Abuhouran v. Kaiserkane, Inc. et al
Filing
95
OPINION. Signed by Judge Noel L. Hillman on 9/12/2012. (TH, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
HITHAM ABUHOURAN,
Civil No. 10-6609 (NLH/KMW)
Plaintiff,
OPINION
v.
KAISERKANE, INC., et al.,
Defendants.
APPEARANCES:
Hitham Abuhouran
No. 18939-050
FPC Schuylkill
P.O. Box 670
Minersville, Pennsylvania 17954
Pro Se
Robert L Ritter, Esquire
Schiffman, Berger, Abraham, Kaufman & Ritter, P.C.
Three University Plaza
P.O. Box 568
Hackensack, New Jersey 07602
Attorney for Defendants KaiserKane, Inc. and KaiserKane
Paul Joseph Smyth, Esquire
Sean X. Kelly, Esquire
Sebastian A. Goldstein, Esquire
Marks, O'Neill, O'Brien & Courtney PC
6981 North Park Drive
Suite 300
Pennsauken, New Jersey 08109
Attorneys for Defendants North American Roofing
and David Donaldson
HILLMAN, District Judge
This motion comes before the Court by way of Defendants
North American Roofing’s (“NAR”) and David Donaldson’s motion
[Doc. No. 82] seeking dismissal of Plaintiff’s second amended
complaint pursuant to Federal Rule of Civil Procedure 12(b)(7)
for failure to join an indispensable party pursuant to Rule 19,
in which Defendant KaiserKane, Inc. (“KaiserKane”) joins.1
The
Court has considered the parties’ submissions and decides this
matter pursuant to Federal Rule of Civil Procedure 78.
For the reasons expressed below, Defendants’ motion to
dismiss is granted.
I.
JURISDICTION
The Court exercises subject matter jurisdiction over this
action asserting New Jersey state law claims based on the
diversity of citizenship of the parties and an amount in
controversy in excess of $75,000 pursuant to 28 U.S.C. § 1332.
(See Pl.’s Second Am. Compl. [Doc. No. 78] 1-3, 9-11.)
1. Defendant KaiserKane indicated that it was joining Defendants
NAR and Donaldson’s motion to dismiss the second amended
complaint for failure to join an indispensable party by way of a
supplemental affidavit of Robert L. Ritter, Esquire, counsel for
KaiserKane filed in support of KaiserKane’s motion for summary
judgment [Doc. No. 83] against Defendants NAR and Donaldson.
(See Supplemental Aff. of Robert L. Ritter, Esq. in Further Supp.
of KaiserKane’s Mot. for Summ. J. Against North American Roofing
[Doc. No. 91] ¶ 7.)
2
II.
BACKGROUND
A. Plaintiff’s Second Amended Complaint
Plaintiff, formerly an inmate at the Federal Correctional
Camp at Schuylkill (“FCC-Schuylkill”),2 generally alleges that
while previously incarcerated at the Federal Correctional
Institution in Fort Dix, New Jersey (“FCI-Fort Dix”), he was
exposed to asbestos when Defendants performed a re-roofing and
asbestos abatement project on building 5703 at FCI-Fort Dix.
(Pl.’s Second Am. Compl. ¶ 1.)
Plaintiff names the following
Defendants in the second amended complaint: (1) KaiserKane, the
general contractor for the re-roofing project; (2) NAR, the
subcontractor on the project which KaiserKane hired to perform
the re-roofing and asbestos abatement work; and (3) David
Donaldson (“Donaldson”), an officer of NAR.3
Based on a number
of alleged violations committed by Defendants during the reroofing and asbestos abatement project, Plaintiff asserts the
following three counts against all Defendants: (1) Count One Gross Negligence; (2) Count Two - Common Law Fraud; (3) Count
2. Plaintiff was released from prison on approximately April 3,
2012. (Pl.’s Second Am. Compl. 2.)
3. In Plaintiff’s original complaint he also named as
Defendants: (1) Briggs Contracting Services, Inc., the subsubcontractor on the project, hired by NAR, which conducted the
asbestos abatement at FCI-Fort Dix; (2) Rod Richardson, the
project manager for Briggs; (3) American Safety Indemnity
Company, an insurance company listed on an insurance binder for
KaiserKane; and (4) Companion Property and Casualty Insurance.
3
Three - Negligence.
B.
(Id. ¶¶ 35-41.)
Procedural Background
As the Court previously set forth in its December 19, 2011
Opinion, Plaintiff filed his original complaint in the United
States District Court for the Middle District of Pennsylvania
(“the Middle District”) on November 3, 2010.
By Order dated
December 20, 2010, the Honorable A. Richard Caputo, United States
District Judge, adopted the November 29, 2010 Report and
Recommendation of the Honorable Thomas M. Blewitt, United States
Magistrate Judge, recommending that Plaintiff’s case be
transferred to the District of New Jersey pursuant to 28 U.S.C. §
1404.
