2021 WL 4962100

United States District Court, W.D. New York.
DOMINIQUE WILSON-ABRAMS, Plaintiff,
v.
RICHARD MAGEZI, SEAGATE FREIGHT, LLC, MICHAEL L. LAMBERT, WESTERN EXPRESS, INC., NATHAN TYRONE MITCHELL, and NAVAJO EXPRESS, INC., Defendants.
1:20-CV-01717-LJV-MJR
|
Filed 10/26/2021

DECISION AND ORDER
MICHAEL J. ROEMER United States Magistrate Judge

INTRODUCTION
*1 This case was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1) by the Hon. Lawrence J. Vilardo for all pretrial matters and to hear and report upon dispositive motions. (Dkt. No. 23) Before the Court are plaintiff’s motions to amend the complaint and compel discovery. (Dkt. No. 17) For the following reasons, plaintiff’s motion to amend the complaint is denied without prejudice and plaintiff’s motion to compel discovery is denied as moot and without prejudice.1

RELEVANT FACTS
Plaintiff Dominique Wilson-Abrams commenced this lawsuit in New York State Supreme Court, County of Erie, on December 9, 2019. (Dkt. No. 1-1) The complaint alleges that beginning at approximately 8:00 p.m. on January 29, 2019, through approximately 9:30 p.m. on February 1, 2019, the New York State Thruway Authority initiated a ban as to all tractor-trailers and commercial buses traveling on Interstate 90 between the Pennsylvania line and Exit 46 in Monroe County, New York. (Id. at ¶9) On January 30, 2019, at approximately 2:00 p.m., plaintiff, a police officer and resident of New York, was operating a 2016 Dodge patrol car bearing a New York State license plate marked “POLICE.” (Id. at ¶10) Plaintiff’s patrol car was situated stationary on the shoulder of the eastbound Interstate 90 in the Town of Leroy, New York, within the location of the travel ban. (Id.) At this same time, defendant Michael Lambert, a resident of Connecticut, was operating a 2019 International semi-tractor and attached trailer, owned by defendant Western Express Inc., whose corporate headquarters are located in Tennessee. (Id. at ¶¶3-4, ¶¶12-13) Defendant Richard Magezi, a resident of Texas, was operating a 2015 Freightliner semi-tractor and attached trailer. (Id. at ¶2, ¶11) Defendant Nathan Tyrone Mitchell, a resident of Arizona, was operating a 2016 Peterbilt semi-tractor and attached trailer, owned by defendant Navajo Express, Inc., whose corporate headquarters are located in Colorado. (Id. at ¶¶5-6, ¶¶16-17) The complaint further alleges that defendants Lambert, Magezi, and Mitchell were all traveling eastbound on Interstate 90, in violation of the travel ban. (Id. at ¶20) A multi-vehicle accident then occurred causing plaintiff’s patrol car to collide with the tractor-trailers operated by Lambert, Magezi and Mitchell, resulting in serious injury to Wilson-Abrams. (Id. at ¶21-22) On June 30, 2020, plaintiff filed an amended complaint in New York State Supreme Court adding Seagate Freight, LLC as an additional defendant. (Dkt. No. 1-6) The amended complaint alleges that the semi-tractor driven by Magezi at the time of the accident was owned by Seagate Freight, whose corporate offices are located in Texas. (Id.)

*2 All defendants filed answers to the amended complaint in New York state court, as well as cross-claims against their co-defendants. (Dkt. Nos. 1-8, 1-9, 1-10) On November 24, 2020, ail defendants filed a joint notice of removal, removing plaintiff’s lawsuit from New York State Supreme Court to the Western District of New York based on diversity jurisdiction. (Dkt. No. 1) Defendants represented that the action was properly removable pursuant to 28 U.S.C. § 1441(b) because (1) there was complete diversity of citizenship among the parties; (2) the amount in controversy exceeded $75,000; and (3) none of the parties in interest, who were properly joined and served as defendants, were citizens of New York. (Id. at ¶) Plaintiff did not oppose removal or seek to remand the matter to state court. Following the removal, this Court entered a Case Management Order which specified, inter alia, that motions to amend the pleadings or add parties were to be filed by July 15, 2021; motions to compel discovery were to be filed by December 15, 2021; and fact discovery was to be completed by January 18, 2022. (Dkt. No. 15)

On June 7, 2021, plaintiff filed the instant motion to amend the complaint to add additional defendants whose identities plaintiff learned through discovery. (Dkt. No. 17) Specifically, plaintiff seeks to add, as defendants, Jaime L. Burgostorres; Trans-porte, Inc., d/b/a U.S. Foods; Edward F. Dejoy; Midwest Transport, Inc.; and Penske Truck Leasing Co., L/P. (Id.) Plaintiff submits that these five proposed new defendants are the operators and/or owners of two additional tractor-trailers involved in the accident that injured Wilson-Abrams on January 30, 2019.2 (Id.) Plaintiff has also moved to compel Magezi and Seagate Freight as well as Mitchell and Navajo Express to provide Rule 26 initial disclosures and to respond to plaintiff’s outstanding interrogatories and requests for documents. (Id.) Defendants filed responses to the motions and plaintiff filed a reply. (Dkt. Nos. 19-22) The Court heard oral argument on July 28, 2021. (Dkt. No. 24)

DISCUSSION
Motion to Amend the Complaint
Federal Rule of Civil Procedure 15(a) provides that a party may amend its complaint only by leave of the court after a responsive pleading has been served, and that such leave shall be freely given when justice so requires. See Fed. R. Civ. P. 15(a)(2). The Second Circuit instructs that leave to file an amended complaint should not be denied unless there is evidence of undue delay, bad faith, undue prejudice to the non-movant, or futility. See Milanese v. Rust-Oleum Corp., 244 F.3d 104 (2d Cir. 2001). “Although the decision of whether to allow plaintiff[ ] to amend [the] complaint is left to the sound discretion of the district court, there must be good reason to deny the motion.” Actio v. IMCERA Group, 47 F.3d 47, 55 (2d Cir. 1995). Further, the party opposing the motion for leave to amend has the burden of establishing that an amendment would be prejudicial. See Fariello v. Campbell, 860 F. Supp. 54, 70 (EDNY 1994).

