182 F.Supp.2d 996 (2002)
Charlene LANGLEY, Plaintiff,
v.
UNITED STATES of America, Defendant.
No. CIV 00-00760 SOM-BMK.
United States District Court, D. Hawai`i.
January 4, 2002.
*997 Jack Schweigert, Honolulu, HI, for Plaintiffs.
Wes Porter, Asst. U.S. Atty., Office of the U.S. Attorney, Honolulu, HI, for Defendants.

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
MOLLWAY, District Judge.

I. INTRODUCTION.

Plaintiff Charlene Langley ("Langley") says that she suffered injuries when she fell at the Barbers Point Bowling Alley, which is on a military base. Langley timely filed an administrative claim, stating that she "tripped on a metal piece at the top of the stairs" while walking to the bowling alley. Langley has now abandoned this theory. Accordingly, Defendant United States of America is entitled to summary judgment on Langley's claims arising out of her allegation that she tripped on a metal piece at the top of the stairs.
At her recent deposition, Langley presented a new theory of liability. Langley now says that she did not trip over any metal strip at the top of the stairs. Instead, she argues that the design of the stairs was defective, as the second stair from the top allegedly had a shorter run or width than the other stairs and as there was no railing that she could grab to prevent her fall. No theory of defective design was presented to the administrative agency. Even reading Langley's Complaint liberally, the court finds no suggestion of such a theory in her pleading. In *998 the usual case, this court would grant Langley leave to amend her Complaint to add her new claims. However, this is not the usual case, as the deadline for filing a motion to amend the Complaint has passed and Langley has not demonstrated good cause on this record for an extension of the deadline for filing such motions. Even if Langley could demonstrate good cause as to why she did not move to amend her Complaint earlier, Langley has failed to show that she exhausted her administrative remedies with respect to her theory that differing widths of the stairs constituted a design defect. Accordingly, it would be futile to allow Langley to amend her Complaint to add that claim.
With respect to Langley's new claim that the lack of a handrail constituted a design defect, Langley possibly did exhaust her administrative remedies. However, because Langley has not shown good cause for having failed to move to amend her Complaint at an earlier date, the court declines to allow her to amend her Complaint to add that claim. If Langley desires to amend her Complaint to add a claim based on the lack of a handrail, she must move before the Magistrate Judge assigned to this case for leave to do so, and she must show good cause justifying her delay.

II. BACKGROUND FACTS.

Throughout the administrative process and most of the proceedings in this court, Langley maintained that she was injured when she tripped over a metal piece protruding from the top of the stairway to the Barbers Point Bowling Alley. For example, in her claim to the Department of the Navy ("Navy"), Langley said that, on September 5, 1999, she "tripped on a metal piece at the top of the stairs." See Ex. A. Similarly, on July 18, 2000, Langley's attorney wrote to the Navy, telling it that, on "September 5, 1999, Ms. Langley tripped on a metal piece protruding at the top of the stairs of the Barber's Point Bowling Alley." Ex. 5.[1]
On or about August 31, 2000, after investigating Langley's claim that she had tripped on a metal piece protruding from the top of the stairs, the Navy determined that it was not negligent and therefore not liable. See Ex. 15. This lawsuit followed. See Complaint (filed November 21, 2000). In her Complaint, Langley again alleged that she "suffered severe injuries when she tripped on a metal piece protruding at the top of the stairs of the Barber's [sic] Point Bowling Alley.... This protruding metal piece caused Plaintiff CHARLENE LANGLEY to fall and land at the bottom of the stairwell." Complaint ¶ 6. Langley alleged that the United States knew or should have known about the protruding metal piece. Id. ¶ 8. She further contends that the United States was negligent in failing to maintain the stairway, to eliminate the risk that people would trip on the protruding metal piece, and to warn of that risk. Id. ¶¶ 10, 15.
At the scheduling conference held in March 2001 in this action, Langley continued to assert that she "tripped on a metal piece protruding at the top of the stairs." See Ex. E. Recently, however, Langley changed the theory of her case. Langley now says that she did not trip over the metal strip located at the top of the stairs. Instead, she claims that she fell because the steps on the stairs are of different widths and the stairs lack a handrail. Deposition of Charlene E. Langley (Nov. 19, 2001) at 57. Langley now says that her fall had nothing to do with a metal strip at the top of the stairs. Id. at 26, 57.

III. STANDARD OF REVIEW.

Summary judgment shall be granted when:

*999 the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Fed.R.Civ.P. 56(c); see also Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir.2000). One of the principal purposes of summary judgment is to identify and dispose of factually unsupported claims and defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
Summary judgment must be granted against a party that fails to demonstrate facts to establish what will be an essential element at trial. See id. at 323, 106 S.Ct. 2548. A moving party without the ultimate burden of persuasion at trial  usually, but not always, the defendant  has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir.2000).
The burden initially lies with the moving party to identify for the court "those portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact." T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987) (citing Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548). "When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (footnote omitted). The nonmoving party may not rely on the mere allegations in the pleadings and instead must set forth "specific facts showing that there is a genuine issue for trial." T.W. Elec. Serv., 809 F.2d at 630 (quotation omitted). At least some "`significant probative evidence tending to support the complaint'" must be produced. Id. (quoting First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)); Addisu, 198 F.3d at 1134 ("A scintilla of evidence or evidence that is merely colorable or not significantly probative does not present a genuine issue of material fact"). "[I]f the factual context makes the nonmoving party's claim implausible, that party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial." California Arch'l Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir.1987) (citing Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348), cert. denied, 484 U.S. 1006, 108 S.Ct. 698, 699, 98 L.Ed.2d 650 (1988); accord Addisu, 198 F.3d at 1134 ("There must be enough doubt for a `reasonable trier of fact' to find for plaintiffs in order to defeat the summary judgment motion").
However, when "direct evidence" produced by the moving party conflicts with "direct evidence" produced by the party opposing summary judgment, "the judge must assume the truth of the evidence set forth by the nonmoving party with respect to that fact." T.W. Elec. Serv., 809 F.2d at 631. All evidence and inferences must be construed in the light most favorable to the nonmoving party. Id. Inferences may be drawn from underlying facts not in dispute, as well as from disputed facts that the judge is required to resolve in favor of the nonmoving party. Id.

IV. ANALYSIS.

A. The United States is Entitled to Summary Judgment on Langley's Current Complaint.

The remaining portions of Langley's *1000 Complaint[2] are based on the premise that she tripped on a metal strip located at the top of the stairs to the Barbers Point Bowling Alley. Langley, however, has admitted this did not occur. Although she had claimed throughout the administrative process and through much of this action that she tripped on the metal strip at the top of the stairs, Langley now says that she fell because the stairs were of differing widths and because the stairs lacked a handrail. Because the Complaint is premised entirely on Langley's tripping on the metal strip on the top of the stairs, which Langley has now admitted did not occur, the United States is entitled to summary judgment on the remainder of Langley's Complaint.

