Davis v. Kenneth Lee Simmons & Conway Freight, Inc.

• Decision Date: 24 July 2014
• Docket Number: No. 13-CV-93-LRR,No. 13-CV-92-LRR,13-CV-92-LRR,13-CV-93-LRR
• Parties: THOMAS SCOTT DAVIS, Plaintiff, v. KENNETH LEE SIMMONS and CONWAY FREIGHT, INC., Defendants. ELIBAH FRANKLIN, Plaintiff, v. KENNETH LEE SIMMONS and CONWAY FREIGHT, INC., Defendants. and CON-WAY FREIGHT, INC., and KENNETH LEE SIMMONS, Third-Party Plaintiffs, v. THOMAS SCOTT DAVIS, Third-Party Defendant.
• Court: U.S. District Court — Northern District of Iowa

THOMAS SCOTT DAVIS, Plaintiff, v. KENNETH LEE SIMMONSand CONWAY FREIGHT, INC., Defendants.

ELIBAH FRANKLIN, Plaintiff, v. KENNETH LEE SIMMONSand CONWAY FREIGHT, INC., Defendants.andCON-WAY FREIGHT, INC.,and KENNETH LEE SIMMONS, Third-Party Plaintiffs, v. THOMAS SCOTT DAVIS, Third-Party Defendant.

No. 13-CV-92-LRR

No. 13-CV-93-LRR

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA CEDAR RAPIDS DIVISION

DATED: July 24, 2014

TABLE OF CONTENTS

I. INTRODUCTION....................................... 2

II. RELEVANT PROCEDURAL HISTORY......................... 3

III. RELEVANT FACTUAL BACKGROUND........................ 4

IV. ANALYSIS............................................ 5

A. Franklin Remand................................... 5

1. Parties' arguments.............................. 5

2. Applicable law................................. 7

3. Application................................... 9

i. Federal question jurisdiction................... 9

ii. Diversity jurisdiction........................ 10

B. Davis Remand.................................... 11

C. Attorney's Fees.................................... 11

1. Parties' arguments............................. 11

2. Applicable law................................ 13

3. Application.................................. 16

V. CONCLUSION........................................ 19

I. INTRODUCTION

The matters before the court are Defendants and Third-Party Plaintiffs Con-Way Freight, Inc. ("Con-Way") and Kenneth Lee Simmons's (collectively, "Defendants") "Motion to Remand" (docket no. 39) and Defendants' "[Second] Motion to Remand" (No. 13-CV-92, docket no. 21) (collectively, "Motions").¹ The Motions are identical. Thiscase arises from an August 2011 truck-motorcycle accident in which a truck owned by Con-Way and driven by Simmons, who was employed by Con-Way, collided with a motorcycle driven by Plaintiff and Third-Party Defendant Thomas Scott Davis. Plaintiff Elibah Franklin was a passenger on the motorcycle.

II. RELEVANT PROCEDURAL HISTORY

On July 19, 2013, Franklin filed a Petition ("Complaint") (docket no. 3) in the Iowa District Court for Cedar County, Case No. LACV035270. In the Complaint, Franklin asserts five claims: (1) negligence against Simmons; (2) negligence against Con-Way; (3) negligent entrustment against Con-Way; (4) punitive damages against Con-Way; and (5) negligent hiring and retention against Con-Way. On July 22, 2013, Davis filed a Petition (No. 13-CV-92, docket no. 3) in the Iowa District Court for Cedar County, Case No. LACV035273, asserting identical claims against Simmons and Con-Way. On September 13, 2013, Defendants removed both of these actions to this court on the basis of diversity jurisdiction. See Notice of Removal (docket no. 1); Notice of Removal (No. 13-CV-92, docket no. 1).

On June 20, 2014, Defendants filed the Motions. On July 7, 2014, Franklin filed an "Opposition To Motion To Transfer" ("Resistance") (docket no. 42). On that same date, Davis, as Third-Party Defendant in Franklin, filed a Consent to Remand Franklin (docket no. 43). In the event that the court remands Franklin, Davis also consents to the remand of Davis.² See Motions at 6. On July 10, 2014, Defendants filed a Reply (docketno. 45).³ Defendants request oral argument, but the court finds that it is unnecessary. The Motions are fully submitted and ready for decision.

III. RELEVANT FACTUAL BACKGROUND

In the Complaint, Franklin's name is listed as "Elibah Franklin" and her address is listed as 1584D Patton Court, Rock Island, Illinois, 61701. See Complaint ¶ 1.