Federal Rule of Civil Procedure 8(a)
Defendants first argue that plaintiff’s motion to amend the complaint should be denied because plaintiff has failed to establish grounds for the Court’s jurisdiction. Specifically, defendants contend that the proposed second amended complaint does not set forth the citizenship of any of the defendants named therein, including both the current defendants and the proposed new defendants, and therefore does not comport with federal pleading requirements.

Federal Rule of Civil Procedure 8(a)(1) requires a plaintiff to allege, in the complaint, “a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support.” See Fed. R. Civ. P. 8(a)(1) (emphasis added).3 For purposes of establishing diversity jurisdiction, a plaintiff must allege the states of citizenship of all parties. Care Envtl. Corp. v. M2 Techs., Inc., CV-05-1600, 2006 U.S. Dist. LEXIS 2934, n. 1 (EDNY Jan. 18, 2006); accord Held v. Held, 137 F.3d 998 (7th Cir. 1998). Because “allegations of residency alone cannot establish citizenship”, Canedy v. Liberty Mut. Ins. Co., 126 F.3d 100, 103 (2d Cir. 1997), the citizenship of individuals, and not their residences, must be pleaded. Realty Holding Co. v. Donaldson, 268 U.S. 398, 399 (1925). Specifically, an individual’s citizenship is determined by his or her domicile, which is defined as “the place where a person has his true fixed home and principal establishment, and to which, whenever he is absent, he has the intention of returning.” Palazzo ex rel. Delmage v. Corio, 232 F.3d 38, 42 (2d Cir. 2000). Further, a corporation is deemed a citizen of any state (or foreign state) in which it is incorporated and of the state where it has its “principal place of business.” 28 U.S.C. § 1332(c)(1). For diversity purposes, a corporation may only have one principal place of business. See Egan v. Am. Airlines, Inc., 324 F.2d 565 (2d Cir. 1963). In order to determine the citizenship of a corporation, a court must be informed both of all of the states in which it is incorporated as well as its principal place of business. Tarpon Bay Partners LLC v. Visium Techs., 3:18-CV-02003, 2021 U.S. Dist. LEXIS 196954 (Dist. Conn. Oct. 13, 2021). A limited liability company takes the citizenship of each of its members. Handelsman v. Bedford Vill. Assoc. Ltd. P’ship, 213 F.3d 48, 51-52 (2d Cir. 2021). Likewise, “limited partnerships have the citizenship of each of its general and limited partners.” Carden v. Arkoma Assocs., 494 U.S. 185, 195-96 (1990).

*3 Here, the proposed second amended complaint does not adequately allege the citizenship of any of the named defendants, including both the current defendants as well as the proposed new defendants. (Dkt. No. 17-9) As to each of the corporate defendants listed, both current and prospective, the proposed second amended complaint fails to set forth their places of incorporation or organization. (Id. at ¶4-¶15) The proposed second amended complaint also fails to name each current and prospective corporate defendant’s principal place of business or, in the case of the limited liability companies or limited partnerships, the domiciles of their members.4 (Id.) Further, the proposed second amended complaint alleges only the residences, not the citizenships, of both the current and prospective individual defendants. (Id.) These allegations are insufficient to confer jurisdiction. See Canedy, 126 F.3d at 103 (finding that the complaint failed to comply with Rule 8(a)(1) where, inter alia, it merely alleged that defendant was a resident of Virginia); Carlson v. Bond, CV-04-4480, 2005 U.S. Dist. LEXIS 45441 (EDNY June 15, 2005) (“Allegations concerning a party’s place of residence are insufficient to establish diversity of citizenship because a person may be a resident of one state but a citizen of another.”). Young-Gibson v. Patel, 476 F. App’x 482 (2d Cir. June 12, 2012) (allegations of residency alone cannot establish whether parties are citizens of different states for purposes of establishing federal subject matter jurisdiction.).

Here, the Court first finds that, as to the current defendants in this lawsuit, plaintiff’s failure to properly state defendants’ citizenship in the proposed second amended complaint does not violate Rule 8(a)(1) because jurisdiction has already been established as to these defendants. Indeed, all current defendants jointly removed this matter to the Western District of New York based on diversity jurisdiction. (Dkt. No. 1) The notice of removal specifically set forth the citizenships of plaintiff Wilson-Abrams (New York); the individual defendants Magezi (Texas), Lambert (Connecticut), and Mitchell (Arizona); and the corporate defendants Seagate Freight (Texas), Western Express (Tennessee) and Navajo Express (Colorado). Moreover, all parties agree, and the notice of removal adequately demonstrates, that complete diversity of citizenship exists between plaintiff and the current defendants. Thus, all the parties as well as the Court concur that federal jurisdiction as to these defendants is proper. See Gangl v. Williamson, 83-CV-449, 1984 U.S. Dist. LEXIS 14754 (NDNY July 23, 1984) (“While it is of course true that 28 U.S.C. § 1332(a) requires diversity of citizenship, and plaintiff’s complaint speaks of residency, the court sees no purpose to be served in requiring an amended complaint for such recitation where there appears to be no genuine dispute as to plaintiff’s citizenship, or the citizenship of the defendants herein.”).

In contrast, jurisdiction has not been established as to the five new defendants that plaintiff seeks to join to the lawsuit through the filing of a second amended complaint. As noted above, plaintiff alleges only the “corporate headquarters” of each business and the residences of each individual. Moreover, the proposed second amended complaint alleges that one of the newly proposed defendants, Edward F. Dejoy, is a resident of New York. (Dkt. No. 17-9, ¶13) This allegation suggests that Dejoy may likely be domiciled in, and therefore a citizen of, New York. During oral argument, it was agreed that to the extent one or more of the proposed new defendants is a citizen of New York, diversity jurisdiction would no longer exist here. See Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978) (“diversity jurisdiction does not exist unless each defendant is a citizen of a different state from each plaintiff”). It was further agreed that if the Court were to permit joinder of a non-diverse party, the Court would be required to remand this case back to New York State Supreme Court. Smith v. Nkomarume, 17 CV 6369, 2018 U.S. Dist. LEXIS 158171 (SDNY Sept. 5, 2018) (“If complete diversity is destroyed by joinder of a new party, and if the federal court otherwise lacks subject matter jurisdiction over the case, the case must be remanded.”). However, without a proposed second amended complaint which adequately sets forth the citizenship of each of the five proposed new defendants, the Court cannot make a determination either about the adequacy of the proposed amendment or how the amendment would affect federal jurisdiction over this lawsuit. Thus, plaintiff’s motion to amend the complaint is denied without prejudice. Plaintiff is instructed to renew the motion to amend together with a new proposed second amended complaint that adequately sets forth the citizenship of each of the five proposed new defendants to this lawsuit.5