B. Leave to Amend the Complaint is Not Granted.

Even under the liberal notice pleading requirements of Fed.R.Civ.P. 8, Langley's Complaint cannot be read as encompassing claims based on a defective design of the stairs. Langley's Complaint specifically alleges that she tripped over a protruding metal strip at the top of the stairs and that the metal strip was protruding because it was not properly maintained and was in "disrepair." See Complaint ¶¶ 6-11. The Complaint makes no mention of any alleged design defect.
In other circumstances, this court would grant leave to amend the Complaint to assert new theories of liability, The court declines to grant Langley such leave. The deadline for filing motions to amend pleadings has long since passed. See Rule 16 Scheduling Order (March 19, 2001) (setting June 29, 2001, as the deadline to amend pleadings). Langley has not demonstrated on the present record good cause that would justify any late amendment of her Complaint. Moreover, based on the record currently before the court, it would be futile to allow an amendment to add a claim based on differing widths of the stairs, as Langley has not demonstrated that she exhausted her administrative remedies with respect to that claim.[3]
An action may be brought against the United States only to the extent that the government waives its sovereign immunity. United States v. Orleans, 425 U.S. 807, 814, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976). Accord Blackburn v. United States, 100 F.3d 1426, 1429 (1996). The Federal Tort Claims Act ("FTCA") waives the United States' immunity from suits for certain torts committed by federal employees acting within the scope of their employment. In those waived circumstances, the FTCA makes the United States liable to the same extent as a private party would be for those torts. 28 U.S.C. § 2674; see Orleans, 425 U.S. at 813, 96 S.Ct. 1971.
Exhaustion of administrative remedies is a jurisdictional prerequisite to the bringing of a claim under the FTCA. See 28 U.S.C. § 2675. There are two purposes behind the exhaustion requirement: 1) easing court congestion and avoiding unnecessary litigation, while making it possible for the government to expedite fair settlement of tort claims; and 2) providing for more fair and equitable treatment of private individuals and claimants when they litigate with the government. See Shipek v. United States, 752 F.2d 1352, 1354 (9th Cir.1985). *1001 The Ninth Circuit has held that these purposes are served when a claim gives an agency sufficient notice to commence investigation and when the claimant places a value on the claim. Id.
Langley put an extremely narrow issue before the Navy by claiming that the metal strip on the top of the stairs caused her fall. The Navy investigated this narrow issue. It did not, however, investigate the broader issue of whether the stairs were defectively designed. The Navy could not have settled Langley's claims in a fair manner if it was not put on notice of Langley's design defect claims. The Navy's investigation surrounding Langley's alleged fall focused on whether the metal strip at the top of the stairs could have caused that supposed fall. The Navy appears to have concluded that the metal strip did not cause the fall. Accordingly, the Navy felt that it was not liable to Langley. Had Langley put the Navy on notice that she was contending that the stairs were defectively designed, the Navy would have had an opportunity to examine the stairs for such a defective design and make an appropriate settlement decision. Langley's allegations, however, did not sufficiently put the Navy on notice of any defective design claims to allow the Navy to begin any investigation of those claims.
Langley argues that, although she did not specifically assert design defect claims before the Navy, the Navy was put on notice of those claims. Citing Burchfield v. United States, 168 F.3d 1252, 1255 (11th Cir.1999), Langley argues that her new theories were part of her original claim to the Navy because the Navy's "reasonable investigation" of her fall should have revealed the design defects. Burchfield stated that an administrative claim can put an agency on notice of theories of liability not specifically spelled out in the administrative claim. Id. at 1256. "All that is required is that the theory put forward in the complaint filed in the district court be based on the facts that are stated in the administrative claim." Id. Burchfield involved a claim to an administrative agency that a patient developed osteoporosis as a result of medication prescribed by Veterans Affairs physicians. The Burchfield panel held that the patient's administrative claim was so closely related to the patient's later theories of negligence leading to his osteoporosis (that the doctors failed to prescribe dietary supplements and failed to monitor his condition) that the agency's reasonable investigation of the patient's claim should have uncovered the new theories. Id.
Even assuming that the Eleventh Circuit's test is applicable to this case, Langley has not demonstrated that she should be allowed to amend her Complaint to add a claim based on differing widths of the stairs. Langley's claim to the Navy specifically alleged that she tripped over a metal strip at the top of the stairs. Langley's claim that she missed the second step from the top because it was narrower than the other steps cannot possibly be said to be based on the facts presented by a claim that a metal strip at the top of the stairs caused the fall. Accordingly, this court concludes that Langley did not exhaust her administrative remedies with respect to the stair width issue. Langley therefore may not amend the Complaint to add that claim.
By contrast, a reasonable investigation by the Navy might arguably have uncovered the lack of a handrail. If Burchfield applied here and were read liberally, Langley might be able to show that her administrative claim required the Navy to identify the lack of a handrail as a design defect. However, because Langley failed to demonstrate on this motion why she did not timely seek leave to amend her Complaint, the court does not reach that issue. *1002 While not opining on whether leave to amend should be granted, the court does not foreclose a motion by Langley seeking leave to amend her Complaint after the expiration of the deadline, based on good cause, to add a design defect claim based on the alleged lack of a handrail. Any such motion should be directed to the Magistrate Judge assigned to this case.

V. CONCLUSION.

Langley's Complaint does not state any claim arising out of a defective design of the stairs. Instead, it is limited to allegations about a metal strip. Because Langley has now admitted that she did not trip on the metal strip, the United States is entitled to summary judgment on her Complaint.
If Langley wishes to amend her Complaint to add a defective design claim based on the lack of a handrail, she must seek leave from the Magistrate Judge assigned to this case to do so and must show good cause for her delay. If no such motion is received by January 10, 2002, the Clerk of the Court shall close this case and enter judgment in favor of the United States. If such a motion is filed on or before January 10, 2002, judgment shall not be entered unless Langley's motion to amend the Complaint is denied. If Langley does file such a motion, the parties shall address with the Magistrate Judge the issue of the upcoming trial date, which the Magistrate Judge may adjust as appropriate.
IT IS SO ORDERED.
NOTES
[1]  The United States has stipulated to the authenticity of Langley's exhibits.
[2]  The court has already dismissed the claims brought by Langley's husband, Scott Langley, leaving only Langley's claims for further adjudication. See Amended Order Granting Defendant's Motion to Dismiss (Nov. 13, 2001).
[3]  Although the United States had argued that Langley also failed to timely name her expert witness for the design defect claim, the United States has since withdrawn that argument. See Letter from Jack Sweigert to Wes R. Porter (Aug. 23, 2001) (extending the expert report deadline to Oct. 1, 2001).


820 F.2d 1220Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.David R. MATTHEWS, Plaintiff-Appellant,andKenneth M. Whitley;  J.C. Daniels;  Dene R. Francis, Plaintiffs,v.William D. LEEKE;  David I. Morgan;  Tony L. Strawhorn,Defendants-Appellees.
No. 86-7304.
United States Court of Appeals, Fourth Circuit.
Submitted Nov. 21, 1986.Decided June 8, 1987.

