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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW
YORK
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02 Civ. 7821 (RWS)
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2003.SDNY.0000367< http://www.versuslaw.com>
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April 7, 2003
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ASHLEY PELMAN, A CHILD UNDER THE AGE OF 18 YEARS, BY HER MOTHER AND
NATURAL GUARDIAN ROBERTA PELMAN, ROBERTA PELMAN, INDIVIDUALLY, JAZLYN
BRADLEY, A CHILD UNDER THE AGE OF 18 YEARS, BY HER FATHER AND NATURAL
GUARDIAN ISRAEL BRADLEY, AND ISRAEL BRADLEY, INDIVIDUALLY,
PLAINTIFFS,
v.
MCDONALD'S CORPORATION, DEFENDANT.
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Appearances:
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Attorney for Plaintiffs: Samuel Hirsch & Associates 350 Fifth
Avenue, Suite 2418 New York, NY 10118 By: Samuel Hirsch, Esq. Of
Counsel
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Attorneys for Defendants: Winston & Strawn 200 Park Avenue New
York, NY 10166-4193 By: Thomas J. Quigley, Esq. Bradley E. Lerman, Esq.
Bruce R. Braun, Esq. Of Counsel
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Wildman, Harrold, Allen & Dixon 225 West Wacker Drive, Suite 2800
Chicago, IL 60606 By: Anne G. Kimball, Esq. Sarah L. Olson, Esq. Of
Counsel Third-Party Pro Se: Rivka Robbin Freeman 1323 East 26th Street
Brooklyn, NY 11210
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The opinion of the court was delivered by: Sweet, D.J.
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OPINION
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Third party pro se Rivka Robbin Freeman ("Freeman"), a
forty-three-year-old woman with a history of breast cancer she claims was
caused by her eating habits, including eating at McDonald's outlets as a
youth, has moved pursuant to Rule 19(a) of the Federal Rules of Civil
Procedure to join as a plaintiff the proposed class action initiated by
overweight teenagers and their parents against defendant McDonald's
Corporation ("McDonalds"), alleging that the teenagers' obesity and
concomitant health problems were caused by their heavy diet of McDonalds'
products and that McDonalds engaged in deceptive advertising regarding the
true unhealthy nature of their products.
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As noted in an earlier opinion, this lawsuit has generated a great
deal of attention in the press, in television satire and editorial
comment. It is only natural that this interest will result in others
seeking to join the plaintiffs in their fight against "Big Food," whether
as a cause celebre or, as with Freeman, to pursue their own agenda and
concerns with the fast food industry. If the plaintiffs' newly amended
complaint survives a likely motion to dismiss by McDonalds and if a class
action is certified, a number of minors and their parents will have the
opportunity to join this action. Until such time, however, there are no
necessary parties lacking from this controversy. For the following
reasons, therefore, Freeman's motion is denied.
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Prior Proceedings
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The plaintiffs commenced suit on August 22, 2002, in the State Supreme
Court of New York, Bronx County. Defendants removed the action to the
Southern District of New York on September 30, 2002, alleging as the basis
of removal that the plaintiffs had fraudulently joined non-diverse parties
in order to defeat diversity jurisdiction pursuant to 28 U.S.C. §
1332.
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McDonalds moved to dismiss plaintiffs' complaint on October 7, 2002.
The plaintiffs cross-moved to remand and in opposition to the motion on
October 25, 2002. By order dated January 22, 2002, the complaint was
dismissed in its entirety, but the plaintiffs were granted leave to amend.
Plaintiffs filed an amended complaint on February 19, 2003. McDonalds'
response to the amended complaint is due April 14, 2003.
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Freeman first sought to get involved in this action by an affidavit
dated January 6, 2003, in which she offered her services as an
"Independent Nutritionist." In her affidavit, she, inter alia, (1)
suggested that the complaint be expanded to allege claims against other
defendants, including beef and chicken producers, pesticide manufacturers,
producers of trans fat products, health care insurers, and the Department
of Health and Mental Hygiene; (2) responded to various allegations in the
original complaint as well discussed McDonalds' products; and (3) offered
recommendations to McDonalds, including that she be appointed to assist
McDonalds in "balanced meals training" at a base pay of $500,000 in
addition to bonuses and stock options.
