Fawvor v. Texaco, Inc., B-73-CA-254.

• Decision Date: 05 February 1975
• Docket Number: No. B-73-CA-254.,B-73-CA-254.
• Parties: Curtis FAWVOR, Plaintiff, v. TEXACO, INC., Defendant and Third-Party Plaintiff, v. FOSTER WHEELER CORP., Third-Party Defendant, B & B Insulation, Inc., Defendant and Third-Party Defendant.
• Court: U.S. District Court — Eastern District of Texas

387 F. Supp. 626

Curtis FAWVOR, Plaintiff, v. TEXACO, INC., Defendant and Third-Party Plaintiff, v. FOSTER WHEELER CORP., Third-Party Defendant, B & B Insulation, Inc., Defendant and Third-Party Defendant.

No. B-73-CA-254.

United States District Court, E. D. Texas, Beaumont Division.

February 5, 1975.

Joe H. Tonahill, Jasper, Tex., for plaintiff, Curtis Fawvor.

John G. Bissell, Strong, Pipkin, Nelson, Parker & Powers, Beaumont, Tex., for defendant and third-party plaintiff, Texaco, Inc.

George A. Weller, Weller, Wheelus & Green, Beaumont, Tex., for third-party defendant, Foster Wheeler Corp.

Cleve Bachman, Orgain, Bell & Tucker, Beaumont, Tex., for defendant and third-party defendant, B & B Insulation, Inc.

ORDER

STEGER, District Judge.

The Court has before it a motion to dismiss for lack of subject matter jurisdiction, and a motion to strike plaintiff's claims based on violations of the regulations promulgated under the Occupational Safety and Health Act, 29 U.S.C.A. § 651 et seq., filed by B & B Insulation.

By way of background, this is a suit seeking damages for personal injuries the plaintiff allegedly received while working for an independent contractor, Foster Wheeler, on the premises of the defendant Texaco. The plaintiff first brought suit against Texaco, alleging negligence with diversity of citizenship as the basis for jurisdiction. Although the plaintiff failed to include any allegation as to Texaco's principal place of business in his complaint, the Court is satisfied from a review of the record that diversity jurisdiction does exist between Curtis Fawvor, a Texas citizen, and Texaco, a foreign corporation.

Thereafter, Texaco filed third-party complaints against the plaintiff's employer, Foster Wheeler, and B & B Insulation, another independent contractor, seeking indemnity on the basis of contract in the former, and common law in the latter complaint. After these parties were brought into the case, the plaintiff filed an amended complaint naming Texaco and B & B as defendants. In his amended complaint, the plaintiff alleges that Texaco is incorporated in Delaware and has a permit to do business in Jefferson County, Texas, and the defendant, B & B, is a private corporation also permitted to do business in Texas. The amount in controversy is claimed to exceed $10,000.00.

It appears to the Court that the plaintiff is asserting jurisdiction on the basis of diversity of citizenship and ancillary jurisdiction in the first instance and federal question jurisdiction in the second instance. Federal question jurisdiction is predicated on the plaintiff's claim that the Occupational Health and Safety Act of 1970 (hereinafter referred to as "OSHA") creates a private cause of action for violations of the Act and the regulations promulgated thereunder.

At the outset, the Court notes that the diversity jurisdiction allegations are defectively pleaded in the plaintiff's amended complaint. The complaint lacks allegations as to the principal place of business of both Texaco and B & B Insulation and also as to the place of incorporation of B & B. See Wright, Law of Federal Courts § 69 (2d ed. 1970). However, defective pleading can be cured by looking to the whole record, and upon so doing the Court finds that there is diversity of citizenship between the plaintiff and Texaco, but not between the plaintiff and B & B because that defendant was incorporated in Texas. See generally 2A Moore's Federal Practice para. 8.10 (2d ed. 1974).

The Court will now turn to a discussion of the motions filed by B & B Insulation, Inc. In these motions, B & B contends that the suit should be dismissed for lack of subject matter jurisdiction because complete diversity does not exist between the plaintiff, a Texas citizen, and the defendants for the reason that B & B is also a Texas resident. Further B & B claims that OSHA does not create a private cause of action and therefore, there is no federal question jurisdiction present.

Diversity of Citizenship

Rule 14 of the Federal Rules of Civil Procedure allows the plaintiff to assert claims against a third-party defendant that arise out of the original transaction or occurrence. However, the great weight of authority is to the effect that he must have independent jurisdictional grounds to assert such claims. See 3 Moore's Federal Practice para. 14.27 1 (2d ed. 1974). In denying ancillary jurisdiction, most of these Courts followed the lead of Professor Moore in the first edition of his treatise. However, in light of the decision of the Supreme Court in United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), Professor Moore urges a re-examination of the strict Strawbridge v. Curtis rule:

"At the outset, the question must be redefined. It should not be a question of pure law posing the choice `either there is ancillary jurisdiction and the court must take it, or there is no ancillary jurisdiction, and the court cannot take it.' Instead, since there is jurisdictional power to hear the whole case, the question is one of trial court discretion whether to exercise that jurisdiction, considering all the factors of economy and convenience in the context of federalism." 3 Moore's Federal Practice, supra at 14-570.

The Court's research has failed to uncover a case decided by the Fifth Circuit Court of Appeals precisely on the question presented herein. In a somewhat similar case, the Fifth Circuit in Revere Copper & Brass, Inc. v. Aetna Cas. & Sur. Co., 426 F.2d 709 (5th Cir. 1970), allowed a Maryland third-party defendant to assert a Rule 14(a) counterclaim against a Maryland plaintiff. In that case the Court recognized by way of dicta, that the weight of authority would dictate that there must be independent jurisdictional grounds...