Central Associated Carriers, Inc. v. Nickelberry

• Decision Date: 24 February 1998
• Docket Number: No. 98-5002-CV-S-3.,98-5002-CV-S-3.
• Citation: 995 F.Supp. 1031
• Parties: CENTRAL ASSOCIATED CARRIERS, INC., Plaintiff, v. James A. NICKELBERRY Jr., Mayflower Transit, Inc., and John Doe, Defendants, v. Carl E. WALKER, Third Party Defendant.
• Court: U.S. District Court — Western District of Missouri

995 F.Supp. 1031

CENTRAL ASSOCIATED CARRIERS, INC., Plaintiff, v. James A. NICKELBERRY Jr., Mayflower Transit, Inc., and John Doe, Defendants, v. Carl E. WALKER, Third Party Defendant.

No. 98-5002-CV-S-3.

United States District Court, W.D. Missouri, Southwestern Division.

February 24, 1998.

John G. Schultz, Franke & Schultz, P.C., Kansas City, MO, for Central Associated Carriers, Plaintiff.

Jeffrey S. Thomsen, Evans & Dixon, St. Louis, MO, for James A. Nickelberry, Jr., Mayflower Transit, Inc., John Doe, Defendants.

ORDER TO REMAND

SMITH, District Judge.

I. BACKGROUND

Plaintiff, Central Associated Carriers, Inc., ("Central") filed its Petition for Damages on August 11, 1997, and its First Amended Petition for Damages on August 14, 1997, in the Circuit Court of Jasper County, Missouri, at Joplin. Defendants, James A. Nickelberry Jr. ("Nickelberry") and Mayflower Transit, Inc., ("Mayflower") filed an Answer to Plaintiff's First Amended Petition. Defendant Nickelberry also filed a Counterclaim against Plaintiff and a Third Party Petition against Defendant Carl E. Walker ("Walker"). Plaintiff Central and Third Party Defendant Walker filed an answer to Defendant Nickelberry's Counterclaim and Third Party Petition and also filed a Motion to Strike. The first, and only, filing with this Court is the Defendant Nickelberry's Petition of Removal filed on January 20, 1998.

II. DISCUSSION

The Plaintiff did not file a motion to remand but a lack of federal subject matter jurisdiction may be raised by this Court pursuant to 28 U.S.C. section 1447(c) even if the parties do not. Berger Levee Dist v. United States, 128 F.3d 679, 680 (8th Cir. 1997). The Court has an independent obligation to examine the Petition for Removal to determine if federal jurisdiction exists over the case. United States v. Hays, 515 U.S. 737, 742-44, 115 S.Ct. 2431, 2435, 132 L.Ed.2d 635 (1995); Davis v. Mutual of Omaha Ins. Co., 290 F.Supp. 217, 217 (W.D.Mo.1968). "Whether an action filed in state court may properly be removed to federal court is to be determined from the record at the time the petition for removal is filed." Pullman Co. v. Jenkins, 305 U.S. 534, 537, 59 S.Ct. 347, 83 L.Ed. 334 (1939). Finding a lack of federal jurisdiction over this case the Court hereby Orders it remanded to the Circuit Court of Jasper County, Missouri, at Joplin for all further proceedings.

A. Timing of Removal

Defendant Nickelberry filed his Petition of Removal pursuant to 28 U.S.C. section 1446(b) on January 20, 1998. Federal courts have jurisdiction under 28 U.S.C. section 1332 when there is diversity of citizenship between the parties and the amount in controversy exceeds the statutory amount of seventy-five thousand dollars ($75,000). The Petition of Removal includes a statement of diversity of citizenship of the parties and states that the amount in controversy exceeds seventy five thousand dollars ($75,000.00) because the Defendant/Counterclaimant Nickelberry has prayed for damages in excess of the statutory amount in his Counterclaim and Third Party Petition.

Presumably the Defendants meant to qualify for removal under 28 U .S.C. section 1441 which allows the removal of cases based on diversity of citizenship because the Petition of Removal includes citizenship allegations and does not allege any federal question jurisdiction. The Court recognizes that the Defendants have thirty (30) days from the receipt of Plaintiff's initial complaint to file a petition for removal under 28 U.S.C. section 1446(b). The Court's file does not include the dates of filing of Defendants Answer or Counterclaim or Third Party Petition. Defendant Nickelberry indicates in his Petition of Removal that the Counterclaim and Third Party Petition were served on the Plaintiff on or about December 15, 1997, and because the Counterclaim alleges an amount in controversy exceeding seventy-five thousand dollars ($75,000.00), the federal court has jurisdiction. Section 1446(b) however, indicates that the Defendants have thirty (30) days to remove a case after they receive Plaintiff's initial pleading or other pleading which purportedly creates federal court jurisdiction (emphasis added). Here, the Defendant has filed a Counterclaim that alleges the amount in controversy, the claimed basis for federal jurisdiction, and the Petition of Removal indicates that Plaintiff was served with the counterclaim on or about December 15, 1997 making their notice for removal timely.