Before RUSSELL, WIDENER and ERVIN, Circuit Judges.
David R. Matthews, appellant pro se.
Robert E. Petersen, Office of the Attorney General, for appellees.
PER CURIAM:

1
A review of the record and the district court's opinion accepting the recommendation of the magistrate discloses that this appeal from its order refusing relief under 42 U.S.C. Sec. 1983 is without merit.*   Because the dispositive issues recently have been decided authoritatively, we dispense with oral argument and affirm the judgment below on the reasoning of the district court.  Matthews v. Leeke, C/A No. 85-2759 (D.S.C., Sept. 18, 1986).

AFFIRMED

*
 David R. Matthews is the only appellant in this case, as he alone signed the notice of appeal.  See Covington v. Allsbrook, 636 F.2d 63 (4th Cir.1980), cert. denied, 451 U.S. 914 (1981)


532 F.Supp. 370 (1981)
Delbert W. COLEMAN and WNC Corporation, Plaintiffs,
v.
Paul A. JOHNSTON, Johnston Industries, Inc., and John Does 1-12, Defendants.
81 Civ. 6509 (RWS).
United States District Court, S. D. New York.
December 22, 1981.
Saxe, Bacon & Bolan, P. C., New York City, for plaintiffs; Roy M. Cohn, Filip L. Tiffenberg, New York City, of counsel.
Fried, Frank, Harris, Shriver & Jacobson, New York City, for defendant Paul A. Johnston; Leon Silverman, New York City, of counsel.

OPINION
SWEET, District Judge.
The plaintiffs Delbert W. Coleman ("Coleman") and WNC Corporation ("WNC") brought this action against Paul A. Johnston ("Johnston") and J. Johnston Industries, Inc. ("JII") and John Does 1-12 ("the director defendants") in the Supreme Court of the State of New York, County of New York on October 20, 1981 and obtained a temporary restraining order containing provisions, among others, barring Johnston and JII from transferring any assets. The action was removed to this court on the grounds of diversity, the temporary restraint expired, and Coleman and WNC have moved for a remand. The motion will be denied for the reasons set forth below.
Coleman is a citizen of Illinois and the sole shareholder of WNC which is a Delaware corporation with its principal place of business in Chicago. Johnston alleges that he is a citizen of North Carolina and is the sole shareholder and chief executive officer of JII, a Delaware corporation, with its principal place of business in New York. Certain of the director defendants are alleged by Coleman and WNC to be New York residents. Diversity therefore exists between Coleman and WNC on the one hand and Johnston but not between Coleman and WNC, and JII and the director *371 defendants. At issue therefore is whether JII and the directors are nominal defendants and their joinder is unnecessary, "collusive" or "fraudulent," thereby not defeating diversity. See Salem Trust Co. v. Manufacturers' Finance Co., 264 U.S. 182, 189-90, 44 S.Ct. 266, 267, 68 L.Ed. 628 (1924); Tedder v. F.M.C. Corp., 590 F.2d 115 (5th Cir. 1979); Saxe, Bacon & Bolan, P.C. v. Martindale Hubbell, Inc., 1980-81 Trade Cases ¶ 63,758 at 78,042, 521 F.Supp. 1046 (S.D.N.Y.1981); Sands v. Geller, 321 F.Supp. 558, 561 (S.D.N.Y.1971); American Mfrs. Mut. Ins. Co. v. Manor Invest. Co., 286 F.Supp. 1007, 1010-11 (S.D.N.Y.1968); 14 C. Wright, A. Miller & Cooper, Federal Practice and Procedure § 3723 at 606 & n.47 (1976 ed. and 1981 Supp.).
The dispute between the parties centers on an agreement dated April 24, 1981 as extended on May 29, 1981, signed by Coleman, WNC and Johnston, under which Johnston undertook under certain terms and conditions to sell his shares of stock in JII to Coleman and WNC ("the contract"). According to the complaint, on September 9, 1981 Johnston informed Coleman and WNC that he would not perform the contract on the closing date of October 1, 1981 and in fact the closing did not occur. This litigation resulted in which Coleman and WNC seek to compel the transfer of JII stock and to obtain control over the corporation.
The complaint sets forth five causes of action. The first, although initially only against Johnston, in the amended complaint, alleges a claim for specific performance against Johnston and JII. The second cause of action seeks damages against Johnston for his failure to perform the contract. The third, fourth and fifth causes of action are against all the defendants, and the third alleges that "all of the above-mentioned defendants, and each of them were members and agents of an illegal and fraudulent conspiracy the purpose of which was to wrongfully induce Coleman to relinquish to Johnston and Industries [JII] his formula and plan to make Industries [JII] a more profitable and valuable company, thus benefitting Johnston." Certain acts are alleged to have occurred over the summer in which the individual defendants or some of them participated which led Coleman to make certain disclosures, at a time when the defendants knew that Johnston intended to terminate the contract without transferring his shares of JII to Coleman and WNC. The relief sought under the third cause of action is specific performance and declaration that the shares of JII in Johnston's hands are null and void. The fourth cause of action seeks compensatory damages of $12 million and punitive damages of $30 million. The fifth cause of action seeks an accounting for any moneys paid by JII to Johnston from September 9 to the date of the transfer of the shares.
As to the first cause of action, the issue presented is whether or not JII is a nominal or unnecessary party. JII is not a party to the contract, and the contract by its terms deals with the sale of stock held by Johnston. Indeed the only role for the corporation in the event of the success of Coleman and WNC on the merits of the dispute would be to perform the ministerial act of transferring the shares upon the books of the corporation. As counsel for Johnston pointed out, were it otherwise, every dispute over stock ownership would require the presence of the issuing corporation. Fortunately the issue has been faced and resolved by other courts whose decisions are hereby relied upon. Salem Trust Co. v. Manufacturers' Finance Co., 264 U.S. 182, 189-90, 44 S.Ct. 266, 267, 68 L.Ed. 628 (1924); Kearney v. Dollar, 111 F.Supp. 738, 745 (D.Del.1953); American Mfrs. Mut. Ins. Co. v. Manor Invest. Co., 286 F.Supp. at 1010-11. Since JII is not a necessary party as indicated by these authorities, its presence does not defeat diversity on the first cause of action.
The defendants also seek to defeat the remand with respect to the third, fourth and fifth causes of action by invoking and relying upon the terms of 28 U.S.C. § 1441(c) which states as follows:
Whenever a separate and independent claim or cause of action, which would be *372 removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction.
This provision has been construed by the Supreme Court in American Fire & Cas. Co. v. Finn, 341 U.S. 6, 13, 71 S.Ct. 534, 539, 95 L.Ed. 702 (1957), which held removal improper where a diverse cause and a non-diverse cause were brought to redress one single wrong arising from an interlocked series of transactions. The meaning of separate and independent as interpreted by the Supreme Court has been the subject of a thorough analysis by one of the most respected members of this court, The Honorable Edward Weinfeld, in an action that presented much the same sort of issue, Twentieth Century-Fox Film Corp. v. Taylor, 239 F.Supp. 913 (S.D.N.Y.1965). There one wrong alleged to have been committed by Richard Burton under a contract with Twentieth Century Fox was sufficient to permit removal of an entire action despite the presence in the complaint of other wrongs committed by the defendant jointly with Elizabeth Taylor, whose presence would have otherwise defeated diversity. Burton's action was held to be separate from and independent of the claims against Taylor and the joint claims against Burton and Taylor, since the diverse claim was for breach of contract and the non-diverse claims were for inducing the breach. No distinction has been stated to this court that would make Judge Weinfeld's reasoning in Twentieth Century inapplicable here where one wrong relates to the dealings between Coleman and Johnston and the non-diverse asserted joint wrongs of breach and conspiracy to misappropriate business plans seek recovery for different injuries. See also Shelley v. The Maccabees, 180 F.Supp. 517, 518 (E.D.N.Y.1959).
In City of New York v. New York Jets Football Club, Inc., 429 F.Supp. 987 (S.D.N. Y.1977), The Honorable David Edelstein distinguished Twentieth Century by carefully noting that in the situation presented in New York Jets the breach of contract cause, the non-diverse cause, was not by its nature separate and independent from the diverse cause, the inducement to breach because the diverse cause was dependent on the non-diverse cause and would not occur without the non-diverse cause.
The allegedly non-diverse causes of action, three, four and five, are indeed separate from and independent of the breach of contract and specific performance actions against Johnston in causes one and two. First of all the named defendants in the last three causes of action could conceivably be held liable for a conspiracy to defraud, which is the essence of the causes set forth, even if Johnston was not liable for a breach of contract, authorities cited, given the separate and independent nature of the well pleaded claims against Johnston, it does not seem fruitful to deal within the pleading issues in the context of the motion to remand, notwithstanding the recognition that only well pleaded matters should give rise to or be considered with respect to jurisdictional requirements. See generally In re Commonwealth Oil/Tesoro Petroleum Corp. Sec. Lit., 467 F.Supp. 227, 250-51 (W.D.Tex. 1979) (fraud pleading requirements); In re Haven Industries, Inc., 462 F.Supp. 172, 182-83 (S.D.N.Y.1978) (fraud pleading requirements); Gross v. Diversified Mortgage Investors, 438 F.Supp. 190, 194-95 (S.D.N. Y.1977) (dismissal for failure to properly plead); Altman v. Knight, 431 F.Supp. 309, 314 n.4 (S.D.N.Y.1977) (fraud pleading requirements).
For these reasons the motion to remand will be denied. A pretrial conference will be called to determine discovery and trial schedule.
IT IS SO ORDERED.


