UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

HITHAM ABUHOURAN,

 Plaintiff,

v.

KAISERKANE, INC., et al.,

 Defendants.

Civil No. 10-6609 (NLH/KMW)

OPINION

APPEARANCES:

Hitham Abuhouran

No. 18939-050

FPC Schuylkill

P.O. Box 670

Minersville, Pennsylvania 17954

Pro Se

Robert L Ritter, Esquire

Schiffman, Berger, Abraham, Kaufman & Ritter, P.C.

Three University Plaza 

P.O. Box 568 

Hackensack, New Jersey 07602

Attorney for Defendants KaiserKane, Inc. and KaiserKane

Paul Joseph Smyth, Esquire

Sean X. Kelly, Esquire

Sebastian A. Goldstein, Esquire 

Marks, O'Neill, O'Brien & Courtney PC

6981 North Park Drive 

Suite 300 

Pennsauken, New Jersey 08109

Attorneys for Defendants North American Roofing 

and David Donaldson

Case 1:10-cv-06609-NLH-KMW Document 95 Filed 09/12/12 Page 1 of 27 PageID: 1192
HILLMAN, District Judge

This motion comes before the Court by way of Defendants

North American Roofing’s (“NAR”) and David Donaldson’s motion

[Doc. No. 82] seeking dismissal of Plaintiff’s second amended

complaint pursuant to Federal Rule of Civil Procedure 12(b)(7)

for failure to join an indispensable party pursuant to Rule 19,

in which Defendant KaiserKane, Inc. (“KaiserKane”) joins. The 1

Court has considered the parties’ submissions and decides this

matter pursuant to Federal Rule of Civil Procedure 78. 

For the reasons expressed below, Defendants’ motion to

dismiss is granted. 

I. JURISDICTION

The Court exercises subject matter jurisdiction over this

action asserting New Jersey state law claims based on the

diversity of citizenship of the parties and an amount in

controversy in excess of $75,000 pursuant to 28 U.S.C. § 1332. 

(See Pl.’s Second Am. Compl. [Doc. No. 78] 1-3, 9-11.) 

1. Defendant KaiserKane indicated that it was joining Defendants

NAR and Donaldson’s motion to dismiss the second amended

complaint for failure to join an indispensable party by way of a

supplemental affidavit of Robert L. Ritter, Esquire, counsel for

KaiserKane filed in support of KaiserKane’s motion for summary

judgment [Doc. No. 83] against Defendants NAR and Donaldson. 

(See Supplemental Aff. of Robert L. Ritter, Esq. in Further Supp.

of KaiserKane’s Mot. for Summ. J. Against North American Roofing

[Doc. No. 91] ¶ 7.) 

2

Case 1:10-cv-06609-NLH-KMW Document 95 Filed 09/12/12 Page 2 of 27 PageID: 1193
II. BACKGROUND

A. Plaintiff’s Second Amended Complaint

Plaintiff, formerly an inmate at the Federal Correctional

Camp at Schuylkill (“FCC-Schuylkill”), generally alleges that 2

while previously incarcerated at the Federal Correctional

Institution in Fort Dix, New Jersey (“FCI-Fort Dix”), he was

exposed to asbestos when Defendants performed a re-roofing and

asbestos abatement project on building 5703 at FCI-Fort Dix. 

(Pl.’s Second Am. Compl. ¶ 1.) Plaintiff names the following

Defendants in the second amended complaint: (1) KaiserKane, the

general contractor for the re-roofing project; (2) NAR, the

subcontractor on the project which KaiserKane hired to perform

the re-roofing and asbestos abatement work; and (3) David

Donaldson (“Donaldson”), an officer of NAR. Based on a number 3

of alleged violations committed by Defendants during the reroofing and asbestos abatement project, Plaintiff asserts the

following three counts against all Defendants: (1) Count One -

Gross Negligence; (2) Count Two - Common Law Fraud; (3) Count

2. Plaintiff was released from prison on approximately April 3,

2012. (Pl.’s Second Am. Compl. 2.) 

3. In Plaintiff’s original complaint he also named as

Defendants: (1) Briggs Contracting Services, Inc., the subsubcontractor on the project, hired by NAR, which conducted the

asbestos abatement at FCI-Fort Dix; (2) Rod Richardson, the

project manager for Briggs; (3) American Safety Indemnity

Company, an insurance company listed on an insurance binder for

KaiserKane; and (4) Companion Property and Casualty Insurance. 

3

Case 1:10-cv-06609-NLH-KMW Document 95 Filed 09/12/12 Page 3 of 27 PageID: 1194
Three - Negligence. (Id. ¶¶ 35-41.) 

B. Procedural Background

As the Court previously set forth in its December 19, 2011

Opinion, Plaintiff filed his original complaint in the United

States District Court for the Middle District of Pennsylvania

(“the Middle District”) on November 3, 2010. By Order dated

December 20, 2010, the Honorable A. Richard Caputo, United States

District Judge, adopted the November 29, 2010 Report and

Recommendation of the Honorable Thomas M. Blewitt, United States

Magistrate Judge, recommending that Plaintiff’s case be

transferred to the District of New Jersey pursuant to 28 U.S.C. §

1404. (Order [Doc. No. 15] 1, Dec. 20, 2010.) The November 29,

2010 Report and Recommendation adopted by the Middle District

found that Plaintiff failed to meet “his burden of proving [that]

diversity of citizenship exists in this case” because Plaintiff

failed to allege his own citizenship, or that of Defendants. 

