Barnes v. Tidewater Transit Co.
| Decision Date | 17 March 2014 |
| Docket Number | CIVIL ACTION NO. 1:13-cv-00537-JEC |
| Court | U.S. District Court — Northern District of Georgia |
| Parties | WILLIAM BARNES, Plaintiff, v. TIDEWATER TRANSIT COMPANY, INC. and/or HARVEY'S FERTILIZER, and ROGER H. CANTELL, Defendants. |
This matter is before the Court on defendants Tidewater Transit Company, Inc. ("Tidewater")1 and Roger H. Cantell's Motion to Dismiss [15]. The Court has reviewed the record and the arguments of the parties and, for the reasons set out below, concludes that defendants' Motion to Dismiss [15] should be DENIED.
This case arises from an automobile accident between plaintiff William Barnes and defendant Roger Cantell in which plaintiff suffered severe injuries. (Compl. [1] at ¶ 3.) On July 6, 2012, plaintiff, in his vehicle, and Cantell, in his tractor-trailer, both turned left onto southbound Redmond Circle in Rome, Georgia. (Id. at ¶ 2.) Cantell, a Tidewater employee at the time, was driving a tractor-trailer owned by Tidewater. (Answer [14] at ¶ 1.) In the course of making the turn onto Redmond Circle, Cantell veered from the inside turn lane into the outside turn lane, colliding with plaintiff's vehicle and forcing it off of the road. (Compl. [1] at ¶ 2.) This collision caused severe injuries to plaintiff's back and legs and destroyed his automobile. (Id. at ¶¶ 2-5.)
Plaintiff filed suit in this Court against defendants on February 19, 2013. In his original complaint, plaintiff did not allege a basis for federal jurisdiction, but did note the residency of each party, averring that plaintiff and defendant Cantell are residents of Georgia, and that defendant Tidewater is an "out-of-state corporation." (Id. at ¶ 1.)
Defendants moved to dismiss based on this Court's lack of subject matter jurisdiction, arguing that plaintiff's complaint provided no basis for federal jurisdiction. Specifically, notingthat there are two types of federal jurisdiction--federal question and diversity of citizenship--defendants observed that nothing in the complaint suggested the existence of federal question jurisdiction. (Defs.' Br. in Support of Mot. to Dismiss [8] at 2-3.) As to diversity jurisdiction, defendants noted that to establish the existence of the latter, one must show complete diversity of citizenship (not residency) among the parties and an amount in controversy of over $75,000. Yet, as defendants correctly observed, plaintiff's own complaint established that there was no diversity of citizenship because the complaint stated that both the plaintiff and defendant Cantell were "residents" of Georgia. (Id. at 3-4.)
In response to defendants' motion to dismiss, plaintiff requested leave to amend his complaint [11], which this Court granted, thereafter denying as moot defendants' motion to dismiss (Order [12].) Unfortunately, plaintiff's amended complaint did not address the defects of the original complaint identified by defendants. That is, leaving the rest of the complaint as originally written, the plaintiff substituted a new first paragraph. Yet, the only new allegation in this second version of the first paragraph was an allegation that defendant Tidewater was organized under the laws of North Carolina and has its principal office in that state. (Am. Compl. [13] at ¶ 1.) Plaintiff repeated its allegation that plaintiff and defendant Cantell were "residents" of Georgia. (Id.)And, as defendants had previously noted, if a defendant and plaintiff are citizens of the same state, there is no diversity jurisdiction.
For that reason, defendants filed a second Motion to Dismiss [15, 16], based on the same ground as the first motion to dismiss. In response, plaintiff admitted that there was not complete diversity, as is required, but requested that the Court permit him to dismiss defendant Cantell--the Georgia party who was destroying diversity--whose removal would restore diversity among the parties. Plaintiff noted that dismissal of Cantell would be appropriate as he is not an indispensable party. (Pl.'s Resp. [18].) Plaintiff, however, requested that any dismissal of Cantell be without prejudice. (Id. at 2.)
In reply, defendants note that, in his response, plaintiff admits that he had been aware that there was no diversity in the case, but plaintiff nevertheless required the defendants and this Court to expend unnecessary resources to correct plaintiff's knowing misstatement of federal jurisdiction. As to dismissal of defendant Cantell, defendants expressed no objection, except to note that any dismissal should be with prejudice. (Defs.' Reply [19] at 2-3.) Defendants further requested that, should Cantell be dismissed, the Court require plaintiff "to pay all reasonable attorney's fees for the multiple motions Defendants were forced to file." (Id. at 3.)
