Mayes v. Gordon

• Decision Date: 05 October 1981
• Docket Number: No. CIV-4-80-3.,CIV-4-80-3.
• Citation: 536 F. Supp. 2
• Parties: Gary Lynn MAYES, Plaintiff, v. Marvin E. GORDON, Defendant.
• Court: U.S. District Court — Eastern District of Tennessee

536 F. Supp. 2

Gary Lynn MAYES, Plaintiff, v. Marvin E. GORDON, Defendant.

No. CIV-4-80-3.

United States District Court, E. D. Tennessee, Winchester Division.

December 23, 1980.

On Summary Judgment Re Amended Complaint January 8, 1981.

On Punitive Damages Summary Judgment January 28, 1981.

On Motion to Strike Witness August 11, 1981.

On Offer of Proof October 5, 1981.

COPYRIGHT MATERIAL OMITTED

Charles D. Susano, Jr. and Doris Allen, Knoxville, Tenn., for plaintiff.

Marvin E. Gordon, Shelbyville, Tenn., and Cecil D. Branstetter, Nashville, Tenn., for defendant.

MEMORANDUM OPINION

NEESE, District Judge.

A magistrate of this district recommended that the motion herein of the defendant for a summary judgment¹ be denied. 28 U.S.C. § 636(b)(1)(B). The defendant served and filed a timely written objection to those portions of the recommendation "* * * concerning both jurisdictional and choice of law issues. * * *" 28 U.S.C. § 636(b)(1). The undersigned judge has considered de novo those portions of the magistrate's recommendation to which objection was made. Idem.

The defendant contends that the substantive law of Kentucky, and not that of Tennessee, governs this diversity action, and that, thereunder, punitive damages are not available to the plaintiff, thus rendering the amount in controversy herein less than the jurisdictional requisite of $10,000.²See 28 U.S.C. § 1332(a)(1).³ The parties appear to agree that, if, under the applicable state law the plaintiff could not be awarded punitive damages, the amount actually in controversy herein does not meet the jurisdictional minimum.

The magistrate noted that the plaintiff had charged the defendant with gross negligence, and that punitive damages might be recovered where gross negligence is present. Citing Johnson v. Husky Industries, Inc., C.A. 6th (1976), 536 F.2d 645, the magistrate appears to have assumed that the substantive law of Tennessee applies herein.⁴

In actions based on diversity of citizenship, federal courts are bound by the substantive law of the state wherever it is applicable, and the conflict of law rules of the forum in which the court sits. Boatland, Inc. v. Brunswick Corp., C.A. 6th (1977), 558 F.2d 818, 8211. "* * * Here the forum state is Tennessee, and clearly the conflict of laws of that state applies. * * *" Idem.

"* * * To determine the substantive law to be applied this Court must ascertain the Tennessee conflicts rule and apply the same substantive law that would be applied by a Tennessee court under the same circumstances. The wrong sought to be remedied in the present case is one sounding in tort. * * *" Telecommunications, E. S. & S. Co. v. Southern T. S. Co., C.A. 6th (1975), 518 F.2d 392, 3943.

In tort actions, Tennessee adheres to the traditional conflicts rule, that the substantive law of the place of the wrong will apply, lex loci delicti. Ibid., 518 F.2d at 3944; Winters v. Maxey (Tenn., 1972), 481 S.W. 755, 7561. Where the alleged wrongful conduct has taken place in more than one state, the place of the wrong is the state where the last event necessary to make the defendant liable for a tort takes place. Koehler v. Cummings, D.C.Tenn. (1974), 380 F.Supp. 1294, 130513, citing and quoting from Restatement of the Law, Conflicts § 377.

The tort which the plaintiff contends the defendant committed, and for which he seeks recovery herein, is that of negligence. Specifically, the plaintiff "* * * avers that the defendant carelessly and negligently failed to prepare and file a brief on his behalf in the Kentucky Supreme Court as required by the statutes of the State of Kentucky and the rules of the Kentucky Supreme Court * * *" and, that, as a proximate result of such negligence, that court reversed a judgment in his favor for certain workers' compensation benefits. Although a part of the negligence asserted against the defendant, the failure to prepare a brief, may well have taken place in Tennessee, the last event necessary to make the defendant liable for his alleged negligence must have taken place in Kentucky where the brief was required to have been filed. Had the defendant not failed to have filed the brief with the Kentucky Supreme Court, an omission which necessarily must have occurred in Kentucky, the plaintiff would not have suffered any injury and the defendant could not be held liable. Thus, under the Tennessee conflict-of-laws rule, this Court must look to the substantive law of Kentucky.⁵

