MEMORANDUM OPINION AND ORDER
Presently before the Court is Plaintiff Linnin’s Motion to Remand, which is based on the fact that Defendant Michielsens, a Virginia resident, destroys diversity. Plaintiffs motion is DENIED. 1
I. Facts
This case involves an accident that occurred because a lift tipped over allegedly as the result of the fact that it was driven on an incline allegedly exceeding the manufacturer’s specifications. On March 1, 2003, William R. Linnin, Plaintiffs husband, died while operating a JLG 110HX aerial lift at Busch Gardens, an amusement park in Williamsburg, Virginia. Mr. Linnin was employed as a painter for Hartman-Walsh Painting Company, which had contracted to paint some amusement rides at Busch Gardens. To accomplish the job, Hartman-Walsh had a contract to
According ■ to Plaintiff, Defendant Mi-chielsens should have foreseen the lift’s potential to tip over and should have warned all of the painting company’s employees about this possibility, including the decedent. Three days prior to the accident, on February 25, 2003, the painting company had complained to Defendant Hertz about the lift’s lack of power “to climb the hill located by the Lochness Monster roller coaster ride at Busch Gardens.” Pl.’s Reply Mem. in Supp. of Mot. to Remand at Ex. A, p. 8. In response to the complaint, Defendant Hertz sent Defendant Michielsens, a mechanic, to service the lift’s engine. In an affidavit, Defendant Michielsens stated that he “received thorough training on how to operate and service all of the equipment [Hertz rented].” Id. at Ex. B ¶ 2. According to a report by the Virginia Department of Labor and Industry, Dеfendant Michielsens replaced a fuel filter and “tested all operations.” Id. at Ex. A, p. 8. He also “attempted to test the drive controls by traveling up a hill,” but the “machine started to slide backwards down the hill until it went [off] the asphalt into the soft shoulder where it got stuck.” Id. The mechanic then contacted the salesman for Hertz, who then, in turn, contacted a branch manager in order to have the lift towed. Id. Defendant Michielsens had nothing more to do with the lift or with the paint company’s employees. The lift was neither “tagged out of service” nor disabled. Id. “When the machine was towed up the hill[,] it was parked in a parking lot until it was utilized 3-days later on 03/01/03 by an employee of the painting company.” Id. The report goes on to state that “[t]he employee of the painting company drove the machine from the parking lot over to the Big Bad Wolf roller coaster ride where he then utilizеd it during painting operations and was subsequently fatally injured when the lift tipped over.” Id.
When discussing Defendant Michielsens’ involvement in the accident, the report indicated that “frequent/periodic inspections [were] not being performed as required by ANSI A92.5 1992” and concluded that the “rental company employees did not perform the required inspections on the last day that maintenance was performed out at the job site prior to the accident.” Id. at 10. The report went on to find that the
... mechanic who serviced and operated the machine on 02/25/03 ... had not been trained on the inspection requirements as required by ANSI and the manufacturer, and that the machine must be maintained to manufacturer’s specifications. The branch location itself did not recognize that the machine ■would need a detailed inspection after the mishap on 02/25/03.
Id. at 11 (emphasis added). Finally, the report observed that Defendant Michiel-sens did not recognize the dangers the lift might pose, noting: “The Mechanic attempted to travel the machine up to steep of grade as documented in the finding of the facts .... This shows that he did not recognize the machine limitations or the hazards imposed by trying to travel on the steep grade.” Id. Ultimately, concluding that Mr. Linnin used the lift on “an incline exceeding the manufacturer’s specifications,” the report recommended a $3750 penalty to be imposed on Hertz. Id. at 13.
II. Procedural Background
On January 10, 2005, Plaintiff, Mr. Lin-nin’s wife, the Executor of his estate, and a
1. Steve Michielsens, the mechanic who serviced on February 25, 2003 the aerial lift involved in Mr. Linnin’s accident. Mr. Michielsens was an employee of Hertz Equipment Rental Corporation, a co-defendant, at the time. He is a citizen of the Commonwealth of Virginia.
2. The Hertz Corporation, which, among other things, rents equipment that includes aerial lifts. The Hertz Corporation is a Delaware corporation.
3. Hertz Equipment Rental Corporation, which rented the aerial lift to Mr. Linnin’s employer. Hertz Equipment Rental Corporation is a Delaware corporation. 2
4. JLG Industries, Inc., which designs, manufactures, and sells aerial lifts known as model 110HX aerial lifts. JLG Industries is a Pennsylvania corporation.
