kunina v. 7 West 8nd LLC et al
MEMORANDUM OPINION AND ORDER: For the foregoing reasons, defendants' motion is DENIED. The Clerk of the Court is directed to close this motion (Dkt. No. 18). A conference is scheduled for November 30, 2015 at 4:30 PM. (As further set forth in this Order) (Status Conference set for 11/30/2015 at 04:30 PM before Judge Shira A. Scheindlin.) (Signed by Judge Shira A. Scheindlin on 11/12/2015) (kl)
Kunina is a German citizen.2 She was matched with defendant Michel
Kadoe to work as an au pair in his home through an international exchange
program.3 Kadoe arranged for Kunina’s travel to the United States through his
company, 7 West, which owns and operates a quasi-hotel for short-term renters in
a nine-unit residential brownstone.4 Michel Kadoe is 7 West’s sole managing
member; his brother (and former defendant) Eli Kadoch is an employee of 7 West.5
While working as an au pair, Kunina lived in an employee apartment in the 7 West
building.6 In December 2013, Kunina left her position as an au pair, and 7 West
continued to employ Kunina in a housekeeping role.7 Kunina eventually left this
post, and returned to Germany.8
In July 2014, another female 7 West employee discovered an
All facts recited herein are taken from the Complaint.
See Complaint (“Compl.”) ¶ 16.
See id. ¶ 58.
See id. ¶¶ 7, 17.
See id. ¶¶ 10-11.
See id. ¶ 32.
See id. ¶ 62.
See id. ¶¶ 62-63.
electronic video recording device in her apartment — the same apartment in which
Kunina had resided while working for 7 West.9 The recording device was
purposefully positioned to capture the women in intimate and revealing situations,
including using the bathroom and entering and exiting the shower.10 A subsequent
police investigation resulted in the confiscation of spy cameras, wireless remote
controls, and other electronic equipment from 7 West, and the filing of criminal
charges against Kadoch,11 who can be seen placing and adjusting the hidden
cameras in seized video recordings.12
Kunina subsequently filed this action. Limited discovery was
undertaken by the parties for the purpose of determining the citizenship of certain
parties, which revealed that Kadoch was an Israeli citizen.13 In order to preserve
diversity jurisdiction and this action, Kunina voluntarily dismissed Kadoch from
the case on September 24, 2015.14 Defendants then filed this motion to dismiss,
See id. ¶ 49.
See id. ¶¶ 44-46.
See id. ¶¶ 49-50.
See id. ¶ 42.
See 9/22/15 Letter from Timothy J. Dunn, counsel for defendants, to
See 9/24/15 Notice of Dismissal as to Defendant Eli Kadoch.
arguing that this Court should dismiss Kunina’s complaint as Kadoch is an
indispensable party under Rule 19.
Subject Matter Jurisdiction
Federal courts have limited jurisdiction and may not entertain matters
over which they do not have subject matter jurisdiction.15 Section 1332 of Title 28
of the United States Code confers subject matter jurisdiction to the federal district
courts, giving them original jurisdiction over cases, in relevant part, “where the
matter in controversy exceeds $75,000, exclusive of interest and costs in between .
. . (2) citizens of a State and citizens or subjects of a foreign state[.]”16 “The
general rule requiring complete diversity between opposing parties is explicit and
unequivocal.”17 “[T]he presence of aliens on two sides of a case destroys diversity
See Wynn v. AC Rochester, 273 F.3d 153, 157 (2d Cir. 2001).
28 U.S.C. § 1332(b)(2).
International Shipping Co., S.A., v. Hydra Offshore, Inc., 875 F.2d
388, 391 (2d Cir. 1989).
Corporacion Venezolana de Fomento v. Vintero Sales Corp., 629 F.2d
786, 790 (2d Cir. 1980) (citation omitted). Accord Mentor Ins. Co. (U.K.) Ltd. v.
Brannkasse, 996 F.2d 506, 512 (2d Cir. 1993) (“[T]he alignment of alien
corporations as both plaintiffs and defendants defeats the allegation of diversity
Rule 12(b)(1) Motion to Dismiss
Federal Rule of Civil Procedure 12(b)(1) allows a party to assert by
motion the defense that a court lacks subject matter jurisdiction to hear a claim.
“The plaintiff bears the burden of proving subject matter jurisdiction by a
preponderance of the evidence.”19 Courts also have an “independent obligation to
establish the existence of subject matter jurisdiction.”20 In considering a motion to
dismiss for lack of subject matter jurisdiction, the court must assume the truth of
material facts alleged in the complaint.21
Rule 12(b)(7) Motion to Dismiss
“Rule 19 ‘sets forth a two-step test for determining whether the court
must dismiss an action for failure to join an indispensable party.’”22 The court
begins by determining whether a party is “required to be joined if feasible” under
Al–Khazraji v. United States, 519 Fed. App’x 711, 713 (2d Cir. 2013)
(citing Liranzo v. United States, 690 F.3d 78, 84 (2d Cir. 2012) (quotation marks
In re Standard & Poor’s Rating Agency Litig., 23 F. Supp. 3d 378,
385 (S.D.N.Y. 2014).
