Saccenti v. IBM, 39 Fed. R. Serv. 2d (Callaghan) 1286

COUNSEL:

William E. Schkeeper, Esquire, Kronisch & Schkeeper, Esquires, Livingston, New Jersey, Attorneys for Plaintiffs

Dennis J. Krumholz, Esquire, Riker, Danzig, Scherer & Hyland, Esquires, Morristown, New Jersey, Attorneys for Defendant

OPINION BY:
BISSELL

OPINION:

JOHN W. BISSELL, UNITED STATES DISTRICT JUDGE

Plaintiffs' motion for voluntary dismissal of this action was originally returnable on June 4, 1984; however, the Court reserved decision on the matter pending submission of affidavits and additional memoranda on the matter. Plain-tiffs filed the present action in Superior Court of New Jersey, Middlesex County on September 22, 1983, alleging that Christopher Saccenti suffered leukemia as a result of his in utero exposure to toxic chemicals which contaminated the water supply in South Brunswick Township. Plaintiffs allege that the water supply was contaminated as a result of the defendant IBM's dumping of toxic waste into the public water supply.

The case was removed to this Court by defendant on November 4, 1983, alleging diversity of citizenship and an amount in controversy exceeding $ 10,000. Plaintiffs have moved for voluntary dismissal of the present action, without prejudice, since they presently desire to add additional defendants which they allege would destroy the required com-plete diversity of citizenship.

Defendant asserts that plaintiffs have offered no basis for their motion and have not demonstrated "who" the new defendant(s) is (are) and just how diversity will be destroyed. As was stated earlier this Court reserved decision on the matter pending submission of more conclusive evidence of how diversity will be destroyed. Plaintiffs submitted an affidavit stating that they were going to add the Township of South Brunswick as a defendant in the action. Defendant IBM submitted a "supplemental memorandum" stating that the present matter is an improper effort to defeat removal. Defendant asserts that plaintiffs offer no explanation as to why they failed to include the Township at the commence-ment of the case. Defendant also asserts that plaintiffs should be required to demonstrate "the existence of substantial, good faith claims against the Township, properly related to the controversy with IBM, which were reasonably omitted from their complaint. Without such a showing, there can be no justification for overturning removal and interposing genuine disadvantages upon IBM."

Defendant fails to inform the Court what "genuine disadvantages" will be interposed if the case is dismissed and re-filed in Superior Court. While this Court will not allow removal to be defeated by improper or fraudulent joinder of parties,

[a] claim that joinder is fraudulently intended to defeat removal must be asserted with particularity, and supported by clear and convincing evidence. However, it is immaterial that the joinder of a particular party or an assignment is in-tended to defeat jurisdiction, so long as it is not merely colorable or made in bad faith . . . . A party will be considered fraudulently joined when plaintiff has not stated a claim for relief or does not intend to secure judgment against that defendant. But there need be only a possibility that a right exists to avoid this conclusion. (Emphasis added.)

C. Wright & A. Miller, Federal Practice and Procedure, Jurisdiction § 3723 (1976).

There is reason to believe that the Township of South Brunswick may be a proper party defendant. Exercising the discretion vested by Rule 41(a)(2) Fed.R.Civ.P., this Court grants plaintiffs' motion to voluntarily dismiss this action, without prejudice. It is clear, however, that the Township could have been joined as an original defendant, at which point defendant IBM would never have considered or effectuated removal. Accordingly, the Court awards to IBM all taxable costs incurred in this Court, including those associated with its removal petition. A copy of an Order entered today reflecting this decision is annexed hereto.

Dated: July 12, 1984.

ORDER

This matter having been brought before the Court pursuant to plaintiffs' motion for voluntary dismissal under Rule 41(a)(2), Fed. R.Civ.P., for a voluntary dismissal of the present action; and the Court having read and considered all papers submitted in support of and in opposition to said motion; and the Court having issued its Opinion of even date herewith granting said motion;

IT IS, on this of July, 1984, ORDERED that plaintiffs' motion is granted and the present action is dismissed, with-out prejudice, with costs awarded to defendant International Business Machines Corporation.