Failure To Join Indispensable Parties
Defendants contend that plaintiff has failed to name two former Lee & Harvey employees, Carter and King, who should be joined as defendants to this action.
Defendants assert that neither of these parties may be joined because they are both District of Columbia residents and would destroy the Court's diversity jurisdiction. Accordingly, defendants move for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(7). Plaintiff responds that it is unclear from the record before this Court whether either King or Carter is indispensable, and that discovery will be required to ascertain whether dismissal is warranted. The Court agrees.
Rule 12(b) dismissal motions based on jurisdiction and other questions of fact often require discovery for resolution. See Ziegler Chem. and Mineral Corp. v. Standard Oil, 32 F.R.D. 241, 243 (N.D. Cal. 1962); Greene v. Oster, 20 F.R.D. 198, 199 (S.D.N.Y. 1957). In particular, dismissal for failure to join indispensable parties often requires judicial consideration of matters outside the pleadings. See Sims v. Mack Trucks, Inc., 407 F. Supp. 742, 743 n. 2 (E.D. Penn. 1976).
Federal Rule of Civil Procedure 19 requires a showing by the defendants that failure to join King or Carter would prejudice the defendants such that the action should not, in equity and good conscience, proceed. Defendants contend that Carter has clearly filed this lawsuit to harass his former employer, Lee & Harvey. They furthermore assert that any improper conduct by Lee & Harvey with respect to the failure to file plaintiff's intentional tort claim was that of Carter and of King. The record before the Court does not sufficiently support such an inference at this time. Defendants' motion to dismiss is based on the factual issue of whether Carter and King are indispensable because they are the proper defendants to this action. This determination will require discovery.
Failure To State a Claim Upon Which Relief Can Be Granted
Defendant argues that plaintiff has failed to state a claim upon which relief can be granted for two reasons. First, they argue that defendants Lee and Harvey are both licenced to practice in the District of Columbia, and cannot, therefore, be held liable for improperly supervising defendant Hall, a Maryland attorney. Negligent supervision is recognized as a valid cause of action in the District of Columbia. See, e.g., International Distrib. Corp. v. American Dist. Tel., 186 U.S. App. D.C. 305, 569 F.2d 136, 139 (D.C. Cir. 1977); cf. Restatement (Second) of Agency § 213(c) (1958). Defendants do not provide the Court with any legal support for their position, and the Court fails to understand the significance they attach to the fact that defendants Lee and Harvey are Maryland attorneys.
Second, defendants argue for dismissal on the basis of an alleged conflict of interest between Carter and the other parties, and on the basis of alleged fraud and deceit in the complaint. Carter, on behalf of plaintiff, brought this complaint against members of his old law firm, Lee & Harvey. Defendants contend that Carter himself is at least partially at fault for the failure to bring plaintiff's tort claim before the expiration of the statute of limitations. Defendants argue that Carter signed the complaint in this action, despite his apparent interest in the action, and with knowledge that he was at fault for the conduct he was attributing to the defendants. They contend, therefore, that the complaint should be dismissed.
Viewing the pleadings in the light most favorable to the plaintiff, as this Court is required to do in a Rule 12(b)(6) motion, Doe, 753 F.2d at 1102, plaintiff has stated a legally cognizable claim, and it cannot be defeated by defendants' bare assertion of fraud.
As to defendant's conflict of interest concerns, Carter withdrew as plaintiff's counsel. Concerns of conflict, and defendants' allegations of fraud in general, are more properly the subject of inquiry under Federal Rule of Civil Procedure 11.
Accordingly, defendants' motion to dismiss plaintiff's complaint is denied, except as to the indispensable party issue, and, as to it, plaintiff's motion to conduct discovery on the question of dismissal for failure to join indispensable parties is granted. However, plaintiff must, within 14 days, show good cause for failing to serve defendant Edwin L. Harvey within 120 days after filing her complaint, as is required by Federal Rule of Civil Procedure 4(j). An appropriate Order accompanies this Opinion.
This matter is before the Court on the motion to dismiss of defendants William M. Hall, Sandy K. Lee, Edwin L. Harvey, and Lee & Harvey, on plaintiff's motion to permit discovery for the indispensable party aspect of defendants' motion to dismiss, and on the Court's sua sponte motion to dismiss for insufficient service of process on defendant Harvey. For the reasons explained in the accompanying Opinion, and after consideration of the motions of the parties, the oppositions thereto, and the entire record, it hereby is
ORDERED, that plaintiff's claim against the partnership of Lee & Harvey is dismissed. It hereby further is
ORDERED, that defendants' motion to dismiss is denied, except as to the indispensable party issue, on which the Court will withhold its ruling. It hereby further is
ORDERED, that plaintiff's motion for discovery with regard to defendants' motion to dismiss for failure to join indispensable parties is granted. It hereby further is ORDERED, that plaintiff shall, within 14 days of the date of this Order, show good cause for failing to serve defendant Edwin L. Harvey within 120 days after filing the complaint in this action, absent which the case will be dismissed as to him.1a