On June 3, 2014, Franklin testified in a deposition that she moved to 2901 Chateau Knolls, Bettendorf, Iowa, at the end of June 2012, six months prior to marrying Robert Bey. Franklin's Deposition (docket no. 39-2) at 11-12. At the time she moved to Bettendorf, Franklin lived with her child, Kyla Franklin, and she was pregnant with her daughter, Aliyah Bey, who was born on August 10, 2012. Id. at 12-13. Franklin testified that she continues to live at the Bettendorf address and that she lived there on July 19, 2013, the date the Complaint was filed. Id. at 11, 15. Franklin confirmed that the Bettendorf address was not a temporary address but a permanent one, given that she still lived there as of the date of the deposition, that is, June 3, 2014. Id. at 13. Franklin stated that she did not have any other home in July 2013 and that it was her primary residence at that time. Id. at 14. At the deposition, Defendants' counsel showed Franklin the Complaint, and Franklin testified that she had not seen it before. Id. at 14. Franklin stated that on the date the Complaint was filed, that is, July 19, 2013, her name was not Elibah Franklin as indicated in the Complaint, but that it was Elibah Bey.⁴ Id. at 14-15. Franklin also testified that the address listed on the Complaint, that is, 1584D Patton Court, Rock Island, Illinois, 61701, was not her address on July 19, 2013; rather, Franklinconfirmed that she lived at the Bettendorf address on the date the Complaint was filed. Id. at 15.

IV. ANALYSIS

In the Motions, Defendants request that the court remand Franklin to state court for lack of subject matter jurisdiction and that the court remand Davis to state court because the parties in Davis consent to such remand. Defendants also request an award of attorney's fees and other costs resulting from the removal of both cases pursuant to 28 U.S.C. § 1447(c). The court first addresses the arguments relating to Defendants' request that the court remand Franklin and Davis to state court and then addresses Defendants' request for attorney's fees.

A. Franklin Remand

1. Parties' arguments

In the Motions, Defendants allege that Franklin made three false statements in the Complaint, including that Franklin was a resident of Rock Island, Illinois and that Franklin's name was Elibah Franklin. Defendants state that in Franklin's deposition, Franklin testified that in July 2013, she lived in Bettendorf, Iowa, with her husband, Robert Bey, had been continuously living in Bettendorf since June 2012 and had no plans to move from the State of Iowa. Defendants also allege that Franklin testified that she had changed her name from Elibah Franklin to Elibah Bey in December 2012 after marrying Robert Bey. Defendants argue that "[a]t the times that the [Complaint] and the notice of removal were filed, . . . Franklin . . . was domiciled in the [S]tate of Iowa, and a citizen of the [S]tate of Iowa." Motions at 4. Defendants contend that "[s]ince . . . Franklin . . . and . . . Simmons are both citizens of the [S]tate of Iowa, and were both citizens of the [State of Iowa] at the time of removal, complete diversity between all [p]laintiffs and all [d]efendants does not exist . . . and the court does not have subject matter jurisdiction." Id.

Franklin argues that "jurisdiction . . . is supported upon several bases including diversity and upon 'federal question' where there has been a violation of a [f]ederal statute by the Defendants." Resistance at 5. Franklin contends that Defendants violated the Federal Motor Carrier Safety Regulations ("FMCSR"), Title 49, Parts 350-399 and that "[t]hese violations of [f]ederal law entitle[] the [c]ourt to jurisdiction and entitle [her] to punitive damages." Id. Moreover, Franklin states that she pled "violations of the [f]ederal statu[t]es in her [Complaint]." Id. at 8. Franklin argues that "[w]hether the Defendants[] have violated the FMCSR is a question of [f]ederal law presenting subject matter jurisdiction on this [c]ourt" and that "[t]he citizenship of the parties in this [f]ederal question case has no relevance to subject matter jurisdiction of this [c]ourt." Id. at 9.

With regard to Defendants' allegation that Franklin was a citizen of Iowa at the time the Complaint was filed and at the time of removal, Franklin states that her name, that is, Elibah Franklin, and address, that is, 1584D Patton Court, Rock Island, Illinois, 61701, in the Complaint are correct. Franklin states that her current name is now "Ms. Franklin Bey" and that "[s]he started using this name after she was married to Mr. Bey." Id. at 14-15. Franklin claims that she "uses her maiden name"⁵ on certain occasions and lived at the Illinois address "when she was in the Army but moved from this address when she left the Army." Id. Franklin claims that she used the Franklin name and the Illinois address before she got married and moved in with her husband. Franklin also states that she still receives mail at the Illinois address. Notably, Franklin does not contest Defendants' assertion that she lived in Bettendorf, Iowa continuously since June 2012 and had no plansto move from her home in Bettendorf. Franklin also does not inform the court when she left the Army.

2. Applicable law

"Federal courts are courts of limited jurisdiction," and the threshold requirement in every federal case is jurisdiction. Godfrey v. Pulitzer Publ'g Co., 161 F.3d 1137, 1141 (8th Cir. 1998) (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998)). "Any party or the court may, at any time, raise the issue of subject matter jurisdiction." GMAC Commercial Credit LLC v. Dillard Dep't Stores, Inc., 357 F.3d 827, 828 (8th Cir. 2004). "Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause." Steel Co., 523 U.S. at 94 (quoting Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868)).

Original subject matter jurisdiction can be established in two ways: (1) by alleging a claim arising under federal law, see 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."); or (2) by alleging diversity of citizenship between the parties, see 28 U.S.C. § 1332(a)(1) and (a)(2) ("The district courts shall have...