Catala-Velez v. Metro Santurce Inc, d/b/a Hospital Pava Santurce et al

Filing 50

OPINION AND ORDER granting in part and denying in part 39 Motion to Dismiss. Signed by US Magistrate Judge Marcos E. Lopez on 4/5/2013. (GDR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
FRANK G. CÁTALA-VÉLEZ,
Plaintiff,
v.

CIVIL NO.: 12-1923 (MEL)

METRO SANTURCE, INC.,
d/b/a HOSPITAL PAVÍA SANTURCE, et al.,
Defendants.

OPINION AND ORDER
Pending before the court is a motion to dismiss for lack of subject-matter jurisdiction,
filed by defendant Dr. Ileana Rivera Artés (“defendant”). (D.E. 39). The alleged basis for
federal jurisdiction in the instant case is diversity under 28 U.S.C. § 1332. (See D.E. 6).
Plaintiff has filed a response to said motion. (D.E. 47).
When considering a motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil
Procedure,1 the court may “consider materials outside the pleadings” without “convert[ing] it to a
Rule 56 motion.” González v. United States, 284 F.3d 281, 288 (1st Cir. 2002). As exhibits to
her motion, defendant provides documentation that she is a resident of Florida. (D.E. 39-1 to -4).
Complete diversity is absent with “‘the presence in the action of a single plaintiff from the same
State as a single defendant.’” Picciotto v. Cont’l Cas. Co., 512 F.3d 9, 21 (1st Cir. 2008)
(quoting Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 553 (2005)). The
inclusion of defendant in the instant litigation prevents the existence of complete diversity, as
both she and plaintiff are residents of Florida.

Because “[t]he statutory grant of federal

jurisdiction in diversity cases … requires complete diversity between the plaintiffs and
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Rule 12(b)(1) governs requests for dismissal on the basis of lack of subject-matter jurisdiction.

defendants in an action,” id. at 17 (emphasis in original), defendant contends that the complaint
must be dismissed “in its entirety,” (D.E. 39, ¶ 20).
Plaintiff concedes that defendant was also a resident of Florida at the time of the filing of
the complaint and, thus, there is no diversity jurisdiction if defendant remains as a party. (D.E.
47, at 2). Nevertheless, plaintiff requests dismissal of defendant as a party under Rule 21 of the
Federal Rules of Civil Procedure, rather than dismissal of the entire complaint. Pursuant to Rule
21, “the court may at any time, on just terms, add or drop a party.” Fed. R. Civ. P. 21. Thus, “it
is well settled that Rule 21 invests district courts with authority to allow a dispensable
nondiverse party to be dropped at any time ….” Newman-Green, Inc. v. Alfonzo-Larrain, 490
U.S. 826, 832 (1989). This analysis, therefore, “turns on whether or not a party is dispensable or
indispensable to the instant suit.” Flores v. Wyndham Grand Resort, 873 F. Supp. 2d 444, 449
(D.P.R. 2012). At no point in the pending motion does defendant argue that she is a necessary or
indispensable party to the instant case. Defendant has not asserted that “disposing of the action
in [her] absence may … impair or impede [her] ability to protect [her] interest” in “the subject of
the action.” Fed. R. Civ. P. 19(a)(1)(B). Moreover, “[i]t has indeed long been established that
joint tortfeasors are not indispensable parties.”2 Del Rosario-Ortega v. Star-Kist Caribe, Inc.,
130 F. Supp. 2d 277, 284 (D.P.R. 2001) (citing Temple v. Synthes Corp., Ltd., 498 U.S. 5, 7
(1990)). As such, defendant may be dropped as a party in the instant case.
Defendant’s motion to dismiss (D.E. 39) is GRANTED IN PART and DENIED IN
PART. The amended complaint (D.E. 6) is DISMISSED WITHOUT PREJUDICE only with

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“Solidarity exists when several people take part or cooperate in causing a wrong.” Serrano Strubbe v. Hernandez
Plana, Civ. No. 99-1056 (JAG), 2002 WL 32006329, at *10 (D.P.R. July 2, 2002). Thus, “physicians may be held
jointly and solidarily liable for their multiple acts, omissions and events that combined to cause them, although their
actions are not contemporary, but consecutive.” Id. (citing Riley v. Rodríguez-de Pacheco, 119 D.P.R. 762, 806–07,
19 P.R. Offic. Trans. 806, 851–52 (1987); Cruz v. Centro Médico de Puerto Rico, 113 D.P.R. 719, 744–45, 13 P.R.
Offic. Trans. 931, 960–62 (1983)).

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respect to defendant Dr. Ileana Rivera Artés. No costs, expenses, or attorney’s fees shall be
imposed.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 5th day of April, 2013.
s/Marcos E. López
U.S. Magistrate Judge

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