(Report and Recommendation [Doc. No. 9] 6, 10-11, Nov. 29, 2010.) 

The Middle District recognized that it did not appear from the

complaint that the “citizenship of all Defendants [was] diverse

from that of Plaintiff[.]” (Id.)

After Plaintiff’s case was transferred from the Middle

District, this Court issued an Opinion and Order on December 19,

2011 with respect to the claims and allegations set forth in

Plaintiff’s original complaint [Doc. No. 1]. In addition to the

4

Case 1:10-cv-06609-NLH-KMW Document 95 Filed 09/12/12 Page 4 of 27 PageID: 1195
same three counts alleged in the second amended complaint,

Plaintiff’s original complaint also set forth a count for

violations of the Clean Air Act. Based on his claim under the

Clean Air Act, Plaintiff asserted that the Court could exercise

jurisdiction over his federal law claim pursuant to 28 U.S.C. §

1331, and could exercise supplemental jurisdiction over

Plaintiff’s state law claims pursuant to 28 U.S.C. § 1367.4

Recognizing that federal courts have an independent

obligation to address issues of subject matter jurisdiction sua

sponte and may do so at any stage of the litigation, the Court

dismissed Plaintiff’s Clean Air Act claim with prejudice finding

that the claim “impermissibly [sought] compensatory and punitive

damages under the Clean Air Act and thus fail[ed] to state a

claim for which federal question jurisdiction exists.”5

Abuhouran v. Kaiserkane, Inc., No. 10-6609, 2011 WL 6372208, at

*3, 5 (D.N.J. Dec. 19, 2011) (citations omitted). After

concluding that federal question jurisdiction was lacking based

on the allegations of Plaintiff’s original complaint, the Court

went on to examine Plaintiff’s assertion that the Court could

4. Plaintiff’s original complaint simultaneously asserted that

the Court also had jurisdiction over his state law claims based

on diversity of citizenship pursuant to 28 U.S.C. § 1332. 

5. Specifically, the Court found that the Clean Air Act does not

allow for a private right of action for damages based on personal

injuries. Abuhouran v. Kaiserkane, Inc., No. 10-6609, 2011 WL

6372208, at *4 (D.N.J. Dec. 19, 2011) (citations omitted). 

5

Case 1:10-cv-06609-NLH-KMW Document 95 Filed 09/12/12 Page 5 of 27 PageID: 1196
properly exercise original jurisdiction over his state law claims

based on diversity of citizenship jurisdiction. Id. at *5-6. 

Upon a thorough review of the original complaint, the Court found

that “Plaintiff's complaint [was] essentially silent as to the

citizenship of the parties, and ... [was] subject to dismissal

for lack of jurisdiction.” However, rather than dismissing

Plaintiff’s original complaint outright, the Court, considering

Plaintiff’s pro se status, ordered Plaintiff to show cause why

his remaining state law claims should not be dismissed for lack

of subject matter jurisdiction and directed Plaintiff to file an

amended complaint within thirty days properly alleging diversity

of citizenship. Id. at *6. 

Pursuant to the Court’s December 19, 2011 Opinion and Order

to Show Cause, Plaintiff filed an amended complaint [Doc. No. 76]

on January 3, 2012. In his amended complaint, Plaintiff asserted

that jurisdiction was proper based on diversity of citizenship

under Section 1332 and named the following Defendants:

KaiserKane, NAR, David Donaldson, Briggs Contracting Services,

Inc. (“Briggs”), and Rod Richardson (“Richardson”). (See Pl.’s

Am. Compl. [Doc. No. 76] 1, ¶¶ 2-6.) Upon reviewing Plaintiff’s

amended complaint for compliance with the Order to Show Cause,

the Court concluded that “based on the allegations of the amended

complaint, complete diversity of citizenship between the parties

[was] lacking, because both Plaintiff and Defendant Briggs

6

Case 1:10-cv-06609-NLH-KMW Document 95 Filed 09/12/12 Page 6 of 27 PageID: 1197
Contracting Services, Inc. [were] citizens of the state of New

Jersey[.]” (Order [Doc. No. 77] 2, Jan. 6, 2012.) Accordingly,

the Court found that Plaintiff’s amended complaint was also

subject to dismissal for lack of jurisdiction. (Id. at 2-3.) 6

However, out of an abundance of caution, the Court permitted

Plaintiff “an additional opportunity to amend his complaint to

properly plead a cause of action within the Court’s subject

matter jurisdiction prior to dismissing Plaintiff’s complaint.” 

(Id. at 3.) Thus, the Court ordered Plaintiff to file a second

amended complaint within thirty days. (Id.)