Fundamental Fairness and 28 USC § 1447
*4 Defendants next argue that even if plaintiff were deemed to have complied with federal pleading requirements, the Court should deny any proposed amendment that would seek to add parties whose presence would defeat this Court’s prior established jurisdiction over the case. Stated another way, defendants submit that plaintiff should be permitted to add only defendants who would not destroy federal diversity jurisdiction, and that plaintiff should be required to assert her claims against any non-diverse parties in a separate state court action.6

Section 1447(e) of Title 28 of the United States Code provides that “|i]f after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the state court.” 28 USC § 1447(e). Courts in the Second Circuit generally apply a two-part test when deciding whether to permit diversity-destroying joinder. See Barber v. Somal Logistics Ltd., 20-CV-854, 2021 U.S. Dist. LEXIS 100789 (WDNY May 27, 2021), First, joinder must satisfy Rule 20 of the Federal Rules of Civil Procedure, which permits joinder of multiple defendants in one action “if there is asserted against [the defendants] any right to relief… arising out of the same [ ] occurrences and if any question of law or fact common to all defendants will arise in the same action.” Fed. R. Civ. P. 20. Here, it is undisputed that all current and prospective defendants were involved in the same occurrence or event, namely the automobile accident that injured Wilson-Abrams, and that a lawsuit including all of these parties would involve common questions of law or fact. See United Mine Workers of Am. v. Gibb, 383 U.S. 715 (1966) (stating that under the Federal Rules generally, “the impulse is toward the broadest possible scope of action consistent with fairness to the parties [and therefore] joinder of claims, parties and remedies is strongly encouraged.”); Amon v. Nelson, 91 Civ. 3844, 1992 U.S. Dist. LEXIS 280 (SDNY Jan. 15, 1992) (“Joinder is favored so that all claims arising from an event or series of events can be resolved in a single litigation.”) Thus, Rule 20 poses no obstacle to joinder here.

Second, courts in this Circuit employ a “fundamental fairness” analysis to determine whether the balancing of certain factors “weighs in favor of joinder and its necessarily attendant remand.” McGee v. State Farm Mut. Auto Ins. Co., 684 F. Supp. 2d 258, 262 (EDNY 2009). This analysis consists of the following factors: (1) any delay, as well as the reason for delay, in seeking joinder; (2) resulting prejudice to defendants; (3) likelihood of multiple litigations; and (4) plaintiff’s motivation for the amendment. See Nazario v. Deere & Co., 295 F. Supp. 2d 360, 363 (SDNY 2003). The factors should be considered in light of the totality of the circumstances, Vanderzalm v. Sechrist Indus., 875 F. Supp. 2d 179, 184 (EDNY 2012), and “[d]iversity-destroying jurisdiction is permitted when the factors weigh in the moving party’s favor.” Nazario, 295 F. Supp. 2d at 363.

First, delay in seeking amendment to the complaint is measured from the date of removal. See Nazario, 295 F. Supp. at 363. Here, defendants removed this action from state court on November 24, 2020. (Dkt. No. 1) Plaintiff moved to amend the complaint to join the new defendants a little over six months later, on June 7, 2021. (Dkt. No. 17) Plaintiff’s motion to amend was timely pursuant to the Case Management Order proposed by the parties and entered by this Court. See Smith, 2018 U.S. Dist LEXIS 158171, *15 (“Where the motion for joinder falls within the schedule set by the court for such motions, this alone may excuse what might have otherwise been an unreasonable delay.”).

*5 Moreover, plaintiff submits a reasonable and valid reason for the delay, namely that she was unaware of the involvement of the proposed new defendants in the accident until she received discovery materials, and that she then promptly moved to amend. Plaintiff represents that she was rendered unconscious in the collision and therefore had to rely upon available reports and photographs of the accident to determine the proper parties to sue. According to the police report of the incident, plaintiff was seated in her patrol car on the shoulder of the road when her car was struck from behind by the tractor-trailer operated by Magezi and owned by Seagate Freight. (Dkt. No. 17-10) The impact pushed the patrol car into the driving lane, where it was struck by the tractor-trailer operated by Lampert and owned by Western Express (Id.) The patrol car then collided with the tractor-trailer operated by Mitchell and owned by Navajo Express. (Id.) Plaintiff submits that it was not until March 2, 2021, when Western Express provided dash camera footage of the accident as part of its initial disclosures, that plaintiff learned that additional tractor-trailers were involved in the accident. Plaintiff indicates that the dash camera video shows that after initially colliding with plaintiff’s patrol car, the Western Express tractor-trailer came to a stop and was then subjected to additional impacts by the tactor-trailers owned and/or operated by the new proposed defendants. These additional impacts caused the Western Express tractor-trailer to move forward and again collide with plaintiff’s patrol car. Within a few months of receiving and reviewing this video, plaintiff obtained the identities of the additional parties and moved to amend the complaint to join them in the lawsuit. Thus, any delay in moving to join non-diverse defendants was the result of newly acquired information as opposed to a lack of diligence or dilatory tactics on the part of plaintiff, and this factor weighs in favor of granting the amendment. See e.g., Bruno v. Zimmer, Inc., CV 15-6129, 2018 U.S. Dist. LEXIS 16830 (EDNY Feb. 1, 2018) (eleven month delay in moving to amend was excusable where plaintiff only recently learned of certain instrumental facts through disclosures from defendants); Young v. Simon Ladder Towers, Inc., 96 Civ. 0189E, 1996 U.S. Dist. LEXIS 17570 (WDNY Nov. 26, 1996) (finding that delay of four and a half months was not of sufficient duration to warrant denying the motion to join non-diverse parties because plaintiff provided an adequate reason for that delay).7

