Opinion
01 CIV. 1774 (DLC)
May 11, 2001
Sarah E. Sholes Sholes Miller, LLP Fishkill, N.Y. attorney for Plaintiff.
Jennifer Quinn McElroy, Deutsch and Mulvaney, LLP New York, N.Y. attorney for Defendant A.O. Smith Corporation.
Francesca E. Connolly Gallina Connolly White Plains, N.Y. attorney for Defendant Lochnivar Corporation.
OPINION AND ORDER
In this action, plaintiff Segundo Quizhpi ("Quizhpi") alleges that he suffered carbon monoxide poisoning from hot water heaters that were improperly manufactured, designed, sold, installed, and/or repaired by defendants Tjernlund Products, Inc. ("Tjernlund"), Lochnivar Corporation ("Lochnivar"), and A.O. Smith Corporation ("A.O. Smith"). Quizhpi originally brought this action in the Supreme Court of the State of New York, Bronx County, and A.O. Smith subsequently removed this action to federal court. Plaintiff has now moved to remand — so that this action may be consolidated with a related action currently pending in state court — on the ground that the notice of removal was procedurally defective. In the alternative, plaintiff seeks to amend his complaint to join the defendants sued in the related action and then remand the action to Supreme Court, Bronx County, for lack of subject matter jurisdiction. Defendants A.O. Smith and Lochnivar have opposed plaintiff's motion. For the following reasons, plaintiff's motion to amend his complaint, and then to remand the amended complaint for lack of subject matter jurisdiction, is granted.
BACKGROUND
The following facts are undisputed. Plaintiff Quizhpi, a Bronx, New York resident, alleges that in November, 1997, while working at the Seafood Peddler Restaurant ("Restaurant"), located in Yonkers, New York, he suffered from carbon monoxide poisoning. Quizhpi alleges that the carbon monoxide was released from a hot water heater or heaters in the Restaurant. On October 26, 2000, Quizhpi filed suit ("First Action") in New York State Supreme Court, Bronx County, against KRT Property Holdings, Inc. ("KRT"), The Seafood Peddler of New York, Inc. ("Seafood Peddler"), A. Silvestri ("Silvestri"), Food and Beverage Associates ("F B"), Consolidated Edison, Inc. ("Con Ed"), and Consolidated Edison Company of New York, Inc. ("Con Ed NY"), alleging negligence, strict products liability and breach of warranty arising from plaintiff's exposure to carbon monoxide. The First Action asserts that KRT owns the property where the Restaurant is located and that plaintiff was employed at the Restaurant by Silvestri, F B, and/or Seafood Peddler. The First Action additionally asserts that Con Ed and/or Con Ed N.Y. had a duty to install, approve, inspect, maintain, supervise, service, and/or repair the hot water heaters at the Restaurant. In her affidavit in support of plaintiff's motion to remand, plaintiff's counsel has provided undisputed proof that three of these defendants — Con Ed, Con Ed NY, and Seafood Peddler — are incorporated in and have their principal place of business in New York.
After filing the First Action, plaintiff learned that there were two hot water heaters at the Restaurant, one manufactured by Lochinvar, incorporated and with its principal place of business in Tennessee, the other manufactured by A.O. Smith, incorporated in Delaware with its principal place of business in Wisconsin, and that one or both had component parts manufactured by Tjernlund, incorporated and with its principal place of business in Minnesota. Plaintiff filed a summons with notice ("Second Action") on November 8, 2000, against Lochinvar, A.O. Smith, and Tjernlund, alleging that defendants were negligent in the manufacture, distribution, marketing, and sale of the products that caused the release of carbon monoxide in the Restaurant, and that defendants were strictly liable in tort and were liable for breach of warranty arising out of the defendants' design, assembly, manufacture, installation, and repair of the heaters. On February 28, 2001, the Second Action was removed to federal court by defendant A.O. Smith. Defendants Tjernlund and Lochinvar consented to A.O. Smith's removal of the Second Action to federal court.