In response to the Court’s January 6, 2012 Order, Plaintiff

filed a second amended complaint [Doc. No. 78] on January 19,

2012. Plaintiff’s second amended complaint properly alleged

diversity of citizenship jurisdiction between Plaintiff, a

citizen of New Jersey, and the named Defendants: KaiserKane, a

citizen of Virginia, NAR, a citizen of North Carolina, and

Donaldson, a citizen of North Carolina. Plaintiff indicates, 7

6. In so noting, the Court specifically recognized that

Plaintiff had not “brought forth a federal claim arising from a

violation of his constitutional rights or any other federal

statute, nor ha[d] Plaintiff named or served any federal agency,

entity, or employee, as a defendant in this action” and that

“subject matter jurisdiction pursuant to either 28 U.S.C. §§

1331, 1332 [was] lacking in this case[.]” (Id. at 3.) 

7. Plaintiff’s second amended complaint does not specifically

allege the citizenship of Defendant David Donaldson. However, in

light of the Plaintiff’s pro se status, the Court construes the

complaint liberally, and for purposes of this motion will assume

that Defendant Donaldson, an officer of Defendant NAR, is

7

Case 1:10-cv-06609-NLH-KMW Document 95 Filed 09/12/12 Page 7 of 27 PageID: 1198
however, that he “drop[ped] defendants Briggs Contracting

Services Inc., and Rod Richardson, from this complaint to comply

with complete diversity of [c]itizenship in accordance with 28

U.S.C. § 1332.” (Pl.’s Second Am. Compl. 1.) 

III. DISCUSSION

Based on Plaintiff’s failure to name Briggs and Richardson

as defendants in the second amended complaint, Defendants NAR and

Donaldson filed the present motion to dismiss the second amended

complaint pursuant to Federal Rule of Civil Procedure 12(b)(7)

for failure to join an indispensable party pursuant to Rule 19,

in which Defendant KaiserKane joins. Federal Rule of Civil

Procedure 12(b)(7) provides that defendants may move to dismiss a

plaintiff’s complaint for “failure to join a party under Rule

19.” FED. R. CIV. P. 12(b)(7). 

“Federal Rule of Civil Procedure 19 specifies the

circumstances in which the joinder of a particular party is

compulsory.” Gen. Refractories Co. v. First State Ins. Co., 500

F.3d 306, 312 (3d Cir. 2007). As the Third Circuit recently

reiterated, “Rule 19 mandates a two-step process: (1) the court

first must determine whether the absent party is ‘necessary’

under Rule 19(a); and (2) if the party is ‘necessary’ and joinder

is not feasible, then the court must decide whether the party is

similarly a citizen of North Carolina.

8

Case 1:10-cv-06609-NLH-KMW Document 95 Filed 09/12/12 Page 8 of 27 PageID: 1199
‘indispensable’ under Rule 19(b).” Tullett Prebon PLC v. BGC

Partners, Inc., 427 F. App’x 236, 239 (3d Cir. 2011) (citing Gen.

Refractories, 500 F.3d at 312). 

If the Court determines that a party is “necessary” under

Rule 19(a), that joinder of the party is not feasible because it 8

will defeat subject-matter jurisdiction, and that the party is

“indispensable” under Rule 19(b), the action cannot proceed. 

Gen. Refractories, 500 F.3d at 312; see also Bachner + Co., v.

White Rose Food, Inc., No. 09-2640, 2010 WL 1049847, at *2

(D.N.J. Mar. 17, 2010) (noting that “[d]ismissal under Rule 19

generally requires a three step analysis. First, a court must

determine whether it is necessary that the absent party be

joined. Second, a court must see whether it is [feasible] for

the absent necessary party to be joined. Third, if joinder of

the absent party is not feasible, a court must evaluate whether

in equity and good conscience the action should proceed among the

parties before it, or should be dismissed, the absent person

being thus regarded as indispensable.”) (citations, internal

quotations, and footnotes omitted); Develcom Funding, LLC v. Am.

Atl. Co., No 09-1839, 2009 WL 2923064, at *2 (D.N.J. Sept. 9,

2009) (recognizing that “[u]nder Rule 19, if joinder of an

unnamed party would defeat federal subject-matter jurisdiction,

8. In circumstances where joinder of a party would defeat

diversity of citizenship joinder of that party is considered not

feasible. Gen. Refractories, 500 F.3d at 312. 

9

Case 1:10-cv-06609-NLH-KMW Document 95 Filed 09/12/12 Page 9 of 27 PageID: 1200
and if the party is deemed both necessary and indispensable to

the action, the complaint must be dismissed.”) (citing Janney

Montgomery Scott, Inc. v. Shepard Niles, Inc., 11 F.3d 399, 404

(3d Cir. 1993)). 

In making the determination under Rule 19, the Court may

properly consider evidence outside the pleadings. YSM Realty,

Inc. v. Grossbard, No. 10-5987, 2011 WL 735717, at *2 (D.N.J.

Feb. 23, 2011) (citing Jurimex Kommerz Transit G.m.b.H. v. Case

Corp., 201 F.R.D. 337, 340 (D. Del. 2001), aff’d in relevant

part, 65 F. App’x 803 (3d Cir. 2003)); see also 5C Charles Alan

Wright & Arthur R. Miller, Federal Practice and Procedure § 1359

(3d ed. 2012) (noting that in resolving motions brought under

Rule 12(b)(7) “[t]he district judge is not limited to the

pleadings” and may properly consider affidavits submitted in

support of the motion or other “relevant extra-pleading

evidence”). 

