           United States Court of Appeals
                       For the First Circuit

No. 04-1837

                        CLIFFORD GORFINKLE,

                       Plaintiff, Appellant,

                                and

     DEBORAH A. GARSTON; PPA ALEXANDRA REBECCA JEAN GARSTON,

                            Plaintiffs,

                                 v.

                U.S. AIRWAYS, INC.; F.F. SANTARPIO,

                       Defendants, Appellees.


            APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF MASSACHUSETTS
         [Hon. George A. O’Toole, Jr., U.S. District Judge]


                               Before
               Lipez and Howard, Circuit Judges, and
                          Restani, Judge.*


     Frank J. Riccio for appellant.
     Richard P. Campbell with whom Kathleen M. Guilfoyle and
Campbell Campbell Edwards & Conroy, PC. were on brief for appellee
U.S. Airways, Inc.
     William J. Flanagan with whom Morrison Mahoney LLP were on
brief for appellee F.F. Santarpio.


                          December 7,2005




     *
      Honorable Jane A. Restani, Chief Judge of the United States
Court of International Trade, sitting by designation.
           RESTANI, Judge. Clifford Gorfinkle (“Gorfinkle”) brought

a negligence claim against U.S. Airways, Inc. (“U.S. Airways”) in

Massachusetts state court.           U.S. Airways then removed the case to

federal court based upon diversity of citizenship, and brought a

third-party claim against F.F. Santarpio (“Santarpio”).                  Gorfinkle

subsequently filed a Second Amended Complaint adding Santarpio, a

nondiverse      party,    as   a   direct   defendant,    and     thus   destroyed

diversity. The case proceeded to the merits without the parties or

the district court recognizing the diversity issue and the court

granted summary judgment in favor of Gorfinkle.

           We dismiss the complaint against Santarpio with prejudice

in order to preserve diversity jurisdiction, and otherwise affirm

the district court’s grant of summary judgment.

                  I.     FACTUAL AND PROCEDURAL BACKGROUND

           Gorfinkle claims that he was injured on March 9, 1996,

because U.S. Airways created a hazardous condition in its baggage

claim area, and then failed to warn him of, and protect him from,

the hazardous condition.             The hazardous condition consisted of

stacked luggage in a baggage claim area at Logan International

Airport in Boston, Massachusetts.

           The    night     before    Gorfinkle’s     accident,     U.S.    Airways

canceled his flight from Philadelphia, Pennsylvania, to Boston,

Massachusetts.      His luggage was sent ahead to Logan International

Airport   and    Gorfinkle     followed     on   an   overnight    train.     Upon


                                        -2-
arriving, Gorfinkle went to the airport to pick up his luggage.

Once at the airport, he went into a roped-off baggage claim area

where luggage had been stacked about two to three bags high. He

climbed on top of the stacked luggage and walked on top of the

stacks to find his suitcase.         Gorfinkle then attempted to pull out

a suitcase from underneath two other bags, but let go when he

realized it was not his.        He then lost his balance, fell, and

injured himself.

            Afterwards, Gorfinkle brought a negligence claim against

U.S. Airways in Suffolk Superior Court.               On May 27, 1999, U.S.

Airways removed the action to federal court based upon diversity of

citizenship – Gorfinkle is a domiciliary of Massachusetts, while

U.S. Airways is a Delaware corporation with its principal place of

business    in   Virginia.   U.S.    Airways   then      filed   a   third-party

complaint against Santarpio, the skycap for the baggage claim area

and   a   Massachusetts   corporation       with   its   principal     place   of

business in Massachusetts.          While this did not defeat diversity,

Gorfinkle destroyed diversity when he filed a Second Amended

Complaint adding Santarpio as a direct defendant.1

            The district court did not realize that diversity was

defeated and granted summary judgment in favor of the defendants.


      1
      The Second Amended Complaint included claims brought by
Gorfinkle’s daughter, Alexandra Rebecca Jean Garston, and wife,
Deborah A. Garston. Alexandra’s claim was dismissed on August 8,
2003, and Deborah’s claim was dismissed on January 30, 2004.
Neither are party to this appeal.

                                      -3-
Gorfinkle      appealed     the    grant   of    summary   judgment.    Upon   oral

argument, the court discovered that complete diversity had been

defeated.      In his supplemental brief, Gorfinkle asks the court to

remand   the    case   to    state    court,     while   appellees   request   the

dismissal of Santarpio to preserve diversity jurisdiction.

                          II.     DIVERSITY JURISDICTION

            In order to maintain an action in federal court based

upon diversity jurisdiction, the plaintiff must be diverse from the

defendant in the case.            See Am. Fiber & Finishing, Inc. v. Tyco

Healthcare Group, LP, 362 F.3d 136, 139 (1st Cir. 2004) (citing

Strawbridge v. Curtiss, 7 U.S. 267 (1806)).                The addition of a non-

diverse defendant in an amended complaint defeats diversity.                   See

id. at 141–42.

            If the nondiverse party is dispensable, however, an

appellate court can preserve diversity jurisdiction by dismissing

the non-diverse party from the action.               See Newman-Green, Inc. v.

