral agreement").
III. Consolidation
Because WARMC has not prevailed on either of its motions to dismiss, the court, must, necessarily, consider plaintiffs' motion to consolidate the present action with the second filed federal court action, Lacombe v. Luce, 3:06-CV-02127-SMM ("Lacombe II").
There is no indication in their motion, but presumably plaintiffs are relying upon Fed.R.Civ.P. 42(a) and LRCiv 42.1 as the bases for consolidation. The former Rule states in relevant part: "When actions involving a common question of law or fact are pending before the court, . . .; it may order all the actions consolidated[.]" Fed.R.Civ. 42(a). In a similar vein, LRCiv 42.1(a)(1) provides in relevant part as follows:
Whenever two or more cases are pending before different Judges and any party believes that such cases (A) arise from substantially the same transaction or event; (B) involve substantially the same parties or property; . . .; (D) calls for determination of substantially the same question of law; or (E) for any other reason would entail substantial duplication of labor if heard by different Judges, any party may file a motion to transfer the case or cases involved to a single Judge.
LRCiv 42.1(a)(1). "[C]onsolidation is within the broad discretion of the district court." Washington v. Daley, 173 F.3d 1158, 1169 n. 13 (9th Cir. 1999) (internal quotation marks and citation omitted).
Not only did plaintiffs fail to cite to the relevant Rules, they also failed to "set forth the points and authorities" which would support their motion. See LRCiv 7.2(b). Likewise, plaintiffs assert that Lacombe I and Lacombe II "involve related parties and arose under the same circumstances, and [so] consolidation would promote judicial economy and avoid confusion." Pl. Mot. (doc. 24) at 2. Without explication, however, and in the absence of any supporting case law, the court is unable to exercise its discretion in any meaningful way at this juncture. This inability is exacerbated by the fact that, understandably, both WARMC and Dr. Luce requested that the court defer resolving the consolidation issue until a ruling on the motions to dismiss. WARMC Resp. (doc. 27) at 3; Luce Resp. (doc. 28) at 1. Consequently, the court does not have the benefit of knowing their respective views regarding consolidation. In light of the foregoing, the court cannot, as it must, "evaluate"Lacombe I and Lacombe II on their "own facts with close attention to whether the anticipated benefits of a consolidated complaint outweigh potential prejudice to the parties." See Burnett v. Rowzee, 2007 WL 4191991, at *2 (C.D.Cal. 2007) (internal quotation marks and citation omitted).
Neither could foresee the manner in which this litigation would unfold.
Consideration of potential prejudice is especially important here given that at one point Dr. Luce was a defendant in this action, but then plaintiffs entered a notice of voluntary dismissal as against him. See Notice of Vol. Dismissal (doc. 6). Finally, the court observes that because it does not have the benefit of full briefing, it is uncertain as to which of the three forms of "consolidation" plaintiffs are contemplating: "(1) when several actions are stayed while one is tried, and the judgment in the case tried will be conclusive as to the others; (2) when several actions are combined and lose their separate identities, becoming a single action with a single judgment entered; and (3) when several actions are tried together, but each suit retains its separate character, with separate judgments entered.'" See Kemper Sports Management, Inc. V. Westport Investment, LLC, 2007 WL 4219355, at *3 (W.D.Wash. 2007) (quoting, inter alia, Schnabel v. Lui, 302 F.3d 1023, 1035 (9th Cir. 2002)). For all of these reasons, the court denies plaintiffs' amended motion to consolidate (doc. 24) without prejudice to renew.
Conclussion
As fully discussed herein, IT IS ORDERED that defendant WARMC's motion to dismiss plaintiffs' second amended complaint (doc. 41) is DENIED;
IT IS FURTHER ORDERED that defendant WARMC's motion to enforce "agreement" to dismiss (doc. 25) is DENIED; and
IT IS FINALLY ORDERED that plaintiffs' motion to consolidate is DENIED without prejudice to renew.