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By motion dated March 13, 2002, Freeman moved to join as a party.
Freeman alleges that she seeks as the basis of her relief, inter alia: (1)
an order certifying the plaintiff-class; (2) an order enjoining McDonalds
from the production, distribution and sale of products containing
chemically altered hydrogenated trans fats; (3) an order that McDonalds
must find a supplier of french fries and hash browns that are not
processed and a supplier for salad dressings that do not contain
chemically altered hydrogenated oil or omega 6 oils; (4) an order
enjoining McDonalds from frying their french fries in chemically altered
hydrogenated oil and instead bake the french fries; (5) an order that
McDonalds may only sell grilled meat, chicken and fish; and (6) an order
that McDonalds advertise information on balanced meals, including
Freeman's particular theory of "Zone Guidelines." McDonalds responded on
March 31, 2003, and the motion was considered fully submitted on April 2,
2003.*fn1
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Facts
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Freeman states in her affidavit that she should be joined to the
action because (1) she is a forty-three-year-old New York resident and
mother of three children; (2) she was diagnosed with breast cancer at age
twenty-five and has recently suffered a relapse on December 18, 2002
shortly after consuming burgers and french fried potatoes*fn2; (3) she ate at McDonalds at least once a week from
the time she was seven until she was twenty nine; (4) she acts to prevent
diabetes and breast cancer; and (5) during her childhood, Freeman ate red
meat at least five times a week and, on a daily basis, ate french fries
and trans fatty foods.
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Discussion
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I. Standard of Review
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In addressing the present motion, the Court is mindful that Freeman is
proceeding pro se and that her submissions should be held "'to less
stringent standards than formal pleadings drafted by lawyers . . . .'"
Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 176 (1980) (per curiam)
(quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595 (1972));
see also Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir. 1993). Her
pleadings should be read "liberally" and interpreted "to raise the
strongest arguments they suggest." McPherson v. Coombe, 174 F.3d 276, 280
(2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.
1994)). Nevertheless, the Court is also aware that pro se status "'does
not exempt a party from compliance with relevant rules of procedural and
substantive law." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)
(quotations omitted).
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II. Rule 19(a) *fn3
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Rule 19 provides, in relevant part:
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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 person claims 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 that 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. Fed.
R. Civ. P. 19(a).
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The Second Circuit has summarized the three situations where a party
should be joined pursuant to Rule 19(a) as follows:
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(1) if in [the absent party's] absence the court cannot grant complete
relief among those already parties, (2) the absent party claims an
interest related to the action and is so situated disposition of the
action without that party may impair its ability to protect its interests,
or (3) failing to join the absent party subjects parties already in the
litigation to a substantial risk of double liability or otherwise
inconsistent obligations. Arkwright-Boston Mnftrs Mutual Ins. Co. v. City
of New York, 762 F.2d 205, 208 (2d Cir. 1985).
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The first prong dictates that a party is necessary where that party's
absence will prevent complete relief from being granted among the parties
to the action, "not as between a party and the absent person whose joinder
is sought." Id. at 209 (quoting 3A J. Moore, Moore's Fed. Practice ¶
19.07-1[1], at 19-96 (2d ed. 1984)). See also Peregrine Myanmar Ltd. v.
Segal, 89 F.3d 41, 48 (2d Cir. 1996) (complete relief could be accorded
even without absent party because nothing in the district court's
statements or final judgment required the absent party to do anything or
change any of its positions); Rose v. Simms, No. 65 Civ. 1465, 1995 WL
702307, at *3 (S.D.N.Y. Nov. 29, 1995) ("Courts are most likely to rule
that complete relief may not be accorded among the parties present in
circumstances where the absent party plays a significant role in the
provision of some form of injunctive relief."). The first prong is
inapplicable here because Freeman's absence or presence will not affect
the relief that is sought by the parties. The plaintiffs seek an order
certifying their class action, damages, attorneys fees and an educational
program to inform children and adults about the dangers of eating certain
foods sold, marketed and produced by the defendants. Freeman's absence
will not prevent such relief from being granted if warranted. Therefore,
this prong does not apply.