Plaintiff's Amended Complaint alleges the existence of diversity jurisdiction. Defendants filed a motion pursuant to FED. R. CIV. P. 12(b)(1) to dismiss this complaint, arguing that this Court did not have diversity jurisdiction and therefore it lacked subject matter jurisdiction.
Attacks on subject matter jurisdiction under Rule 12(b)(1) are either facial or factual. Garcia v. Copenhaver, Bell & Assocs., M.D.'s, P.A., 104 F.3d 1256, 1260-61 (11th Cir. 1997)(citing Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990)). A facial attack requires the Court to determine whether the plaintiff has alleged a sufficient basis for subject matter jurisdiction. Id. at 1261. A factual attack, on the other hand, challenges "the existence of subject matter jurisdiction in fact, irrespective of the pleadings." Lawrence, 919 F.2d at 1529.
Here, there is no disagreement as to the citizenship of each party named in plaintiff's amended complaint. Instead, defendants have argued that plaintiff's pleadings, on their face, do not provide a sufficient basis for diversity jurisdiction. Accordingly,defendants' motion to dismiss constitutes a facial attack under Rule 12(b)(1). Barnett v. Okeechobee Hosp., 283 F.3d 1232, 1237 (11th Cir. 2002).
When considering a facial attack, the Court applies a standard similar to that used in Rule 12(b)(6) motions. Therefore, for the purposes of defendants' motion, the Court assumes all the facts in plaintiff's complaint are true and construes them in his favor. McElmurray v. Consol. Gov't of Augusta-Richmond Cnty., 501 F.3d 1244, 1251 (11th Cir. 2007). The question, then, becomes whether the complaint sufficiently alleges a basis for subject matter jurisdiction. Lawrence, 919 F.2d at 1529. In this case, it clearly does not.
A federal court may exercise diversity jurisdiction when (1) the amount in controversy exceeds $75,000 and (2) the suit is between citizens of different states. 28 U.S.C. § 1332. The second prong of § 1332 requires complete diversity of parties; "the presence in the action of a single plaintiff from the same State as a single defendant deprives the district court of original diversity jurisdiction over the entire action." Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 553 (2005).
Although defendant Tidewater is a citizen of North Carolina,because both plaintiff and defendant Cantell are citizens of Georgia, there is no diversity jurisdiction, under plaintiff's present amended complaint. Albeit it took three pleadings by the defendants before plaintiff decided to acknowledge this obvious fact, plaintiff finally agrees that there can be no diversity jurisdiction as long as defendant Cantell remains in the case.
But plaintiff has now pivoted and asks this Court to remedy this problem by dismissing plaintiff Cantell, pursuant to Federal Rule of Civil Procedure 21. Plaintiff further requests that this dismissal be without prejudice. (Pl.'s Resp. [18] at 2-3.) Without Cantell as a defendant, plaintiff argues, diversity jurisdiction will reign over this case. (Id.)
Because "[m]isjoinder of parties is not a ground for dismissing an action", Rule 21 permits the court, "[o]n motion, or on its own . . . at any time, on just terms, [to] add or drop a party." FED. R. CIV. P. 21. Courts may use this power to remove non-necessary parties from an action in order to preserve diversity jurisdiction. "By now, 'it is well settled that Rule 21 invests district courts with authority to allow a dispensable nondiverse party to be dropped at any time, even after judgment has been rendered.'" Grupo Dataflux v. Atlas Global Grp., L.P., 541 U.S. 567, 572-73 (2004)(quoting Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 832 (1989)).See also Bennick v. Boeing Co., 427 Fed. App'x 709, 712-13 (11th Cir. 2011); Fritz v. Am. Home Shield Corp., 751 F.2d 1152, 1154 (11th Cir. 1985); Ralli-Coney, Inc. v. Gates, 528 F.2d 572, 575-76 (5th Cir. 1976); and 7 FED. PRAC. & PROC. CIV. § 1685 (3d ed.).
In order to exercise its ability to remove a non-diverse party under Rule 21, however, the Court must first determine that the party sought to be dismissed is not indispensable to the action under Federal Rule of Civil Procedure 19. Fritz, 751 F.2d at 1154; Molinos Valle Del Cibao C. por A. v. Lama, 633 F.3d 1330, 1343-45 (11th Cir. 2011) [hereinafter "Molinos"] ().
Under Rule 19, there is a two-step inquiry for determining whether a party is indispensable. First, the Court must determine whether the party to be dropped is required in the action. FED. R. CIV. P. 19(a); Molinos, 633 F.3d at 1344. If the party is required, but cannot be joined--as, for example, when his presence would destroy diversity jurisdiction--then the Court must consider four factors enumerated under the rule to determine if the action may proceed without him. FED. R. CIV. P. 19(b); Molinos...
To continue reading
Request your trial