74 F.3d 1260
NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent.  This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.David F. NOLTE, Petitioner,v.MERIT SYSTEMS PROTECTION BOARD, Respondent.
No. 95-3704.
United States Court of Appeals, Federal Circuit.
Jan. 19, 1996.

Before CLEVENGER, SCHALL, and BRYSON, Circuit Judges.
DECISION
PER CURIAM.

1
David F. Nolte petitions for review of the final decision of the Merit Systems Protection Board ("Board") that dismissed for lack of jurisdiction Nolte's petition for enforcement of a settlement agreement between Nolte and the Department of Health and Human Services ("agency").  Nolte v. Department of Health and Human Servs., Docket No. DA-0752-92-0393-C-1.1  We affirm.

DISCUSSION

2
Nolte was removed from employment with the agency in 1992.  He appealed the removal to the Board.  In due course, the parties announced that they had reached a settlement.  In a conference on July 7, 1992, Nolte stated that he was withdrawing the appeal as settled, but he asked that the appeal be kept open so that a written settlement agreement could be included in the record.  The AJ agreed to do that and advised Nolte and the agency that the record would remain open until July 10 for receipt of the agreement.  The AJ stated that if the agreement was not received by July 10, the appeal would be dismissed without it based upon Notle's withdrawal.  After two extensions of time, and after the parties failed to submit the agreement, the AJ dismissed the appeal on August 11, 1992.  On February 14, 1995, Nolte filed a petition for enforcement of the settlement agreement.  The AJ dismissed the action on May 12 for lack of jurisdiction, citing the fact that the agreement had not been filed with the Board for enforcement purposes.

3
A petitioner bears the burden of establishing Board jurisdiction.  5 C.F.R. Sec. 1201.56(a)(2)(i).  The Board regulation governing the settlement of appeals and enforcement of settlements is clear as to its requirements.  It states that

4
If the parties agree to settle their dispute, the settlement agreement is the final and binding resolution of the appeal, and the judge will dismiss the appeal with prejudice.

5
(i) If the parties offer the agreement for inclusion in the record, and if the judge approves the agreement, it will be made a part of the record, and the Board will retain jurisdiction to ensure compliance with the agreement.

6
(ii) If the agreement is not entered into the record, the Board will not retain jurisdiction to ensure compliance.

7
5 C.F.R. Sec. 1201.41(c)(2).

8
The Board has held that, if a settlement agreement is not made a part of the record and the petitioner withdraws the appeal, it loses jurisdiction.  Harris v. United States Postal Service, 44 M.S.P.R. 547, 550 (1990).  Richardson v. Environmental Protection Agency, 5 M.S.P.R. 248, 250-51 (1981).  This court has agreed.  King v. Reid, 59 F.3d 1215, 1218 n. 2 (Fed.Cir.1995) ("The board does not retain jurisdiction over a settlement agreement if it is not entered into the record.").

9
This court reviews a Board decision under a narrow standard and must affirm the decision unless it is found to be 1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;  2) obtained without procedures required by law, rule or regulation having been followed;  or 3) unsupported by substantial evidence.  5 U.S.C. Sec. 7703(c) (1994).  The decision of the AJ dismissing Nolte's appeal for lack of jurisdiction is free of legal error and is supported by substantial evidence.

1
 The May 12, 1995 initial decision of the administrative judge ("AJ") became the final decision of Board when the full Board denied Nolte's petition for review on July 12, 1995


                                                                                F I L E D
                                                                         United States Court of Appeals
                                                                                Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                                MAY 10 2000
                                     TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                Clerk

 UNITED STATES OF AMERICA

               Plaintiff-Appellee,
                                                              No. 99-4037
 v.                                                     (D. C. No. 97-CR-365-S)
                                                            (District of Utah)
 WILLIAM GEORGE CURRIER,

               Defendant-Appellant.

                              ORDER AND JUDGMENT*

Before TACHA, McKAY, and HENRY, Circuit Judges.