(Order [Doc. No. 15] 1, Dec. 20, 2010.)
The November 29,
2010 Report and Recommendation adopted by the Middle District
found that Plaintiff failed to meet “his burden of proving [that]
diversity of citizenship exists in this case” because Plaintiff
failed to allege his own citizenship, or that of Defendants.
(Report and Recommendation [Doc. No. 9] 6, 10-11, Nov. 29, 2010.)
The Middle District recognized that it did not appear from the
complaint that the “citizenship of all Defendants [was] diverse
from that of Plaintiff[.]”
(Id.)
After Plaintiff’s case was transferred from the Middle
District, this Court issued an Opinion and Order on December 19,
2011 with respect to the claims and allegations set forth in
Plaintiff’s original complaint [Doc. No. 1].
4
In addition to the
same three counts alleged in the second amended complaint,
Plaintiff’s original complaint also set forth a count for
violations of the Clean Air Act.
Based on his claim under the
Clean Air Act, Plaintiff asserted that the Court could exercise
jurisdiction over his federal law claim pursuant to 28 U.S.C. §
1331, and could exercise supplemental jurisdiction over
Plaintiff’s state law claims pursuant to 28 U.S.C. § 1367.4
Recognizing that federal courts have an independent
obligation to address issues of subject matter jurisdiction sua
sponte and may do so at any stage of the litigation, the Court
dismissed Plaintiff’s Clean Air Act claim with prejudice finding
that the claim “impermissibly [sought] compensatory and punitive
damages under the Clean Air Act and thus fail[ed] to state a
claim for which federal question jurisdiction exists.”5
Abuhouran v. Kaiserkane, Inc., No. 10-6609, 2011 WL 6372208, at
*3, 5 (D.N.J. Dec. 19, 2011) (citations omitted).
After
concluding that federal question jurisdiction was lacking based
on the allegations of Plaintiff’s original complaint, the Court
went on to examine Plaintiff’s assertion that the Court could
4. Plaintiff’s original complaint simultaneously asserted that
the Court also had jurisdiction over his state law claims based
on diversity of citizenship pursuant to 28 U.S.C. § 1332.
5. Specifically, the Court found that the Clean Air Act does not
allow for a private right of action for damages based on personal
injuries. Abuhouran v. Kaiserkane, Inc., No. 10-6609, 2011 WL
6372208, at *4 (D.N.J. Dec. 19, 2011) (citations omitted).
5
properly exercise original jurisdiction over his state law claims
based on diversity of citizenship jurisdiction.
Id. at *5-6.
Upon a thorough review of the original complaint, the Court found
that “Plaintiff's complaint [was] essentially silent as to the
citizenship of the parties, and ... [was] subject to dismissal
for lack of jurisdiction.”
However, rather than dismissing
Plaintiff’s original complaint outright, the Court, considering
Plaintiff’s pro se status, ordered Plaintiff to show cause why
his remaining state law claims should not be dismissed for lack
of subject matter jurisdiction and directed Plaintiff to file an
amended complaint within thirty days properly alleging diversity
of citizenship.
Id. at *6.
Pursuant to the Court’s December 19, 2011 Opinion and Order
to Show Cause, Plaintiff filed an amended complaint [Doc. No. 76]
on January 3, 2012.
In his amended complaint, Plaintiff asserted
that jurisdiction was proper based on diversity of citizenship
under Section 1332 and named the following Defendants:
KaiserKane, NAR, David Donaldson, Briggs Contracting Services,
Inc. (“Briggs”), and Rod Richardson (“Richardson”).
Am. Compl. [Doc. No. 76] 1, ¶¶ 2-6.)
(See Pl.’s
Upon reviewing Plaintiff’s
amended complaint for compliance with the Order to Show Cause,
the Court concluded that “based on the allegations of the amended
complaint, complete diversity of citizenship between the parties
[was] lacking, because both Plaintiff and Defendant Briggs
6
Contracting Services, Inc. [were] citizens of the state of New
Jersey[.]” (Order [Doc. No. 77] 2, Jan. 6, 2012.)
Accordingly,
the Court found that Plaintiff’s amended complaint was also
subject to dismissal for lack of jurisdiction.6
(Id. at 2-3.)
However, out of an abundance of caution, the Court permitted
Plaintiff “an additional opportunity to amend his complaint to
properly plead a cause of action within the Court’s subject
matter jurisdiction prior to dismissing Plaintiff’s complaint.”
(Id. at 3.)
Thus, the Court ordered Plaintiff to file a second
amended complaint within thirty days.
(Id.)
In response to the Court’s January 6, 2012 Order, Plaintiff
filed a second amended complaint [Doc. No. 78] on January 19,
2012.