Alfonzo-Larrain, 490 U.S. 826, 837 (1989). In taking this step, an

appellate court “should carefully consider whether the dismissal of

a nondiverse party will prejudice any of the parties in the

litigation.” Id. at 838.

            In the instant case, Gorfinkle added a nondiverse party,

Santarpio, as a defendant in his amended complaint.                    Even though

Santarpio’s presence defeated diversity, the case proceeded to a

decision on the merits. We conclude that we can preserve diversity


                                           -4-
jurisdiction by dismissing Santarpio because he is a dispensable

party and his dismissal will not prejudice any of the remaining

parties.

            First, we can dismiss Santarpio because he is a potential

joint tortfeasor, and thus a dispensable party.            See id. at 838 (in

regards to a party that was “jointly and severally liable, it

cannot be argued that [the party] was indispensable to the suit”);

Temple v. Synthes Corp, Ltd., 498 U.S. 5, 7 (1990); Casas Office

Machs., Inc. v. Mita Copystar Am., Inc., 42 F.3d 668, 677 (1st Cir.

1994); Austin v. Unarco Indus., Inc., 705 F.2d 1, 5 (1st Cir.

1983).     Under Massachusetts tort law, parties are jointly and

severally liable “if [they] negligently contribute to the personal

injury     of   another   by     their   several     acts,    which    operate

concurrently, so that in effect the damages suffered are rendered

inseparable.”     O’Connor v. Raymark Indus., 518 N.E.2d 510, 513

(Mass. 1988) (citing to Chase v. Roy, 294 N.E.2d 336 (Mass. 1973)).

Here, Santarpio is a potential joint tortfeasor because Gorfinkle’s

injuries    stemmed   from     one   fall,   which   he   attributes   to   the

negligence of both U.S. Airways and Santarpio.2           Thus, Santarpio is

also a dispensable party that the court can dismiss.

            Second, Santarpio’s dismissal will not prejudice any of


     2
      Gorfinkle’s complaint alleges that U.S. Airways and Santarpio
negligently allowed a hazardous condition to exist, Compl. at 2, ¶
6, negligently failed to warn about the hazardous condition, Compl.
at 2, ¶ 7, and negligently failed to protect Gorfinkle from the
hazardous condition, Compl. at 2, ¶ 8.

                                      -5-
the remaining parties.    In examining prejudice, the Supreme Court

cautioned that “[i]t may be that the presence of the nondiverse

party produced a tactical advantage for one party or another.”

Newman-Green, 490 U.S. at 838.          The Court found no tactical

advantage when “[d]iscovery directed to [the nondiverse defendant]

while he was a party would have been available even if he had not

been a party.”   Id.; see also Sweeney v. Westvaco Co., 926 F.2d 29,

41 (1st Cir. 1991) (plaintiff could have called the same witness

and introduced the same evidence even in the nondiverse defendant’s

absence); Casas Office Machs., 42 F.3d at 677 (plaintiff could have

obtained the same business and financial records even if the

nondiverse defendant was absent in the case).         Likewise, in this

case, even in Santarpio’s absence, Gorfinkle would have been able

to conduct the same discovery – call Santarpio as a witness, take

depositions, and request documents. Thus, Santarpio’s presence did

not provide Gorfinkle with any tactical advantage.

          Finally, the only party here who would be prejudiced by

Santarpio’s   dismissal   is   Santarpio   himself.      Santarpio   had

participated in the litigation from the beginning, the case had

reached a judgment on the merits, and Santarpio may have to

relitigate the suit in state court if he is dismissed.       We resolve

this problem by dismissing Santarpio with prejudice.3       See Newman-

     3
      We are mindful that in a similar case, Casas Office Machines,
we remanded the issue of whether to dismiss with or without
prejudice to the district court. Casas Office Machines was before
us on interlocutory appeal and we emphasized that unlike in Newman-

                                  -6-
Green, 490 U.S. at 837–38 (nondiverse defendant was dismissed with

prejudice because he had participated in the litigation from the

start, the case had reached a judgment on the merits, and he would

be faced with the possibility of a new suit if he were dismissed

without prejudice).

           Therefore, we are able to preserve diversity jurisdiction

and can review the merits of Gorfinkle’s appeal.

                   III.   OPEN AND OBVIOUS DANGER

           The district court granted summary judgment in favor of

U.S. Airways, finding that U.S. Airways owed no duty to Gorfinkle

because walking on top of stacked luggage was an open and obvious

danger.   Summary judgment is appropriate if “there is no genuine

issue as to any material fact and . . . the moving party is

entitled to judgment as a matter of law.”    Fed. R. Civ. P. 56(c).

The evidence is viewed in the light most favorable to the nonmoving

party.    Nicolo v. Philip Morris Inc., 201 F.3d 29, 33 (1st Cir.

2000).

           Upon careful review of this case, we hold that the




Green, the defendants did not have their claims adjudicated by the
district court and the parties had not had a chance to argue the
issue. 42 F.3d at 677–78. Here, the parties fully litigated their
claims.

