Johnson v. Welsh Equipment, Inc.
| Decision Date | 30 October 2007 |
| Docket Number | Civil No. 06-2267 (MJD/ SRN). |
| Citation | 518 F.Supp.2d 1080 |
| Parties | Reinheart JOHNSON, Plaintiff, v. WELSH EQUIPMENT, INC.; Dickie Equipment Co., Inc.; Parrish Tire Company; Unicon Concrete, Inc.; Sykes Truck & Equipment Co., Inc.; L & S Truck & Body Co.; Jerry D. Olson, formerly d/b/a Jerry D. Olson and Company; Botno Ready Mix, L.L.P., and Northwest Tire, Inc., Defendants. |
| Court | U.S. District Court — District of Minnesota |
Lori L. Barton, Paul D. Peterson and William D. Harper, Harper & Peterson, PLLC, Woodbury, MN, for Plaintiff Reinheart Johnson.
W. Todd Haggart, Vogel Law Firm, Fargo, ND, for Defendant Jerry D. Olson.
Bradley J. Beehler, Morley Law Firm, Ltd., Grand Forks, ND, for Defendant Botno Ready Mix, L.L.P.
This matter is before the Court on Defendant Jerry D. Olson's Motion to Dismiss for Lack of Jurisdiction [Docket No. 55] and on Defendant Botno Ready Mix, L.L.P.'s Motion to Dismiss for Lack of Personal Jurisdiction [Docket No. '73]. For the reasons set forth below, Plaintiff s claims are dismissed with respect to Defendants Jerry D. Olson, Botno Ready Mix, L.L.P., and Northwest Tire, Inc.
On June 8, 2002, Plaintiff Reinheart Johnson sustained severe injuries while driving a 1986 Mack cement mixer truck for his employer, Concrete Dakota, Inc. ("Concrete Dakota"). (Am.Compl.¶¶ 12-13.) While Johnson was driving, the front tire on the passenger side of the truck blew out, causing the truck to roll on its top and then onto its side, skidding seventy-five yards. (Id. ¶ 12.) This incident led to multiple serious and debilitating injuries. (Id. ¶ 14.) Olson is a resident of North Dakota. (Id. ¶ 1.) The accident occurred in North Dakota. (Id. ¶ 12.)
The history of the tire that blew out on the 1986 Mack Model TM 600 cement mixer truck and the truck's previous ownership are components that tie multiple defendants to the case.
On February 16 or 17, 1993, the truck was sold to Defendant Unicon Concrete, Inc. ("Unicon"), of Durham, North Carolina, a concrete business. (Am. Compl. ¶¶ 5, 17.) Bridgestone/Firestone manufactured the tire at issue during the 32nd week of 1995. (Id. ¶ 15.) The tire was retreaded by Defendant Parrish Tire Company ("Parrish") in Yadkin, North Carolina in the 19th week of 1997, and remounted on the Mack truck during the period of time that the truck was owned by Unicon. (Id. ¶ 16.) Parrish is in the business of retreading tires and selling new and retreaded tires. (Id. ¶ 4.)
On September 18, 1997, the truck, with the retreaded tire, was sold to Defendant Sykes Truck & Equipment Co., Inc. ("Sykes"), of Jonesboro, Arkansas, a business that sells new and used cement mixer trucks. (Am.Compl. ¶¶ 6, 19.) On September 25, 1997, the truck was sold to Defendant L & S Truck & Body Co. ("L & S") of Osage Beach, Missouri, a seller of used cement mixer trucks. (Id. ¶¶ 7, 20.)
Sometime in the fall of 1997, Defendant Dickie Equipment Co., Inc. ("Dickie"), became the owner of the truck. (Id. ¶ 21.) Dickie is a Florida corporation with its principal place of business in Minnesota and is engaged in the business of selling used cement mixer trucks. (Id. ¶ 3.)
On November 12, 1997, Dickie sold the truck to Defendant Jerry D. Olson. (Am. Compl. ¶ 22.) At that time, Olson owned and operated a construction and concrete company, known as Jerry D. Olson and Company, in Bottineau, North Dakota. (Id. ¶ 22.) Olson used the Mack truck in his ready mix business for three months during 1998 to haul ready mix concrete around the Bottineau area. (Olson Aff. ¶ 8.)
On April 14, 1999, Olson sold his company, including the truck, to Botno Ready Mix, L.L.P ("Botno"). (Am.Compl. ¶ 23.) Botno is a North Dakota corporation with its principal place of business in North Dakota. (Id. ¶ 9.) Botno is in the business of manufacturing, transporting, and selling concrete. (Id.) Botno used the truck as part of its ready mix business from September 1998 until February 2001, and delivered concrete around the city of Bottineau. (Mikkelson Aff. ¶¶ 4-5, 7.)
After Defendant Botno had used the truck in its concrete business for almost three years, Botno sold the truck to Defendant Welsh Equipment, Inc. ("Welsh"), of Dodge Center, Minnesota, on February 2, 2001. (Compl. ¶ 24.) Welsh is in the business of selling used cement mixers. (Id. ¶ 2.)