5. JLG Equipment Services, which rents and services industrial equipment such as model 110HX aerial lifts. JLG Equipment Services is a Pennsylvania corporation. 3
Out of the five defendants, only Defendant Michielsens is a citizen of the Commonwealth of Virginia. Consequently, as Defendants seek to remove the action to this Court, his inclusion as a party is highly contested as it destroys diversity.
In the Motion for Judgment, Plaintiff makes the following allegations:
1. Count One alleges that “defendants Michielsens and Hertz, and each of them, negligently leased, rented, serviced, maintained and inspected” the aeriel lift and that Hertz “knew or should have known by its agent and servant that the lift was being used under circumstances that implicate the need for certain safety devices and features which were not functioning at the time of the incident as required and had not been properly inspected, maintained and/or serviced prior to March 1, 2003, and should have removed the vehicle from service prior to March 1, 2003.” Mot. for J. ¶ 11.
Plaintiff also alleges in Count One that “defendants Michielsens and Hertz, and each of them, were otherwise negligent with respect to the aerial lift and further failed to inform the decedent or his employer of such unreasonably dangerous and unsafe condition ... despite actual knowledge of the conditions of the lift .... ” Id. ¶ 12.
2. Count Two alleges that “defendants Michielsens and Hertz, and each of them, negligently failed to warn, instruct, and apprise the decedent of the dangers and hazards of using the aerial lift ....” Id. ¶ 16.
3. Count Three alleges that “defendants Michielsens and Hertz, and each of them, expressly and impliedly warranted that the aerial lift ... was of merchantable quality, fit and safe for its intended and ordinary uses ....” Id. ¶ 19.
4. Count Four alleges that “defendants JLG, and each of them, negligentlydesigned, manufactured, assembled tested, labeled, marketed, distributed and sold the subject aerial lift in such a manner as to render said lift unreasonably dangerous for its ordinary and/or foreseeable uses.” Id. ¶ 23. Count Four also alleges that defendants JLG “were otherwise negligent with respect to the aerial lift’s warnings and instructions ....” Id.^2A.
5. Count Five alleges that “defendants JLG, and each of them, expressly and impliedly warranted that the aerial lift ... was of merchantable quality, fit and safe for its intended and ordinary uses ....” Id. at ¶ 30.
Plaintiffs Motion fоr Judgment alleges compensatory damages of $15,000,000.
Defendants Michielsens and Hertz filed a joint Grounds of Defense on February 1, 2005; Defendants JLG filed its Grounds of Defense on February 7, 2005. On February 18, 2005, Defendants removed the case pursuant to 28 U.S.C. § 1332 on the basis of diversity of citizenship, claiming that Defendant Michielsens was either fraudulently joined or, alternatively, was a nominal party whose residence should be disregarded for diversity purposes.
On February 24, 2005, Plaintiff filed a Motion to Remand and a Memorandum of Law in support of its Motion. Defendants JLG filed their opposition on March 7, 2005, and Plaintiff filed its Reply on March 18, 2005. A hearing was held on the matter on April 12, 2005. The matter is ripe for judicial determination.
III. Discussion
A. Removal in Diversity Cases
Pursuant to Section 2, Clause 1 of Article III of the United States Constitution, the federal courts are empowered to have jurisdiction over cases involving controversies between citizens of different states or between а citizen of a state and an alien. The Judiciary Act of 1789 first outlined the extent of the authority. Congress now provides for diversity jurisdiction in Section § 1332 of Title 28 of the United States Code. As the United States Court of Appeals for the Fourth Circuit has explained, “[t]he obvious and elementary policy behind diversity jurisdiction is that an out-of-state defendant should be entitled to a federal forum if he decides that he cannot receive a fair trial in a state court due to local prejudice.”
Roche,
If diversity jurisdiction exists because of a fear that the state tribunal would be prejudiced towards the out-of-state plaintiff or defendant, that concern is understandably allayed when that party is joined with a citizen from the forum state. Indeed, when members from the forum state are present on both sides of the controversy, it becomes difficult to imagine that a state tribunal would favor one side based upon biases in fаvor of its own citizens.
Id.
(quoting
Dresser Indus., Inc. v. Underwriters at Lloyd’s of London,
When a case is filed in state court and common citizenship does not exist between opposing parties, diversity jurisdiction permits a defendant to remove a case to federal court.
