RULING AND ORDER
Plaintiff brings this action, in her own capacity and asadministrator of her husband's estate, for negligence, wrongfuldeath, and loss of consortium. Jurisdiction is based on diversityof citizenship; plaintiff is a citizen of New York and defendantsare citizens of Connecticut. Pending for decision are motions todismiss for nonjoinder of Frank Kessler, M.D., a citizen of NewYork, against whom the movants have filed claims forapportionment; motions to strike plaintiff's voluntary dismissalof her claims against Scott Berger, M.D., which plaintiff filedafter discovering that Dr. Berger is also a citizen of New York;and motions to dismiss for lack of subject matter jurisdictionbased on the lack of diversity of citizenship between theplaintiff and Dr. Berger. In essence, the movants contend thatthe action must be dismissed because Dr. Kessler is anindispensable party under Rule 19 of the Federal Rules of CivilProcedure (i.e. a necessary party who cannot be made a party without divesting the court of diversity jurisdiction) andplaintiff's attempt to preserve diversity jurisdiction byvoluntarily dismissing her claims against Dr. Berger, anondiverse party, is invalid under Rule 41(a)(1) of the FederalRules of Civil Procedure. I conclude that any risk of prejudiceto the movants arising from the nonjoinder of Dr. Kessler can beeliminated by joining him as a third-party apportionmentdefendant, and that plaintiff's voluntary dismissal of her claimsagainst Dr. Berger is valid.1 Accordingly, the pendingmotions are denied.
Plaintiff's husband received medical treatment at DanburyHospital in 2001. During that time, he received care from JohnBorruso, M.D., and Joseph J. Catania, M.D., both surgeonsemployed by Danbury Surgical Associates ("DSA"). Plaintiffalleges that these defendants failed to adhere to good medicalpractice in their diagnosis, treatment and monitoring of herhusband and that, as a result, he suffered permanent disablinginjuries, which ultimately led to his death in July 2003.
In April 2002, plaintiff filed this suit against Danbury Hospital, Dr. Borruso, and a number of other medicalpersonnel.2 Following the death of her husband in July2003, she sought, and was granted, a stay of the case. In January2005, she filed an amended complaint adding a claim for wrongfuldeath.
In March 2005, plaintiff filed a second amended complaint,adding as defendants Dr. Catania, DSA, and Dr. Berger. She thenlearned that Dr. Berger is a citizen of New York and thus anondiverse party. On June 15, she filed a third amendedcomplaint, which is now the operative complaint, setting forthclaims against Danbury Hospital, Drs. Catania and Borruso, andDSA, but not Dr. Berger. She then filed a notice purporting todismiss all her claims against Dr. Berger with prejudice pursuantto Rule 41(a)(1).
Shortly after the third amended complaint was filed, Drs.Catania and Borruso and DSA filed apportionment complaints underConn. Gen. Stat. §§ 52-572h and 52-102b against Dr. Kessler,contending that he is liable for all or part of plaintiff'salleged damages.3 These claims differ from contributionclaims in that they seek to apportion liability on the plaintiff'sclaims, rather than recover money damages. See Bloom v.Gershon, 271 Conn. 96, 110 (2004).
The movants have also filed notices of claims of apportionmentunder Conn. Gen. Stat. § 52-102b(c), alleging that plaintiff'sdamages are attributable to negligent acts and omissions of otherpersons, including Dr. Berger. Notices of claims of apportionmentare filed against a person who has been released from liabilityto the plaintiff. When such a notice is filed, the releasedperson is not made a party but the plaintiff's total award may bereduced by the released person's percentage of negligence, asdetermined by the factfinder. Conn. Gen. Stat. § 52-572h(f), (n);see also Collins v. Colonial Penn Ins. Co., 257 Conn. 718,734-35 (2001).