IV. ANALYSIS

A. Whether Briggs and Richardson are Necessary Parties

 Rule 19(a)(1) sets forth the standard employed to determine

whether it is necessary that an absent party be joined. The Rule

provides in pertinent part that:

[a] person who is subject to service of process and

whose joinder will not deprive the court of

subject-matter jurisdiction must be joined as a

party if: 

10

Case 1:10-cv-06609-NLH-KMW Document 95 Filed 09/12/12 Page 10 of 27 PageID: 1201
(A) in that person's absence, the court cannot

accord complete relief among existing parties;

or 

(B) that person claims an interest relating to

the subject of the action and is so situated

that disposing of the action in the person's

absence may: 

(i) as a practical matter impair or

impede the person's ability to protect

the interest; or 

(ii) leave an existing party subject to a

substantial risk of incurring double,

multiple, or otherwise inconsistent

obligations because of the interest.

FED. R. CIV. P. 19(a)(1). As the Third Circuit has previously

explained, the subsections of Rule 19(a) are stated in the

disjunctive, and thus, if either subsection is satisfied, the

absent party is a necessary party that should be joined if

feasible. Gen. Refractories, 500 F.3d at 312 (citation omitted). 

In the present motion, Defendants NAR, Donaldson, and

KaiserKane argue that Plaintiff’s second amended complaint “must

be dismissed because non-parties Briggs Contracting Services,

Inc. and Rod Richardson ..., who[] performed the asbestos

abatement work that is cause for this litigation, are

indispensable parties to this action and [in] the absence of

[Briggs and Richardson], complete relief cannot be accorded among

the existing parties due to entangled questions of [Briggs’ and

Richardson’s] liability.” (Defs.’ Br. [Doc. No. 82-3] 4.) 9

9. Although not articulated in great detail, it appears

Defendants are arguing that Plaintiff’s second amended complaint

must be dismissed under Rule 12(b)(7) because: (1) Briggs and

Richardson are necessary parties who must be joined in this

11

Case 1:10-cv-06609-NLH-KMW Document 95 Filed 09/12/12 Page 11 of 27 PageID: 1202
According to Defendants, non-parties Briggs and Richardson, “as

the parties that performed the actual asbestos abatement

with which Plaintiff associates his alleged harm in this

action, ... are indispensable parties to this claim.” (Id. at 5-

6.) In support of their argument that Briggs and Richardson are

both necessary and indispensable, Defendants point to a cross

motion for summary judgment that Briggs and Richardson filed in

relation to the allegations of Plaintiff’s original complaint10

wherein Briggs and Richardson “acknowledged that they were the

parties that performed the asbestos abatement work.” (Id. at 6)

(citing Cross Mot. for Summ. J. [Doc. No. 67-1] 5). Based on

their substantial role in conducting the asbestos abatement

project, Defendants argue that Briggs’ and Richardson’s

“perceived liability is a key issue to this action.” (Defs.’ Br.

[Doc. No. 82-3] 6.) 

In opposition, Plaintiff argues that Briggs is not a 11

action because without them complete relief cannot be accorded

among the existing parties; (2) joinder of Briggs and Richardson,

citizens of New Jersey, is not feasible because it would destroy

complete diversity and defeat subject matter jurisdiction since

Plaintiff is also a citizen of New Jersey, and (3) Briggs and

Richardson are indispensable parties to this action. 

10. The Court reiterates that at the time this cross motion for

summary judgment was filed, Briggs and Richardson were named as

Defendants in Plaintiff’s original complaint. 

11. The Court notes that Plaintiff does not make any arguments

specifically directed at whether or not Richardson is a necessary

party. However, in light of Plaintiff’s pro se status, the Court

construes Plaintiff’s references to Briggs to also include

12

Case 1:10-cv-06609-NLH-KMW Document 95 Filed 09/12/12 Page 12 of 27 PageID: 1203
necessary party to this action. (Pl.’s Reply and Opp’n to Def.’s

Mot. to Dismiss Pl.’s Second Am. Compl. Under Rule 12(b)(7) [Doc.

No. 87] (hereinafter, “Pl.’s Opp’n”), 1.) Initially, Plaintiff

contends that Briggs is “not necessary under the laws of this

Circuit” and that Defendants will not suffer any prejudice as a

result of the absence of Briggs being named as a Defendant in the

second amended complaint because Defendants already cross-claimed

against Briggs in their responses. (Pl.’s Opp’n 2.) Plaintiff

asserts that “[t]he fact that Plaintiff did not include Briggs to

sue joint tortfeasors is not a reason to dismiss this action.” 

(Id. at 3.) Plaintiff appears to argue that the absence of

Briggs in this case is irrelevant because “the possibility that

contribution and indemnification lawsuits may be looming does

not” prevent the case from proceeding, particularly where

Defendants filed cross claims against Briggs. (Id. at 4.) 

According to Plaintiff, “the real responsible parties in this

action” are KaiserKane, the general contractor, and NAR, their

subcontractor, and “the fact that NAR sub-subcontracted their

work to Briggs does not make Briggs [an] essential party to the

case[.]” (Id.) Finally, Plaintiff argues that in light of the

fact that Briggs was “joined as a third party through NAR’s

answers to Plaintiff’s complaint[,] [Defendants’] motion must be

dismissed and sanctions imposed[.]” (Id. at 5.) 