Plaintiff’s second amended complaint properly alleged
diversity of citizenship jurisdiction between Plaintiff, a
citizen of New Jersey, and the named Defendants: KaiserKane, a
citizen of Virginia, NAR, a citizen of North Carolina, and
Donaldson, a citizen of North Carolina.7
Plaintiff indicates,
6. In so noting, the Court specifically recognized that
Plaintiff had not “brought forth a federal claim arising from a
violation of his constitutional rights or any other federal
statute, nor ha[d] Plaintiff named or served any federal agency,
entity, or employee, as a defendant in this action” and that
“subject matter jurisdiction pursuant to either 28 U.S.C. §§
1331, 1332 [was] lacking in this case[.]” (Id. at 3.)
7. Plaintiff’s second amended complaint does not specifically
allege the citizenship of Defendant David Donaldson. However, in
light of the Plaintiff’s pro se status, the Court construes the
complaint liberally, and for purposes of this motion will assume
that Defendant Donaldson, an officer of Defendant NAR, is
7
however, that he “drop[ped] defendants Briggs Contracting
Services Inc., and Rod Richardson, from this complaint to comply
with complete diversity of [c]itizenship in accordance with 28
U.S.C. § 1332.”
(Pl.’s Second Am. Compl. 1.)
III. DISCUSSION
Based on Plaintiff’s failure to name Briggs and Richardson
as defendants in the second amended complaint, Defendants NAR and
Donaldson filed the present motion to dismiss the second amended
complaint pursuant to Federal Rule of Civil Procedure 12(b)(7)
for failure to join an indispensable party pursuant to Rule 19,
in which Defendant KaiserKane joins.
Federal Rule of Civil
Procedure 12(b)(7) provides that defendants may move to dismiss a
plaintiff’s complaint for “failure to join a party under Rule
19.”
FED. R. CIV. P. 12(b)(7).
“Federal Rule of Civil Procedure 19 specifies the
circumstances in which the joinder of a particular party is
compulsory.”
Gen. Refractories Co. v. First State Ins. Co., 500
F.3d 306, 312 (3d Cir. 2007).
As the Third Circuit recently
reiterated, “Rule 19 mandates a two-step process: (1) the court
first must determine whether the absent party is ‘necessary’
under Rule 19(a); and (2) if the party is ‘necessary’ and joinder
is not feasible, then the court must decide whether the party is
similarly a citizen of North Carolina.
8
‘indispensable’ under Rule 19(b).”
Tullett Prebon PLC v. BGC
Partners, Inc., 427 F. App’x 236, 239 (3d Cir. 2011) (citing Gen.
Refractories, 500 F.3d at 312).
If the Court determines that a party is “necessary” under
Rule 19(a), that joinder of the party is not feasible8 because it
will defeat subject-matter jurisdiction, and that the party is
“indispensable” under Rule 19(b), the action cannot proceed.
Gen. Refractories, 500 F.3d at 312; see also Bachner + Co., v.
White Rose Food, Inc., No. 09-2640, 2010 WL 1049847, at *2
(D.N.J. Mar. 17, 2010) (noting that “[d]ismissal under Rule 19
generally requires a three step analysis.
First, a court must
determine whether it is necessary that the absent party be
joined.
Second, a court must see whether it is [feasible] for
the absent necessary party to be joined.
Third, if joinder of
the absent party is not feasible, a court must evaluate whether
in equity and good conscience the action should proceed among the
parties before it, or should be dismissed, the absent person
being thus regarded as indispensable.”) (citations, internal
quotations, and footnotes omitted); Develcom Funding, LLC v. Am.
Atl. Co., No 09-1839, 2009 WL 2923064, at *2 (D.N.J. Sept. 9,
2009) (recognizing that “[u]nder Rule 19, if joinder of an
unnamed party would defeat federal subject-matter jurisdiction,
8. In circumstances where joinder of a party would defeat
diversity of citizenship joinder of that party is considered not
feasible. Gen. Refractories, 500 F.3d at 312.
9
and if the party is deemed both necessary and indispensable to
the action, the complaint must be dismissed.”) (citing Janney
Montgomery Scott, Inc. v. Shepard Niles, Inc., 11 F.3d 399, 404
(3d Cir. 1993)).
In making the determination under Rule 19, the Court may
properly consider evidence outside the pleadings.
YSM Realty,
Inc. v. Grossbard, No. 10-5987, 2011 WL 735717, at *2 (D.N.J.
Feb. 23, 2011) (citing Jurimex Kommerz Transit G.m.b.H. v. Case
Corp., 201 F.R.D. 337, 340 (D. Del. 2001), aff’d in relevant
part, 65 F. App’x 803 (3d Cir. 2003)); see also 5C Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 1359
(3d ed. 2012) (noting that in resolving motions brought under
Rule 12(b)(7) “[t]he district judge is not limited to the
pleadings” and may properly consider affidavits submitted in
support of the motion or other “relevant extra-pleading
evidence”).