As to the second factor, the Court can discern no prejudice to the current defendants in granting the motion to amend. Despite being filed in state court on December 10, 2019, the case remains in its preliminary stages. Plaintiff notes that because the parties understood that the matter would ultimately be removed to federal court, the parties did not conduct any conferences or exchange any discovery while the matter was pending in state court. Furthermore, through no fault of plaintiff, very little discovery has taken place since the case has been pending here. In fact, when plaintiff made the instant motion to amend, neither defendants Magezi and Seagate Freight nor defendants Mitchell and Navajo Express had timely complied with their Rule 26 initial disclosure requirements or responded to plaintiff’s request for interrogatories or document production. Plaintiff represents that the initial mediation session was canceled as a result of defendants’ delay in producing discovery. Moreover, it does not appear that any depositions have been taken and the fact discovery deadline does not expire until January of 2022. Thus, this lawsuit has not advanced to a point where remand with additional defendants would cause the current defendants to revise or abandon a litigation strategy for which resources have already been expended, nor would joinder of the additional defendants impair the present defendants’ ability to defend against the claims. See Guadagno v. M.A. Mortenson Co., 1:15-CV-00482, 2018 U.S. Dist. LEXIS 167958 (WDNY Sept. 28, 2018) (the potential for additional discovery alone is not sufficient to constitute prejudice); Hosein v. CDL West 45th St., LLC, 12-CV-06903, 2013 U.S. Dist. LEXIS 130030 (SDNY June 12, 2013) (finding six-month delay was excusable because plaintiff’s filing of the amended complaint complied with court-ordered deadlines, plaintiff pursued discovery from defendant to determine role of proposed parties and defendant demonstrated no prejudice). For these reasons, the Court finds that the lack of prejudice against defendants weighs in favor of joinder.8

*6 As to the third factor, “[c]ourts in [this] circuit have held that avoidance of multiple litigations weighs in favor of joinder of a party, even if joinder will defeat diversity.” Juliano v. Toyota Motor Sales, U.S.A., Inc., 20 F. Supp. 2d 573, 576 (SDNY 1998) (collecting cases). Here, joinder of defendants would allow plaintiff to litigate all claims arising from the January 30, 2019 automobile accident in one proceeding, whereas a denial of joinder would require plaintiff to proceed on the claim in two different forums. Bruno, 2018 U.S. Dist. LEXIS 16830, at *2 (denial of the motion would undoubtedly result in multiple litigations since plaintiff would be forced to commence separate state court actions against the other defendants). Likewise, because a trial against the current defendants would involve the same evidence as a trial involving the proposed defendants, joinder followed by remand could promote the efficient use of judicial resources, could spare witnesses the trouble of testifying at two different trials, and would allow plaintiff to resolve all of her claims relating to the accident in a single action without the danger of inconsistent judgments. See also Gurksy v. Northwestern Mut. Life Ins., Co., 139 F.R.D. 279, 283 (EDNY 1991) (Remand of this action will both avoid wasting judicial resources as well as the “inherent dangers of inconsistent results, both of which are at risk when parallel federal and state actions proceed simultaneously.”); Amon, 1992 U.S. Dist. LEXIS 280 at *8 (joinder satisfied fundamental fairness test where joining defendant would allow the dispute to be resolved in a single litigation and would therefore “prevent duplicative litigation, extra expense to the parties and the waste of judicial resources” and would “avoid piecemeal litigation against alleged joint-tortfeasors and the concomitant danger of inconsistent findings.”). Thus, this factor also weighs in favor of joinder.

The last factor involves a consideration of plaintiff’s motivation for the joinder request. To that end, joinder is not warranted where a plaintiff seeks to add the non-diverse parties solely to bring about a remand to state court. See Nazario, 295 F. Supp. 2d at 364. However, where “a plaintiff discovers new information subsequent to filing [a] complaint, that warrants the addition of new parties, courts have held that no inference arises that the plaintiff was motivated to join the defendant solely to defeat jurisdiction.” Cooper v. Trs. Of the College of the Holy Cross, 13-CV-8064, 2014 US Dist. LEXIS 82464 (SDNY June 17, 2014). As described above, plaintiff has set forth concrete reasons, beyond a preference for a particular forum, as to why she requests joinder of the new defendants. Specifically, plaintiff recently learned that additional parties were involved in the accident, and she now seeks to resolve her claims against all defendants relating to the accident in a single lawsuit. Indeed, before learning of the additional defendants, plaintiff raised no objection to proceeding in federal court. Thus, the Court finds no evidence here that plaintiff is motivated either by bad faith or a singular desire to proceed in state court. Thus, the final factor also weighs in favor of joinder. See Roll on Express, Inc. v. Travelers Indem. Co, of Conn., 09-CV-213, 2009 U.S. Dist. LEXIS 56729 (EDNY July 2, 2009) (permissible motivation for joinder where plaintiff discovers new information, subsequent to filing the complaint, that warrants the addition of new parties); Rodriguez v. Abbott Labs., 151 F.R.D. 529 (SDNY Nov. 1, 1993) (Joinder permitted where the district court had “no reason to suspect that plaintiff [was] merely attempting to defeat diversity and drag the case into her originally selected forum.”).

In sum, after consideration of the factors described above, the Court finds that joinder of the new defendants comports with the principals of fundamental fairness, even if the joinder ultimately results in destruction of this Court’s diversity jurisdiction and remand of this lawsuit to state court. Thus, defendants’ contention that plaintiff should only be permitted to amend the complaint to include diverse parties is rejected. As instructed previously, plaintiff shall renew the motion to amend with a new proposed second amended complaint that adequately sets forth the citizenship of all new defendants whom plaintiff seeks to join. Should the newly proposed complaint join one or more non-diverse defendants, and should it not assert any other basis for federal subject matter jurisdiction, this Court will issue a recommendation to the District Court that the case be remanded to New York State Supreme Court. See 28 U.S.C. § 1447(c) (A district court must remand a case to state court “if at any time before final judgment it appears that the district court lacks subject matter jurisdiction.”).

Plaintiff’s Motion to Compel
*7 In addition to filing the motion to amend the complaint, plaintiff has moved to compel various discovery responses from defendants Magezi and Seagate Freight as well as defendants Mitchell and Navajo Express. Defendants Magezi and Seagate Freight respond that they provided Rule 26 initial disclosures to plaintiff on July 8, 2021, the day after plaintiff filed the motion to compel, and that they are making “diligent efforts” to respond to plaintiff’s first set of interrogatories and request for production of documents. (Dkt. No. 20) Defendants Mitchell and Navajo Express respond that they provided Rule 26 initial disclosures, responses to plaintiff’s first set of interrogatories and responses to plaintiff’s request for document production on July 8, 2021.9 (Dkt. No. 21) Because the outstanding discovery requests have either been provided or defendants have indicated that they will be provided, the Court denies plaintiff’s motion to compel as moot and without prejudice. The Court also denies the discovery motion as moot since it is likely that an amended complaint will be filed with additional, non-diverse defendants, creating a likelihood that the case will be remanded to state court and requiring additional discovery.

CONCLUSION
For the foregoing reasons, plaintiff’s motion to amend the complaint is denied without prejudice and plaintiff is instructed to file a renewed motion to amend, together with a new proposed second amended complaint that complies with Federal Rule of Civil Procedure 8(a)(1), on or before November 5, 2021. (Dkt. No. 17) Plaintiff’s motion to compel discovery is denied as moot and without prejudice. (Dkt. No. 17)

SO ORDERED.

Dated: October 22, 2021

Buffalo, New York

All Citations
Slip Copy, 2021 WL 4962100

Footnotes

1
In Fielding v. Tollaksen, 510 F.3d 175 (2d Cir. 2007), the Second Circuit stated, in dicta, that a motion to amend is a nondispositive motion that may be referred to a magistrate judge and is subject to a clearly erroneous or contrary to law standard of review. While there have been conflicting views on the issue expressed by the district courts in the past, there is a general consensus in this Circuit that the determination of a motion to amend is considered nondispositive. See Steuben Foods, Inc. v. Gea Process Engineering, Inc., 1:12-CV-00904, 2016 U.S. Dist. LEXIS 90318 (WDNY July 12, 2016) (explaining that the weight of authority in this Circuit, as well as the Second Circuit’s decision in Fielding, is in favor of treating a motion to amend as nondispositive); Mid. Ml. Framing, LLC v. Varish Constr., Inc., 3:13-CV-01376, 2017 U.S. Dist. LEXIS 146874 (NDNY Sept. 11, 2017) (“Courts in the Second Circuit have generally considered motions to amend a complaint as non-dispositive.”); Dollar Phone Corp. v. St. Paul Fire & Marine Ins. Co., 09-CV-1640, 2011 U.S. Dist. LEXIS 22207 (EDNY Mar. 4, 2011) (“[A] magistrate judge’s decision on a motion to amend is nondispositive[.]”); Thompson v. United States, 16-CV-3468, 2018 U.S. Dist. LEXIS 2280 (SDNY Jan. 3, 2018) (“Motions…to amend are generally considered nondispositive motions.”) Based upon this case law, and because the Court is denying plaintiff’s motion to amend without prejudice, the Court issues the instant determination in the form of a decision and order.

2
The addition of the five new defendants, and allegations that these defendants were also involved in the automobile accident on January 30, 2019 and that their negligence also caused injury to Wilson-Abrams, are the only changes plaintiff seeks to make to the complaint.

3
Here, the proposed second amended complaint notes, with respect to jurisdiction and venue, that this case was previously removed to the Western District of New York by defendants based on “complete diversity of citizenship between the parties” and that the amount in controversy exceeds $75,000. (Dkt. No. 17-9) Based upon these allegations and the fact that plaintiff asserts only state law claims, it appears that plaintiff has attempted to invoke federal diversity jurisdiction with respect to the proposed second amended complaint. See 28 USC § 1332 (“The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interests and costs, and is between…citizens of different states.”).

4
The proposed second amended complaint does allege a “corporate headquarters” for each of the named corporate defendants. While a defendant’s corporate headquarters and principal place of business may be the same, that is not always the case, and the complaint should specify each defendant’s principal place of business. See Hertz v. Friend, 559 U.S. 77, 92 (2010) (“In this context, the term ‘principal place of business,’ often called the ‘nerve center,’ refers to the place where a corporation’s officers direct, control, and coordinate the corporation’s activities, normally the place where the corporation maintains its headquarters.”); compare Inland Rubber Corp. v. Triple A Tire Serv., Inc., 220 F. Supp. 490, 492 (SDNY 1963) (finding corporation’s principal place of business to be New York even though corporate headquarters were located in Ohio).

5
A failure to allege facts establishing jurisdiction need not prove fatal to a complaint. “[D]efective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts,” 28 U.S.C. § 1653. Such amendments will be freely permitted where necessary to avoid dismissal on purely technical grounds. See Canedy, 126 F.3d at 103.

6
As noted previously, it is generally agreed by the parties that at least one of the proposed new defendants is likely a citizen of New York and that, should plaintiff be permitted to join this individual, the Court would no longer possess subject matter jurisdiction over the lawsuit.

7
It is noted that the current defendants do hot contradict plaintiff’s explanation of the contents of the dash camera video, nor do they dispute that the proposed new defendants were involved in the accident on January 30, 2019.

8
Plaintiff also raises a cogent argument that denial of joinder of non-diverse parties could prejudice her claims against the remaining defendants. Specifically, if plaintiff was required to proceed against only the current defendants and other diverse parties in federal court, while being required to sue the non-diverse parties separately in state court, defendants in the federal lawsuit would have the advantage of an “empty chair defense” and could blame the accident and plaintiff’s injuries on the negligent actions of the absent defendants.

9
Plaintiff has not moved to compel discovery from Lambert and Western Express and has noted that these defendants have complied with discovery demands.

2021 WL 5408725
Unpublished Disposition

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
Superior Court of Pennsylvania.
LORI A. DIBBLE AND THERESA ODDO Appellants
v.
PAGE TRANSPORTATION, INC., PAGE E.T.C., INC., AMS TRUCKING, LLC, AND UPPER CANADA STONE COMPANY, LTD
No. 565 EDA 2021
|
FILED NOVEMBER 19, 2021
Appeal from the Order Entered February 10, 2021
In the Court of Common Pleas of Philadelphia County Civil Division at No(s): No. 200900060
BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.

MEMORANDUM BY BOWES, J.:

Lori A. Dibble and Theresa Oddo (collectively “Plaintiffs”) appeal from the order that sustained the preliminary objections of Page Transportation, Inc., Page E.T.C., Inc., and AMS Trucking, LLC (collectively “Defendants”) claiming venue was improper in Philadelphia County and transferring the action to Dauphin County.1 We affirm.