See Hijazi v. Permanent Mission of Saudi Arabia to United Nations,
403 Fed. App’x 631, 632 (2d Cir. 2010).
Berkeley Acquisitions, LLC v. Mallow, Konstam & Hager, P.C., Nos.
09 Civ. 2319, 09 Civ. 3771, 2009 WL 2191118, at *3 (S.D.N.Y. July 20, 2009)
(quoting Viacom Int’l, Inc. v. Kearney, 212 F.3d 721, 724 (2d Cir. 2000)).
Rule 19(a).23 Rule 19(a) provides that a party must be joined if the court “cannot
accord complete relief among existing parties,” or if proceeding would impede an
interest claimed by that absent party or expose the present parties to “double,
multiple, or otherwise inconsistent obligations because of [that] interest.”24
If a party is necessary under Rule 19(a), the court must determine
whether joinder of that party is feasible in the face of jurisdictional or other
concerns.25 If joinder is infeasible, but the court determines that a party is
indispensable under Rule 19(b), then the court must dismiss the action.26 Rule
19(b) states that a court should, in determining whether a party is indispensable,
(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
person’s absence would be adequate; and (4) whether the plaintiff
would have an adequate remedy if the action were dismissed for
Fed. R. Civ. P. 19(a).
See Berkeley Acquisitions, 2009 WL 2191118, at *4.
Fed. R. Civ. P. 19(b).
Kadoch is not a necessary party to this action under Rule 19(a)(1)(A),
as Kunina may be accorded complete relief on either a joint or vicarious theory of
liability. She has alleged both that Kadoch was an employee of 7 West, and that all
of the original defendants — 7 West, Kadoe, and Kadoch — were aware of and
participated in the installation and operation of the spy cameras found in her
apartment.28 7 West and Kadoe are therefore alleged joint tortfeasors with Kadoch,
and 7 West is an alleged employer responsible for its employee’s actions on a
theory of respondeat superior. “It is settled federal law that joint tortfeasors are
not indispensable parties,”29 and the Supreme Court has made clear that it is not
necessary for all joint tortfeasors to be named as defendants in a single action.30
The same principle applies to vicarious liability.31
Defendants dedicate the majority of their reply brief to the fact that
plaintiff does not appear to rebut their assertion that Kadoch was never an
See Compl. ¶¶ 19-21.
Samaha v. Presbyterian Hosp. in New York, 757 F.2d 529, 531 (2d
See Temple v. Synthes Corp., 498 U.S. 5, 7 (1990).
See, e.g., Reit v. Post Props., Inc., No. 09 Civ. 5455, 2010 WL
743533, at *2 (S.D.N.Y. Feb. 24, 2010) (holding employee was not a necessary
party in a suit holding employer liable for employee’s tortious actions).
employee of 7 West, arguing this defeats plaintiff’s respondeat superior claim.
This argument is entirely without merit. Plaintiff was under no obligation to
explicitly rebut this assertion in her opposition, as plaintiff alleged Kadoch was an
employee of 7 West in her Complaint.32 The Complaint also alleges Kadoe and 7
West both knew of and were jointly responsible for the placement of the spy
cameras in plaintiff’s apartment.33 This is a motion to dismiss; I do not consider
the alleged facts in parties’ moving papers and supporting declarations, I consider
the facts alleged in the Complaint — and I take them as true. Plaintiff has alleged
both that defendants are joint tortfeasors and that Kadoch was an employee of 7
West, subjecting 7 West to liability on a theory of respondeat superior. These
allegations are sufficient to demonstrate that Kadoch is not necessary under Rule
Nor is Kadoch a necessary party under Rule 19(a)(1)(B). In order to
qualify as a necessary party under Rule 19(a)(1)(B), the absent party — here
Kadoch — must claim an interest relating to the subject of the action.34 Kadoch
See Compl. ¶ 19.
See id. ¶¶ 19-21.
See, e.g., Laborers Local 17 Health & Benefit Fund v. Phillip Morris,
Inc., 179 F.R.D. 417, 420 (S.D.N.Y. 1998) (citing Peregrine Myanmar Ltd. v.
Segal, 89 F.3d 41, 49 (2d Cir. 1996).
- Appearances For Plaintiff:
Anthony C. Varbero, Esq.
Joseph Mure, Jr., Esq. & Associates
26 Court Street, Suite 2601
Brooklyn, NY 11242
Timothy J. Dunn, III, Esq.
Rebore, Thorpe, & Pisarello, P.C.
500 Bi-County Boulevard, Suite 214n
Farmingdale, NY 11735
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