On March 14, 2001, Welsh sold the truck to Plaintiff Johnson's employer, Jamestown Ready Mix, Inc., (now known as Concrete Dakota) of Jamestown, North Dakota. (Compl. ¶ 25.)
On June 8, 2002, Johnson was an employee of Concrete Dakota, Inc. (Compl. ¶ 13.) Johnson was acting within the scope of his employment while driving on Highway 36 in North Dakota, three miles east of Woodworth, North Dakota. (Id. ¶¶ 12-13.) He was driving the cement mixer truck that was loaded with sixteen tons of cement. (Id. ¶ 12.) While Johnson was driving, the front tire on the passenger side of the vehicle blew-out, and the tire deflated, causing the truck to roll on its top and skid seventy-five yards on its side. (Id.) Johnson suffered serious and permanent injuries as a result of the incident. (Id. ¶ 14.)
Sometime before the accident, Concrete Dakota had hired Defendant Northwest Tire, Inc. ("Northwest"), to inspect the tires of the vehicles owned and operated by Concrete Dakota. (Compl. ¶ 27.) Northwest made recommendations to the agents, representatives and employees of Concrete Dakota regarding use, repair and safety hazards of the tires on the company trucks. (Id.) Northwest is a North Dakota corporation located in North Dakota in the business of selling and repairing new and used tires. (Id. ¶ 10.)
Inspection of the tire after it blew out revealed that, at some unknown time prior to the accident; the tire had sustained a puncture, which had been repaired. (Compl. ¶ 26.) Johnson does not know when the puncture and repair occurred or who owned the truck and tire at the time of the puncture and repair. (Id.)
On June 6, 2006, Johnson filed suit in this Court based on diversity jurisdiction against Welsh, Dickie, and Parrish for negligence, negligent instruction and failure to warn, and strict liability. At the time that the original Complaint was filed, Plaintiffs residence was diverse to that of all Defendants.
On February 28, 2007, Plaintiff and Defendants Welsh, Dickie, and Parrish, through their respective counsel, entered into a Stipulation to Amend the Pleadings to Join Additional Parties. The stipulation and proposed Amended Complaint were electronically filed the same day. On March 2, 2007, with permission of Magistrate Judge Sue Ann Nelson, Johnson filed an Amended Complaint. [Docket No. 36]. The Amended Complaint alleges Count One: Negligence against all Defendants; Count Two: Negligent Instruction and Failure to Warn against Parrish, Welsh, Dickie, Sykes, and L & S (but not Unicon, Olson, Botno, or Northwest); Count Three: Strict Liability: Sale, Warnings and Instructions against Parrish, Welsh, Dickie, Sykes, and L & S (but not Unicon, Olson, Botno, or Northwest). As recited in the Amended Complaint, Jerry D. Olson is a North Dakota resident, Jerry D. Olson and Company was located and had its principal place of business in North Dakota, Botno Ready Mix is a North Dakota corporation, and Northwest Tire, Inc. is a North Dakota corporation. Plaintiff's state of residence is the same as that of Defendants Olson, Botno, and Northwest.
Parrish then filed cross claims against all Defendants, including Olson and Botno. [Docket No. 37]. Welsh also filed cross claims against all Defendants. [Docket No. 39]. Northwest filed cross claims against all Defendants. [Docket No. 42]. Sykes filed cross claims against all Defendants. [Docket No. 43]. L & S filed cross claims against all Defendants. [Docket No. 44]. Finally, Botno filed cross claims against all Defendants. [Docket No. 71].
On May 14, 2007, Olson filed his motion to dismiss based on lack of personal jurisdiction under Federal Rule of Civil Procedure 12. [Docket No. 55]. On May 24, 2007, Botno Ready Mix filed its motion to dismiss based on lack of personal jurisdiction. [Docket No. 73]. On August 17, 2007, the Court requested additional briefing from all parties on the issue of subject matter jurisdiction, due to the inclusion of three nondiverse parties in the Amended Complaint.
The federal district courts are "courts of limited jurisdiction." Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 551, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005). Federal district courts may not exercise jurisdiction absent a statutory basis. Id. In that regard, Congress has conferred to the district courts original jurisdiction over all civil actions where the amount in controversy exceeds $75,000 and where the matter is between citizens of different states. 28 U.S.C. § 1332 (2005).
In order for a court to have diversity jurisdiction over a dispute based on 28 U.S.C. § 1332, each plaintiff must be diverse from, or have a different residence than, each defendant. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978). The presence of a nondiverse party automatically destroys subject matter jurisdiction when jurisdiction is based solely on diversity. Wisconsin Dep't of Corrections v. Schacht, 524 U.S. 381, 389, 118 S.Ct. 2047, 141 L.Ed.2d 364 (1998). Therefore, diversity jurisdiction is not available when any plaintiff is a citizen of the same state as any defendant. Owen Equip., 437 U.S. at 374, 98 S.Ct. 2396.
Lack of subject matter jurisdiction cannot be ignored by the court or waived by the parties. Hunter v. Underwood, 362 F.3d 468, 476 (8th Cir.2004). A question of subject-matter jurisdiction may be raised by the court sua sponte at any time. Lundeen v. Canadian Pacific Ry. Co., 447 F.3d 606,...
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