The trial court supplied the following summary of the history of this case:
This matter arises out of a September 10, 2018 motor vehicle accident on Interstate 90 at milepost marker 410 in the Town of Clarence, New York. The motor vehicle accident in the instant matter involved the Plaintiffs and Matthew Russel Swope, an individual who resides in Flinton, PA.1 Mr. Swope was the operator of a commercial semi-tractor with an attached commercial trailer owned by AMS Trucking, LLC. Mr. Swope is also the sole owner and only employee of AMS Trucking, LLC. The accident occurred when Mr. Swope allegedly attempted to merge from the right lane into the left lane and swiped the Plaintiffs’ vehicle causing Plaintiff[s] to strike the embankment alongside the right shoulder.
1 Flinton, PA is located in Cambria County.
The plaintiffs in this matter are Lori Dibble, the driver of the vehicle, and Theresa Oddo, a passenger in the vehicle, who reside in Batavia, NY and Corfu, NY, respectively. … The defendants in this matter are Page Transportation, Inc. and Page E.T.C., Inc., (collectively, hereinafter “Page Defendants”), both of which are New York corporations with registered business offices in Harrisburg, PA5; and AMS Trucking, LLC, (hereinafter AMS), a Pennsylvania corporation with a registered business address in Flinton, PA. The Page Defendants’ business, as trucking companies, consists solely of “hauling loads.” At the time of the accident, AMS was leased to haul loads for the Page Defendants. Mr. Swope, through AMS, was carrying a load for Page Transportation from Northern Canada to Pottstown, Pennsylvania.6
5 Harrisburg, PA is located in Dauphin County.
6 Pottstown, PA is located in Montgomery County.
Plaintiffs filed a complaint in the instant matter in the Court of Common Pleas in Philadelphia County on September 8, 2020. The Defendants filed preliminary objections to Plaintiffs’ complaint on October 13, 2020. The Plaintiffs filed an answer to Defendants[’] preliminary objections on November 2, 2020. Th[e trial] court issued a rule to show cause allowing all parties to submit supplemental briefing as to the issue of venue on November 6, 2020. Both Plaintiffs and Defendants filed supplemental briefing on December 28, 2020. Th[e trial] court issued an order on February 10, 2021 sustaining the preliminary objections and transferring the instant matter to the Court of Common Pleas, Dauphin County.
Trial Court Opinion, 5/19/21, at 1-3 (citations, unnecessary capitalization, ordinal indicators, and some footnotes omitted).

Plaintiffs filed a timely notice of appeal. The trial court ordered Plaintiffs to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Plaintiffs filed a timely statement. Thereafter, the trial court authored a Pa.R.A.P. 1925(a) opinion. Accordingly, the appeal is ripe for our disposition.

Plaintiffs present the following question for our consideration: “Whether the trial court erred when it sustained [Defendants’] preliminary objection with respect to improper venue?” Plaintiffs’ brief at 9. In particular, Plaintiffs contend that (1) the evidence of record, specifically the Page Defendants’ admitted contacts with Philadelphia County, was sufficient to establish proper venue in that county; and (2) Plaintiffs did not have “a fair opportunity to access” all pertinent documents, including reports of a search of the origin and destination of loads (“TMS reports”), bills of lading, E-Z Pass logs, fuel receipts, and maintenance records requested in discovery. See id. at 15-17.

We first address Defendants’ claim that Plaintiffs waived their appellate issues by filing a deficient Rule 1925(b) statement. The issue stated in Plaintiffs’ Rule 1925(b) statement was “The Honorable Trial Court erred as a matter of law, and thereby abused its discretion, in holding that Philadelphia County is an improper venue to the instant matter where Defendants have admitted to conducting business in Philadelphia County.” Plaintiffs’ Concise Statement, 3/31/21, at 2. Defendants assert that this statement is too vague to have put the trial court on notice of the errors alleged. See Defendants’ brief at 25-29. Defendants argue that the specific challenges Plaintiffs advance on appeal, namely the adequacy of the Philadelphia County contacts of record and Defendants’ failure to respond to discovery, are not sufficiently suggested by their Rule 1925(b) statement to have put the trial court on notice of the appellate issues. Id. at 27-28.

“The function of the concise statement is to clarify for the judge who issued the order the grounds on which the aggrieved party seeks appellate review – so as to facilitate the writing of the opinion.” Commonwealth v. Rogers, 250 A.3d 1209, 1224 (Pa. 2021). Where the statement does not provide the trial court with sufficient notice of the alleged error, waiver results. See, e.g., Lineberger v. Wyeth, 894 A.2d 141, 148–49 (Pa.Super. 2006) (finding waiver where the concise statement vaguely alleged that the trial court erred in granting a motion for summary judgment).

Here, Plaintiffs’ statement clearly notified the trial judge that they believed that the evidence of record concerning Defendants’ contacts with Philadelphia County warranted overruling the preliminary objection to venue, and the trial court addressed that claim in its opinion. However, nothing in Plaintiffs’ statement alerted the trial court that they were further complaining that Defendants did not supply requested evidence. Understandably, the trial court did not address outstanding discovery in its opinion. Accordingly, we find that Plaintiffs waived their discovery-based argument by failing to include in in their Rule 1925(b) statement. See, e.g., Grabowski v. Carelink Cmty. Support Servs., Inc., 230 A.3d 465, 476 (Pa.Super. 2020) (holding issue not included in Rule 1925(b) statement was waived on appeal). However, we shall proceed to address Plaintiffs’ preserved contention that the evidence which was produced by Defendants did not support the trial court’s ruling.

We begin with a review of the pertinent legal principles. Venue is governed by Pa.R.C.P. 1006, which provides:
Improper venue shall be raised by preliminary objection and if not so raised shall be waived. If a preliminary objection to venue is sustained and there is a county of proper venue within the State the action shall not be dismissed but shall be transferred to the appropriate court of that county.
Pa.R.C.P. 1006(e). Rule 1006 further specifies that actions against “corporations and similar entities” may be brought only in the counties designated by Pa.R.C.P. 2179.2 See Pa.R.C.P. 1006(b). Rule 2179 identifies the counties in which venue against a corporation lies as follows:
(1) the county where its registered office or principal place of business is located;
(2) a county where it regularly conducts business;
(3) the county where the cause of action arose;
(4) a county where a transaction or occurrence took place out of which the cause of action arose, or
(5) a county where the property or a part of the property which is the subject matter of the action is located provided that equitable relief is sought with respect to the property.
Pa.R.C.P. 2179(a). Plaintiffs’ assertion of proper venue in the instant action is based solely upon the contention that the Page Defendants regularly conducted business in Philadelphia County.

