Eichert v. Nat'l Ewp, Inc.
| Decision Date | 05 July 2016 |
| Docket Number | CV 16-15-M-DLC |
| Parties | JERRY EICHERT, Plaintiff, v. NATIONAL EWP, INC., AUDEY MURRAY, AND NATIONAL EWP, INC.'S XYZ INSURANCE COMPANY DEFENDANTS numbers 1-5, Defendants. |
| Court | U.S. District Court — District of Montana |
Plaintiff Jerry Eichert ("Eichert") brings this action alleging that Defendants National EWP, Inc. ("National") and Audey Murray ("Murray") (collectively "Defendants") are liable for injuries sustained during a car accident. Defendants removed the case to this Court from the Montana Fourth Judicial District Court, Missoula County. Pending before the Court are Plaintiff's motion to remand and Defendants' motions to dismiss. For the reasons that follow, the Court will grant the motion to remand and deny the motions to dismiss as moot.
FACTUAL AND PROCEDURAL BACKGROUND
This case involves two workmen injured in a Nevada auto accident while driving to work. Jose Cabrera ("Cabrera") and Eichert were employed by National as assistant drillers at the Round Mountain Gold Mine near Tonopah, Nevada. National also employed Murray as the drilling supervisor at the gold mine. National is involved with drilling operations at mines throughout the western United States.
In November 2013, Eichert flew with Murray from Montana to Las Vegas, Nevada. Murray had already secured a hotel room for himself in Tonopah, Nevada, which was the closest town to the gold mine. Eichert was unable to find a vacant hotel room in Tonopah, so Murray drove Eichert from the Las Vegas airport to a hotel in Goldfield, Nevada, about 25 miles from Tonopah. Cabrera was also staying at the hotel in Goldfield.
Murray drove a National company truck to and from his hotel to the Round Mountain Gold Mine. National did not provide Cabrera or Eichert with a company vehicle. Instead, Cabrera drove his own, older truck, with high mileage and mechanical problems, to and from the Goldfield hotel and work. Eichert carpooled with Cabrera, as Eichert did not have a vehicle for transportation.
From November to December 2013, Murray asked Cabrera and Eichert to drive from their hotel in Goldfield to meet him at his hotel in Tonopah. Then, the three employees would ride together in Murray's company truck from Tonopah to the Round Mountain Gold Mine. National paid Cabrera and Eichert $10 per hourfor their travel time. Eichert alleges that National and Murray had knowledge of mechanical problems with Cabrera's personal vehicle. Cabrera's vehicle leaked antifreeze and would cut out and smoke while driving from Goldfield to Tonopah. National paid for additional antifreeze and gas for Cabrera's truck. In the past, National had also removed some of Cabrera's driving privileges because of concerns about his driving. Eichert claims that he requested a National work truck from Murray to drive to and from the hotel in Goldfield, but was refused.
On December 3, 2013, Cabrera drove himself and Eichert from their hotel in Goldfield to meet Murray in Tonopah. It was cold, snowing, and the roads were icy. Cabrera lost control of his truck, went off the road, and rolled the vehicle several times. Eichert lost consciousness and broke his neck. He was taken by ambulance to the Tonopah hospital and then life flighted to Las Vegas, where he was diagnosed with severe injuries including: skull fractures, a fractured cervical vertebrae, an orbital fracture, and traumatic brain injuries. Thereafter, Eichert underwent spinal fusion surgery in Montana. Eichert is now disabled and unable to work.
Eichert applied for workers compensation, but National denied coverage based on its conclusion that the auto accident occurred outside the scope of Eichert's employment. Eichert maintains that his medical bills are around$200,000 and he was earning approximately $100,000 to $120,000 per year while employed with National. Eichert received only $15,000 liability insurance from Cabrera.
After receiving refusal at the administrative level for his workers' compensation claim, Eichert brought tort claims against National and Murray in Montana state court, alleging: (1) negligence under the doctrine of respondeat superior; (2) negligence for failure to secure Eichert with safe travel arrangements to work; (3) failure of National to provide adequate insurance coverage for its employees traveling to work; and (4) a declaratory judgment to require National to disclose its insurance companies or policies that may provide coverage for Eichert.
National removed the case to the United States Federal Court for the District of Montana, Missoula Division, on January 27, 2016. National and Murray then both moved to dismiss the action for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6). Eichert then followed these motions by moving to remand his case back to Montana state court.
