529 F.3d 947 (10th Cir. 2008), 07-6142, McPhail v. Deere & Co.

Docket Nº:07-6142.
Citation:529 F.3d 947
Party Name:Barbara Jean McPHAIL, Personal Representative of the Estate of Willis Ray McPhail, Plaintiff-Appellant, v. DEERE & COMPANY, a Delaware Corporation, Defendant-Appellee, and John Does 1-3, Defendants.
Case Date:June 25, 2008
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 947

529 F.3d 947 (10th Cir. 2008)

Barbara Jean McPHAIL, Personal Representative of the Estate of Willis Ray McPhail, Plaintiff-Appellant,


DEERE & COMPANY, a Delaware Corporation, Defendant-Appellee,

and John Does 1-3, Defendants.

No. 07-6142.

United States Court of Appeals, Tenth Circuit.

June 25, 2008

Page 948

Joseph T. Acquaviva, Jr. (Chad M. Kirk with him on the brief), Wilson, Cain & Acquaviva, Oklahoma City, OK, for Plaintiff-Appellant.

Jo Anne Deaton (Lindsay J. McDowell with her on the brief), Rhodes, Hieronymus, Jones, Tucker & Gable, P.L.L.C., Tulsa, OK, for Defendant-Appellee.

Before TACHA , EBEL and McCONNELL , Circuit Judges.

McCONNELL , Circuit Judge.

In June of 2004, Willis Ray McPhail, a Kiowa County, Oklahoma farmer, was

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killed when he started his tractor by bypassing its malfunctioning circuitry. When it started, the tractor suddenly lurched backward and ran him over, inflicting fatal injuries. His widow, Barbara Jean McPhail, brought suit in state court on her own behalf and on behalf of his estate against Deere & Co. (“Deere" ), the manufacturer of the tractor. After the case was removed to federal court, the district court granted summary judgment in favor of Deere. Although it concluded that there was sufficient evidence to go to a jury regarding whether the tractor was unreasonably dangerous, as that term is used in Oklahoma, it found that a sticker affixed to the tractor provided sufficient warning to cure the defects in the tractor's design. We disagree, and reverse the grant of summary judgment. Mrs. McPhail also appeals the district court's denial of her motion to remand the case to state court. She argues that Deere has failed to establish the amount in controversy and that the parties are no longer diverse because of the identification of “John Doe" defendants. We examine whether diversity jurisdiction exists, and conclude that it does.


Willis McPhail purchased a used 1981 Deere 4440 tractor at an auction approximately eight years ago. On the morning of his death, in June 2004, the tractor would not start, due to a malfunction in its starting circuitry. Because of the urgency of getting the hay crop in, Mr. McPhail decided to bypass start the tractor as a stopgap measure; the alternative was to lose the crop. Mr. McPhail was not the first farmer to do this. Plaintiff submitted evidence that significant numbers of farmers have resorted to bypass starting when the starting circuitry on their tractors failed. See generally McMurray v. Deere & Co., 858 F.2d 1436 (10th Cir.1988) . When a tractor's starting circuitry becomes inoperative, the tractor can still be started if the user creates a new electrical circuit that bypasses any failures in the normal circuitry. To effectuate a bypass start, the user stands on the ground near the engine and lays a screwdriver across the electrical terminals on the starter and the solenoid to close the circuit necessary for engine ignition. Mr. McPhail did this twice that morning. On his first attempt, the tractor started successfully, in neutral, but the front-end loader would not work. Mr. McPhail turned off the tractor and attempted to fix the front-end loader. Then, standing between the front and rear wheels on one side of the tractor, he attempted a second bypass start. This time, according to his employee Darrel Coffelt, the transmission engaged and the tractor suddenly lurched backward at high speed, running over Mr. McPhail. He died from the injuries later that day.

Mr. McPhail's tractor was designed with a neutral-start switch, which prevents engine ignition if the transmission is in gear. But because this switch is part of the tractor's normal starting circuitry, bypass starting the tractor also bypasses this safety mechanism. Thus, nothing in the design of the tractor protects users from the unexpected movement of the tractor if it is bypass started while in gear. In the 1970s and 1980s, Deere became aware that farmers were bypass starting their tractors, that tractors started in gear were also prone to sudden movement, and that this was leading to accidents. In response, for models manufactured after 1984, Deere began using an “Engagement Override Valve," which prevents the transmission from engaging, even if the tractor is in gear, unless the tractor's operator cycles the clutch or manually returns the tractor to neutral. For older models, Deere undertook a safety campaign, starting in

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1989, to warn users of the dangers of bypass starting.

Deere first identified all of the pre-1984 models whose transmission could engage when the tractor is bypass started. For these tractors, Deere attempted to contact all known owners to educate them on the dangers of bypass starting and to install a safety kit on their tractors. The safety kits included a plastic cover for the tractor's solenoid to prevent the operator from accessing the terminals used in bypass starting, and a warning sticker to affix near the solenoid cover. The sticker is a vibrant red and contains the following words: “DANGER" and “Start only from seat in park or neutral. Starting in gear kills." The warning also contains two cautionary depictions. One illustration, contained within a prohibitory red circle with a slash through it, shows a screwdriver being placed over a solenoid terminal. The second image depicts a person standing on the ground near the tractor and being run over because the tractor is moving forward.

It is undisputed that this warning was present on Mr. McPhail's tractor on the morning of the accident. However, there is no evidence that a Deere representative contacted Mr. McPhail, rather than a previous owner, as part of the education component of the campaign. There were remnants of the solenoid cover in place, suggesting it had been installed at some point. But it had been broken off prior to the accident and nothing in the record indicates whether the cover was present when Mr. McPhail bought the tractor at auction.

Two other features of the Deere 4440 are important. First, it employs a Quad-Range Transmission (QRT), which functions via a hydraulic (or “wet" ) clutch. When a tractor with a QRT is started, hydraulic pressure must build up within the clutch before the tractor will move, whether or not the tractor is in gear. Because of this, the tractor's engine will act as if it is in neutral for a short interval after it is started, even if it is in gear. Once the hydraulic pressure is adequate to engage the transmission, the tractor will suddenly move under full power. This is in contrast to the behavior of a manual (or “dry" ) clutch. If a tractor with a “dry" clutch is started while the tractor is in gear, the transmission is engaged during engine ignition. The tractor will begin to move immediately but, because the engine has not fully started, the movement is less powerful.

A second significant feature, as explained by one of Mr. McPhail's expert witnesses, is that “[t]he ‘Quad-Range’ transmission controls provide ‘false’ or ‘apparent’ neutral positions which can cause the operator to believe the tractor is in neutral, when it is not. The control system does not provide a positive visual or tactile indication of a true neutral position." Aplt.App., Vol. III, at 175. In other words, the gear shift on this model of tractor may appear to be in neutral when in fact the tractor is in gear.


Mrs. McPhail originally filed this suit in Oklahoma state court. Invoking diversity jurisdiction, Deere removed the case to federal court. Mrs. McPhail challenged removal through a motion to remand. On appeal, she continues to assert that federal subject matter jurisdiction is lacking because the jurisdictional requirements of 28 U.S.C. § 1332(a) have not been met, for two independent reasons. First, she contends that the citizenship of unidentified (“John Doe" ) defendants has destroyed diversity. Second, she contends that Deere never carried its burden to prove the requisite amount in controversy. Our review

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of a denial to remand is de novo. See Huffman v. Saul Holdings Ltd. P'ship, 194 F.3d 1072, 1076 (10th Cir.1999) .

A. Diversity of “John Doe" Defendants

Mrs. McPhail first argues that the citizenship of unidentified defendants is a bar to removal. In her original complaint, Mrs. McPhail named three “John Doe" defendants who have since been identified as in-state distributors. Under 28 U.S.C. § 1332(a) the citizenship of all defendants must be different from the citizenship of all plaintiffs. Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806) ; Salt Lake Tribune Publ'g Co. v. AT & T Corp., 320 F.3d 1081, 1095-96 (10th Cir.2003) . Mrs. McPhail urges, therefore, that the identification of these defendants has destroyed diversity and that the case must be remanded. She also asserts that she has been unable to amend her complaint to substitute these named defendants because necessary information is contained within records controlled by Deere.

Under the federal removal statutes the presence of “John Doe" defendants at the commencement of an action creates no impediment to removal. See 28 U.S.C. § 1441(a) (“[T]he citizenship of defendants sued under fictitious names shall be disregarded." ); Australian Gold, Inc. v. Hatfield, 436 F.3d 1228, 1234-35 (10th Cir.2006) . Thus, the diversity of citizenship between Deere and McPhail was sufficient to support the statutory diversity requirement at the time of removal. The question, then, is whether subsequent identification of potential defendants destroys complete diversity and requires remand to state court.

To be sure, if a non-diverse party is added to the complaint at any...

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