Motions to Dismiss for Nonjoinder of Dr. Kessler
Rule 19 of the Federal Rules of Civil Procedure provides, "Aperson who is subject to service of process and whose joinderwill not deprive the court of jurisdiction over the subjectmatter . . . shall be joined as a party in the action if (1) inthe person's absence complete relief cannot be accorded amongthose already parties." Fed.R.Civ.P. 19(a). If such a personcannot be made a party, the court must determine "whether in equity and good conscience the action should proceed among theparties before it, or should be dismissed, the absent personbeing thus regarded as indispensable." Fed.R.Civ.P. 19(b). Inmaking this determination, the court must consider to what extenta judgment rendered in the person's absence might be prejudicialto those already parties, and whether there are measures by whichthe prejudice can be avoided. Id. The parties may be requiredto take steps to eliminate the risk of prejudice, includingimpleading the absent person. See Associated Dry Goods Corp.v. Towers Fin. Corp, 920 F.2d 1121, 1124-25 (2d Cir. 1990)(citing with approval cases holding that persons who can beimpleaded are never indispensable under Rule 19(b)); see alsoSamaha v. Presbyterian Hosp., 757 F.2d 529, 531 (2d Cir. 1985)(observing that joint tortfeasors are not indispensable and that"the possibility of prejudice . . . is alleviated by theavailability of impleader under Fed.R.Civ.P. 14(a)"). "[A]court should take a flexible approach when deciding what partiesneed to be present for a just resolution of the suit." Jaser v.N.Y. Prop. Ins. Underwriting Ass'n, 815 F.2d 240, 242 (2d Cir.1987). Dismissing the action is a measure of last resort.
Defendants contend that Dr. Kessler is a necessary partybecause apportionment in the present action is their only meansof shifting liability to him. His joinder as a defendant woulddestroy complete diversity, however, because he and the plaintiffare both citizens of New York. Accordingly, defendants urge thecourt to dismiss the action on the ground that he is indispensable under Rule 19. Plaintiff responds that, evenassuming Dr. Kessler is a necessary party, the action should beallowed to proceed because defendants can implead him as athird-party defendant on their apportionment claims withoutdivesting the court of diversity jurisdiction. I agree.
Defendants contend that Dr. Kessler, as an apportionmentdefendant, should be treated for purposes of subject matterjurisdiction as an original defendant, not a third-partydefendant. Their argument has some force. Apportionment claimsseek to impose direct liability to the plaintiff, not liabilityin damages to the defendant on a theory of contribution, asdefendants correctly point out. See Bloom, 271 Conn. at 110("[A]pportionment claims are claims for the apportionment ofliability and are, therefore, separate and distinct from claimsfor monetary damages."). Moreover, the text of Rule 14 of theFederal Rules of Civil Procedure, which governs impleader ofthird-party defendants, does not precisely apply to impleader ofapportionment defendants.4
Nonetheless, apportionment claims are like third-party claimsin important respects. The apportionment plaintiff bears theburden of proving the apportionment defendant's liability. More fundamentally, apportionment and impleader under Rule 14share a common purpose: "[D]efendant is attempting to transfer tothe third-party defendant the liability asserted against him bythe original plaintiff." Montanez v. Hartford Healthcare Corp.,No. 3:03CV1202 (GLG), 2003 WL 22389355, at *5 (D. Conn. Oct. 17,2003) (quoting 6 Wright et al., Federal Practice and Procedure§ 1446, at 377 (2d ed. 1990)).
For these reasons, judges in this District have permittedapportionment claims to be brought as third-party claims underRule 14. See Montanez, 2003 WL 22389355, at *5-6; Degrenierv. Joly, No. 3:01CV1012 (CFD), 2002 WL 31106386, at *1 (D. Conn.Aug. 9, 2002); Kim v. Convent of the Sacred Heart, Inc., No.3:95CV961 (AHN), 1998 WL 241213, at *3 (D. Conn. Apr. 17, 1998).Following these decisions, Dr. Kessler, as an apportionmentdefendant, may be treated as a third-party defendant for purposesof subject matter jurisdiction.5
Impleader of a third-party defendant who is not diverse fromthe plaintiff does not divest a court of diversity jurisdiction.Caterpillar, Inc. v. Lewis, 519 U.S. 61, 66-67 n. 1 (1996).Diversity jurisdiction over a third-party claim depends on thecitizenship of the third-party plaintiff and defendant only.Id.; see also Kim, 1998 WL 241213, at *3. In this case, defendants are citizens of Connecticut and Dr. Kessler is acitizen of New York. Thus, he may be joined as a third-partyapportionment defendant without divesting the court of diversityjurisdiction, even though plaintiff is also a citizen of NewYork. In this way, any prejudice caused by his nonjoinder can beeliminated. Accordingly, the motions to dismiss for nonjoinderare denied.
