Brucker et al v. CBS Corporation et al
Filing
55
Memorandum Opinion and Order: Defendants' motion to dismiss is denied. re 14 . Judge Jeffrey J. Helmick on 4/20/2016. (S,AL)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
Harold Brucker, et al.,
Case No. 3:16 cv 206
Plaintiffs
v.
MEMORANDUM OPINION
CBS Corporation, et al.,
Defendants
BACKGROUND
This is one of two cases commenced by Plaintiffs which arise out of Plaintiff Harold
Brucker’s diagnosis of malignant mesothelioma.
On December 7, 2015, Harold and Christine Brucker commenced suit against twenty-two
defendants in the Superior Court of California, County of Alameda. Brucker, et al. v. Abestos
Companies, et al, Case No. RG14795754. Three days later, on December 10, 2015, Mr. and Mrs.
Brucker initiated the instant litigation in the Court of Common Pleas, Lucas County, Ohio against
sixteen defendants.
On January 28, 2016, Defendants removed the instant litigation to federal court. (Doc. No.
1).
This matter comes before me on Defendant Warren Pumps LLC’s motion to dismiss
pursuant to Fed. R. Civ. P. 12(b)(7). (Doc. No. 14). Also before me are Plaintiffs’ opposition (Doc.
No. 15), and a reply filed by Defendant Weir Valves & Controls USA, Inc. dba Atwood & Morrill
Co., Inc. (Doc. No. 26). For the reasons stated below, the motion to dismiss is denied.
DISCUSSION
A motion for dismissal pursuant to Fed. R. Civ. P. 12(b)(7) necessarily implicates Rule 19,
joinder of an indispensable party. Although Defendants moved for dismissal pursuant to the Ohio
Rules of Civil Procedure 12(B)(7), it also is tied to Ohio Civ. R. 19, which is based in large part on
the language of the federal rule. Ohio Civ. R. 19 (Staff Notes). As there is little difference between
the Ohio and Federal Rules, the analysis is similar and the outcome the same.
The party moving for dismissal under Rule 12(b)(7) bears the burden of showing the absent
person should be joined under Rule 19. Meta v. Target Corp., 74 F.Supp.3d 858, 866 (N.D. Ohio
2015); 2 James Wm. Moore, Moore’s Federal Practice ¶ 12.35 (3d ed. 2015). The analysis
established by the Sixth Circuit addresses whether a case should proceed in the absence of a
particular party as follows:
Assessing whether joinder is proper under Rule 19 is a three-step process. See
4 James Wm. Moore et al., Moore's Federal Practice, § 19.02[3][a], at 19–17 (3d ed. 2003)
(“The compulsory party joinder inquiry is a three-step process.”); 7 Federal Practice &
Procedure § 1604, at 39–40 (describing a three-step process); W. Md. Ry. Co. v. Harbor
Ins. Co., 910 F.2d 960, 961 (D.C.Cir.1990) (Thomas, J.) (“When a party to a federal
lawsuit moves to join a nonparty resisting joinder, the district court must answer
three questions: ... Is the absentee's presence necessary? If the absentee's presence is
necessary, is her joinder feasible? If the absentee's joinder is not feasible, is she
indispensable?”); cf. Local 670, United Rubber Workers v. Int'l Union, United Rubber
Workers, 822 F.2d 613, 618 (6th Cir.1987) (“Local 670 ”) (describing a similar threepart test when a question of personal jurisdiction may make the joinder of a person
unfeasible). First, the court must determine whether the person or entity is a
necessary party under Rule 19(a). See Temple v. Synthes Corp., 498 U.S. 5, 8, 111 S.Ct.
315, 112 L.Ed.2d 263 (1990) (establishing that Rule 19(b) inquiry is required only if
party satisfies the threshold requirements of Rule 19(a)). Second, if the person or
entity is a necessary party, the court must then decide if joinder of that person or
entity will deprive the court of subject matter jurisdiction. W. Md. Ry. Co., 910 F.2d
at 961 (“If the absentee should be joined, can the absentee be joined?”); 4 Moore's
Federal Practice § 19.02[3][b], at 19–18 (“If the absentee is necessary ... the next
question is whether joinder of the absentee is feasible.”). Third, if joinder is not
feasible because it will eliminate the court's ability to hear the case, the court must
analyze the Rule 19(b) factors to determine whether the court should “in equity and
good conscience” dismiss the case because the absentee is indispensable. W. Md. Ry.
Co., 910 F.2d at 961 (“If the absentee cannot be joined, should the lawsuit proceed
without [him or] her nonetheless?”); 4 Moore's Federal Practice § 19.02[3][c], at 19–20
(“Once a necessary absentee's joinder is found infeasible, the court has only two
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options: to proceed or dismiss.”). Thus, a person or entity “is only indispensable,
within the meaning of Rule 19, if (1) it is necessary, (2) its joinder cannot be effected,
and (3) the court determines that it will dismiss the pending case rather than proceed in
the case without the absentee.” 4 Moore's Federal Practice § 19.02[3][c], at 19–22.
Glancy v. Taubman Centers, Inc., 373 F.3d 656, 666 (6th Cir. 2004). (Emphasis in original).
The first question for consideration is whether the California defendants are necessary
parties under Rule 19. Germane to this discussion is whether in the absence of the California
defendants, complete relief cannot be accorded among those already parties. Determination of this
first question is dispositive of the motion.
The Supreme Court noted that “[i]t has long been the rule that it is not necessary for all joint
tortfeasors to be named as defendants in a single lawsuit.” Temple v. Synthes Corp. Ltd., 498 U.S. 5, 7
(1990). (Citations omitted).
Here, the Defendants argue the California defendants are necessary because it impacts the
current defendants’ ability, in the present litigation, to fully and adequately defend themselves under
Ohio’s apportionment of fault statute. Ohio Rev. Code § 2307.22-24. A similar argument was
rejected by the Sixth Circuit in Laethem Equipment Co. v. Deere & Co., 485 Fed. Appx. 39 (6th Cir.
2012), albeit considering a similar apportionment statute under Michigan law. As noted by the Sixth
Circuit, “[c]omplete relief is determined as between persons already parties, ‘and not as between a
party and the absent person whose joinder is sought.’” Id. at 44.
Moreover, Defendants have failed to meet their burden as it pertains to identifying the
necessary party, the location of that party, and whether there is jurisdiction over that party. Meta v.
Target Corp., 74 F.Supp. at 866. While the Defendants raise concerns about parallel discovery in two
different jurisdictions, that is a topic best addressed at a pretrial conference.
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CONCLUSION
Accordingly, the Defendants’ motion to dismiss (Doc. No. 14) is denied.
So Ordered.
s/ Jeffrey J. Helmick
United States District Judge
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