# N.E. Bridge Contractors, Inc. v. Aspen Aerials, Inc.

> District Court, D. Massachusetts · March 6, 2019

URL: https://www.frixlaw.com/law-library/cases/10197491

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** March 6, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

United States District Court
District of Massachusetts
)
N.E. Bridge Contractors, Inc., )
)
Plaintiff, )
)
v. )
) Civil Action No.
Aspen Aerials, Inc., ) 18-11748-NMG
)
Defendant. )
)
MEMORANDUM & ORDER
GORTON, J.
This jurisdictional dispute arises out of an underlying
tort suit where a truck equipped for bridge-inspecting
malfunctioned. The plaintiff initially filed its suit in state
court and defendant removed to federal court. Shortly
thereafter, plaintiff amended its complaint to add a non-diverse
defendant and moved to remand.
I. Background
In late 2016, N.E. Bridge Contractors, Inc. (“Bridge
Contractors” or “plaintiff”) purchased a new truck from Tri
State Truck Center, Inc. (“Tri State”). In January, 2017, the
truck was shipped from Tri State to Minnesota, where Aspen
Aerials, Inc. (“Aspen” or “defendant”) affixed bridge inspection
equipment (“the A-62”) onto the truck. Plaintiff took delivery
of the truck with the A-62 equipment in July, 2017. One year
later, the truck malfunctioned while it was rented out to a
third party.
On August 6, 2018, Bridge Contractors, a Massachusetts
company, filed suit against Aspen, a Minnesota company, in
Bristol County Superior Court. Shortly after filing its initial

complaint, plaintiff moved for a preliminary injunction to
prevent Aspen from selling its assets to a third party. The
Bristol County Superior Court declined to hear argument on that
motion but did hear argument on another motion for a preliminary
injunction that plaintiff sought against Aspen with respect to a
different suit that arose in Rhode Island. As part of the two
requests for injunctive relief, plaintiff sought to attach
Aspen’s assets located in Minnesota. On August 10, 2018,
plaintiff filed a separate suit in Minnesota, where Aspen was
named as the only defendant.
One week later, Aspen removed the initial Bristol County
Superior Court action to this Court and had until September 11,

2018, to respond to the removed complaint. Before it did so,
plaintiff filed an amended complaint on August 23 pursuant to
Fed. R. Civ. P. 15(a)(1)(A), which added Western Star Truck
Sales Inc., an Oregon corporation and the manufacturer of the
truck (“Western Star”) and Tri State, a Massachusetts
corporation, as defendants (“the additional defendants”).
Plaintiff filed its motion to remand the day after filing its
amended complaint.
Aspen alleges that plaintiff deliberately added a non-
diverse defendant to destroy diversity through improper
amendment under Fed. R. Civ. P. 15(a)(1). It further contends

that under 28 U.S.C. § 1447, 1) Tri State is a dispensable party
that should be dismissed from this action and 2) the Court
should exercise its equitable power to reject plaintiff’s
amendment.
Plaintiff responds that the claims against Aspen and the
additional defendants arise from the same nexus of operative
facts and that the district court has discretion under § 1447(e)
to remand and not to apply Fed. R. Civ. P. 19(b) mechanically.
It submits that 1) it intended all along to amend the initial
complaint, 2) it was distracted by the pending preliminary
injunction motions in state court and 3) even under a Fed. R.
Civ. P. 19(b) analysis, Tri State is an indispensable party to

this suit.
II. Legal Analysis
A. Fraudulent Joinder Doctrine
The doctrine of “fraudulent joinder”, in which a district
court can disregard, for jurisdictional purposes, the
citizenship of non-diverse defendants at the time of removal,
does not apply after a case has been removed. Universal Truck &
Equip. Co. v. Southworth-Milton, Inc., 765 F.3d 103, 108 (1st
Cir. 2014); Kauders v. Uber Techs., Inc., 2017 U.S. Dist. LEXIS
65912, at *5 (D. Mass. May 1, 2017) (citing Mayes v. Rapoport,
198 F.3d 457, 461 (4th Cir. 1999) (fraudulent joinder has no
effect once the district court actually possesses jurisdiction,

including after the case has been properly removed)).
At issue here is whether Fed. R. Civ. P. 15(a)(1) permits a
plaintiff to add a non-diverse party as a matter of course after
removal. Although the First Circuit has not addressed that
precise issue, most courts have concluded that plaintiffs cannot
destroy diversity through amendment as a matter of right and
have, instead, analyzed whether joinder of the non-diverse
defendant is appropriate under 28 U.S.C. § 1447(e) in the first
instance. Kauders, 2017 U.S. Dist. LEXIS 65912, at *7; see also
Casas Office Machines, Inc. v. Mita Copystar Am., Inc., 42 F.3d
668 (1st Cir. 1994) (annulling a district court’s diversity
jurisdiction when the district court allowed the plaintiff to