IV.
ANALYSIS
A.
Whether Briggs and Richardson are Necessary Parties
Rule 19(a)(1) sets forth the standard employed to determine
whether it is necessary that an absent party be joined.
The Rule
provides in pertinent part that:
[a] person who is subject to service of process and
whose joinder will not deprive the court of
subject-matter jurisdiction must be joined as a
party if:
10
(A) in that person's absence, the court cannot
accord complete relief among existing parties;
or
(B) that person claims an interest relating to
the subject of the action and is so situated
that disposing of the action in the person's
absence may:
(i) as a practical matter impair or
impede the person's ability to protect
the interest; or
(ii) leave an existing party subject to a
substantial risk of incurring double,
multiple, or otherwise inconsistent
obligations because of the interest.
FED. R. CIV. P. 19(a)(1).
As the Third Circuit has previously
explained, the subsections of Rule 19(a) are stated in the
disjunctive, and thus, if either subsection is satisfied, the
absent party is a necessary party that should be joined if
feasible.
Gen. Refractories, 500 F.3d at 312 (citation omitted).
In the present motion, Defendants NAR, Donaldson, and
KaiserKane argue that Plaintiff’s second amended complaint “must
be dismissed because non-parties Briggs Contracting Services,
Inc. and Rod Richardson ..., who[] performed the asbestos
abatement work that is cause for this litigation, are
indispensable parties to this action and [in] the absence of
[Briggs and Richardson], complete relief cannot be accorded among
the existing parties due to entangled questions of [Briggs’ and
Richardson’s] liability.”9
(Defs.’ Br. [Doc. No. 82-3] 4.)
9. Although not articulated in great detail, it appears
Defendants are arguing that Plaintiff’s second amended complaint
must be dismissed under Rule 12(b)(7) because: (1) Briggs and
Richardson are necessary parties who must be joined in this
11
According to Defendants, non-parties Briggs and Richardson, “as
the
parties
with
which
that
performed
Plaintiff
the
actual
asbestos
abatement
associates his alleged harm in this
action, ... are indispensable parties to this claim.”
6.)
(Id. at 5-
In support of their argument that Briggs and Richardson are
both necessary and indispensable, Defendants point to a cross
motion for summary judgment that Briggs and Richardson filed in
relation to the allegations of Plaintiff’s original complaint10
wherein Briggs and Richardson “acknowledged that they were the
parties that performed the asbestos abatement work.”
(citing Cross Mot. for Summ. J. [Doc. No. 67-1] 5).
(Id. at 6)
Based on
their substantial role in conducting the asbestos abatement
project, Defendants argue that Briggs’ and Richardson’s
“perceived liability is a key issue to this action.”
(Defs.’ Br.
[Doc. No. 82-3] 6.)
In opposition, Plaintiff argues that Briggs11 is not a
action because without them complete relief cannot be accorded
among the existing parties; (2) joinder of Briggs and Richardson,
citizens of New Jersey, is not feasible because it would destroy
complete diversity and defeat subject matter jurisdiction since
Plaintiff is also a citizen of New Jersey, and (3) Briggs and
Richardson are indispensable parties to this action.
10. The Court reiterates that at the time this cross motion for
summary judgment was filed, Briggs and Richardson were named as
Defendants in Plaintiff’s original complaint.
11. The Court notes that Plaintiff does not make any arguments
specifically directed at whether or not Richardson is a necessary
party. However, in light of Plaintiff’s pro se status, the Court
construes Plaintiff’s references to Briggs to also include
12
necessary party to this action.
(Pl.’s Reply and Opp’n to Def.’s
Mot. to Dismiss Pl.’s Second Am. Compl. Under Rule 12(b)(7) [Doc.
No. 87] (hereinafter, “Pl.’s Opp’n”), 1.)
Initially, Plaintiff
contends that Briggs is “not necessary under the laws of this
Circuit” and that Defendants will not suffer any prejudice as a
result of the absence of Briggs being named as a Defendant in the
second amended complaint because Defendants already cross-claimed
against Briggs in their responses.
(Pl.’s Opp’n 2.)
Plaintiff
asserts that “[t]he fact that Plaintiff did not include Briggs to
sue joint tortfeasors is not a reason to dismiss this action.”
(Id. at 3.)
Plaintiff appears to argue that the absence of
Briggs in this case is irrelevant because “the possibility that
contribution and indemnification lawsuits may be looming does
not” prevent the case from proceeding, particularly where
Defendants filed cross claims against Briggs.
(Id. at 4.)
According to Plaintiff, “the real responsible parties in this
action” are KaiserKane, the general contractor, and NAR, their
subcontractor, and “the fact that NAR sub-subcontracted their
work to Briggs does not make Briggs [an] essential party to the
case[.]”