Plaintiffs contend that we apply a de novo, plenary standard of review of the trial court’s decision to sustain Defendants’ preliminary objections alleging improper venue. See Plaintiffs’ brief at 8 (citing, inter alia, Trexler v. McDonald’s Corp., 118 A.3d 408, 412 (Pa.Super. 2015)). While that standard is generally applicable to appeals concerning preliminary objections, our Supreme Court has stated a different standard for review of a trial court’s Rule 2179(a)(2) determination. Specifically, the High Court long ago specified that an appellate court may not overturn a trial court’s determination whether a corporation regularly conducted business in a given county if “such conclusion is a reasonable one in view of the facts.” Monaco v. Montgomery Cab Co., 208 A.2d 252, 256 (Pa. 1965). As such, “[w]e review an order granting or denying preliminary objections asserting improper venue for abuse of discretion.” Hangey v. Husqvarna Prof’l Products, Inc., 247 A.3d 1136, 1140 (Pa.Super. 2021) (en banc). Accordingly, we apply the more deferential abuse-of-discretion standard in reviewing the trial court’s application of the above-refenced law to the facts of the instant case.

This Court recently conducted an examination of what type of evidence establishes that “acts are being ‘regularly’ performed within the context of the particular business.” Hangey, supra at 1141 (cleaned up). We observed that “in the venue context, ‘regularly’ does not mean ‘principally,’ and a defendant may perform acts ‘regularly’ even though these acts make up a small part of its total activities.” Id. (cleaned up). We further explained:
In determining whether venue is proper under this rule, courts employ a quality-quantity analysis. The term “quality of acts” means those directly furthering, or essential to, corporate objects; they do not include incidental acts. To satisfy the quantity prong of this analysis, acts must be sufficiently continuous so as to be considered habitual.
Id. (cleaned up).

The trial court summarized the evidence of Defendants’ contacts with Philadelphia County and its legal conclusions as to the import of that evidence as follows:
The undisputed facts are, since the inception of AMS in 2006, AMS has never conducted any business in Philadelphia County. AMS has a registered business office in Flinton, PA[, its only office]. Matthew Swope, the sole owner and employee of the company, testified at a deposition that “AMS Trucking has never traveled in or out of the Philadelphia area for any loads whatsoever.” The majority of AMS’[s] loads originate in Western Pennsylvania, Allentown, PA, and Maryland. Not only does AMS not have any business in Philadelphia County, AMS’[s] drivers “never” travel through Philadelphia with their loads. Furthermore, for a two year period, approximately spanning from the beginning of 2016 until November of 2018, AMS was leased to the Page Defendants to haul trucking loads. AMS never had a customer in Philadelphia County for either the Page Defendants or themselves. Since AMS has never conducted any business in Philadelphia County, venue as to AMS is improper.
The Page Defendants, upon the filing of their Preliminary Objections in the instant matter, attached an affidavit of Christopher Jorolemon. Mr. Jorolemon has worked for Page Transportation since 1999 and has been the Vice President of Operations since 2006. In Mr. Jorolemon’s affidavit dated October 6, 2020, Mr. Jorolemon asserted the Page Defendants do not currently have offices, own property, lease property or store equipment in Philadelphia County. Furthermore, the Page Defendants have never had offices, equipment or employees located in Philadelphia County. From approximately 2015 through 2020, Mr. Jorolemon asserted less than one-half of a percent of the Page Defendants’ loads either originated from or were delivered to Philadelphia County.
Mr. Jorolemon was deposed following th[e trial] court’s rule permitting supplemental briefing on the sole issue of venue. During his deposition, Mr. Jorolemon testified that the figures used in the original affidavit’s “one-half of one percent” figure was an estimate using his “understanding of our business and where we conducted business.” Mr. Jorolemon provided a supplemental affidavit and further testified to undertaking a search using the Page Defendants’ TMS system to determine the exact extent of their business in Philadelphia County.
From January 1, 2016 until December 2, 2020, the Page Defendants had eighty-six (86) loads that were delivered into Philadelphia County, delivered out of Philadelphia County or had a billing address in Philadelphia County regardless of where the delivery either began or ended. In that same period of time, the Page Defendants were responsible for five hundred twelve thousand three hundred eighty-four loads (512,384). Therefore, only .0167% of the Page Defendants[’] loads had any connection to Philadelphia County. The 86 loads with a connection to Philadelphia County derived from ten (10) customers. In order for venue to be proper in a given county, a business organization has to “regularly conduct business.” Using the [pertinent test], Plaintiffs have failed to prove the Page Defendants have either the requisite quantity or quality of business to be considered regular. The hauling of 86 loads over the course of five years is far more incidental than essential to the totality of the Page Defendants’ business.
As previously stated, the Page Defendants are New York corporations with a registered office in Harrisburg, Pennsylvania.
The Page Defendants do not have any physical locations in Philadelphia County. The only “physical location” the Page Defendants own in Pennsylvania is a “dispatch office” in Beaver County. Furthermore, the underlying accident in this matter happened in Clarence, New York. At the time of the accident, neither the Plaintiffs nor any of the Defendants were driving to or from Philadelphia County. The Plaintiffs reside in Batavia, New York and Corfu, New York, respectively. The Plaintiffs received no medical treatment in Philadelphia County. The Plaintiffs do not work in Philadelphia County. Plaintiffs do not own, lease, or rent any property in Philadelphia County. The Plaintiffs do not have any immediate relatives who live in Philadelphia County. The only connection any party in the instant matter has to Philadelphia County is the infinitesimal percentage, .0167%, of loads that either were delivered, originated or billed to an address in Philadelphia County by the Page Defendants in the past five years.
Trial Court Opinion, 5/19/21, at 5-8 (citations, footnotes, and unnecessary capitalization omitted).