First, the date of service of Defendant's Counterclaim on the Plaintiff does not start the time running pursuant to section 1446(b), but even if it did, the Defendants were still out of time as thirty days from December 15, 1997, would have been January 14, 1998. Defendant's Petition of Removal was filed on January 20, 1998, which would be out of time even presuming Defendant's interpretation of the removal rules were somehow accurate. Second, as this Order indicates in part D of the discussion below, the Defendant cannot create the statutory amount in controversy for federal court jurisdiction based on a counterclaim and so the Defendant has filed an improper petition for removal.

B. John Doe Defendant

The First Amended Petition for Damages includes three separate Defendants, Nickelberry, Mayflower and John Doe. Plaintiff alleges negligence against John Doe for "operating his motor vehicle so as to cause a subsequent collision between vehicle owned by defendant Mayflower Transit, Inc., and driven by James A. Nickelberry, Jr., and the truck owned by Plaintiff Central Associated Carriers, Inc., and driven by Carl E. Walker." Plaintiffs First Amended Petition, para. 17.

Federal Court only has jurisdiction for diversity purposes if all the parties are diverse. "John Doe is an individual whose address and residence are currently unknown." Plaintiff's First Amended Petition, para. 4. "When diversity of citizenship is the basis of federal jurisdiction, it must be found to exist both at the time of the initial pleadings and at the time the petition for removal is filed." Portis v. Sears, Roebuck Co., 621 F.Supp. 682, 683 (E.D.Mo.1985) (citation omitted). "Whether an action filed in state court may properly be removed to federal court is to be determined from the record at the time the petition for removal is filed." Portis v. Sears, Roebuck & Co., 621 F.Supp. 682, 683 (E.D.Mo.1985) (citing Pullman Co. v. Jenkins, 305 U.S. 534, 59 S.Ct. 347, 83 L.Ed. 334 (1939)).

The authority is clear on the issue of whether naming a "John Doe" as a party will prevent removal or destroy federal court jurisdiction based on diversity of citizenship.¹ The Eighth Circuit specifically addressed the issue in Pecherski v. General Motors Corp., 636 F.2d 1156 (8th Cir.1981). The court said "a Jane Doe case may not be removed until the plaintiff files an amendment in state court substituting the names of real parties and the defendant seeking removal thereafter establishes diversity of citizenship between the plaintiff and all named defendants." Pecherski, 636 F.2d at 1160.²

This Court also finds authority in Portis v. Sears, Roebuck & Co., 621 F.Supp. 682, 683 (E.D.Mo.1985) (citing Pullman Co. v. Jenkins, 305 U.S. 534, 59 S.Ct. 347, 83 L.Ed. 334 (1939)). That is, if the Plaintiff "substitute[d] an identifiable defendant of common citizenship with plaintiff against whom actual recovery is sought, the presence of the non-diverse party divests a federal court of jurisdiction." Portis, 621 F.Supp. at 683 (citing Pullman, 305 U.S. at 537). If the complaint does not assert a claim against a John Doe defendant, federal court jurisdiction based on diversity is not precluded, but if "the negligence of a John Doe servant is alleged, making him a real party in interest in the suit, his citizenship will matter to a determination whether complete diversity exists." Id. Therefore, if Plaintiff specifies that John Doe is a citizen of Oklahoma this Court would be divested of jurisdiction. Since the Plaintiff has not yet named John Doe, and the Plaintiff claims the John Doe is negligent, the Court declines to exercise jurisdiction and remands this case to state court.

C. Improper Joinder

Title 28 U.S.C. section 1446(a) indicates that if a defendant or defendants desire to remove a case to federal court they must file in the United States District Court within which the action is pending. All defendants must join in the petition for removal when the cause of action in the complaint asserts joint liability. Barnes v. Parker, 126 F.Supp. 649, 650 (W.D.Mo.1954) (citations omitted). In this case, the removal proceeding was brought in the sole name of Defendant Nickelberry. Because Defendants Mayflower and John Doe were not signatories to the Petition of Removal and they have not filed a motion for joinder, the removal was improper.

D. Amount in Controversy

Additionally, the Court Orders this case remanded because the Defendant has improperly alleged the amount in controversy requirement. Removal jurisdiction based on 28 U.S.C. section 1441 requires an amount in controversy of seventy-five thousand dollars ($75,000.00) in addition to diversity of citizenship. Plaintiff's First Amended Petition contains three separate counts, each of which alleges damages in the amount of Fourteen Thousand One Hundred Seventy-Two dollars and twenty-nine cents ($14,172.29) for a total of Forty-Two Thousand Five Hundred Sixteen dollars and eighty-seven cents ($42,516.87). "The removing party `must show that it appears to a legal certainty that the amount in controversy' exceeds $75,000.00." Corlew v. Denny's Restaurant, Inc., 983 F.Supp. 878, 1997 WL 731734 (E.D.Mo.1997) (citing Visintine v. Saab Auto., A.B., 891 F.Supp. 496, 497 (E.D.Mo.1995)). The Defendant, as the removing party, has the burden of proving the jurisdictional amount. Visintine v. Saab Auto., A.B., 891 F.Supp. 496, 497 (E.D.Mo. 1995), Plaintiff's First Amended Petition does not allege an amount in controversy,...