See
28 U.S.C. § 1441(b). Removal is strictly construed, however, and the party seeking removal bears the burden of establishing federal jurisdiction.
Mulcahey v. Columbia Organic Chem. Co., Inc.,
If a case is remanded, the defendant ordinarily forever loses his right to a federal forum without any possibility of a review of the court’s remand decision.
See
28 U.S.C. § 1447(d) (“An order remanding a case the State court from which it was removed is not renewable on appeal or otherwise _”). Caution, therefore, is required, “lest [the Court] deprive the defendant of the statutory right to a federal forum.” ChaRles A. Wright, Arthur R. Miller,
&
Edward H. Cooper, Federal PRACTICE AND PROCEDURE: JURISDICTION 3d § 3739 [hereinafter Wright
&
Miller].
See also Semtek Intern., Inc. v. Lockheed Martin Corp.,
1. Fraudulent Joinder
The “fraudulent joinder” doctrine is one way courts ensure that removal procedure is fairly applied. Where a non-diverse defendant is named in the initial state court complaint as part of a tactical effort to defeat diversity jurisdiction, the fraudulent joinder doctrine permits district courts to assume jurisdiction over a case even if there are named defendants who lack diversity at the time the case is removed.
Mayes v. Rapoport,
While the “no possibility” standard seems straightforward, it is not, as there is an inherent tension in the standard between whether courts should simply determine whether “no cause of action is stated” or whether the plaintiff has “no real intention to get a joint judgment.”
AIDS Counseling,
... fraudulent joinder is a term of art, it does not reflect on the integrity of plaintiff or counsel, but is merely the rubric applied when a court finds either that no cause of action is stated against the defendant, or in fact no cause of action exists. In other words, a joinder is fraudulent if there [is] no real intention to get a joint judgment, and ... there [is] no colorable ground for so claiming.
Id.
(citation omitted) (emphasis added). As one district court has recently observed,
“AIDS Counseling’s
description of fraudulent joinder appears to contradict itself,” as the “ ‘real intention’ formulation ... is significantly at odds with the less subjective ‘no cause of action’ language ....”
Riverdale Baptist Church v. Certainteed Corp.,
Another tension exists as well. The “no cause of action” formulation essentially asks whether, at the
beginning
of the litigation, the plaintiff can
sue
the defendant at all. The “intention to get a joint judgment” language, on the other hand, asks whether the plaintiff, at the
end
of the litigation, has a real intention to recover jointly. In other words, in addition to the objective-subjective problem, the focus shifts between the plaintiffs ability to sue and the plaintiffs intention of getting a joint judgment — two very different questions. Given these tensions, this Court agrees with the district court in
Riverdale Baptist
that the “no possibility” standard “is more properly applied not rigidly” but reasonably.
Id.
at 948. In fact, in this Court’s view, the inherent contradiction in the standard is also why some courts have noted that the “ ‘no possibility’ language cannot be taken literally”; rather, “what is meant is that there is ‘no reasonable basis’ for predicting liability on the claims alleged.”
Cordill v. Purdue Pharma, L.P.,
To complicate matters further, when fraudulent joinder is alleged, the “no possibility”
standard
to be applied by the court is more akin to a motion to dismiss,
see supra,
while the
scope
of the court’s review is more akin to a motion for summary judgment.
Beaudoin,
886 F.Supp.
Thus the court’s procedure for ascertaining fraudulent joinder appears to be more wide-ranging than the standard of review it is to apply once it has ascertained it. This fact only bolsters this Court’s view, returning to the discussion above, that the “no possibility” standard cannot possibly be taken literally or applied mechanically. Otherwise, there is no reason for courts to have the authority to look beyond the pleadings and consider “summary-judgment-type evidence,” because such authority is not needed if the “no possibility” standard encompasses
any
conceivable possibility of recovery and is mechanically and rigidly applied. Rather, such authority comports better with a standard of review that asks whether there is a “ ‘reasonable basis’ for predicting liability” based on the claims alleged.