(Id.)
Finally, Plaintiff argues that in light of the
fact that Briggs was “joined as a third party through NAR’s
answers to Plaintiff’s complaint[,] [Defendants’] motion must be
dismissed and sanctions imposed[.]”
Richardson as well.
13
(Id. at 5.)
To determine whether Briggs and Richardson are necessary
parties, the Court must review the allegations of Plaintiff’s
second amended complaint.
A careful review of the second amended
complaint compared to the first amended complaint demonstrates
that Plaintiff’s factual allegations in support of his claims
against Defendants KaiserKane, NAR, and Donaldson are virtually
identical to the factual allegations made in the first amended
complaint against Defendants KaiserKane, NAR, Donaldson, Briggs,
and Richardson.
(Compare Pl.’s First Am. Compl. ¶¶ 7-36, with
Pl.’s Second Am. Compl. ¶¶ 5-34.)
The only substantive
difference between the two versions of the complaint, is
contained within paragraph thirty-four of the second amended
complaint and its corresponding footnote, as compared to
paragraph thirty-six of the first amended complaint.
In paragraph thirty-four of the second amended complaint,
Plaintiff alleges that “[t]he defendants collectively failed to
follow their own contractual obligations in removing and
abatement of asbestos at these sites, and further failed to
[enforce] the appropriate methods in the removal process.”
(Pl.’s Second Am. Compl. ¶ 34.)
In a footnote, Plaintiff goes on
to assert that:
[e]ven though the defendant [KaiserKane]
subcontracted the re-roofing and asbestos abatement
to North American Roofing Inc., [KaiserKane was]
still responsible to ensure compliance with Federal
and State Laws governing the asbestos removal. The
same appl[ies] to North American Roofing when they
14
sub-contracted the asbestos removal to the local
contractor Briggs Contracting Services[.] Both
KaiserKane Inc., and North American Roofing are
responsible for their failure to supervise[] and
ensure compliance with Federal and State laws.
(Id. ¶ 34 n.1.)
By comparison, paragraph thirty-six of the first
amended complaint alleges that “[t]he defendants failed to follow
their contractual obligations in removing and abatement of
asbestos.
It was part of their contracts to follow the Federal
and State regulations while the[y] removed asbestos material from
an occupied building.”
(Pl.’s First Am. Compl. ¶ 36.)
This review of Plaintiff’s factual allegations makes clear
that the large majority directly challenge the propriety of the
actions undertaken by non-parties Briggs and Richardson in
allegedly violating asbestos removal regulations thereby
purportedly exposing Plaintiff to asbestos.
For example,
Plaintiff asserts that “all of the violation[s] [of Federal and
State laws] occurred during [the] time” when Briggs, as a subcontractor, performed the asbestos abatement project.
Second Am. Compl. ¶ 7.)
(Pl.’s
Plaintiff also alleges that “the
defendants failed to utilize the standards of asbestos abatement”
by not abiding by general isolation methods, by failing to posit
signs, by not performing HEPA vacuuming, and by not disposing of
the asbestos related materials within polyethylene dumpsters.
(Id. ¶ 10.)
Plaintiff further asserts that defendants failed to
cordon off each work area with caution tape and dangers signs to
15
inform occupants and workers of the removal project.
(Id. ¶ 11.)
These allegations continue, asserting that “the defendants”
failed to: provide polyethylene drop clothes; utilize the “wet
method” and vacuum cleaners to control dust and debris while the
work was performed; provide workers conducting the removal with
respirators and protective clothing; erect temporary screens or
reinforced plastic sheets to prevent the wind from spreading byproducts of the removal to other parts of the building; construct
containment areas or set up negative air ventilation and
filtration systems; set up a containment unit, as well as a
laundry list of other specific failures which allegedly occurred
during the asbestos abatement and removal process itself.
(See,
e.g., id. ¶¶ 12-15, 17-24, 29.)
Although Plaintiff generalizes that “the defendants” engaged
in the conduct set forth above, the second amended complaint
demonstrates that nearly all the alleged conduct Plaintiff
contends resulted in asbestos exposure relates directly to the
actual process of physically removing the asbestos — a function
that was, as all parties admit, performed by Briggs and
Richardson.
All of the alleged violations of state and federal
law purportedly occurred during the removal and abatement process
as conducted by Briggs and Richardson.
To the extent Plaintiff
alleges that Defendants KaiserKane, NAR, and Donaldson are liable
for injuries resulting from his alleged asbestos exposure, the
16
only theory of liability set forth in the second amended
complaint is a claim against these Defendants for their alleged
negligence in failing to properly supervise the manner and method
in which Briggs and Richardson completed the actual asbestos
abatement project.
Here, Plaintiff essentially seeks to recover for the alleged
negligence of both the named Defendants and non-parties Briggs
and Richardson.