At the same time as these civil proceedings, Eichert has continued litigating his workers' compensation claim in Nevada. On October 16, 2015, Eichert petitioned the First Judicial District Court of the State of Nevada ("Nevada district court") for judicial review of the prior administrative decision denying hisworkers' compensation claim. On May 20, 2016, the Nevada district court affirmed the underlying administrative decision denying coverage and found that Eichert was not in the course and scope of his employment when he was injured. He appealed the Nevada district court's decision to the Supreme Court of Nevada on June 15, 2016.1
ANALYSIS
Because there are competing motions to remand and dismiss pending before the Court, the motion to remand will be addressed first to determine whether this Court has jurisdiction over this dispute. Charles Alan Wright et al., Federal Practice and Procedure vol. 14C, § 3739, 752-758 (3d ed., West 2005) ().
I. Motion to Remand
As stated above, Eichert moves for remand following Defendants' removal of this case from the Montana state district court. A defendant may remove an action from state court only if the action could have been brought in the federaldistrict court originally. 28 U.S.C. § 1441(a); Jackson v. Southern California Gas Co., 881 F.2d 638, 641 (9th Cir. 1989). Absent diversity jurisdiction, whether an action may be removed depends on the presence or absence of a federal question. See 28 U.S.C. § 1441(b). The burden of establishing federal jurisdiction falls on the party seeking removal, and where there is doubt about the right to remove, the case should be remanded to state court. Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003); see also Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) ().
Defendants contend that removal was proper and argue that diversity jurisdiction exists because Murray, a Montana citizen, was fraudulently joined in this action. Fraudulent joinder is an exception to the requirement of complete diversity. Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001). "Joinder of a non-diverse defendant is deemed fraudulent, and the defendant's presence in the lawsuit is ignored for purposes of determining diversity, '[i]f the plaintiff fails to state a cause of action against a resident defendant, and the failure is obvious according to the settled rules of the state.'" Id. (citing McCabe v. General Foods Corp., 811 F.2d 1336, 1339 (9th Cir.1987)). Because Murray is considered a Montana citizen for purposes of diversity jurisdiction, his presence inthe lawsuit defeats diversity jurisdiction unless he was fraudulently joined. Morris, 236 F.3d at 1067. Thus, in order to determine if Murray was fraudulently joined, the Court must determine whether Eichert states a viable claim against him.2
Count Two of the Complaint alleges a claim of negligence against Murray and National under the theory of respondeat superior. Under Montana law, to establish a claim of negligence, a plaintiff must prove four elements: (1) duty; (2) breach of duty; (3) causation; and (4) damages. Dulaney v. State Farm Fire and Cas. Ins. Co., 324 P.3d 1211, 1214 (Mont. 2014). Further, in order to establish a claim of negligence through the doctrine of respondeat superior, a plaintiff must show that the negligent employee was "acting within the scope of his or her duties to the employer" when the negligent act was committed. Bowyer v. Loftus, 194 P.3d 92, 93 (Mont. 2008) (citations omitted). Generally, "whether an act was within the scope of employment is generally a question of fact." Id.
The above standards are similar to Nevada law. Like Montana, a plaintiff alleging negligence under Nevada law must prove "(1) the existence of a duty of care, (2) breach of that duty, (3) legal causation, and (4) damages." Sanchez ex rel. Sanchez v. Wal-Mart Stores, Inc., 221 P.3d 1276, 1280 (Nev. 2009). Further, "an actionable claim on a theory of respondeat superior requires proof that (1) the actor at issue was an employee, and (2) the action complained of occurred within the scope of the actor's employment." Rockwell v. Sun Harbor Budget Suites, 925 P.2d 1175, 1179 (Nev. 1996). Additionally, like Montana, "the trier of fact determines whether an employee was acting within the scope of his or her employment when the tortious act occurred." Kornton v. Conrad, Inc., 67 P.3d 316, 317 (Nev. 2003) (citation and quotation marks omitted).
Here, Eichert's Complaint alleges that Murray, his supervisor and an employee of National, knew that Cabrera's vehicle was unsafe and in violation of National's safety policies. Further, as alleged in the Complaint, Murray required Eichert to travel with Cabrera even though it was foreseeable that Eichert could be injured in an accident. Eichert...
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