Garfinkel v. Gerbaz et al

Filing 22

ORDER Denying Defendants' 11 Motion to Dismiss. Signed by Judge Richard P. Matsch on 2/17/2009.(rpmcd) Modified on 2/18/2009 to correct spelling error (jjh, ).

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Senior District Judge Richard P. Matsch Civil Action No. 08-cv-02462-RPM-GJR LARRY GARFINKEL Plaintiff, v. LARRY GERBAZ, and 100 ROAD CATTLE COMPANY, LLC, Defendants. _____________________________________________________________________ ORDER DENYING DEFENDANTS' MOTION TO DISMISS _____________________________________________________________________ On January 13, 2009, the defendants filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(7) for the failure to join as parties those individuals and entities who are plaintiffs in an action pending in the Garfield County District County District Court in Garfield County, Colorado, who are claiming property damage from the same fire which is the basis for the plaintiff's personal injury claim. The contention is without merit. Those state court plaintiffs are neither indispensable nor necessary parties to this action. While the defendants may be adversely affected by litigating in both state and federal court, there is no authority for this Court to deny this non-resident plaintiff his statutory right to proceed under diversity jurisdiction in this court. It is ORDERED that the motion to dismiss is denied. Dated: February 17th, 2009 BY THE COURT: s/Richard P. Matsch _________________________________ Richard P. Matsch, Senior District Judge