Opinion
04 Civ. 2744 (VM)(KNF).
December 12, 2005
REPORT and RECOMMENDATION
TO THE HONORABLE VICTOR MARRERO, UNITED STATES DISTRICT JUDGE.
Defendant Nam-Hi Lee ("Lee") has made an application that the court "grant an order severing [Lee] from this case." She contends that the order should issue because she is a physician and not a principal in any of the business entities that are named as defendants in this action. Moreover, she maintains that she has been made a defendant in the action "as a ploy to intimidate [her] elderly and sick mother." In addition, Lee alleges that her reputation as a physician has been damaged as a result of her being named a defendant in the action and through contact she alleges the plaintiffs have made with a local newspaper.
The plaintiffs oppose Lee's motion. They urge that the court construe the motion liberally, since Lee is proceeding pro se, as one made pursuant to Fed.R.Civ.P. 21 which, among other things, governs the misjoinder of parties to an action. According to the plaintiffs, if Lee's motion is construed as one made pursuant to Fed.R.Civ.P. 21, it must be denied because none of the factors that must be considered when a motion is made pursuant to that Rule militate in favor of granting Lee the relief she seeks. The plaintiffs note, however, that to the extent that Lee's motion might be construed liberally by the court as a request that the case be dismissed, pursuant to Fed.R.Civ.P. 12(b)(6), then the motion should be converted to a motion for summary judgment, made pursuant to Fed.R.Civ.P. 56, and disposed of accordingly. The plaintiffs maintain that such a conversion is necessary because Lee has relied upon matters outside the pleadings in support of the motion that is before the Court. The plaintiffs contend that, if the motion is viewed as one for summary judgment, it must be dismissed because Lee has not provided the Court with facts, via affidavit or otherwise, that would be admissible in evidence to support her motion, as she is required to do by Fed.R.Civ.P. 56(e).
Furthermore, the plaintiffs also contend that Lee failed to comply with Local Civil Rule 56.1 of this court, and that this failure warrants the dismissal of the motion. The relevant provision of that Local Rule requires a party moving for summary judgment to "annex to the notice of motion a separate, short and concise statement of the material fact as to which the moving party contends there is no genuine issue to be tried." Local Civil Rule 56.1(a). The Local Rule also cautions litigants that the "failure to submit such a statement may constitute grounds for denial of the motion." Id. In addition, the plaintiffs note that Lee failed to submit a memorandum of law in support of her motion to sever. The plaintiffs point out that this, too, is a violation of the court's Local Civil Rules, specifically, Local Civil Rule 7.1, and that a willful violation of that Rule is a ground for the dismissal of a motion. For all of the above-noted reasons, the plaintiffs contend the court should deny Lee the relief she seeks through the instant motion.
Fed.R.Civ.P. 20, in its most pertinent part, informs that "[a]ll persons . . . may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action." Fed.R.Civ.P. 20(a). Fed.R.Civ.P. 21 advises that "[p]arties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just." However, the Rule also makes clear that "[m]isjoinder of parties is not ground for dismissal of an action." Fed.R.Civ.P. 21.
"Rule 20(a) provides a two prong test for determining whether the joinder of parties is proper. For joinder to be proper the parties joined must assert, or have asserted against them, a right of relief arising out of the same transaction or occurrence, or the same series of transactions or occurrences. In addition, there must be some question of law or fact common to all the parties." Kovian v. Fulton County Nat'l Bank and Trust Co., No. 86-CV-154, 1990 WL 36809, at *9 (N.D.N.Y. March 28, 1990). The requirements of Fed.R.Civ.P. 20(a) are to be interpreted liberally "to enable the court to promote judicial economy by permitting all reasonably related claims for relief by or against different parties to be tried in a single proceeding."A.I.A. Holdings, S.A. v. Lehman Bros. Inc., No. 97 Civ. 4978, 1998 WL 159059, at *5 (S.D.N.Y. April 1, 1998) (internal quotation marks and citation omitted).
In determining whether claims made by plaintiffs to an action constitute a "single transaction or occurrence" for purposes of Fed.R.Civ.P. 20, "a case by case approach is generally pursued." Mosley v. General Motors Corp., 497 F.2d 1330, 1333 (8th Cir. 1974). "In attempting to affix a definition to 'transaction or occurrence,' courts have found Fed.R.Civ.P. 13(a) to be particularly instructive, and have concluded with reference to that Rule that the phrase encompasses 'all logically related claims.'" Puricelli v. CNA Ins. Co., 185 F.R.D 139, 142 (N.D.N.Y. 1999) (citation omitted).