     Additionally, a joint tortfeasor defendant dismissed with
prejudice to preserve diversity jurisdiction may still be liable to
the remaining defendant for indemnity or contribution. See Newman-
Green, 490 U.S. at 838.     Here, because we affirm the district
court’s judgment in U.S. Airways’ favor, the issue is irrelevant.

                                 -7-
district court properly granted summary judgment in favor of U.S.

Airways.     The undisputed material facts show the existence of an

open and obvious danger that negated U.S. Airway’s duty of care to

Gorfinkle.

           “Before liability for negligence can be imposed, there

must first be a legal duty owed by the defendant to the plaintiff.”

Davis v. Westwood Group, 652 N.E.2d 567, 569 (Mass. 1995). Whether

or not a duty of care existed is a question of law for the court.

O’Sullivan v. Shaw, 726 N.E.2d 951, 954 (Mass. 2000); Yakubowicz v.

Paramount Pictures Corp., 536 N.E.2d 1067, 1070 (Mass. 1989).

           Under Massachusetts law, a property owner does not owe a

duty to a visitor to warn him of, or protect him from, dangers that

are “obvious to persons of average intelligence.”4 O’Sullivan, 726

N.E.2d at 954.     The open and obvious doctrine asks “whether the

dangerous condition was . . . so obvious that the defendant would

be   reasonable   in   concluding   that   an   ordinarily   intelligent



     4
      Gorfinkle relies on Michalski v. Home Depot, Inc., a Second
Circuit case applying New York law, to argue that even if a danger
were open and obvious, defendants would be liable to plaintiffs as
long as the plaintiffs’ injuries were foreseeable. 225 F.3d 113,
119 (2d Cir. 2000). This is not the law in Massachusetts. In
Massachusetts, an open and obvious danger “operates to negate the
existence of a duty of care.” O’Sullivan, 726 N.E.2d at 956.

     Wilson v. Copen, 244 F.3d 178, 181–82 (1st Cir. 2001), also
does not contradict the holding of O’Sullivan. In fact, Wilson
noted that an open and obvious danger does relieve a homeowner of
a duty to warn, and that summary judgment can be granted when no
reasonable jury could conclude otherwise. Id. at 182 n.1.


                                    -8-
plaintiff would perceive it and avoid it.”           Id. at 955 (emphasis

added).

            Here, Gorfinkle was injured while he was searching for

his luggage in a roped-off baggage claim area.            The bags in the

area had been stacked two to three high.            Rather than requesting

assistance or removing them one by one to look for his suitcase,

Gorfinkle climbed on top of the stacked luggage and walked on top

of it.    He then fell off the stacked luggage and injured himself.

            Under the law of Massachusetts, the danger of walking

across stacked luggage is open and obvious.5             See Tetreault v.

Dupuis, 222 N.E.2d 876 (Mass. 1967) (no duty owed to plaintiff who

walked over debris that was swept into a pile); Boike v. Brinker

Mass. Corp., 19 Mass. L. Rptr. 40 (Mass. Super. Ct. 2005) (no duty

to warn plaintiff about the dangers of walking on a wet, soapy and

greasy staircase); Moise v. Holyoke Hosp., Inc., 2002 Mass. App.

Div. 14 (Mass. Dist. Ct. 2002) (no duty owed to plaintiff who

climbed over a 3 to 3 1/2 foot snowbank).       Here, it would have been

apparent to an ordinarily intelligent plaintiff that he might fall

if   he   attempted   to   walk   over    stacked    luggage.    Gorfinkle



      5
      Gorfinkle argues that Costa v. Boston Red Sox Baseball Club,
809 N.E.2d 1090, 1093 (Mass. App. Ct. 2004), states that the open
and obvious doctrine only applies to negligent failure to warn.
Costa does not stand for this proposition but instead, was a case
in which the alleged negligence was limited to the defendant’s
failure to warn. Moreover, as indicated in O’Sullivan, the Supreme
Judicial Court of Massachusetts does not limit the application of
the doctrine to failure to warn cases. 726 N.E.2d at 954.

                                    -9-
acknowledges that he was aware he needed to be careful while

walking on top of the luggage.      Therefore, we conclude, as did the

district court, that walking on top of stacked luggage was an open

and obvious danger.6

           Accordingly, Gorfinkle has failed to establish that U.S.

Airways had a duty to warn or otherwise protect him from the open

and obvious danger.      For the foregoing reasons, we affirm the

district   court’s   grant   of   summary   judgment   in   favor   of   U.S.

Airways.




     6
      Gorfinkle also argues that the open and obvious doctrine does
not absolve U.S. Airway’s negligence for maintaining the luggage
area in a hazardous condition. Gorfinkle cites Martins v. Healy,
in which the court held that a deck was unreasonably dangerous
because it had no pool lights illuminating the deck and because
there was no railing or fence around the deck to prevent the
plaintiff from falling off the deck. 15 Mass. L. Rptr. 42 (Mass.
Super. Ct. 2002). The current case is different, however, because
the condition of the luggage itself, stacked together in an obvious
manner in a lighted baggage claim area, is not unreasonably
dangerous.

                                   -10-