However, with respect to Defendants KaiserKane,
NAR, and Donaldson, the second amended complaint asserts
negligence only for these Defendants’ purported failure to
properly supervise the conduct of the non-parties.
The second
amended complaint clearly demonstrates, and the parties do not
dispute, that it was the non-parties, Briggs and Richardson — not
the named Defendants — who engaged in the allegedly negligent
actions that Plaintiff claims resulted in his exposure to
asbestos by performing the abatement and removal.
Under these
circumstances, any finding of negligence on the part of the named
Defendants for their failure to supervise the work of Briggs and
Richardson would necessarily be predicated upon an initial
determination of negligence on the part of these non-parties.
Under Rule 19(a)(1), parties are considered necessary if the
Court cannot accord complete relief among existing parties in
their absence or the absent party’s interest in the subject of
the action may be impaired or impeded if the action is disposed
17
of in their absence.
In this case, the Court finds that Briggs
and Richardson are necessary parties because in their absence the
Court cannot accord complete relief among the existing parties.
With regard to awarding complete relief to the parties
presently before the Court, New Jersey’s Comparative Negligence
Act12 “imposes joint and several liability only on tortfeasors
who are ‘60% or more responsible for the total damages.’ ...
Thus, a tortfeasor who is found to be ‘less than 60% responsible
for the total damages’ is only responsible for the ‘damages
directly attributable’ to that tortfeasor.”
Amboy Bancorporation
v. Bank Advisory Group, Inc., 432 F. App’x 102, 112 (3d Cir.
2011) (citing N.J. STAT. ANN . § 2A:15-5.3).
In environmental tort
actions such as this,13 the Act further provides that “the party
so recovering [] may recover the full amount of the compensatory
damage award from any party determined to be liable, except in
12. The parties do not dispute that New Jersey law governs the
claims alleged in this case to the extent the exercise of
diversity of citizenship jurisdiction is proper.
13. The Appellate Division of the New Jersey Superior Court
previously held that asbestos related litigation seeking damages
for personal injury or death qualify as environmental tort
actions within the meaning of the Comparative Negligence Act.
See Stevenson v. Keene Corp., 603 A.2d 521, 527-28 (N.J. Super.
Ct. App. Div. 1992) (recognizing that “exposure to asbestos
caused by negligent manufacture, use, disposal, handling, storage
and treatment with resulting injury is a ‘tort against the
environment,’ ... involving a hazardous and toxic substance” such
that “asbestos tort litigation [is excepted] from the joint and
several liability modifications” to the Comparative Negligence
Act) (citation omitted).
18
cases where the extent of negligence or fault can be
apportioned.”
N.J. STAT. ANN . § 2A:15-5.3(d)(1) (emphasis added).
Although in some environmental tort cases it may prove
difficult to apportion the extent of negligence or fault between
parties, that is not the circumstance here.
Based on the
allegations of the second amended complaint, because it was nonparties Briggs and Richardson who actually engaged in physically
removing the asbestos at FCI-Fort Dix, the potential exists that
negligence or fault could be apportioned between those involved.
For example, even assuming a jury concluded that the named
Defendants were negligent in supervising the work of Briggs and
Richardson, a jury could also conclude that any purported
negligence by Defendants KaiserKane, NAR, and Donaldson resulted
in less than sixty percent (60%) of Plaintiff’s total damages as
compared to the alleged negligence by Briggs and Richardson.
In
these particular circumstances then, Plaintiff might not be able
to recover the full extent of his alleged damages from the
parties presently named as Defendants.
Thus, there exists a very
distinct likelihood that complete relief cannot be accorded among
those already party to this action in the absence of Briggs and
Richardson.14
Accordingly, Briggs and Richardson are necessary
14. Plaintiff seemingly acknowledges the necessity of Briggs and
Richardson as parties to this action, and it should be noted
again that Plaintiff specifically concedes that Briggs and
Richardson were intentionally dropped as named Defendants from
the first amended complaint to the second amended complaint in
19
parties to this action.15
B.
Whether Joinder of Briggs and Richardson is Feasible
Having determined that Briggs and Richardson are necessary
parties under Rule 19(a), the Court must now consider whether the
joinder of these non-parties is feasible in this case.
Here, the
Court’s exercise of jurisdiction is founded upon diversity of
citizenship jurisdiction pursuant to 28 U.S.C. § 1332.
“In order
for a federal court to have jurisdiction in a diversity suit,
complete diversity of citizenship must exist.”
Murphy, 202 F. App’x 578, 581 (3d Cir. 2006).
Dickson v.
Moreover,
“[c]omplete diversity requires that, in cases with multiple
plaintiffs or multiple defendants, no plaintiff be a citizen of
the same state as any defendant.”
Zambelli Fireworks Mfg. Co. v.