Richardson as well. 

13

Case 1:10-cv-06609-NLH-KMW Document 95 Filed 09/12/12 Page 13 of 27 PageID: 1204
To determine whether Briggs and Richardson are necessary

parties, the Court must review the allegations of Plaintiff’s

second amended complaint. A careful review of the second amended

complaint compared to the first amended complaint demonstrates

that Plaintiff’s factual allegations in support of his claims

against Defendants KaiserKane, NAR, and Donaldson are virtually

identical to the factual allegations made in the first amended

complaint against Defendants KaiserKane, NAR, Donaldson, Briggs,

and Richardson. (Compare Pl.’s First Am. Compl. ¶¶ 7-36, with

Pl.’s Second Am. Compl. ¶¶ 5-34.) The only substantive

difference between the two versions of the complaint, is

contained within paragraph thirty-four of the second amended

complaint and its corresponding footnote, as compared to

paragraph thirty-six of the first amended complaint. 

In paragraph thirty-four of the second amended complaint,

Plaintiff alleges that “[t]he defendants collectively failed to

follow their own contractual obligations in removing and

abatement of asbestos at these sites, and further failed to

[enforce] the appropriate methods in the removal process.” 

(Pl.’s Second Am. Compl. ¶ 34.) In a footnote, Plaintiff goes on

to assert that: 

[e]ven though the defendant [KaiserKane]

subcontracted the re-roofing and asbestos abatement

to North American Roofing Inc., [KaiserKane was]

still responsible to ensure compliance with Federal

and State Laws governing the asbestos removal. The

same appl[ies] to North American Roofing when they

14

Case 1:10-cv-06609-NLH-KMW Document 95 Filed 09/12/12 Page 14 of 27 PageID: 1205
sub-contracted the asbestos removal to the local

contractor Briggs Contracting Services[.] Both

KaiserKane Inc., and North American Roofing are

responsible for their failure to supervise[] and

ensure compliance with Federal and State laws.

(Id. ¶ 34 n.1.) By comparison, paragraph thirty-six of the first

amended complaint alleges that “[t]he defendants failed to follow

their contractual obligations in removing and abatement of

asbestos. It was part of their contracts to follow the Federal

and State regulations while the[y] removed asbestos material from

an occupied building.” (Pl.’s First Am. Compl. ¶ 36.) 

This review of Plaintiff’s factual allegations makes clear

that the large majority directly challenge the propriety of the

actions undertaken by non-parties Briggs and Richardson in

allegedly violating asbestos removal regulations thereby

purportedly exposing Plaintiff to asbestos. For example,

Plaintiff asserts that “all of the violation[s] [of Federal and

State laws] occurred during [the] time” when Briggs, as a subcontractor, performed the asbestos abatement project. (Pl.’s

Second Am. Compl. ¶ 7.) Plaintiff also alleges that “the

defendants failed to utilize the standards of asbestos abatement”

by not abiding by general isolation methods, by failing to posit

signs, by not performing HEPA vacuuming, and by not disposing of

the asbestos related materials within polyethylene dumpsters. 

(Id. ¶ 10.) Plaintiff further asserts that defendants failed to

cordon off each work area with caution tape and dangers signs to

15

Case 1:10-cv-06609-NLH-KMW Document 95 Filed 09/12/12 Page 15 of 27 PageID: 1206
inform occupants and workers of the removal project. (Id. ¶ 11.) 

These allegations continue, asserting that “the defendants”

failed to: provide polyethylene drop clothes; utilize the “wet

method” and vacuum cleaners to control dust and debris while the

work was performed; provide workers conducting the removal with

respirators and protective clothing; erect temporary screens or

reinforced plastic sheets to prevent the wind from spreading byproducts of the removal to other parts of the building; construct

containment areas or set up negative air ventilation and

filtration systems; set up a containment unit, as well as a

laundry list of other specific failures which allegedly occurred

during the asbestos abatement and removal process itself. (See,

e.g., id. ¶¶ 12-15, 17-24, 29.) 

Although Plaintiff generalizes that “the defendants” engaged

in the conduct set forth above, the second amended complaint

demonstrates that nearly all the alleged conduct Plaintiff

contends resulted in asbestos exposure relates directly to the

actual process of physically removing the asbestos — a function

that was, as all parties admit, performed by Briggs and

Richardson. All of the alleged violations of state and federal

law purportedly occurred during the removal and abatement process

as conducted by Briggs and Richardson. To the extent Plaintiff

alleges that Defendants KaiserKane, NAR, and Donaldson are liable

for injuries resulting from his alleged asbestos exposure, the

16

Case 1:10-cv-06609-NLH-KMW Document 95 Filed 09/12/12 Page 16 of 27 PageID: 1207
only theory of liability set forth in the second amended

complaint is a claim against these Defendants for their alleged

negligence in failing to properly supervise the manner and method

in which Briggs and Richardson completed the actual asbestos

abatement project. 