On March 28, 2001, plaintiff moved to remand the Second Action to the New York State Supreme Court, Bronx County, on the ground that A.O. Smith's notice of removal was defective pursuant to 28 U.S.C. § 1446. In the alternative, plaintiff moved, pursuant to Rule 20, Fed.R.Civ.P., to amend the Second Action to incorporate the defendants and claims asserted in the First Action and then remand the case to state court for lack of subject matter jurisdiction pursuant to 28 U.S.C. § 1447(e).
DISCUSSION
Rule 20 of the Federal Rules of Civil Procedure provides, in relevant part, that:
All persons . . . may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action.
Fed.R.Civ.P. 20(a). It is in the district court's discretion to allow or deny a motion for joinder of additional parties. Briarpatch Ltd., L.P. v. Pate, 81 F. Supp.2d 509, 515 (S.D.N Y 2000). Under the Federal Rules, "the impulse is toward the broadest possible scope of action consistent with fairness to the parties; joinder of claims, parties and remedies is strongly encouraged." Wyant v. National R.R. Passenger Corp., 881 F. Supp. 919, 921 (S.D.N.Y. 1995) (citation omitted).
Plaintiff asserts that the defendants sued in the Second Action improperly designed, manufactured, installed, and/or repaired the hot water heaters, and that the defendants in the First Action negligently maintained the Restaurant premises, failed to warn plaintiff of the danger of carbon monoxide poisoning, and intentionally disregarded signs of carbon monoxide poisoning. Plaintiff's allegations and right to relief against the defendants in the First and Second Actions arise out of the same occurrence or occurrences of alleged carbon monoxide poisoning, and the same questions of law and fact will be raised in both Actions. Joinder is, therefore, appropriate. See, e.g., Juliano v. Toyota Motor Sales, U.S.A., Inc., 20 F. Supp.2d 573, 576 (S.D.N.Y. 1998) (car dealer joined in action against manufacturer for negligent design and manufacture of car's airbags because dealer had a duty to warn about known dangers in the use of the airbags); Wyant, 881 F. Supp. at 922 (maintenance company joined in personal injury action against Amtrak resulting from fall in Amtrak waiting area because maintenance company's negligence could have contributed to the condition of the floor).
If joinder will destroy the court's diversity jurisdiction — as it will in this case, because Quizhpi and at least three defendants in the First Action are residents of New York — it is in the court's discretion to "deny joinder, or permit joinder and remand the action to the State court." 28 U.S.C. § 1447(e). In determining whether joinder despite the lack of diversity of the parties will comport with principles of fundamental fairness, it is appropriate to consider:
(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 plaintiffs' motivation in moving to amend.
Wyant, 881 F. Supp. at 923. Delay is calculated from the time of removal, Juliano, 20 F. Supp.2d at 576, and plaintiff brought this motion less than thirty days after the Second Action was removed to federal court. Defendants have not asserted that they will be prejudiced in any way by remand to state court. In addition, joinder of the defendants in the First and Second Actions will avoid parallel litigation currently pending in state and federal court. See id. Finally, because this action was previously brought in state court, and plaintiff seeks to join parties who are litigants in a related state action based upon the same facts, it is clear that plaintiff is not moving for joinder solely to destroy diversity jurisdiction but, rather, because he seeks to recover through the efficient pursuit of litigation from those who are liable to him. See id. at 576-77; Wyant, 881 F. Supp. at 923. It is additionally worth noting that A.O. Smith's and Lochinvar's only objection to plaintiff's motion to amend was that plaintiff did not file a proposed amended complaint with his motion (and plaintiff did, in fact, file a proposed amended complaint with his reply).
Because plaintiff's motion for joinder is allowed under Rule 20, Fed.R.Civ.P., and comports with principles of fundamental fairness, it is granted, despite the fact that it will destroy this Court's subject matter jurisdiction over the case. Having found that it is appropriate to amend plaintiff's complaint and remand the action to state court, it is unnecessary to address plaintiff's contention that A.O. Smith's notice of removal was procedurally defective.
CONCLUSION
Plaintiff's motion to amend is granted. Plaintiff is directed to serve and file an amended complaint by June 15, 2001. Immediately upon filing and service of the amended complaint, the Clerk of Court is directed to remand the case to the New York State Supreme Court, Bronx County.
SO ORDERED: