Janney v. NSK Am. Corp.

• Decision Date: 28 January 2022
• Docket Number: 3:21-cv-00494
• Parties: DOUGLAS B. JANNEY, III, Plaintiff, v. NSK AMERICA CORPORATION et al., Defendants.
• Court: U.S. District Court — Middle District of Tennessee

DOUGLAS B. JANNEY, III, Plaintiff,
v.
NSK AMERICA CORPORATION et al., Defendants.

No. 3:21-cv-00494

United States District Court, M.D. Tennessee, Nashville Division

January 28, 2022

MEMORANDUM

ALETA A. TRAUGER, United States District Judge

Before the court is the Joint Motion to Dismiss filed by defendants Robert C. Fesmire, DDS (“Dr. Fesmire”), Robert C. Fesmire, DDS, P.C. (the “Fesmire Practice”), and Fesmire Properties, LLC (“Fesmire Properties”) (collectively, the “Fesmire defendants”), seeking dismissal of this case altogether for lack of subject-matter jurisdiction or, alternatively, dismissal of the non-diverse Fesmire defendants. (Doc. No. 25.) The Fesmire defendants' alternative request will be granted, and the claims against the Fesmire defendants will be dismissed without prejudice.

I. BACKGROUND

Plaintiff Douglas Janney, a Tennessee resident, filed this action in June 2021, originally naming as defendants NSK America Corporation (“NSK”), an Illinois corporation with its principal place of business in Hoffman Estates, Illinois, and Nakanishi, Inc. (“Nakanishi”), a Japanese corporation with its North American headquarters in Hoffman Estates, Illinois, and asserting a claim under state law for personal injury damages caused by an allegedly dangerous or defective dental device. The original Complaint asserts that this court has diversity jurisdiction under 28 U.S.C. § 1332(a)(1), based on complete diversity of citizenship and an amount in controversy in excess of $75, 000. (Doc. No. 1 ¶ 5.) The original Complaint also references 28

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U.S.C. § 1367 (see Doc. No. 1 ¶ 5), which pertains to supplemental jurisdiction, but the original Complaint does not plead any basis for the exercise of supplemental jurisdiction or even a cause of action over which the court might exercise supplemental jurisdiction.

NSK and Nakanishi both answered the Complaint, acknowledging that the plaintiff's claim is governed by the Tennessee Product Liability Act of 1978, Tenn. Code Ann. § 29-28-101 et seq., and asserting an affirmative defense based on the comparative fault of “Dr. Rob Fesmire, DDS” with the “Fesmire Dental Group, ” under Tenn. Code Ann. § 29-28-108. (Doc. No. 7, at 9; Doc. No. 13, at 9-10.)

Following the filing of the Answers and with the express consent of NSK and Nakanishi, Janney filed an Amended Complaint under Rule 15(a)(2), adding the Fesmire defendants. (Doc. No. 21.) Although the Amended Complaint does not state the citizenship of any of the Fesmire defendants, it does allege that Dr. Fesmire is a “licensed and practicing dentist in Nashville, Tennessee, ” that he owns and/or operations the Fesmire Practice and Fesmire Properties, and that all three defendants may be served at Dr. Fesmire's and the Fesmire Practice's place of business in Nashville, Tennessee. The Amended Complaint continues to assert a product liability claim under Tennessee law and adds a health care liability claim, also under Tennessee law, against the Fesmire defendants. The Amended Complaint also continues to plead that this court “has jurisdiction under 28 U.S.C. §§ 1332 and 1367(a), ” based on the amount in controversy and the residence of NSK and Nakanishi. (Doc. No. 21 ¶ 7.)

NSK and Nakanishi answered the Amended Complaint, without expressly addressing jurisdiction. The Fesmire defendants, in lieu of answering, filed their Motion to Dismiss for Lack of Subject-Matter Jurisdiction, under Rule 12(b)(1), arguing that, with their addition as defendants, there is no longer complete diversity of citizenship and that the court therefore lacks subject-matter

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jurisdiction. They filed with their Motion to Dismiss the Affidavit of Dr. Fesmire, in which he avers, under oath, that he is a citizen and resident of the state of Tennessee and was such at the time of the procedure giving rise to this lawsuit; that he is a dentist licensed to practice in Tennessee; that he is the owner of the Fesmire Practice, which is incorporated in Tennessee and has its principal place of business in Tennessee; and that he is a member of Fesmire Properties, which was formed in Tennessee and has its principal place of business in Tennessee. (Doc. No. 25-2.)

Janney has filed a Response in Opposition to the Motion to Dismiss. (Doc. No. 26.) He argues that: (1) the Fesmire defendants have no basis for seeking dismissal of the claims against NSK and Nakanishi; (2) NSK and Nakanishi raised comparative fault as a defense, as a result of which the plaintiff joined the Fesmire defendants in accordance with Tenn. Code Ann. § 20-1-119-rather than under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure-and the court “has jurisdiction pursuant to the plain language of Tenn. Code Ann. § 20-1-119” (Doc. No. 26, at 2); and (3) the court has supplemental jurisdiction over the claims against the Fesmire defendants, under 28 U.S.C. § 1367(a). Janney maintains that the Fesmire defendants' Motion to Dismiss should be denied in its entirety but requests, in the alternative, that only the non-diverse defendants be dismissed, without prejudice to his ability to refile claims against them in state court. The Fesmire defendants filed a Reply (Doc. No. 27), generally refuting the plaintiff's arguments and reiterating the arguments asserted in the Memorandum in support of their Motion to Dismiss.

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(1) provides that a defendant may assert lack of subject-matter jurisdiction as a defense. A motion to dismiss under Rule 12(b)(1) is different from one under Rule 12(b)(6), in that it challenges the court's power to hear the case before it. When jurisdiction is challenged under this rule, the burden is on the plaintiff to prove that jurisdiction

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exists. Wayside v. Van Buren Cty., 847 F.3d 812, 817 (6th Cir. 2017); RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir. 1996).

In evaluating a motion to dismiss under Rule 12(b)(1), courts must first consider whether the challenge to subject-matter jurisdiction is a facial attack or a factual attack. Cartwright v. Garner, 751 F.3d 752, 759 (6th Cir. 2014). Where, as here, an attack on the factual basis of jurisdiction challenges the “factual existence of subject matter jurisdiction, ” the court has “broad discretion with respect to what evidence to consider in deciding whether subject matter jurisdiction exists, including evidence outside of the pleadings, and has the power to weigh the evidence and determine the effect of that evidence on the court's authority to hear the case.” Id. at 759-60. If confronted with conflicting evidence, the court must “weigh the conflicting evidence to arrive at the factual predicate that subject-matter [jurisdiction] does or does not exist.” Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007).

III. DISCUSSION

The Fesmire defendants challenge subject-matter jurisdiction on the basis that their joinder as defendants destroyed complete diversity. Generally, “diversity is determined at the time of the filing of a lawsuit.” Curry v. U.S. Bulk Transp., Inc., 462 F.3d 536, 540 (6th Cir. 2006) (citing Smith v. Sperling, 354 U.S. 91, 93 n.1 (1957)). However, “when a plaintiff files a complaint in federal court and then...