       William George Currier appeals the district court’s order denying his motion to

suppress evidence seized during an automobile search. For the reasons set forth below,

we conclude that Mr. Currier’s failure to file specific objections to the magistrate judge’s

report and recommendation constitutes a waiver of appellate review. We therefore

dismiss this appeal.

       *
          This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
                                   I. BACKGROUND

       The government charged Mr. Currier with possession with the intent to distribute

in excess of one hundred grams of a mixture containing a detectable amount of

methamphetamine, a violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). Prior to trial,

Mr. Currier filed a motion to suppress evidence obtained during a November 4, 1997

traffic stop of the automobile that he was driving on I-15 in Juab County, Utah. After the

district court denied the motion, Mr. Currier entered a conditional guilty plea. The court

sentenced him to fifty seven months’ imprisonment.

       Evidence introduced at the hearing on Mr. Currier’s motion to suppress revealed

that, on the morning of November 4, 1997, Sergeant Paul V. Mangelson of the Utah

Highway Patrol observed an automobile driven by Mr. Currier traveling at 82 miles per

hour in a 75 miles per hour zone. Sergeant Mangelson stopped the automobile and asked

Mr. Currier for his license, registration, and destination. Mr. Currier produced an Idaho

driver’s license but could not produce the registration. He stated that he was going to

Kalispell, Montana.

       As he questioned Mr. Currier, Sergeant Mangelson noticed a small can on the back

seat. The videotape of the traffic stop indicates that he reached through the open rear

window of the automobile, grabbed the can, and asked Mr. Currier what it was. Mr.

                                             2
Currier responded that it was air freshener.2

       On the dashboard, Sergeant Mangelson also noticed a plastic box that contained a

glass tube. Based on his experience, Sergeant Mangelson thought that the tube was one

of the kind used for snorting drugs, and he asked Mr. Currier what it was. Mr. Courier

denied knowing anything about the contents of the box and said that it did not belong to

him.

       Sergeant Mangelson then told Mr. Currier that he would like to look at the tube.

Mr. Currier first reached for another item in the box. When Sergeant Mangelson told him

that that was the wrong item, Mr. Currier picked up the tube and handed it to him. When

Mr. Currier opened the glove compartment to looked for the registration papers, Sergeant

Mangelson observed three additional cans of air freshener.

       According to Sergeant Mangelson’s testimony at the suppression hearing, Mr.

Currier’s face was flushed and his eyes looked glazed. He believed that Mr. Currier was

impaired, but he did not smell alcohol. Sergeant Mangelson asked Mr. Currier if he was

using drugs, and Mr. Currier said that he was not.

       Sergeant Mangelson also asked Mr. Currier if he could look in the car. Mr.

Currier said that he would not mind. Sergeant Mangelson then directed Mr. Currier to get

       2
          Although the magistrate judge found that Sergeant Mangelson did not pick
up the can of air freshener, see Rec. vol. I, doc. 31, at 9 (hereinafter “Report and
Recommendation”), the government, refreshingly, concedes in its appellate brief that
“from the videotape [of the traffic stop] it appears as if Mangelson did pick and replace
the air freshener.” Aplee’s Br. at 4. n.2.

                                                3
out of the automobile. After Mr. Currier complied, the Sergeant conducted a patdown

search.

          When searching the vehicle, Sergeant Mangelson found two glass tubes

resembling the one that he had first noticed. He asked if these tubes were crack pipes and

if Mr. Currier was using crack or some other drug. Mr. Currier denied using drugs and

said that the pipes were candle holders. The Sergeant then noticed a bottle in the front of

the car. He opened it and saw a powdery substance that smelled like methamphetamine.

He asked if the substance was speed, and Mr. Currier admitted that it was.

       Sergeant Mangelson placed Mr. Currier under arrest. He first gave him an

incomplete Miranda warning: informing him that he had a right to remain silent and that

anything he said could be used against him but, failing to mention Mr. Currier’s right to

an attorney. See Miranda v. Arizona, 384 U.S. 436, 444-45 (1966). A continued search

of the automobile’s passenger compartment, trunk, and engine revealed additional

glassware, a carton of bottles containing methamphetamine, and a cup containing cocaine.

       After the incomplete Miranda warning, Mr. Currier made several inculpatory

statements. The magistrate judge found that “[t]he statements were not coerced but in a

bantering conversational mode.” Report and Recommendation at 11. Following a

computer check of Mr. Currier’s record (which revealed no outstanding warrants),

Sergeant Mangelson read a second Miranda warning to Mr. Currier. Unlike the earlier

Miranda warning, this second warning advised Mr. Currier that he had a right to speak

                                             4
with an attorney and contained the other necessary information.

       In his motion to suppress the evidence obtained from the traffic stop, Mr. Currier

advanced the following arguments: (1) the detention following the initial stop violated

the Fourth Amendment, because Sergeant Mangelson lacked reasonable suspicion to

inquire about matters other than the speeding violation and ownership of the automobile;

(2) he did not voluntarily consent to the search of the automobile; (3) in light of these

Fourth Amendment violations, all of his statements to Sergeant Mangelson should be

suppressed; and (4) in light of the initial, defective Miranda warning, his statements

preceding the second Miranda warning should be suppressed.

       A magistrate judge conducted a hearing on Mr. Currier’s motion and rejected all

but the last argument. As to the detention of Mr. Currier, the magistrate pointed to a

number of circumstances that justified further inquiry by Sergeant Mangelson: the failure

to produce a valid registration, the air freshener on the back seat and in the glove

compartment, the glass tube, and the fact that Mr. Currier appeared to be impaired. The

magistrate therefore found that the initial detention was reasonable. He further found that

Sergeant Mangelson acted reasonably in conducting a patdown search of Mr. Currier after

he stepped out of the automobile and that Mr. Currier had voluntarily consented to the

search of the passenger compartment, trunk, and engine.

       As to Mr. Currier’s statements, the magistrate judge placed them in three

categories: (1) statements before Mr. Currier was arrested, (2) statements following the

                                              5
deficient Miranda warning, and (3) statements following the second (sufficient) Miranda

warning. As to the first category (prearrest statements), the magistrate judge found them

to be voluntary and therefore admissible. As to the second category, the magistrate

concluded that those statements should be suppressed because of the inadequate Miranda

warning.

       In contrast, as to the third category of statements, the magistrate judge found that

they were admissible if they were made voluntarily:

                      In Oregon v. Elstad, [470 U.S. 298 (1985)], the Supreme
              Court held where there had been a prior violation of Miranda
              requirements, by a failure to give a proper warning, that a
              subsequent proper and complete warning will suffice to meet
              Miranda’s requirements as to any further interrogation as long
              as the first statements were not involuntary. That is the case in
              this situation. There was a prior inadequate warning and,
              thereafter, at one point, Mangelson asked defendant if he
              understood his rights and defendant replied affirmatively. No
              threats or other misconduct took place after the arrest to the time
              of the second, and first proper, preinterrogation warning that
              would make the statements of defendant involuntary. Therefore
              Elstad is applicable and statements made following the second
              and proper warning are admissible if they were voluntary.

Report and Recommendation at 21. (citations omitted).

       Applying Elstad, the magistrate concluded that the statements following the second

Miranda warning were voluntary and therefore admissible. See id. at 22-23 (“In this case,

the questioning was at roadside, no threats, coercion or intimidation was involved. The

interrogation was conversational. When the statements of the defendant are considered

under the totality of the circumstances, the events do not show the defendant’s free will

                                              6
was overcome by police coercion or misconduct.”) (citations omitted).

       Accordingly, the magistrate judge concluded that the motion to suppress should be

granted as to the statements made between the first and second Miranda warnings and

denied in all other respects. Mr. Currier then filed a short objection, which stated:

              The defendant, William Currier, by and through his attorney, . . .
       hereby objects to the report and recommendation of Magistrate Judge Boyce
       dated July 13, 1998. This objection includes, but is not limited to, some of the
       Court’s findings of fact, the Court’s conclusions that the detention was legal,
       that the consent to search was voluntary and the evidence uncovered was
       properly seized and that certain statements by defendant are admissible.
              Defendant Currier requests that this matter be considered de novo.

See Aplee’s Br., Attach. A.

       The district court issued an order noting that Mr. Currier had filed only a general

objection. Nevertheless, the court reviewed the magistrate’s report and recommendation

de novo and adopted it as its opinion.

                                      II. DISCUSSION

       On appeal, the government first argues that Mr. Currier has waived appellate

review of the denial of his motion to suppress by failing to file specific objections to the

magistrate’s report and recommendation. The government cites circuit precedent holding

that the failure to file specific objections constitutes a waiver.

       Rule 72 of the Federal Rules of Civil Procedure provides that when a magistrate

judge issues a ruling on a dispositive pretrial motion, a party has ten days after service to

                                               7
“serve and file specific, written objections to the proposed findings and

recommendations.” Fed. R. Civ. P. 72(b). Upon the filing of such an objection, the

district court must “make a de novo determination upon the record, or after additional

evidence, of any portion of the magistrate judge’s disposition to which specific written

objection has been made in accordance with this rule.” Id.

       In United States v. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996), this

circuit held that the failure to file a specific objection to a magistrate judge’s report and

recommendation constitutes a waiver of appellate review:

                     To further advance the policies behind the Magistrate’s
              Act, we, like numerous other circuits, have adopted a firm
              waiver rule that provides that the failure to make timely
              objections to the magistrate’s findings or recommendations
              waives appellate review of both factual and legal questions.

                      ....

              Although we have not previously addressed whether a general
              objection is sufficient, a number of other circuits have addressed
              the issue and have concluded that a general objection will not
              avoid application of the waiver rule.

                      ....

                      We agree with these holdings of our sister circuits,
              because only an objection that is sufficiently specific to focus
              the district court’s attention on the factual and legal issues that
              are truly in dispute will advance the policies behind the
              Magistrate’s Act that led us to adopt a waiver rule in the first
              instance. Therefore, we hold that a party’s objections to the
              magistrate judge’s report and recommendation must be both
              timely and specific to preserve an issue for de novo review by
              the district court or for appellate review.

                                               8
2121 East 30th Street, 73 F.3d at 1059-60 (10th Cir. 1996) (emphasis added) (internal

citations and quotations omitted); see also Soliz v. Chater, 82 F.3d 373, 375-76 (10th Cir.

1996) (concluding that an objection stating that an agency’s findings “are not based on

substantial evidence” lacked the specificity necessary to preserve appellate review).

       We have recognized an exception to this rule: “[t]he waiver rule as a procedural

bar need not be applied when the interests of justice so dictate.” Moore v. United States,

950 F.2d at 656, 659 (10th Cir. 1991). However, we have characterized this interests of

justice exception as “very narrow.” United States v. Williams, No. 98-4112, 1999 WL

485241 (10th Cir. July 12, 1999), at **2; see also Moore, 950 F.2d at 659 (declining to

apply the waiver rule when the magistrate judge’s report and recommendation did not

inform a pro se litigant of the consequences of failing to object).

       Here, Mr. Currier’s attorney has failed to comply with the specific objection

requirement established by Fed. R. Civ. P. 72 and circuit precedent. His objection to

“some of the [magistrate judge’s] findings of fact, the Court’s conclusions that the

detention was legal, that the consent to search was voluntary and the evidence uncovered

was properly seized and that certain statements by the defendant are admissible,” see

Aplee’s Br. Attach. A, did not provide the district court with meaningful notice as to the

particular errors that the magistrate judge allegedly committed. The objection is not

“sufficiently specific to focus the district court’s attention on the factual and legal issues

that are truly in dispute.” 2121 East 30th Street, 73 F.3d at 1060.

                                               9
       Moroever, upon review of the record, we conclude that the interests of justice do

not indicate that Mr. Currier should be excused from the waiver rule. Unlike the party in

Moore (who escaped application of the waiver rule), Mr. Currier was represented by

counsel. Moreover, the magistrate judge’s report and recommendation stated that a

failure to file objections “may constitute a waiver of those objections on subsequent

appellate review.” See Report and Recommendation, at 23-24.

       Additionally, our examination of the record and the applicable law reveals no

fundamental errors in the magistrate judge’s report and recommendation. We will briefly

explain the basis for that conclusion as to each of the arguments advanced by Mr. Currier

in this appeal: (1) his challenge to the length and scope of the detention following the

initial stop; (2) his argument that he did not voluntarily consent to the search of the

automobile; (3) his argument that, in light of these Fourth Amendment violations, all of

his statements to Sergeant Mangelson should be suppressed; and (4) his argument that, in

light of the initial defective Miranda warning, his statements preceding the second

Miranda warning should be suppressed.

       With regard to the initial stop and detention, we have one noteworthy concern.

The videotape of the stop reveals that Sergeant Mangelson reached into an open backseat

window and grabbed a can of air freshener. At that point in the stop, there is no

indication that Sergeant Mangelson had probable cause to conclude that a crime had been

committed. Thus, his seizure of the can of air freshener appears unwarranted. See Payton

                                              10
v. New York, 445 U.S. 573, 587 (1980) (“The seizure of property in plain view involves

no invasion of privacy and is presumptively reasonable, assuming that there is probable

cause to associate the property with criminal activity.”); United States v. Jiminez, 864

F.2d 686, 689-90 (10th Cir. 1988) (affirming district court’s finding of probable cause

that a shotgun was associated with criminal activity, because a police officer had

observed that the gun did not have a normal-length barrel).

       Nevertheless, excluding the can of air freshener in the back seat from

consideration, Sergeant Mangelson’s other observations (the missing registration, the

cans of air freshener in the glove compartment, the glass tube, and Mr. Currier’s impaired

appearance) support the magistrate judge’s conclusion that Sergeant Mangelson had the

reasonable suspicion necessary to justify further inquiries.

       Similarly, even assuming that Seargeant Mangelson improperly seized the air

freshener from the back seat, the magistrate judge’s conclusion that Mr. Currier

voluntarily consented to the search of the automobile evinces no fundamental errors in

considering the record or applying the law. “A search preceded by a Fourth Amendment

violation remains valid if the consent was voluntary in fact under the totality of the

circumstances.” United States v. Fernandez, 18 F.3d 874, 881 (10th Cir. 1994). Under

this “totality of the circumstances” approach, no single fact is dispositive. See id. at 882.

However, the three factors articulated in Brown v. Illinois, 422 U.S. 590 (1975), are

relevant: “the temporal proximity of the illegal detention and the consent, any intervening

                                             11
circumstances, and, particularly, the purpose and flagrancy of the officer’s unlawful

conduct.” United States v. Walker, 933 F.2d 812, 818 (10th Cir. 1991) (citing Brown,

422 U.S. at 603-04).

       Here, the unwarranted seizure of the can of air freshener occurred during an

otherwise lawful stop and detention. The seizure extended the detention for only a few

seconds, and information that Sergeant Mangelson obtained from that item was also

revealed by independent sources (e.g., the cans of air freshener in the glove compartment,

which were not improperly seized). In these circumstances, the magistrate judge

reasonably concluded that Mr. Currier’s consent to the search was valid.

       The magistrate judge’s conclusions as to why Mr. Currier’s statements should not

be suppressed are also reasonable. Although those statements were preceded by one

apparently improper action by Sergeant Mangelson (the seizure of the air freshener from

the back seat), that one action in the midst of a proper detention is not sufficient to taint

all of Mr. Currier’s statements.

       The magistrate’s disposition of Mr. Currier’s final argument is also supported by

the record and the applicable law. The magistrate reasonably concluded that the

voluntariness of the statements following the deficient warning rendered admissible the

statements made after the second, adequate warning. See Oregon v. Elstad, 470 U.S. at

304, 309; United States v. McCurdy, 40 F.3d 1111, 1116-17 (10th Cir. 1994) (discussing

Elstad’s holding that “[i]f the unwarned statement was voluntary, and the allegedly

                                              12
tainted second statement was also voluntary, the second, warned statement is admissible”

since “[t]he Fifth Amendment . . . prohibits only the use of compelled testimony”)

(quoting United States v. Wiley, 997 F.2d 378, 383 (8th Cir. 1993) (alteration in

original)).

       Accordingly, we conclude that the interests of justice do not support the

application of an exception to the waiver rule. As a result, by failing to file specific

objections to the magistrate judge’s Report and Recommendation, Mr. Currier waived

appellate review.

                                     III. CONCLUSION

       For the reasons set forth above, we DISMISS Mr. Currier’s appeal.

                                   Entered for the Court,

                                    Robert H. Henry
                                    United States Circuit Judge

                                              13


718 F.Supp.2d 210 (2010)
MERCADO INSULATION SERVICES INC., et al., Plaintiffs
v.
BIOPHARMAX, INC., et al., Defendants.
Civil No. 09-1911 (JP).
United States District Court, D. Puerto Rico.
June 17, 2010.
*211 Maria T. Figueroa-Colon, Nicolas Nogueras-Cartagena, Nicolas Nogueras Law Offices, San Juan, PR, for Plaintiffs.
Edilberto Berrios-Perez, Fernando E. Longo-Quinones, Berries & Longo, PSC Edgar Hernandez-Sanchez, E. Hernandez Sanchez & Associates, San Juan, PR, for Defendants.

OPINION AND ORDER
JAIME PIERAS, JR., Senior District Judge.
Before the Court are Defendant TAPI Puerto Rico Inc.'s ("TAPI") motion to dismiss (No. 11), Defendant Biopharmax, Inc.'s ("Biopharmax") motion to dismiss (No. 19), and Plaintiffs' oppositions thereto (Nos. 13 and 23). Also before the Court is Plaintiffs' notice of voluntary dismissal (No. 24) of the claims against Defendant TAPI. Plaintiffs' complaint alleges that jurisdiction is appropriate based on diversity of citizenship. Defendants move to dismiss the complaint, arguing that there is a lack of complete diversity. For the reasons stated herein, Defendants' motions to dismiss are MOOT and Plaintiffs' notice of voluntary dismissal is hereby GRANTED.

I. FACTUAL ALLEGATIONS
Plaintiffs in this case are William Mercado ("Mercado") and Mercado Insulation Services Inc. ("MIS"). Mercado is the owner, president and shareholder of MIS, which is incorporated to do business in the Commonwealth of Puerto Rico. Defendant Biopharmax is a corporate entity incorporated in various countries, but not in Puerto Rico. Biopharmax's corporate headquarters are located in Amsterdam, Netherlands, and it allegedly conducts most of its operations in Roxboro, North Carolina. Biopharmax has an office in Puerto Rico, and is dedicated to the preparation and construction of pharmaceutical *212 sites and plants. Defendant TAPI is also a corporate entity incorporated in various countries, including Puerto Rico.
Plaintiffs allege that, on January 28, 2008, MIS received a request for a quote from an engineer working for Biopharmax at a TAPI project site in Guayama, Puerto Rico. MIS sent three quotes to the Biopharmax engineer and said engineer issued a work order. As the project progressed, Biopharmax found that the project required additional tubing and more insulation, and requested that MIS perform this work. MIS issued a series of invoices pursuant to the work performed at the Puerto Rico site. MIS alleges that Biopharmax failed to pay $100,586.00 due for work performed and $10,058.50 in penalty assessments.
Plaintiffs further allege that, in November 2008, Plaintiffs spoke to the Chief of Purchases for TAPI, José Delgado ("Delgado"), regarding the outstanding invoices and penalty assessments owed by Biopharmax. Delgado agreed to withhold payment on invoices TAPI owed Biopharmax until Biopharmax submitted payment letters as to all suppliers and laborers involved in the project. Despite this assurance and despite Biopharmax's failure to pay the outstanding invoices owed to MIS, TAPI paid the amounts owed to Biopharmax.
Following MIS' final demand for payment from TAPI and Biopharmax, TAPI cancelled all of its contracts with MIS, and prohibited other contractors, laborers and suppliers from using MIS at TAPI's site in Guayama, Puerto Rico.
On September 10, 2009, Plaintiffs filed the instant complaint alleging, inter alia, breach of contract, unjust enrichment, quantum meruit, and money collection.

II. LEGAL STANDARD FOR A MOTION TO DISMISS

The Supreme Court has established that, "once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1969, 167 L.Ed.2d 929 (2007). As such, in order to survive a motion to dismiss, a complaint must state a claim to relief that is plausible on its face, not merely conceivable. Id. at 1974.
The First Circuit has interpreted Twombly as sounding the death knell for the oft-quoted language of Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Rodríguez-Ortiz v. Margo Caribe, Inc., 490 F.3d 92, 94-95 (1st Cir.2007) (quoting Twombly, 127 S.Ct. at 1969). Still, a court must "treat all allegations in the Complaint as true and draw all reasonable inferences therefrom in favor of the plaintiff." Rumford Pharmacy, Inc. v. City of East Providence, 970 F.2d 996, 997 (1st Cir. 1992).

III. ANALYSIS

Both TAPI and Biopharmax have filed motions to dismiss arguing lack of complete diversity. Plaintiffs oppose the motions to dismiss. The Court will now consider the parties' arguments.

A. Diversity of Citizenship

In the instant action, the only ground for subject matter jurisdiction asserted in the complaint is diversity of citizenship. The federal statute that governs diversity jurisdiction provides that federal district courts shall have original jurisdiction in all *213 civil actions where the amount in controversy exceeds $75,000.00, and the action is between citizens of different states. 28 U.S.C. § 1332.
Jurisdiction based on diversity requires complete diversity between Plaintiffs and Defendants. This means that diversity jurisdiction does not exist where any Plaintiff is a citizen of the same state[1] as any Defendant. Álvarez-Torres v. Ryder Memorial Hosp., Inc., 582 F.3d 47, 53-54 (1st Cir.2009). In cases where a corporation is a party to a diversity action, the corporation is deemed a citizen of any state where it is incorporated as well the state where the corporation's principal place of business is located. 28 U.S.C. § 1332(c)(1). In the complaint, Plaintiffs state that they are citizens of Puerto Rico. Defendants argue that TAPI is a citizen of Puerto Rico for diversity purposes, and therefore there is a lack of complete diversity, because: (1) TAPI has its principal place of business in Puerto Rico; and (2) TAPI is incorporated in Puerto Rico.[2] Plaintiffs counter that the complaint should not be dismissed because Defendant TAPI is not an indispensable party to this action. As such, Plaintiffs submit a notice of voluntary dismissal regarding the claims against Defendant TAPI and request that the action continue against Biopharmax.

1. Indispensable Party
In both their oppositions to the motions to dismiss, Plaintiffs argued that Defendant TAPI is not an indispensable party to this case. Defendants did not present any arguments regarding whether TAPI is an indispensable party to this action.[3]
Fed.R.Civ.P. 19, which governs indispensable parties, has a two step process. Pujol v. Shearson/American Express, Inc., 877 F.2d 132, 134 (1st Cir. 1989). First, the Court must determine whether a party is necessary. Id. To determine whether a party is necessary, courts "decide whether a person fits the definition of those who should `be joined if feasible' under Rule 19(a)." Id. Rule 19 provides that a party is necessary to the litigation and should be joined, if feasible, 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 the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest.
Picciotto v. Continental Casualty Co., 512 F.3d 9, 16 n. 10 (1st Cir.2008); Fed. R.Civ.P. 19(a)(1).
If the Court determines that a party is necessary and that said necessary party cannot feasibly be joined, then the Court proceeds to step two, which requires determining whether the action should proceed among the existing parties or should be dismissed. Fed.R.Civ.P. 19(b); Pujol, *214 877 F.2d at 134. That is to say, the Court must determine whether the party is indispensable. Pujol, 877 F.2d at 134.
After considering the issue, the Court finds that TAPI is not a necessary party to this case. Plaintiffs' complaint contains a breach of contract claim and a collection of monies claim against Biopharmax. Biopharmax was the party who directly contracted with Plaintiffs to render services at the TAPI plant. TAPI's inclusion in the complaint was for a separate and distinct cause of action for damages due to loss of business opportunity and damages for a violation of Article 1489 of the Civil Code of Puerto Rico, P.R. Laws Ann. tit. 31, § 4130. As such, Defendant TAPI is not necessary to the causes of action against Biopharmax because complete relief may be accorded in this case without TAPI's participation.
Moreover, there has been no showing that TAPI maintains an interest in the claim against Biopharmax that may be impaired or prejudiced by the disposition of the present case without TAPI. Similarly, the Court sees no substantial risk that any of the parties will incur multiple or otherwise inconsistent obligations. Since the Court has determined that TAPI is not a necessary party to the action, it follows that TAPI is not an indispensable party to the action. See Pujol, 877 F.2d at 135.

2. Voluntary Dismissal
In response to Defendants' arguments that Defendant TAPI ruined diversity in this case, Plaintiffs submitted oppositions and a notice of voluntary dismissal of the claims against Defendant TAPI.
Fed.R.Civ.P. 41(a)(1)(A) grants Plaintiffs a right to voluntarily dismiss an action without court order: (i) before the adverse party files either an answer, or a motion for summary judgment, or (ii) when the stipulation of dismissal is signed by all parties. See Nogueras-Cartagena v. Roselló-González, 182 F.R.D. 380, 383 (D.P.R.1998).
Here, since no answer or summary judgment motions have been filed, and having determined that TAPI is not an indispensable party to this action, the Court finds that Plaintiffs' notice of voluntary dismissal of the claims against TAPI is proper.
Because the Court has allowed Plaintiffs to voluntarily dismiss their claims against Defendant TAPI, the Court need not address the merits of the arguments raised by Defendants dealing with whether TAPI ruins diversity.[4] As such, the Court determines that Defendants' motions to dismiss are MOOT.[5]

IV. CONCLUSION
Thus, the Court: (1) GRANTS Plaintiffs' notice of voluntary dismissal of the claims against TAPI; and (2) FINDS AS MOOT Defendants' motions to dismiss. The Court will enter a separate judgment accordingly.
Furthermore, the Court hereby ORDERS Plaintiffs to file an amended complaint including only the claims against *215 Defendant Biopharmax on or before June 29, 2010.
IT IS SO ORDERED.
NOTES
[1]  For purposes of determining diversity jurisdiction, the word "States" includes the Commonwealth of Puerto Rico. 28 U.S.C. § 1332(e).
[2]  The Court notes that the allegation that TAPI is incorporated in Puerto Rico comes from the allegations by Plaintiffs in the complaint.
[3]  Biopharmax was aware of this line of argument because Plaintiffs filed the opposition to TAPI's motion to dismiss prior to Biopharmax's filing of its motion to dismiss. In said opposition, Plaintiffs argued that TAPI is not an indispensable party to this action.
[4]  The only argument that is still relevant after the Court's decision in this Opinion and Order is the argument by Biopharmax that dismissing the complaint against TAPI will not create diversity of citizenship because when the complaint was filed there was no complete diversity between all plaintiffs and all defendants. The Court disagrees with Defendant's conclusion. Defendant's position cannot be squared with United States Supreme Court precedent. Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989) (finding that, like district courts, court of appeal could dismiss a dispensable non-diverse party who was named in the complaint to correct a jurisdictional defect).
[5]  Also, the Court notes that Defendants have not presented arguments that there is no diversity of citizenship between Defendant Biopharmax and Plaintiffs.