Cordill,
2. Analysis
In this case, with respect to Plaintiffs negligenсe claims, Defendants maintain that there is “no possibility” for Plaintiff to prevail against nondiverse Defendant Mi-chielsens because, under Virginia law, “an employee acting within the scope of his employment cannot be held liable for injuries to third-persons that occur as a result of an omission, a failure to notify, or negligence in the performance of his duties to his employer.” Def. Br. in Opp. to Pl.’s Mot. to Remand at 3. According to Defendants, because Plaintiff has “asserted acts of negligence against Michielsens that alleged a failure to maintain and a failure to warn,” these “alleged acts of negligence can only be categorized as acts of omission, nonperformance, or involve duties flowing only from Michielsens to Hertz.” Id. In Defendants’ view, if these acts are proven true, “the party solely responsible for these alleged acts is Hertz,” and thus there is “no possibility” for Plaintiff to prevail against Defendant Michielsens. Id. at 5.
Additionally, with respect to Plaintiffs breach of warranty claim against Defendant Michielsens, Defendants also contend that Plaintiff has “no possibility” of recovery. According to Defendants, in Virginia, when an agent contracts for a disclosed principal and the benefits of the contract are accepted by the principal, there is no
Plaintiff, in contrast, supports its Motion to Remand by maintaining that it has alleged a possible claim against Defendant Michielsens “for his negligence and failure to warn of dangers present in the defective JLG lift.” Pl.’s Mеm. in Supp. of Mot. to Remand at 13. In Plaintiffs view, “Virginia law ... recognizes that [Defendant Michielsens had a duty to perform the maintenance and inspection on February 25, 2003 in a non-negligent fashion and to warn of the dangers which he knew or should have known by his actions that day.” Id. at 14. Plaintiff thus maintains that, because “the finding of respondeat superior liability is necessarily premised upon a finding that the employee was also negligent,” both Hertz, the employer, and Michielsens, the employee, are jointly and severally liable to Plaintiff if Defendant Michielsens is found negligent. Id. at 16.
After a hearing on Plaintiffs motion, it is clear to the Court that the question of whether Defendant Michielsens has been fraudulently joined turns on whether, under Virginia law, Defendant Michielsens, a mechanic employed' by Hertz, would be held liable for negligently failing to take the lift out of service or for failing to warn Mr. Linnin about the dangerousness of the lift. The Court finds that thеre is no possibility of a successful claim against Defendant Michielsens and that Plaintiff has “no real intention of get[ting] a joint judgment” against Defendants Hertz and Michielsens.
a. No Possibility of a Successful Claim
The case before the Court here is for the possible failure of the employer to send an individual who would thoroughly inspect the ability of a machine to do the job required of it, namely, to travel up a steep grade without tipping over. It is not a case concerning whether the engine had sufficient power or whether the mechanic serviced the engine correctly. In other words, this case is about a possible failure to inspect and warn on the
employer’s
part about a machine’s potential limitations, but it is not a case involving the faulty repair of a faulty engine on the
employee’s
part because Defendant Michielsens was a mechanic who simply performed his job as he had been trained to do it. As discussed in more dеtail below, there is no possibility of a successful claim against Defendant Mi-chielsens because the Court concludes the Defendant Michielsens could not have foreseen the accident that was to occur and thus did not have a duty to warn the decedent, Mr. Linnin, about the lift. There is no showing of any connection between Michielsens and Linnin. Although foreseeabilty is generally a question for the jury, “when reasonable minds could not differ [as to] issues of negligence and proximate causé,” foreseeability becomes a question of law to be decided by the court.
See Kimberlin v. PM Transpon, Inc.,
The Court first observes that there are no facts in the record,demonstrating that Defendant Michielsens should have foreseen that the lift’s potential instability might injure Mr. Linnin. “One is not charged with foreseeing that which could not be expected to happen.”
Norfolk Shipbuilding & Drydock Co., Inc. v. Scovel,
If men were held answerable for everything they did which was dangerous in fact, they would be held for all their acts from which harm in fact ensued. Accordingly, in order to impute knowledge of a dangerous thing or place, the danger therefrom must have been such as is recognized by common experience or by the special experience of the actor, or such as might reasonably have been expected by a person of ordinary prudence and of ordinary foresight.
Id. (internal quotations omitted). In this case, Defendant Michielsens was sent to service a lift because a customer complained about its lack of power. When he test-drove the lift, he drove it on а steep grade. It then slid and got stuck. It did not tip over. After the lift got stuck, Defendant Michielsens contacted his branch manager, who subsequently had the lift towed. Under the facts of this case, there is no question that Defendant Michielsens acted “as might reasonably have been expected by a person of ordinary prudence and of ordinary foresight.” Id.