Wood, 592 F.3d 412, 419 (3d Cir. 2010).
As alleged in the second amended complaint, Plaintiff is a
order to ensure that diversity of citizenship existed in this
case.
15. Additionally, the Court also finds that Briggs and
Richardson are necessary parties to this action because their
interests may be impaired or impeded if the action is disposed of
in their absence. As the Court previously recognized, any
finding of negligence on the part of the named Defendants for
their failure to supervise the work of Briggs and Richardson
would necessarily be predicated upon an initial determination of
negligence on the part of these non-parties. If Briggs and
Richardson are absent from this suit, they will be unable to
defend against Plaintiff’s claims while the named Defendants are
likely to argue that all of Plaintiff’s alleged injuries and
damages stem solely and directly from the actions of these nonparties. Thus, these non-parties are necessary to this action as
proceeding without them could impede or impair their interests.
20
citizen of the state of New Jersey.
(Pl.’s Second Am. Compl. 2.)
As alleged in the first amended complaint, Briggs and Richardson
are also citizens of the state of New Jersey.
4.)
(Pl.’s Am. Compl.
Complete diversity between Plaintiff and these necessary
parties is thus lacking.
Therefore, the joinder of Briggs and
Richardson as necessary parties to this action would destroy
complete diversity between the parties and thus deprive the Court
of subject matter jurisdiction.
Accordingly, the Court finds
that joinder of these non-parties is not feasible in this case.
See Gen. Refractories, 500 F.3d at 312 (noting that “joinder is
not feasible [where] ... it would defeat diversity of
citizenship”).
C.
Whether Briggs and Richardson are Indispensable Parties
Because the joinder of these necessary parties is not
feasible, the Court must now determine whether the absent
parties, Briggs and Richardson, are indispensable under Rule
19(b).
Rule 19(b) provides in pertinent part:
If a person who is required to be joined if
feasible cannot be joined, the court must determine
whether, in equity and good conscience, the action
should proceed among the existing parties or should
be dismissed. The factors for the court to consider
include:
(1) the extent to which a judgment rendered
in the person's absence might prejudice
that person or the existing parties;
(2) the extent to which any prejudice could
be lessened or avoided by: (A) protective
provisions in the judgment; (B) shaping
the relief; or (C) other measures;
(3) whether a judgment rendered in the
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(4)
person's absence would be adequate; and
whether the plaintiff would have an
adequate remedy if the action were
dismissed for nonjoinder.
As the Third Circuit has noted, “[t]his is not an exhaustive list
of factors that can be considered, but they are the most
important factors.”
Dickson, 202 F. App’x at 581 (citing
Gardiner v. V.I. Water & Power Auth., 145 F.3d 635, 640–41 (3d
Cir. 1998)).
If an analysis of the factors outlined in Rule
19(b) results in a determination that the absent party must be
considered indispensable, “the action cannot go forward.”
Tullett Prebon, 427 F. App’x at 239 (citing Gen. Refractories,
500 F.3d at 312).
In considering the extent to which a judgment rendered in
the non-party’s absence might prejudice that person or the
existing parties, the Third Circuit has concluded that “the
analysis under this factor ‘overlaps considerably with the Rule
19(a) analysis.’”
Dickson, 202 F. App’x at 582 (citing Gardiner,
145 F.3d at 641 n.4 (3d Cir. 1998)).
Here, the first factor
favors dismissal of Plaintiff’s second amended complaint because,
as the Court set forth above, a judgment rendered in this action
could prejudice Briggs and Richardson because any finding of
negligence on the part of the named Defendants for their failure
to supervise the work of Briggs and Richardson would necessarily
be predicated upon an initial determination of negligence on the
part of these non-parties.
This case necessarily calls for a
22
determination of the propriety of the work conducted by Briggs
and Richardson and whether it violated any state or federal laws
or regulations, and a disposition of this case in their absence
could prejudice their rights to defend such claims.
The second and third factors similarly weigh in favor of
dismissal.
Taking these factors in reverse order, as the Court
noted supra, a very real likelihood exists here that under New
Jersey’s Comparative Negligence Act any judgment obtained by
Plaintiff in the absence of Briggs and Richardson may result in
an award that is inadequate for Plaintiff.
If a jury were to
conclude that the named Defendants were less than sixty-percent
responsible for Plaintiff’s alleged injuries, those Defendants
would only be required to pay that portion of damages for which
they were responsible.
To the extent that Briggs and Richardson
were responsible for any remaining portion of Plaintiff’s alleged
damages, such an award could not be made unless Briggs and
Richardson were parties in the case.
Moreover, the Court is not convinced that protective
provisions in the judgment or any other measures for shaping the
relief in this case could sufficiently protect Briggs’ and
Richardson’s interests if the case proceeds in their absence.
