Olga Kunina v. 7 West 82 LLC and Michel Kadoe, No. 15-cv-4755 (S.D.N.Y Nov. 12, 2015) [click for opinion]

Plaintiff, a German citizen, filed a diversity action alleging sexual harassment and intentional and negligent infliction of emotional distress against 7 West 82 LLC, Michael Kadoe, and Eli Kadoch (Kadoe’s brother and an employee of 7 West 82 LLC).  Limited discovery revealed that Kadoch was an Israeli citizen. 

Federal courts have original jurisdiction over matters where the amount in controversy exceeds $75,000, and the where the dispute is between citizens of a State and citizens or subjects of a foreign state.  Where two aliens are present on both sides of a case, diversity jurisdiction is destroyed.  Thus, Plaintiff voluntarily dismissed Kadoch from the case to preserve jurisdiction.

Following Plaintiff’s voluntary dismissal, the remaining Defendants filed a motion to dismiss for lack of subject matter jurisdiction and for failure to join an indispensable party.  Whether a case should be dismissed for failure to join an indispensable party is determined by a two-step test: (1) whether a party is required to be joined if feasible and; (2) if necessary, whether joinder of that party is feasible in the face of jurisdictional and other concerns.  A party must be joined if the court cannot afford complete relief among existing parties, or if the proceeding would impede an interest claimed by the absent party or expose present parties to double, multiple, or inconsistent obligations because of that interest.  If joinder is infeasible, but the party is indispensable, the court must dismiss the action.

Here, the court determined that Kadoch was not a necessary party to the action, because Plaintiff could be accorded complete relief on either a joint or vicarious theory of liability.  Plaintiff’s complaint alleged that Kadoch was an employee of 7 West 82 LLC and that all Defendants were aware of and participated in the conduct that served as the basis for her claim.  Because 7 West 82 LLC and Kadoe were alleged to be joint tortfeasors with Kadoch, and 7 West 82 LLC was the alleged employer responsible for Kadoch’s actions on the theory of respondeat superior, the court held that Kadoch was not necessary.  Furthermore, the fact that Kadoch did not claim an interest relating to the subject of the action was a further indication that he was not a necessary party. 

Because the court determined that Kadoch was not a necessary party, it denied the motion to dismiss.

Terri Segura of the Washington, DC office contributed to this summary.