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The second prong focuses on whether the party seeking to be joined has
a significant involvement in the issues to be litigated and whether her
absence would, "as a practical matter," impair her ability to protect her
interests. E.g., Kamhi v. Cohen, 512 F.2d 1051, 1053 (2d Cir. 1975). The
language "as a practical matter" has a restrictive as well as expansive
side. Thus, the fact that the absent person may be bound by the judgment
does not of itself require his joinder if his interests are not fully
represented by the parties present; nor does the mere theoretical
possibility of prejudice require joinder. 3A Moore's, ¶ 19.07, at 19-106
to 19-108. First, Freeman has not established that she would be a member
of the putative class, comprised of overweight teenagers and their
parents, set out in the complaint. She is not a teenager, her health
issues concern breast cancer, and she does not allege that her three
children eat frequently at McDonalds or suffer ill health effects as a
result. Even if the latter were true, Freeman has failed to establish that
the current named class members would not adequately represent her claims.
E.g., United Transp. Union v. Long Island R. Co., 634 F.2d 19, 22 (2d Cir.
1980), rev'd on other grounds, 455 U.S. 678, 102 S. Ct. 1349, 71 L. Ed.2d
547 (1982) (holding that although the Attorney General was not made a
party to a suit brought against the Long Island Rail Road and the
Metropolitan Transportation Association challenging the validity of a law
used to restrain a strike, the Attorney General was not indispensable for,
among other reasons, his interests were adequately represented by the
parties present); Jeffries v. Georgia Residential Fin. Auth., 678 F.2d
919, 928 (11 Cir. 1982) (holding that, in a constitutional challenge to
eviction procedures of landlords against tenants of a federal housing
program, it was sufficient to make one single landlord a party since
absent landlords would have the same interests as the defendant and their
interests were therefore protected).
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Finally, the third prong considers whether failure to join an absent
party may subject a party to inconsistent obligations or double liability.
A number of Freeman's claims are far removed from those asserted by the
plaintiffs. If she were to pursue a separate litigation, neither the
plaintiffs nor McDonalds would be at risk of an inconsistent obligation or
double liability.
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In short, it appears that Freeman sincerely wants to be a part of the
plaintiffs' fight based on her experience as a nutritionist and as a
result of the traumatic injuries she claims were caused by her poor diet.
Freeman's desire alone, however, is insufficient to establish that the
plaintiffs' lawsuit cannot continue without her.
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Conclusion
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For the foregoing reasons, Freeman's motion to intervene is
denied.
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It is so ordered.
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Opinion Footnotes |
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*fn1 It is this Court's practice for motions involving pro
se parties to be taken on submission, rather than to hold oral argument.
Freeman appeared on April 2, 2003, however, although the papers were
intended to be taken on submission. She stated then that she had a reply
to McDonalds' opposition. She has not yet brought any such reply to the
Court's attention. Given the facts that have already been presented, this
decision will proceed even in the absence of any reply.
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*fn2 Freeman does not identify the source of the burgers
and french fries.
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*fn3 Freeman did not move for intervention pursuant to Fed.
R. Civ. P. 24, which generally governs the intervention of third parties
into cases. Indeed, Rule 19 is, by contrast, used primarily defensively to
argue that a case should be dismissed for failure to join a necessary
party. In any case, even if Freeman had moved pursuant to Rule 24, she
does not have any interest in any property or transaction at issue, as
required of Rule 24(a). Further, Freeman does not have claims in common
with those of the infant plaintiffs or their parents that could not be
adequately represented by her as a class plaintiff, should the class be
certified. In any case, the intervention of Freeman and her expansive
theories of litigation would certainly prejudice the parties, and thus
this Court would in any case exercise its discretion under Rule 24(b) to
deny the motion to intervene.
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