substitute an unidentified defendant with a newly identified,
non-diverse defendant after removal).
B. § 1447(e) Analysis
Although the First Circuit has not addressed the precise
issue of Rule 15 amendments post-removal, both the Fourth and
Fifth Circuits found that such joinder is to be determined by
the “sound discretion” of the district court and does not
require a strict Fed. R. Civ. P. 19(b) analysis for
dispensability. Mayes v. Rapoport, 198 F.3d 457, 462 (4th Cir.
1999); Hensgens v. Deere & Co., 833 F.2d 1179 (5th Cir. 1987).
In exercising its discretion under § 1447(e), the district court
is entitled to consider all relevant factors, including:

the extent to which the purpose of the amendment is to
defeat federal jurisdiction, whether the plaintiff has been
dilatory in asking for amendment, whether the plaintiff
will be significantly injured if amendment is not allowed,
and any other factors bearing on the equities.
Mayes, 198 F.3d at 462.
The Court is not convinced that plaintiff’s failure to amend the
Minnesota suit while, at the same time, adding Tri State as a
defendant in this one was done simply to destroy diversity. Nor
does the Court find that plaintiff was dilatory in seeking an
amendment within 21 days of filing its complaint. The Court is,
however, disconcerted by the fact that plaintiff failed to name
Tri State as a defendant in its initial complaint. If Tri State
is an indispensable party, as plaintiff now contends, it should
have named Tri State in the first instance. Moreover, plaintiff
should have clearly foreseen that, under the circumstances,
Aspen not only had the right but indeed was likely to remove
this case to federal court. 28 U.S.C. § 1332.
Notwithstanding plaintiff’s procedural shortcomings, the
Court finds that Tri State is an indispensable party to this
suit pursuant to Fed. R. Civ. P. 19(b). See Casas, 42 F.3d at
675 (holding that indispensability is relevant to a § 1447(e)
analysis).
Fed. R. Civ. P. 19(b) provides that
[T]he court must determine whether, in equity and good
conscience, the action should proceed among the existing
parties or should be dismissed.
In making such a determination, the Court must also consider:
the extent to which 1) a judgment rendered in Tri State’s
absence might prejudice Tri State or the existing parties, and
2) any prejudice could be reduced or avoided, and whether 3) a
judgment rendered in Tri State’s absence would be adequate and
4) plaintiff would have an adequate remedy if the action were
dismissed for non-joinder. Id.
The first factor weighs in favor of joinder. Contrary to
defendant’s contention, Tri State, as the seller of the
allegedly defective truck manufactured by Western Star, is a
related party that may be subject to product liability. See
Rafferty v. Merck & Co., 92 N.E.3d 1205, 1213 (2018) (typically,

where a consumer is injured by a product, Massachusetts law
holds the manufacturer and/or seller responsible under a theory
of products liability); Brown v. Husky Injection Molding Sys.,
Inc., 751 F. Supp. 2d 298, 303 (D. Mass. 2010) (unlike defective
design cases, in manufacturing defect cases plaintiff must show
that the defect was not caused by intermediaries between the
manufacturer and the consumer); see also § 16.9. Seller’s
liability to third person, 37 Mass. Prac., Tort Law § 16.9 (3d
ed.) (noting that the Restatement, Third, Torts does not
differentiate between manufacturers, wholesale distributors and
retail sellers when it comes to product liability). Thus, a
judgment in Tri State’s absence may prejudice Aspen and Western

Star in that neither party may be able to recover damages for
which Tri State could ultimately be responsible. Moreover,
plaintiff may also be prejudiced by having to bear the costs of
separate litigation if joinder is denied.
As to the second factor, there does not appear to be, nor
does either party suggest, any way to structure the federal
litigation so as to avoid the potential severance problems.
The third factor of whether judgment would be “adequate” in
Tri State’s absence relates to the public interest in “complete,
consistent, and efficient settlement of controversies”.
Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S.
102, 111 (1968). Plaintiff contends that the causes of actions

against all three defendants are intertwined and thus judgment
in the absence of any of the three parties would create a risk
that the party actually responsible for a component of the
damage would not be held liable. Moreover, plaintiff submits
that there is a risk of 1) conflicting judgments with parallel
litigation stemming from the same operative facts and/or 2)
deflection of blame to absent defendants resulting in inadequate
recovery. This Court agrees and finds that the third factor
weighs in favor of joinder.
The fourth factor is of less consequence because plaintiff
could bring suit against Tri State in its pending state court
action but that doesn’t counter-balance the first three factors.

On balance, the Court finds that Tri State is an
indispensable party within the meaning of Fed. R. Civ. P. 19(b).
For that primary reason, joinder will be allowed and
consequently, pursuant to § 1447(e), the action will be remanded
to state court.
ORDER

For the foregoing reasons, plaintiff’s motion to remand
(Docket No. 8) is ALLOWED.

So ordered.

_/s/ Nathaniel M. Gorton____
Nathaniel M. Gorton
United States District Judge
Dated March 6, 2019

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10197491. Public record. Not legal advice.