This is particularly true where a finding of negligence against
the named Defendants requires an initial finding of negligence
against these non-parties regarding the nature of the worked they
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conducted at FCI-Fort Dix.
Finally, as to the fourth factor,
Plaintiff has not asserted an adequate reason why his state law
claims cannot be fully vindicated in state court in New Jersey
now that his federal claim has been dismissed and where the
joinder of these necessary parties will destroy this Court’s
subject matter jurisdiction.16
As a result, the factors outlined
in Rule 19(b) demonstrate that Briggs and Richardson are
indispensable in this case.
Accordingly, the Court finds, in short, that the non-joined
parties, Briggs and Richardson, are both necessary and
indispensable in this case.
As their non-diverse citizenship
16. None of the parties have addressed the issue of whether
Plaintiff could timely bring his claims in New Jersey state court
under the applicable statutes of limitations and the Court
expresses no opinion in that regard.
However, New Jersey case law suggests that even if Plaintiff
files an untimely complaint asserting the same claims in state
court after dismissal of this federal action and Defendants
attempt to raise the statute of limitations as a defense, a New
Jersey court may likely consider the doctrines of equitable
tolling and substantial compliance to determine whether the
statute of limitations should be tolled based on the filing of a
claim against the defendants in another jurisdiction. See
Schmidt v. Celgene Corp., 42 A.3d 892, 897 (N.J. Super. Ct. App.
Div. 2012). As the Appellate Division succinctly explained in
Schmidt, New Jersey “courts have applied these doctrines to
excuse an untimely filing in New Jersey where the plaintiff has
filed a timely claim in a federal court ... that was dismissed by
that court for lack of jurisdiction and followed by a prompt
filing in New Jersey.” 42 A.3d at 897-98 (citing cases).
24
renders it impossible for them to be joined, the Court must grant
Defendants’ motion and dismiss this action pursuant to Federal
Rule of Civil Procedure 12(b)(7).
without prejudice.
However, this dismissal is
See,e.g., Guthrie Clinic, Ltd. v. Travelers
Indem. Co., 104 F. App’x 218, 221 (3d Cir. 2004) (“Accordingly, a
finding of indispensability under Rule 19(b) necessitates
dismissal for lack of subject matter jurisdiction.”); Haagensen
v. Supreme Court of Pa., 390 F. App’x 94, 97 n.7 (3d Cir. 2010)
(“A dismissal, ‘except one for lack of jurisdiction, improper
venue, or failure to join a party under Rule 19' constitutes an
‘adjudication on the merits.’”) (citations omitted).
D.
KaiserKane’s Motion for Summary Judgment
Also pending before the Court is a motion [Doc. No. 83] for
summary judgment by KaiserKane against Defendant NAR for
approximately $14,728.18 in legal fees and expenses incurred by
KaiserKane based upon NAR’s alleged failure and refusal to assume
KaiserKane’s defense against Plaintiff’s claims and to indemnify
KaiserKane for its attorneys’ fees pursuant to the subcontract
between KaiserKane and NAR.
In opposing this motion, Defendant
NAR argues that: (1) KaiserKane cannot bring a cause of action
for indemnity in this jurisdiction pursuant to the plain language
of the parties’ subcontract; (2) the motion for summary judgment
is premature because open questions remain as to KaiserKane’s
role in supervising the asbestos abatement project and whether
25
KaiserKane was negligent; (3) KaiserKane has not yet asserted any
cross-claims against NAR because KaiserKane failed to file an
answer and cross-claims in response to Plaintiff’s second amended
complaint, which supersedes both Plaintiff’s original and first
amended complaints, nor did KaiserKane indicate their intent to
adopt their original Answer and cross-claims in response to the
amended pleadings; and (4) the motion is premature because the
Court has not made any findings regarding whether Plaintiff
suffered “bodily injury” based on NAR “negligence” as defined by
the parties’ subcontract.
Here, because Plaintiff’s second amended complaint has been
dismissed for lack of subject matter jurisdiction based on a
finding of indispensability under Rule 19(b), the Court similarly
lacks jurisdiction to decide KaiserKane’s motion for summary
judgment as to NAR on the merits.
Accordingly, KaiserKane’s
motion is dismissed without prejudice.
V.
CONCLUSION
For the foregoing reasons, Defendants’ motion [Doc. No. 82]
to dismiss Plaintiff’s second amended complaint pursuant to
Federal Rule of Civil Procedure 12(b)(7) for failure to join a
party under Rule 19 is granted, and Plaintiff’s second amended
complaint is dismissed without prejudice in its entirety.
Similarly, Defendant KaiserKane’s motion [Doc. No. 83] seeking
26
summary judgment against Defendant NAR is dismissed without
prejudice.
An Order consistent with this Opinion will be
entered.
Dated: September 12, 2012
At Camden, New Jersey
/s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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