In fact, this case is very similar to two cases in the Eastern District of Virginia where both Judge Payne and Judge Hoffman concluded that an employee had been fraudulently joined to defeat diversity in a personal injury case. In
Beaudoin,
the plaintiff maintained that the store manager acted negligently when grocery store employees placed plants in such a way that vines could fall on the floor into the path of customers, causing customers to slip on the vines and fall.
Under Virginia law, an employee of the owner or operator оf the premises in an action based on standard premises liability theories may be held liable only for affirmative acts of negligence, not merely because, in the status of employee of the owner or operator, he or she is guilty of an omission.
Id.
at 1303 (citing
Miller v. Quarles,
Similarly, in
Edmond v. Food Lion,
In this case, the facts do not suggest and there is no evidence in the record that Defendant Michielsens had actual or constructive notice that the lift was dangerous or that he had “special knowledge” that should have alerted him to the fact that the lift might tip over and injure the occupant. Moreover, there was nothing to show that he contacted Mr. Linnin. The Virginia Department of Labor and Industry report concluded that Defendant Mi-chielsens “had not been trained on the inspection requirements as required by ANSI and the manufacturer.” Réport at 11. The report also observed that Defendant Michielsens “did not recognize the machine limitations or the hazards imposed by trying to travel on the steep grade.” Id. In fact, the report determined that “branch location itself did not recognize that the machine would need a detailed inspection after the mishap” when Defendant Michielsens reported the problem with the lift. Id. Indeed, reporting the lift’s lodged position to his employer was the appropriate action. If Defendant Michielsens did not foresee the dangers the lift posed to himself; if he was not trained to inspect lifts; if the lift did not tip over when he drove it; and if his branch manager was also unaware of the possible danger the lift posed when Defendant Michielsens reported it to him, the Court is unwilling to find that Defendant Michielsens should have foreseen that the lift might be dangerous to others, as this was not within his duties or his expertise.
Finally, unlike
Southern States Grain Marketing Co-op., Inc. v. Garber,
This case is much different. Defendant Michielsens did not instruct or command Mr. Linnin to do anything. He did not affirmatively activate machinery that he knew to be dangerous without warning Mr. Linnin about it. He did not “transform a safe situation into one of dangеr” and then fail to give notice to Mr. Linnin about that transformation. He did not “affirmatively provide[] a dangerous product.” Moreover, with respect to what Defendant Mi-chielsens arguably may have failed to do, as Judge Payne held in
Beaudoin,
and as the Virginia Circuit Court held in
Pusey,
any “omission” he might have conceivably committed would be “a duty owing to his
In addition to its negligence claims, Plaintiff also asserts a breach of warranty claim against Defendant Michielsens. “Under Virginia law, ...
manufacturers
and
sellers
of defective products can be held liable on theories of negligence and breach of the implied warranty of merchantаbility.”
Bly v. Otis Elevator Co.,
b. No Intention of Getting a Joint Judgment
In addition to concluding that Plaintiff has no possibility of succeeding in its claims against Defendant Michielsens, the Court also concludes that, if Defendаnt Michielsens arguably could be found liable, Plaintiff has no intention of getting a joint judgment against Defendant Michielsens and Defendant Hertz. Assuming, for the sake of argument, that Defendant Michielsens could be found negligent in this case, it will be Hertz, the deep-pocket employer, who will ultimately be responsible for any damages under the doctrine of respondeat superior.
4
Normally, the plaintiff has a lot
It is therefore “procedural gamesmanship,” as opposed to the purpose of removal jurisdiction generally and diversity jurisdiction in particular, that ultimately prevents a defendant from defending, for all intents and purposes, a diverse claim in federal court. Scott R. Haiber,
Removing the Bias Against Removal,
53 Cath. U.L. Rev. 609, 610 (2004). As numerous courts have acknowledged, and both plaintiffs and defendants recognize, many plaintiffs’ attorneys include in diversity cases a non-diverse defendant only to non-suit that very defendant after one year has passed in order to avoid the federal forum.
See, e.g. Caudill v. Ford Motor Co.,
Clever pleading, of course, is neither unethical nor illegal — it is, in fact, good lawyering. But good lawyering should not defeat good judging, which requires a court to call things as it sees them. In this case, as discussed
supra,
the Court has concluded that there is no possibility that the Plaintiff would succeed in its negligence claim against Defendant Michiel-sens; however, even if there was a possibility that Defendant Michielsens could be found negligent, Plaintiff has “no real intention of get[ting] a joint judgment” as to Defendant Michielsens and the other Defendants for the reasons discussed above.