Examination of our decision in Hangey, which involved the same trial court and similar evidence, is helpful to our review of the trial court’s determination in the case sub judice. In Hangey, the plaintiffs sued a number of defendants in Philadelphia County alleging liability for a personal injury suffered in 2016 in connection with a lawn mower purchased and used in Bucks County. The only basis for venue in Philadelphia County was that the defendant HPP regularly conducted business there pursuant to Rule Pa.R.C.P. 2179(a). Discovery revealed that HPP “had approximately $1.4 billion in sales revenue in the United States, of which $75,310.00 came from direct sales in Philadelphia County.” Hangey, supra at 1139 (cleaned up).
Of the $75,000 in sales made in Philadelphia in 2016, roughly $69,700 came from a single [HPP] authorized dealer, DL Electronics, Inc. Approximately 0.005% of HPP’s 2016 United States sales revenue resulted from direct sales in Philadelphia County. Sales data from 2014 and 2015 is substantially similar, with approximately 0.005% of [HPP]’s annual United States sale revenue resulting from direct sales within Philadelphia County.
Id. (cleaned up). The trial court held that venue was improper because, although HPP’s contacts with Philadelphia County were of sufficient quality, they did not satisfy the quantity prong of the test. “The court reasoned that only 0.005% of HPP’s national revenue came from sales in Philadelphia and concluded that because this amount was ‘de minimis,’ HPP’s contact with Philadelphia was not general and habitual.” Id. at 1140.

In considering the challenge to the trial court’s decision, we examined the significance of the percentage of a company’s business conducted in the county at issue. Specifically, we explained:
The percentage of a company’s overall business that it conducts in a given county, standing alone, is not meaningful and is not determinative of the “quantity” prong. Each case turns on its own facts, and we must evaluate evidence of the extent of a defendant’s business against the nature of the business at issue. A small or local business may do all of its work in just a few counties or even a single one, while a large business may span the entire nation. Indeed, the percentage of sales a multi-billion-dollar company makes in a particular county will almost always be a tiny percentage of its total sales. Courts thus should not consider percentages in isolation. Rather, courts must consider all of the evidence in context to determine whether the defendant’s business activities in the county were regular, continuous, and habitual.
Id. at 1142.

Applying that standard to the facts before it, this Court reversed. We held that “the trial court erred in relying almost exclusively on evidence of the percentage of defendant’s business that occurred in Philadelphia when addressing the quantity prong” of the regularly-conducts-business analysis. Id. at 1143. We further ruled that HPP’s “contacts with Philadelphia—including having an authorized dealer in Philadelphia, and selling $75,310 worth of products through that dealer in 2016 in Philadelphia—were ‘sufficiently continuous so as to be considered habitual.’ ” Id.

In the instant appeal, Plaintiffs assert that the trial court again erred in relying solely on the percentage of the Page Defendants’ overall loads that were connected to Philadelphia County. Plaintiffs contend that the amount of business conducted in Philadelphia County was “enough to make venue appropriate.” Plaintiffs’ brief at 21. Plaintiffs argue that this Court has decided that relevant contacts constituting a small percentage of sales is determinative only where the defendants were small or local companies. Id. at 21-22. By contrast:
By Mr. Jorolemon’s own admission, the Page [Defendants] are a multinational company operating in both the United States and Canada. According to Mr. Jorolemon, the company has dispatch offices in Ohio, Michigan, Indiana, Kentucky, North Carolina, Kansas, New Jersey, and Pennsylvania. While [Defendants] contend that 0.0167% of its loads had a connection to Philadelphia County, [they] wholly fail to quantify the actual business they conduct within Philadelphia. Mr. Jorolemon testified that the Page [Defendants] had ten customers in Philadelphia County from 2016-2020, and multiple loads had been delivered to some of the customers throughout the five-year period. Conveniently, Mr. Jorolemon was unable to confirm the number and frequency of repeat customers requiring multiple loads to be delivered to Philadelphia. Moreover, it is strange that the Page [Defendants] have offices located in New Jersey, less than sixty miles from Philadelphia, yet contend that they do not have the requisite contact with Philadelphia for venue purposes. As such, because [the Page Defendants] have the requisite contact with Philadelphia County, the trial court erred in sustaining their Preliminary Objection.
Id. at 22-23 (citations omitted).

At first blush, it appears that there may be merit to Plaintiffs’ argument that, in the instant action, the trial court again focused too narrowly upon the percentage of the respective defendant’s overall business conducted in Philadelphia. As Hangey explained, in analyzing the quantity prong of the test, the number of contacts with Philadelphia County is to be considered from the perspective of the county rather than solely from that of the business. While a percentage of sales in a county may be miniscule viz-a-viz the company’s overall sales, they may nonetheless amount to systematic, continuous, and habitual, and therefore “regular,” business in the county.

However, looking at the specific facts of the instant case, we conclude that the trial court’s ruling is a reasonable one. Most significantly, and in contrast to the defendant in Hangey, none of Defendants here has any office or authorized dealer in Philadelphia County. Such a relationship suggests a continuous, habitual connection with a county that is simply not present in this case. The trial court acted reasonably here in determining that, despite Plaintiffs’ speculation about the strangeness and convenience in the testimony, the mere occasional delivery or pickup of a load in Philadelphia County did not rise to the level of continuous, habitual contact.

Furthermore, while the trial court in Hangey held that the defendant’s contacts in that case were indeed of the requisite quality to impart venue, here the trial court ruled that none of Defendants had such quality contacts. Plaintiffs present us with no challenge to the trial court’s quality assessment, nor authority and argument to suggest that the quantity of contacts here is such that venue is proper in the absence of quality contacts.

Accordingly, Plaintiff has failed to establish that the trial court abused its discretion in sustaining Defendants’ preliminary objections raising improper venue on the basis that none of them regularly conducted business in Philadelphia County. Therefore, we affirm the trial court’s February 10, 2021 order sustaining the venue objection and transferring the action to Dauphin County.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Judge Nichols and Judge McLaughlin concur in the result.
All Citations
Slip Copy, 2021 WL 5408725 (Table)

Footnotes

1
Named defendant Upper Canada Stone Company, LTD, was dismissed from the action upon stipulation of the parties.

2
With exceptions not pertinent here, where joint and severable liability is sought against two or more defendants, as is the case in the instant action, the action “may be brought against all defendants in any county in which the venue may be laid against any one of the defendants[.]” Pa.R.C.P. 1006(c)(1).