At this juncture in the litigation, where there has not been a trial and no facts developed during the pretrial discovery phase of the litigation have been presented to the Court for analysis while considering Lee's motion to sever, the Court is required to accept the allegations made by the plaintiffs in their complaint and assume that all the matters alleged by them in the complaint are true and provable. See United States v. Yonkers Bd. of Educ., 518 F. Supp. 191, 193 (S.D.N.Y. 1981). Here, all the plaintiffs allege, inter alia, that they have been injured throughout their respective tenures in the defendants' employ, through a course of conduct by which their employer, the defendants, including Lee, failed repeatedly to compensate them for the hours they worked, in accordance with applicable state and federal laws. As a consequence, the plaintiffs seek damages from the defendants, including Lee, arising out of this course of alleged misconduct.
Based on the allegations in the complaint, the Court finds that the plaintiffs' claims are logically related. Furthermore, the Court also finds that the plaintiffs are seeking relief arising out of the same transaction, occurrence or series of transactions or occurrences, to wit, the alleged repeated failure by their employer, the defendants, including Lee, to compensate them for the hours they worked in accordance with applicable laws. As a result, the Court concludes that the first requirement of the Fed.R.Civ.P. 20(a) test has been met.
In order to satisfy the second requirement of the Fed.R.Civ.P. 20(a) test, some question of law or fact common to all the defendants must be shown to exist. In the instant case, the complaint alleges, among other things, that Lee was, along with the other defendants, the plaintiffs' employer, within the meaning of the Fair Labor Standards Act and New York Labor Law. The complaint also alleges that Lee shared operational control over at least two of the corporate entities that employed the plaintiffs. Moreover, it is alleged in the complaint that Lee, along with the other defendants in the action, had the power to: hire and fire the plaintiffs, control their terms and conditions of employment, and determine the rate and method of any compensation the plaintiffs received in exchange for their employment. These allegations, as noted above, must be accepted as true by the Court as it analyzes Lee's motion to be severed from the action.
Accepting the above-noted allegations as true, the Court finds that questions of fact common to all the defendants exist in the action. They include, for example, whether the defendants, including Lee, were the plaintiffs' employer and, as alleged by the plaintiffs, determined the rate and method of any compensation the plaintiffs received for the work they performed for the defendants. Similarly, a question of law common to all the defendants also appears to be present in this action: whether the defendants, including Lee, were the plaintiffs' employer within the meaning of the Fair Labor Standards Act and pertinent New York law, such that any or all of the defendants may be held liable for the damages the plaintiffs seek to recover through this action. Since the Court finds that questions of fact and law common to all the defendants exist in this case, the second requirement of the Fed.R.Civ.P. 20(a) test has also been met.
Lee has not offered any evidence to the Court that demonstrates either that the plaintiffs have failed to assert a right to relief arising out of the same transaction, occurrence, or series of transactions or occurrences, or that a question of fact or law common to all the defendants is absent from this case. All that Lee has done is assert, through her motion, that: (i) she is not a principal of any of the corporate entities that are named as defendants in the action; and (ii) the plaintiffs have made her a party to the action as a "ploy." However, without more, based on the record evidence, the Court cannot conclude that Lee should be severed from this action.
As discussed above, Fed.R.Civ.P. 21 permits a party who has been misjoined in an action to be dropped from that action. Fed.R.Civ.P. 21 "is silent about the grounds for misjoinder [; however,] courts have held that parties are misjoined when they fail to satisfy either of the preconditions for permissive joinder of parties set forth in Rule 20(a)." Fong v. Rego Park Nursing Home, 95 Civ. 4445, 1996 WL 468660, at *2 (E.D.N.Y. Aug. 7, 1996).
Based on the analysis set forth above, the plaintiffs have met the preconditions outlined in Fed.R.Civ.P. 20(a) for joining Lee and her co-defendants together in this action. Therefore, Lee is properly joined as a defendant in this action, and she is not entitled to be severed from the action pursuant to Fed.R.Civ.P. 21. See Fong, supra. Consequently, the Court recommends that Lee's motion for an order severing her from this action be denied.
Lee included in her motion papers a reference to objections raised to subpoenas served on counsel to the plaintiffs. The Court disposed of that matter previously during a pretrial conference. Therefore, the matter is not addressed in the instant writing.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of the Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Victor Marrero, United States District Judge, 40 Centre Street, Room 414, New York, New York 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Marrero. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993);Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Candair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1998); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).