AIDS Counseling,
Accordingly, for the above reasons, the Court DENIES Plaintiffs Motion to Remand and ORDERS that Defendant Mi-chielsens be DISMISSED from this lawsuit.
B. Indispensable Parties
In addition, Defendants maintain that, pursuant to Fed.R.Civ.P. 19, Defendant Michielsens is a nominal party who should be dropped from the lawsuit because Hertz is the party responsible for any loss resulting from its employee’s neg: ligence. Under Federal Rule of Civil Pro-, cedure 19, parties having an interest in a proceeding shall be joined unless joinder will deprive the court of subject matter jurisdiction. Fed.R.Civ.P. 19.
5
“[N]on-di
Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately.
Accordingly, a court may maintain diversity jurisdiction under Rule 21 as long as the parties are not indispensable under Rule 19.
When considering whether a party is indispensable or not, “[i]t is generally held that a non-diverse defendant who is a jointly and severally liable tort-feasor is
not
an indispensable party to a diversity action under Rule 19 and may be dismissed by the court in order for it to retain jurisdiction.”
South Carolina Elec. & Gas Co. v. Ranger Const. Co., Inc.,
... where one is acting as an agent for another, within the scope of his agency, and he commits a tort, both the prinсipal and the agent are joint tort-feasors; and the injured party is not obliged to join both tort-feasors in his action, but he may sue either singly.
South Carolina Elec. & Gas Co.,
Under the facts of this case, there appears to be no case against Defendant Michielsens. If Defendant Michielsens did not foresee the dangers the lift posed to himself; if he was not trained to inspect lifts; if the lift did not tip over when he drove it; and if his branch manager was also unaware of the possible danger the lift posed when Defendant Michielsens reported it to him, the Court cannot find any reason that Defendant Michielsens should have foreseen that the lift might be dangerous to others. There is a possible case, howevеr, against Hertz in this instance for failing to send a properly trained employee to inspect lifts, for failing to recognize the hazards of traveling on a steep grade, or for failing to take precautions after Defendant Michielsens reported the lift to them. Indeed, the lift’s manufacturer and Hertz may be responsible. There is, however, no case against Defendant Michielsens, a mechanic who simply serviced the lift as he was instructed to do so and then contacted his employer when the lift slipped and became stuck. He is not a proper party to this lawsuit.
If an out-of state defendant decides “he cannot receive a fair trial in a state court due to local prejudice,” he is “entitled to a federal forum.”
Roche,
Defendant Michielsens is a nominal party, as it is not necessary for the Plaintiff to join him in this action to recover. Accordingly, Plaintiffs Motion to Remand is DENIED and Defendant Michielsens is DISMISSED from the case.
The Clerk of the Court is DIRECTED to forward a copy of this Memorandum Opinion and Order to counsel of record in the above-captioned matter.
IT IS SO ORDERED.
Notes
. In
17th Street Assoc., LLP v. Markel Int’l Ins. Co. Ltd.., et al,
. The Hertz Corporation and Hertz Equipment Rental Corporation will be collectively referred to as "Hertz” for the purposes of this Order.
. JLG Industries, Inc. and JLG Equipment Services will be collectively referred to as "JLG” for the purposes of this Order.
. In Virginia, the doctrine of respondeat superior is firmly established: “an employer is liable for the tortious acts of its employee if that employee was performing the employer’s business and acting within the scope of the employment when the tortious acts were committed.”
Giant of Maryland, Inc. v. Enger,
The doctrine of respondeat superior ordinarily
does not
shield a negligent employee from the employee’s own liability.
See Roughton Pontiac Corp. v. Alston,
Obviously, the doctrine of respondeat superior is a public policy doctrine of convenience designed to allocate the risk of liability from employee to employer. W. Page Keeton et al„ Prosser and Keeton on the Law of Torts, § 69 (5th ed.1984) [hereinafter "Prosser and Kee-ton”]. The doctrine "is based on the proposition that he who expects to derive advantage from an act which is done by another for him must answer for an injury sustained by a third person from that act.”
Smith v. Grenadier,
. Federal Rule of Civil Procedure 19 provides, in relevant part:
(a) Persons to be Joined if Feasible. A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the personclaims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest.