462 F.3d 536 (6th Cir. 2006), 05-4218, Curry v. U.S. Bulk Transport, Inc.

Docket Nº:05-4218.
Citation:462 F.3d 536
Party Name:Floyd CURRY, Plaintiff-Appellant, v. U.S. BULK TRANSPORT, Inc. et al., Defendants-Appellees.
Case Date:September 05, 2006
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 536

462 F.3d 536 (6th Cir. 2006)

Floyd CURRY, Plaintiff-Appellant,


U.S. BULK TRANSPORT, Inc. et al., Defendants-Appellees.

No. 05-4218.

United States Court of Appeals, Sixth Circuit.

Sept. 5, 2006

Argued: July 28, 2006.

Page 537


L. Christopher Coleman, Steuer, Escovar, Berk & Brown, Cleveland, Ohio, for Appellant.

John B. Stalzer, Reminger & Reminger, Cleveland, Ohio, for Appellees.


L. Christopher Coleman, Steuer, Escovar, Berk & Brown, Cleveland, Ohio, for Appellant.

John B. Stalzer, Brian D. Sullivan, Frank Leonetti III, Reminger & Reminger, Cleveland, Ohio, for Appellees.

Before: MOORE and GIBBONS, Circuit Judges; ACKERMAN, District Judge. [*]



Plaintiff-Appellant Floyd Curry brought this suit to recover damages resulting from injuries he sustained in an accident when a truck carrying potassium sulfate overturned in the warehouse in which Curry worked. Curry alleges that Defendants-Appellees U.S. Bulk Transport, Inc., David Priddy, and Eric Susman negligently operated and covered the truck, thereby causing his injuries. The district court granted summary judgment to defendants, finding that Curry had not provided any evidence that defendants were negligent. Curry appeals, arguing that genuine issues of material fact preclude summary judgment. During review of our jurisdiction to hear this appeal, it became apparent that complete diversity was destroyed when Priddy and Susman were identified and substituted as nondiverse defendants, with the result that the district court lacked subject-matter jurisdiction over this suit. We therefore REMAND Curry's lawsuit to the district court with instructions to remand to the state court from which removal was granted.


The following facts are undisputed. On April 3, 2002, Plaintiff-Appellant Curry

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was on the job as a warehouse manager at American Metal Chemical Corporation in Medina, Ohio. Joint Appendix ("J.A.") at 36 (Fourth Amd. Compl. at 2); J.A. at 96 (Curry Dep. at 17). Curry was in charge of inventory at the warehouse, and it was his job to direct incoming trucks making deliveries and to show the drivers where in the warehouse incoming truck loads should be dumped. On that morning, Defendant-Appellee Priddy arrived at the warehouse driving a Freightliner truck loaded with potassium sulfate. Defendant-Appellee Susman owned the truck that Priddy was driving, and Defendant-Appellee U.S. Bulk Transport was the lessee of the truck.

When Priddy pulled the truck into the warehouse that day, Curry directed Priddy to dump the potassium sulfate in the area of the warehouse designated for raw materials. While Priddy was in the truck's driver's seat, Curry stood behind the truck and directed Priddy to raise the truck bed and dump the material. Curry observed that after Priddy raised the truck bed, a significant quantity of the potassium sulfate in the truck adhered to the truck's bed instead of falling out of the truck. When gravity failed to dislodge the adhering material, Curry moved to the side of the truck so that he could approach Priddy to tell him that the material was stuck to the truck. Curry incorrectly believed that the truck was equipped with a vibrator that could be used to shake a load loose, and so Curry intended to tell Priddy to vibrate the truck bed so the material would fall out. While Curry was beside the truck, he "heard metal under stress," and looked up to see that the truck bed was falling over towards him. J.A. at 97 (Curry Dep. at 18). Curry scrambled to get out of the way of the falling bed, and ran towards the back of the truck. Curry escaped from the path of the falling truck bed, but stumbled over some chunks of potassium sulfate that had fallen from the load and fell on his knee and elbows, sustaining injuries that required surgery.

Curry filed suit in the Court of Common Pleas for Cuyahoga County, Ohio, in April 2004, naming U.S. Bulk Transport 1 as well as four John Doe defendants (the truck driver, the truck driving company, the truck owner, and the loading company, all of whose names were then unknown to Curry) and alleging three counts of negligence. J.A. at 10-15 (Amd.Compl.). U.S. Bulk Transport filed a notice of removal in the United States District Court for the Northern District of Ohio on July 20, 2004, invoking diversity jurisdiction. Diversity exists between Curry and U.S. Bulk Transport, because Curry is a citizen of Ohio, and U.S. Bulk Transport is a Pennsylvania corporation with its principal place of business in Pennsylvania. J.A. at 7 (Notice of Removal). In January 2005, the district court granted Curry's motion to file a third amended complaint, which identified and added Priddy and Susman, both citizens of Ohio, as defendants in place of two previous John Doe defendants. J.A. at 27-28 (Third Amd. Compl. at 2-3). Neither party filed a motion to remand to state court for lack of complete diversity or took any other steps to notify the district court of the potential problem of subject-matter jurisdiction.

Defendants moved for summary judgment on May 20, 2005, but the following month the parties filed a joint motion for an extension of the deadline for filing Curry's brief in opposition to summary judgment so that the parties could proceed

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with discovery. Curry filed his opposition to defendants' summary-judgment motion on August 1, 2005. Defendants filed a reply to Curry's opposition motion on August 5, 2005. On August 18, 2005, Curry filed a motion for leave to file a fourth amended complaint, which the court granted on August 23, 2005. Dist. Ct. Docket at R.29. Curry's fourth amended complaint removed the remaining John Doe defendants and...

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