Here, Plaintiff essentially seeks to recover for the alleged

negligence of both the named Defendants and non-parties Briggs

and Richardson. However, with respect to Defendants KaiserKane,

NAR, and Donaldson, the second amended complaint asserts

negligence only for these Defendants’ purported failure to

properly supervise the conduct of the non-parties. The second

amended complaint clearly demonstrates, and the parties do not

dispute, that it was the non-parties, Briggs and Richardson — not

the named Defendants — who engaged in the allegedly negligent

actions that Plaintiff claims resulted in his exposure to

asbestos by performing the abatement and removal. Under these

circumstances, any finding of negligence on the part of the named

Defendants for their failure to supervise the work of Briggs and

Richardson would necessarily be predicated upon an initial

determination of negligence on the part of these non-parties. 

Under Rule 19(a)(1), parties are considered necessary if the

Court cannot accord complete relief among existing parties in

their absence or the absent party’s interest in the subject of

the action may be impaired or impeded if the action is disposed

17

Case 1:10-cv-06609-NLH-KMW Document 95 Filed 09/12/12 Page 17 of 27 PageID: 1208
of in their absence. In this case, the Court finds that Briggs

and Richardson are necessary parties because in their absence the

Court cannot accord complete relief among the existing parties. 

With regard to awarding complete relief to the parties

presently before the Court, New Jersey’s Comparative Negligence

Act “imposes joint and several liability only on tortfeasors 12

who are ‘60% or more responsible for the total damages.’ ...

Thus, a tortfeasor who is found to be ‘less than 60% responsible

for the total damages’ is only responsible for the ‘damages

directly attributable’ to that tortfeasor.” Amboy Bancorporation

v. Bank Advisory Group, Inc., 432 F. App’x 102, 112 (3d Cir.

2011) (citing N.J. STAT. ANN. § 2A:15-5.3). In environmental tort

actions such as this, the Act further provides that “the party 13

so recovering [] may recover the full amount of the compensatory

damage award from any party determined to be liable, except in

12. The parties do not dispute that New Jersey law governs the

claims alleged in this case to the extent the exercise of

diversity of citizenship jurisdiction is proper. 

13. The Appellate Division of the New Jersey Superior Court

previously held that asbestos related litigation seeking damages

for personal injury or death qualify as environmental tort

actions within the meaning of the Comparative Negligence Act. 

See Stevenson v. Keene Corp., 603 A.2d 521, 527-28 (N.J. Super.

Ct. App. Div. 1992) (recognizing that “exposure to asbestos

caused by negligent manufacture, use, disposal, handling, storage

and treatment with resulting injury is a ‘tort against the

environment,’ ... involving a hazardous and toxic substance” such

that “asbestos tort litigation [is excepted] from the joint and

several liability modifications” to the Comparative Negligence

Act) (citation omitted). 

18

Case 1:10-cv-06609-NLH-KMW Document 95 Filed 09/12/12 Page 18 of 27 PageID: 1209
cases where the extent of negligence or fault can be

apportioned.” N.J. STAT. ANN. § 2A:15-5.3(d)(1) (emphasis added).

Although in some environmental tort cases it may prove

difficult to apportion the extent of negligence or fault between

parties, that is not the circumstance here. Based on the

allegations of the second amended complaint, because it was nonparties Briggs and Richardson who actually engaged in physically

removing the asbestos at FCI-Fort Dix, the potential exists that

negligence or fault could be apportioned between those involved. 

For example, even assuming a jury concluded that the named

Defendants were negligent in supervising the work of Briggs and

Richardson, a jury could also conclude that any purported

negligence by Defendants KaiserKane, NAR, and Donaldson resulted

in less than sixty percent (60%) of Plaintiff’s total damages as

compared to the alleged negligence by Briggs and Richardson. In

these particular circumstances then, Plaintiff might not be able

to recover the full extent of his alleged damages from the

parties presently named as Defendants. Thus, there exists a very

distinct likelihood that complete relief cannot be accorded among

those already party to this action in the absence of Briggs and

Richardson. Accordingly, Briggs and Richardson are necessary 14

14. Plaintiff seemingly acknowledges the necessity of Briggs and

Richardson as parties to this action, and it should be noted

again that Plaintiff specifically concedes that Briggs and

Richardson were intentionally dropped as named Defendants from

the first amended complaint to the second amended complaint in

19

Case 1:10-cv-06609-NLH-KMW Document 95 Filed 09/12/12 Page 19 of 27 PageID: 1210
parties to this action. 

15

B. Whether Joinder of Briggs and Richardson is Feasible

Having determined that Briggs and Richardson are necessary

parties under Rule 19(a), the Court must now consider whether the

joinder of these non-parties is feasible in this case. Here, the

Court’s exercise of jurisdiction is founded upon diversity of

citizenship jurisdiction pursuant to 28 U.S.C. § 1332. “In order

for a federal court to have jurisdiction in a diversity suit,

complete diversity of citizenship must exist.” Dickson v.

Murphy, 202 F. App’x 578, 581 (3d Cir. 2006). Moreover,

“[c]omplete diversity requires that, in cases with multiple

plaintiffs or multiple defendants, no plaintiff be a citizen of

the same state as any defendant.” Zambelli Fireworks Mfg. Co. v.

Wood, 592 F.3d 412, 419 (3d Cir. 2010). 

As alleged in the second amended complaint, Plaintiff is a

order to ensure that diversity of citizenship existed in this

case. 

