275 F.R.D. 456
S.D.N.Y.2011Background
- DAI, Subway franchisor, is defendant in a diversity suit about knives baked into bread at Subway locations in NY and NC.
- Plaintiffs Agnesini (NY) and Moody (NC) allege negligence, strict products liability, warranties, and negligent supervision/training against DAI.
- Seven-inch serrated knives were baked into sandwiches; Agnesini discovered the knife in NY and Moody in NC, with Moody bitten into it.
- Bread supply involves IPC and Pennant Foods; Pennant supplied bread to franchisees, with DAI asserting some control via IPC and a supply agreement.
- The court denied DAI’s Rule 21 severance motion, finding joinder proper and proceeding with a joint action; venue is SDNY and discovery is ongoing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether joinder under Rule 20(a)(1) is appropriate | Moody and Agnesini share a common origin of the defective bread. | The cases involve different dates, states, and franchises; no common transaction. | Joinder proper; same transaction/occurrence found. |
| Whether common questions of law or fact exist | Franchise relationship and potential vicarious liability of DAI require uniform inquiry. | Different incidents may require separate inquiries; limited common issues. | Common questions of law and fact exist; vicarious liability is central. |
| Whether severance would promote judicial economy or cause prejudice | Severing Moody’s claim would waste resources; risk of inconsistent verdicts. | Severance could reduce burden and avoid prejudice. | Joint trial preferred; severance denied. |
| Whether venue is proper in SDNY or should transfer to E.D.N.C. | Venue in SDNY permissible under diversity and personal jurisdiction. | NC venue more appropriate given Moody’s location. | Venue proper in SDNY; transfer not warranted. |
Key Cases Cited
- Deskovic v. City of Peekskill, 673 F.Supp.2d 154 (S.D.N.Y.2009) (severance as a discretionary tool constrained by prejudice and economy)
- Bey v. City of New York, 2009 WL 1911742 (S.D.N.Y. 2009) (burden on movant to show severance is required to avoid prejudice)
- Kehr v. Yamaha Motor Corp., No. 08 Civ. 6060 (S.D.N.Y. 2008) (S.D.N.Y. 2008) (joinder and severance considerations under Rule 20(a))
- Barnhart v. Town of Parma, 252 F.R.D. 156 (W.D.N.Y. 2008) (logically related claims and common factual questions)
- Vulcan Soc’y v. Fire Dep’t of White Plains, 82 F.R.D. 379 (S.D.N.Y.1979) (flexible interpretation of same transaction/occurrence)
- Lutz v. Buono, 2009 WL 3364032 (S.D.N.Y. 2009) (joint trial considerations to avoid inconsistent verdicts)
- Posven, C.A. v. Liberty Mut. Ins. Co., 303 F.Supp.2d 391 (S.D.N.Y. 2004) (transfer factors in venue decisions)