Opinion
Case No. 02-4108-RDR
November 7, 2002.
MEMORANDUM AND ORDER
This case arises from an automobile accident. The court shall at this time consider the following motions: (1) plaintiffs' motion for voluntary dismissal of defendant Russell (Doc. #26); (2) defendant Russell's motion to dismiss (Doc. #7); (3) defendant Luther's motion to dismiss (Doc. #18). Having carefully reviewed the arguments of the parties, the court is now prepared to rule.
In their original complaint, plaintiffs Sandra R. Moore and Richard L. Moore, Jr. asserted a negligence claim against defendant Virginia M. Luther (Luther), separate fraud claims against defendant State Farm Mutual Automobile Insurance Company (State Farm) and Bradley S. Russell (Russell), and an intentional infliction of emotional distress claim against State Farm. Jurisdiction was based on diversity of citizenship. The complaint identified the plaintiffs as citizens of Kansas, Luther as a citizen of Iowa, Russell as a citizen of Kansas, and State Farm as an Illinois corporation. Plaintiffs suggested that their fraud claim against Russell should be considered by the court under its "pendent jurisdiction."
Since the filing of their original complaint, plaintiffs have been allowed to amend their complaint to add The Cincinnati Insurance Company as a plaintiff. The addition of this party has no impact on the instant motions.
Following the filing of this case, defendant Russell filed a motion to dismiss contending that plaintiffs' cause of action against him failed to state a claim upon which relief could be granted. Thereafter, defendant Luther filed a motion to dismiss arguing that the court lacked subject matter jurisdiction. Luther contended that complete diversity was lacking because plaintiffs and Russell were citizens of Kansas. Finally, plaintiffs filed a motion for voluntary dismissal of defendant Russell. Plaintiffs recognized that the presence of Russell in this case destroyed diversity of citizenship jurisdiction. Plaintiffs sought to dismiss Russell to preserve diversity among the parties.
The court shall initially turn to plaintiffs' motion to voluntarily dismiss Russell. The defendants have failed to timely respond to this motion.
The law is well-settled that a nondiverse party may be dropped pursuant to Fed.R.Civ.P. 21 to preserve diversity jurisdiction if that party's presence in the action is not required by Fed.R.Civ.P. 19. Lenon v. St. Paul Mercury Insurance Co., 136 F.3d 1365, 1371 (10th Cir. 1998); Miller v. Leavenworth-Jefferson Electric Coop., Inc., 653 F.2d 1378, 1382 (10th Cir. 1981). There is little question here that Russell is not an indispensable party to this action. Accordingly, he may be dismissed from the action to preserve diversity.
With the dismissal of defendant Russell, the court shall deny his motion to dismiss as moot. The court shall also deny defendant Luther's motion to dismiss because diversity jurisdiction is now present in this case.
IT IS THEREFORE ORDERED that plaintiffs' motion for voluntary dismissal of defendant Russell (Doc. #26) be hereby granted. Defendant Russell is hereby dismissed from this action.
IT IS FURTHER ORDERED that defendant Russell's motion to dismiss (Doc. #7) be hereby denied as moot.
IT IS FURTHER ORDERED that defendant Luther's motion to dismiss (Doc. #18) be hereby denied.
IT IS SO ORDERED.