Perez v. K & B Transp., Inc.
| Decision Date | 24 July 2020 |
| Docket Number | No. 19-2984,19-2984 |
| Citation | 967 F.3d 651 |
| Parties | Moses PEREZ and Dee Perez, Plaintiffs-Appellants, v. K & B TRANSPORTATION, INC. and Kiara Wharton, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
George T. Brugess, Attorney, Sara Morgan Davis, Attorney, Cogan & Power, P.C., Chicago, IL, for Plaintiffs - Appellants
Melissa A. Murphy-Petros, Attorney, Wilson Elser Moskowitz Edelman & Dicker LLP, Chicago, IL, for Defendants - Appellees
Before Easterbrook, Hamilton, and Scudder, Circuit Judges.
Plaintiff Moses Perez was driving a sport-utility vehicle when he apparently hit a patch of ice, lost control, and was then hit from behind by defendant Kiara Wharton driving a tractor-trailer. After excluding Perez's expert witnesses on accidents and truck-driving, the district court granted summary judgment for Wharton and her employer, K & B Transportation, Inc. We conclude that this classic negligence case was inappropriate for summary adjudication. Under Illinois law, a reasonable jury could infer that Wharton was driving negligently based on the evidence that she rear-ended Perez and that she was driving too fast for the weather conditions. We reverse and remand for trial.
Because defendants K & B Transportation and Wharton moved for summary judgment, on appeal we construe the facts in the light most favorable to the non-moving parties, Moses Perez and his wife Dee Perez. Reid v. Norfolk & W. Ry. Co. , 157 F.3d 1106, 1110 (7th Cir. 1998). The accident occurred at 5:18 am on January 20, 2016, seconds after both vehicles passed the toll sensors at a toll plaza on eastbound Interstate 294 in Thornton Township in southeastern Cook County, Illinois. The posted speed limit was 55 miles per hour. It was dark, and the weather was cold, snowy, and icy.
Perez's vehicle, driving in the right I-Pass lane of the toll plaza, spun out of control, though the details of how it did so are disputed. Wharton's truck struck the right rear of Perez's car. Perez's vehicle came to rest against the median wall. Wharton stopped her truck, and State Trooper Stephen Kenny responded to the scene.
The parties dispute exactly how Perez's vehicle spun out, and whether, therefore, Wharton reacted appropriately. The parties also dispute the proper driving speed given the weather conditions. Plaintiffs say that Perez's vehicle hit a patch of black ice within its lane, swerved, then returned to the original lane of travel in which Wharton was following Perez. He testified he was driving 15 to 30 miles per hour, about the speed of traffic. According to plaintiffs, Wharton was driving too fast for conditions, at or slightly above the posted speed limit, and therefore could not slow down enough to avoid colliding with Perez.
Defendants tell a different story. Wharton says that she saw Perez spin out and that his vehicle moved from the right lane all the way to the left side of the highway, so she began to slow down. But after Perez came to a stop on the left side of the highway, he began unexpectedly to cut all the way across to the right side of the highway again. Because of this unusual driving behavior, Wharton says, she was unable to avoid Perez despite her best efforts to brake. Wharton testified that she could not remember how fast she was traveling before beginning to brake, but that she had downshifted to third or fourth gear by the time of impact, so that her truck would have been going 10 to 15 miles per hour. The parties also dispute further details of Wharton's driving that are not relevant to our decision here.
Plaintiffs Moses and Dee Perez filed their suit in the Circuit Court of Cook County (Illinois) on January 17, 2017, naming both Kiara Wharton and K & B Transportation, Inc. as defendants. (Mrs. Perez asserts a claim for loss of consortium.) Defendants removed the suit to federal court based on diversity of citizenship under 28 U.S.C. § 1332(a)(1). The Perezes did not move to remand under 28 U.S.C. § 1447(c). After discovery, Wharton and K & B Transportation moved for summary judgment, and the district court granted their motion, entering final judgment for defendants. The Perezes appeal that judgment.
On appeal, plaintiffs have challenged federal jurisdiction. The amount in controversy exceeds $75,000, the Perezes are citizens of Illinois, and K & B is a citizen of Iowa (state of in-corporation) and Nebraska (principal place of business). Jurisdiction under § 1332(a)(1) therefore turns on the citizenship of defendant Wharton at the time of filing and removal. See Grupo Dataflux v. Atlas Global Grp., L.P. , 541 U.S. 567, 570–71, 124 S.Ct. 1920, 158 L.Ed.2d 866 (2004) ; Chase v. Shop ‘N Save Warehouse Foods, Inc. , 110 F.3d 424, 427 (7th Cir. 1997).
Wharton says she is a citizen of Texas, making diversity complete. Plaintiffs say she has not proven that, so that complete diversity is lacking. We have held that a "citizen of the United States who is not also a citizen of one of the United States may not maintain suit" under § 1332(a)(1). Sadat v. Mertes , 615 F.2d 1176, 1180 (7th Cir. 1980). Because the issue governs subject-matter jurisdiction, it could be raised for the first time on appeal. Grupo Dataflux , 541 U.S. at 571, 124 S.Ct. 1920. We directed the parties to brief the issue.
Wharton is a long-haul truck driver who spends the vast majority of her time on the road. She currently has no residence of her own. Her most recent residence was an apartment she rented in Texas, but before the Perez accident she had given that up, started receiving her mail at a post office box, and begun staying with a family member in Texas when she was not on the road.
Plaintiffs argue that these facts rendered Wharton "stateless" so that defendants failed to support diversity jurisdiction. Plaintiffs also point to defendants’ failure to introduce other evidence tying Wharton to Texas, such as real estate ownership, payment of state taxes, or voting in Texas. Wharton has a Texas commercial driver's license, and the State of Texas requires applicants to provide several documents demonstrating residency. Remarkably, though, plaintiffs argue that "there is no evidence that Wharton actually did any of those things required." In other words, plaintiffs imply without any proof that Wharton and/or an employee of the State of Texas committed fraud in issuing Wharton's commercial driver's license. Without evidence to the contrary, we presume that Wharton and the state employees who issued her license acted in good faith and complied with Texas law. See, e.g., Promega Corp. v. Novagen, Inc. , 6 F. Supp. 2d 1037, 1068 (W.D. Wis. 1997).
Wharton contends that she established her domicile and citizenship in Texas, has never subsequently established a domicile in another state, and is still a citizen of Texas because she intends to continue her current living arrangements there indefinitely. See Mitchell v. United States , 88 U.S. (21 Wall.) 350, 353, 22 L.Ed. 584 (1874) ( ).
State residence is not necessarily the same as citizenship, but we are satisfied that Wharton established a residence and domicile and thus citizenship in Texas, and there is no evidence she has given up that citizenship. Wharton did not give up her Texas residence and citizenship simply because her work frequently takes her away from Texas and she has arranged her affairs accordingly. Most important, no evidence shows that Wharton established a domicile and citizenship in any other state after she established a domicile in Texas. Diversity of citizenship is complete, so subject-matter jurisdiction is safe.
We review a grant of summary judgment de novo, drawing all reasonable inferences in favor of the non-moving parties—here, plaintiffs Moses and Dee Perez. Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 702 (7th Cir. 2009). The plaintiffs challenge the district court's exclusion of their expert testimony and argue that they would have defeated summary judgment if that evidence had been considered. We affirm the district court's exclusion of plaintiffs’ experts but find that summary judgment was still improper. Applying Illinois law, a reasonable jury could find that Wharton was negligent based on the remaining record.
We apply two layers of review to a district court's decision to exclude expert evidence under Federal Rule of Evidence 702. First, we review de novo a district court's application of the legal framework. Second, if the court applied the correct legal analysis, we review its decision to admit or exclude expert testimony for abuse of discretion. C.W. v. Textron, Inc. , 807 F.3d 827, 835 (7th Cir. 2015), discussing Rule 702 and Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Plaintiffs imply that it was improper for the district court to analyze the admissibility of their expert evidence sua sponte, without adversarial briefing. Defendants raised the issue in an irregular way, in their sur-reply on their motion for summary judgment. The procedural irregularity does not affect our decision here. A district court is entitled to rule on expert admissibility sua sponte. See Lewis , 561 F.3d at 704, citing Kirstein v. Parks Corp. , 159 F.3d 1065, 1067 (7th Cir. 1998) ; O'Conner v. Commonwealth Edison Co. , 13 F.3d 1090, 1094, 1107 (7th Cir. 1994). As long as the district...
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