15. Additionally, the Court also finds that Briggs and

Richardson are necessary parties to this action because their

interests may be impaired or impeded if the action is disposed of

in their absence. As the Court previously recognized, any

finding of negligence on the part of the named Defendants for

their failure to supervise the work of Briggs and Richardson

would necessarily be predicated upon an initial determination of

negligence on the part of these non-parties. If Briggs and

Richardson are absent from this suit, they will be unable to

defend against Plaintiff’s claims while the named Defendants are

likely to argue that all of Plaintiff’s alleged injuries and

damages stem solely and directly from the actions of these nonparties. Thus, these non-parties are necessary to this action as

proceeding without them could impede or impair their interests. 

20

Case 1:10-cv-06609-NLH-KMW Document 95 Filed 09/12/12 Page 20 of 27 PageID: 1211
citizen of the state of New Jersey. (Pl.’s Second Am. Compl. 2.) 

As alleged in the first amended complaint, Briggs and Richardson

are also citizens of the state of New Jersey. (Pl.’s Am. Compl.

4.) Complete diversity between Plaintiff and these necessary

parties is thus lacking. Therefore, the joinder of Briggs and

Richardson as necessary parties to this action would destroy

complete diversity between the parties and thus deprive the Court

of subject matter jurisdiction. Accordingly, the Court finds

that joinder of these non-parties is not feasible in this case. 

See Gen. Refractories, 500 F.3d at 312 (noting that “joinder is

not feasible [where] ... it would defeat diversity of

citizenship”). 

C. Whether Briggs and Richardson are Indispensable Parties

Because the joinder of these necessary parties is not

feasible, the Court must now determine whether the absent

parties, Briggs and Richardson, are indispensable under Rule

19(b). Rule 19(b) provides in pertinent part:

If a person who is required to be joined if

feasible cannot be joined, the court must determine

whether, in equity and good conscience, the action

should proceed among the existing parties or should

be dismissed. The factors for the court to consider

include:

(1) the extent to which a judgment rendered

in the person's absence might prejudice

that person or the existing parties;

(2) the extent to which any prejudice could

be lessened or avoided by: (A) protective

provisions in the judgment; (B) shaping

the relief; or (C) other measures;

(3) whether a judgment rendered in the

21

Case 1:10-cv-06609-NLH-KMW Document 95 Filed 09/12/12 Page 21 of 27 PageID: 1212
person's absence would be adequate; and

(4) whether the plaintiff would have an

adequate remedy if the action were

dismissed for nonjoinder.

As the Third Circuit has noted, “[t]his is not an exhaustive list

of factors that can be considered, but they are the most

important factors.” Dickson, 202 F. App’x at 581 (citing

Gardiner v. V.I. Water & Power Auth., 145 F.3d 635, 640–41 (3d

Cir. 1998)). If an analysis of the factors outlined in Rule

19(b) results in a determination that the absent party must be

considered indispensable, “the action cannot go forward.” 

Tullett Prebon, 427 F. App’x at 239 (citing Gen. Refractories,

500 F.3d at 312).

In considering the extent to which a judgment rendered in

the non-party’s absence might prejudice that person or the

existing parties, the Third Circuit has concluded that “the

analysis under this factor ‘overlaps considerably with the Rule

19(a) analysis.’” Dickson, 202 F. App’x at 582 (citing Gardiner,

145 F.3d at 641 n.4 (3d Cir. 1998)). Here, the first factor

favors dismissal of Plaintiff’s second amended complaint because,

as the Court set forth above, a judgment rendered in this action

could prejudice Briggs and Richardson because any finding of

negligence on the part of the named Defendants for their failure

to supervise the work of Briggs and Richardson would necessarily

be predicated upon an initial determination of negligence on the

part of these non-parties. This case necessarily calls for a

22

Case 1:10-cv-06609-NLH-KMW Document 95 Filed 09/12/12 Page 22 of 27 PageID: 1213
determination of the propriety of the work conducted by Briggs

and Richardson and whether it violated any state or federal laws

or regulations, and a disposition of this case in their absence

could prejudice their rights to defend such claims. 

The second and third factors similarly weigh in favor of

dismissal. Taking these factors in reverse order, as the Court

noted supra, a very real likelihood exists here that under New

Jersey’s Comparative Negligence Act any judgment obtained by

Plaintiff in the absence of Briggs and Richardson may result in

an award that is inadequate for Plaintiff. If a jury were to

conclude that the named Defendants were less than sixty-percent

responsible for Plaintiff’s alleged injuries, those Defendants

would only be required to pay that portion of damages for which

they were responsible. To the extent that Briggs and Richardson

were responsible for any remaining portion of Plaintiff’s alleged

damages, such an award could not be made unless Briggs and

Richardson were parties in the case. 

Moreover, the Court is not convinced that protective

provisions in the judgment or any other measures for shaping the

relief in this case could sufficiently protect Briggs’ and

Richardson’s interests if the case proceeds in their absence. 