Motions to Strike Notice of Dismissal as to Dr. Berger
Defendants move to strike plaintiff's notice of voluntarydismissal of her claims against Dr. Berger, contending thatdismissal of less than an entire case is not authorized by Rule41(a)(1).6 They rely on Harvey Aluminum, Inc. v.American Cyanamid Co., 203 F.2d 105, 108 (2d Cir. 1953), wherethe Second Circuit interpreted the term "action" in Rule 41(a)(1)to mean "entire controversy" and, on that basis, stated that theRule may not be used to dismiss claims against fewer than alldefendants. This aspect of Harvey Aluminum has been widelycriticized and appears to have been disavowed by the SecondCircuit. See Wakefield v. N. Telecom, Inc., 769 F.2d 109, 114n. 4 (2d Cir. 1985). As a result, district courts have declinedto view it as binding, even though it has not been explicitlyoverruled. See Mut. Benefit Life Ins. Co. v. Carol Mgt.Corp., 93 Civ. 7991 (LAP), 1994 WL 570154, at *1 (S.D.N.Y. Oct.13, 1994); see also Baksh v. Captain, 99-CV-1806 (ILG), 2000 WL 33177209, at *2-3(E.D.N.Y. Dec. 11, 2000).
As these courts have recognized, a plaintiff may use Rule 41 todismiss a nondiverse party provided the party has not yet servedan answer or motion for summary judgment. See 8 James Wm. Mooreet al., Moore's Federal Practice, § 41.21, at 37-38 (3d ed.2005) (noting that Rules 15(a), 21, and 41 may be used to dismissmisjoined parties). If these conditions are met, the plaintiffhas the unilateral right to discontinue the action. Seippel v.Jenkens & Gilchrist, P.C., 03 Civ. 6942(SAS), 2004 WL 2809205,at *1 & n. 3 (S.D.N.Y. Dec. 7, 2004).7
In this case, plaintiff filed her notice of dismissal beforeDr. Berger served an answer or motion for summary judgment. Thenotice is therefore valid and, accordingly, the motions to strikeare denied.8 Motions to Dismiss for Lack of Subject Matter Jurisdiction
Defendants' motions to dismiss for lack of subject matterjurisdiction are predicated on the lack of diversity ofcitizenship between plaintiff and Dr. Berger, both of whom arecitizens of New York. Because I have concluded that plaintiff'svoluntary dismissal of her claims against Dr. Berger is valid, heis no longer a party and defendants' motions to dismiss for lackof diversity jurisdiction are therefore moot. In substance,however, defendants' arguments resemble a Rule 12(b)(7) motion todismiss for nonjoinder of an indispensable party under Rule 19,so I will address them accordingly.
Defendants seek to apportion the liability of Dr. Berger, justas they do the liability of Dr. Kessler. For the reasons statedabove, they can implead him for this purpose and thus eliminateany prejudice to them caused by his nonjoinder, even though hetoo is a citizen of New York. They have not filed apportionmentcomplaints against him, however, presumably because they regardhim as a released party under the apportionment statute. Whetherhe should be so regarded is unclear because there is noindication that the plaintiff actually agreed to release him inexchange for some consideration. Even assuming he is a releasedperson, however, and thus cannot be made a party, he is not indispensable under Rule 19 because, as noted at theoutset, any recovery by the plaintiff will be reduced by hispercentage of negligence.
Accordingly, the motions to dismiss and strike are herebydenied.