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1991 U.S. Dist. LEXIS 18968
<br />WILLA B. TUCKER, Plaintiff, v. RIO OPTICAL CORPORATION and J.C. PENNEY COMPANY,
<br />INC. Defendants.
<br />CIVIL ACTION No. 91-2064-0
<br />UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS
<br />1991 U.S. Dist. LEXIS 18968
<br />December 6, 1991, Decided
<br />December 6, 1991, Filed
<br />CORE TERMS: joinder, diversity, destroy,
<br />domicile, join, joined, federal jurisdiction,
<br />indispensability, removal, indispensable party,
<br />burden of proof, citizenship, interrogatory,
<br />indispensable, permanently, piecemeal, resident,
<br />disorder, joining, lived
<br />COUNSEL: FOR WILLA B. TUCKER: Thomas
<br />DeCoursey, 206 Brotherhood Building, Kansas
<br />City, KS 66101, 913-321-6700, Pieter A.
<br />Brower, Kraft, Brower and Gordon, 9237 Ward
<br />Parkway - S[e. 200, P.O. Box 33156, Kansas
<br />City, MO 64115-0156 816-361-4800.
<br />FOR RIO OPTICAL CORPORATION: Gregory
<br />S. Brown, Charles A. Ge[to, McAnany, Van
<br />Cleave & Phillips, P.A. 707 Minnesota Ave. -
<br />Ste. 400 P.O. Box 1300 Kansas City, KS 66117
<br />913-371-3838.
<br />however, would destroy diversity. Although [he
<br />exact nature of plaintiffs current request is
<br />somewhat unclear, it appears that plaintiff now
<br />asks [his Court to remand the case to state court
<br />so [hat Dr. Dobson can be joined properly.
<br />Defendants, while conceding that Dr. Dobson is
<br />an indispensable party, contend that his joinder
<br />would no[ destroy diversity.
<br />Federal Rule of Civil Procedure 19 governs the
<br />determination of whether a party is indispensable
<br />to a lawsuit. Under Rule t9(b), indispensability
<br />can only be determined in the context of the ~*2~
<br />particular case. Provident Tradesmens Bank &
<br />Trust Co v. Patterson. 390 U.S. 102, 118 (1968).
<br />Factors for the Court to consider are whether the
<br />plaintiff can be afforded full relief without the
<br />absent party and whether the remaining parties
<br />will be prejudiced by joinder. Fed. R. Civ. P.
<br />19(b1.
<br />FOR J.C. PENNEY COMPANY: Gregory S.
<br />Brown, (See above) Charles A. Getto (See
<br />above).
<br />H. F. DOBSON, Dr, defendant
<br />JUDGES: ~*1] Lungstrum
<br />OPINIONBY:IOHN W.LUNGSTRUM
<br />OPINION: MEMORANDUM AND ORDER
<br />This matter comes before the Court on plaintiffs
<br />motion (Doc. 19) [o join an additional defendant
<br />and remand to state court a professional
<br />negligence action, originally filed in Wyandotte
<br />County District Court and removed to federal
<br />court on [he basis of diversity jurisdiction by
<br />defendant Rio Optical (Rio). The plaintiff
<br />alleges that defendants were negligent in the
<br />treatment of her eye disorder. Plaintiff now
<br />claims that Dr. H.F. Dobson, a physician who
<br />also treated her for the eye disorder, is an
<br />indispensable party to this action who must be
<br />joined. Joinder of this additional defendant,
<br />The parties to this dispute concede [hat Dr.
<br />Dobson is indispensable. Moreover, becausc the
<br />standard for remand in these circumstances does
<br />not turn on a determination of indispensability,
<br />this issue merits little attention. St. Louis Trade
<br />Diverters, Inc. v. Constitution State Insurance
<br />Co 738 F Supp 1269 1271 (E D. Mo 19901
<br />Plaintiff claims that joining Dr. Dobson would
<br />destroy diversity, making federal jurisdiction
<br />improper. There must be complete diversity
<br />between all plaintiffs and all defendants foi
<br />federal jurisdiction to lie. Strawbridue v. Curtiss,
<br />7 U.S. (Cranchl 267 (18061. The defendants,
<br />however, claim that joinder would not destroy
<br />diversity. They claim that plaintiff is a citizen of
<br />Arkansas, defendant Rio is a resident of Texas,
<br />and defendant J.C. Penny's is a resident of
<br />Delaware. Therefore, because Dr. Dobson is a
<br />citizen (*3J of Kansas, his joinder would not
<br />destroy diversity. The plaintiff maintains,
<br />however, that she is a citizen of Kansas, not
<br />Arkansas, and that joining another Kansas
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