This is particularly true where a finding of negligence against

the named Defendants requires an initial finding of negligence

against these non-parties regarding the nature of the worked they

23

Case 1:10-cv-06609-NLH-KMW Document 95 Filed 09/12/12 Page 23 of 27 PageID: 1214
conducted at FCI-Fort Dix. Finally, as to the fourth factor,

Plaintiff has not asserted an adequate reason why his state law

claims cannot be fully vindicated in state court in New Jersey

now that his federal claim has been dismissed and where the

joinder of these necessary parties will destroy this Court’s

subject matter jurisdiction. As a result, the factors outlined 16

in Rule 19(b) demonstrate that Briggs and Richardson are

indispensable in this case. 

Accordingly, the Court finds, in short, that the non-joined

parties, Briggs and Richardson, are both necessary and

indispensable in this case. As their non-diverse citizenship

16. None of the parties have addressed the issue of whether

Plaintiff could timely bring his claims in New Jersey state court

under the applicable statutes of limitations and the Court

expresses no opinion in that regard. 

 However, New Jersey case law suggests that even if Plaintiff

files an untimely complaint asserting the same claims in state

court after dismissal of this federal action and Defendants

attempt to raise the statute of limitations as a defense, a New

Jersey court may likely consider the doctrines of equitable

tolling and substantial compliance to determine whether the

statute of limitations should be tolled based on the filing of a

claim against the defendants in another jurisdiction. See

Schmidt v. Celgene Corp., 42 A.3d 892, 897 (N.J. Super. Ct. App.

Div. 2012). As the Appellate Division succinctly explained in

Schmidt, New Jersey “courts have applied these doctrines to

excuse an untimely filing in New Jersey where the plaintiff has

filed a timely claim in a federal court ... that was dismissed by

that court for lack of jurisdiction and followed by a prompt

filing in New Jersey.” 42 A.3d at 897-98 (citing cases). 

24

Case 1:10-cv-06609-NLH-KMW Document 95 Filed 09/12/12 Page 24 of 27 PageID: 1215
renders it impossible for them to be joined, the Court must grant

Defendants’ motion and dismiss this action pursuant to Federal

Rule of Civil Procedure 12(b)(7). However, this dismissal is

without prejudice. See,e.g., Guthrie Clinic, Ltd. v. Travelers

Indem. Co., 104 F. App’x 218, 221 (3d Cir. 2004) (“Accordingly, a

finding of indispensability under Rule 19(b) necessitates

dismissal for lack of subject matter jurisdiction.”); Haagensen

v. Supreme Court of Pa., 390 F. App’x 94, 97 n.7 (3d Cir. 2010)

(“A dismissal, ‘except one for lack of jurisdiction, improper

venue, or failure to join a party under Rule 19' constitutes an

‘adjudication on the merits.’”) (citations omitted).

D. KaiserKane’s Motion for Summary Judgment

Also pending before the Court is a motion [Doc. No. 83] for

summary judgment by KaiserKane against Defendant NAR for

approximately $14,728.18 in legal fees and expenses incurred by

KaiserKane based upon NAR’s alleged failure and refusal to assume

KaiserKane’s defense against Plaintiff’s claims and to indemnify

KaiserKane for its attorneys’ fees pursuant to the subcontract

between KaiserKane and NAR. In opposing this motion, Defendant

NAR argues that: (1) KaiserKane cannot bring a cause of action

for indemnity in this jurisdiction pursuant to the plain language

of the parties’ subcontract; (2) the motion for summary judgment

is premature because open questions remain as to KaiserKane’s

role in supervising the asbestos abatement project and whether

25

Case 1:10-cv-06609-NLH-KMW Document 95 Filed 09/12/12 Page 25 of 27 PageID: 1216
KaiserKane was negligent; (3) KaiserKane has not yet asserted any

cross-claims against NAR because KaiserKane failed to file an

answer and cross-claims in response to Plaintiff’s second amended

complaint, which supersedes both Plaintiff’s original and first

amended complaints, nor did KaiserKane indicate their intent to

adopt their original Answer and cross-claims in response to the

amended pleadings; and (4) the motion is premature because the

Court has not made any findings regarding whether Plaintiff

suffered “bodily injury” based on NAR “negligence” as defined by

the parties’ subcontract. 

 Here, because Plaintiff’s second amended complaint has been

dismissed for lack of subject matter jurisdiction based on a

finding of indispensability under Rule 19(b), the Court similarly

lacks jurisdiction to decide KaiserKane’s motion for summary

judgment as to NAR on the merits. Accordingly, KaiserKane’s

motion is dismissed without prejudice.

 

V. CONCLUSION

For the foregoing reasons, Defendants’ motion [Doc. No. 82]

to dismiss Plaintiff’s second amended complaint pursuant to

Federal Rule of Civil Procedure 12(b)(7) for failure to join a

party under Rule 19 is granted, and Plaintiff’s second amended

complaint is dismissed without prejudice in its entirety. 

Similarly, Defendant KaiserKane’s motion [Doc. No. 83] seeking

26

Case 1:10-cv-06609-NLH-KMW Document 95 Filed 09/12/12 Page 26 of 27 PageID: 1217
summary judgment against Defendant NAR is dismissed without

prejudice. An Order consistent with this Opinion will be

entered.

Dated: September 12, 2012 /s/ Noel L. Hillman 

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.

27

Case 1:10-cv-06609-NLH-KMW Document 95 Filed 09/12/12 Page 27 of 27 PageID: 1218