Under the substantive law of Kentucky punitive damages "* * * are given only on account of the wanton, reckless, malicious or offensive character of the acts complained of. * * *" Signer v. First National Bank & Trust Co. of Covington, Ky., C.A. 6th (1972), 455 F.2d 382, 3865, citing Harrod v. Fraley, Kentucky (1956), 289 S.W.2d 203 and Ashland Dry Goods Company v. Wages (1946), 302 Ky. 577, 195 S.W.2d 312. "* * * Furthermore, punitive damages are not allowable for negligence unless the action is deliberate, intentional or wanton and malicious in nature. * * *" Louisville Bear Safety v. South Cent. Bell Tel., C.A.Ky. (1978), 571 S.W.2d 438, 4392.

There is no allegation in the complaint herein that the negligence of the defendant was wanton, reckless, deliberate, intentional or malicious; nevertheless, the plaintiff asserts in his brief that he "* * * has alleged that this defendant's conduct was wanton and reckless * * *." There simply are no such allegations herein; instead, the complaint appears to seek an award of punitive damages solely on the averment that the defendant "* * * was guilty of gross negligence in the premises * * *." But, as the plaintiff appears to recognize, Kentucky law does not permit the recovery of punitive damages for gross negligence.

This Court is of the opinion that the allegations of the complaint herein are insufficient to invoke this Court's jurisdiction of the subject matter under the provisions of 28 U.S.C. § 1332(a)(1). However, defective allegations of jurisdiction may be amended upon terms. 28 U.S.C. § 1653; Clark v. National Travelers Life Insurance Co., C.A. 6th (1975), 518 F.2d 1167, 11694. It may be that the plaintiff genuinely thought he had alleged that the negligence of the defendant was wanton or reckless. Although he has not sought to amend his complaint so as to make such allegations, see Clark v. National Travelers Life Insurance Co., supra, the plaintiff ought to be given such an opportunity. Accordingly, the plaintiff hereby is ALLOWED 10 days herefrom in which to attempt to amend his complaint herein so as to correct his defective allegations of jurisdiction. 28 U.S.C. § 1653. The recommendation of the magistrate is held under advisement.

MEMORANDUM OPINION AND ORDER

On Summary Judgment Re Amended Complaint

The plaintiff amended his complaint herein so as to allege that the conduct of the defendant was intentional, deliberate, reckless, wanton and malicious. See memorandum opinion herein of December 23, 1980. These allegations seem sufficient to support the claim of the plaintiff, under the law of Kentucky, for punitive damages.

It does not appear that the plaintiff's claim for such exemplary damages was made in bad faith, and it has not been made to appear to a legal certainty that the claim herein is really for less than the jurisdictional amount. Mt. Healthy City Bd. of Ed. v. Doyle (1977), 429 U.S. 274, 276, 97 S.Ct. 568, 571, 50 L.Ed.2d 471, 4772. That the plaintiff might not recover an amount equal to the jurisdictional minimum would not demonstrate his bad faith nor oust the Court's jurisdiction. Idem. In that event appropriate sanctions would be available. See 28 U.S.C. § 1332(b).

Accordingly, the recommendation of the magistrate herein of October 20, 1980 hereby is ACCEPTED, 28 U.S.C. § 636(b)(1), and the motion of the defendant for a summary judgment, Rule 56(b), Federal Rules of Civil Procedure, hereby is

DENIED. Furthermore, the Court hereby DECLINES to dismiss this action for lack of its jurisdiction of the subject-matter. Rules 12(b)(1), 12(h)(3), Federal Rules of Civil Procedure.

MEMORANDUM OPINION AND ORDER

On Punitive Damages Summary Judgment

To be entitled to summary judgment, the party seeking it must show conclusively that there exists for trial no genuine issue as to any material fact, Smith v. Hudson, C.A. 6th (1979), 600 F.2d 60, 634, certiorari denied (1979), 444 U.S. 986, 100 S.Ct. 495, 62 L.Ed.2d 415, and that under the undisputed record he is entitled to judgment as a matter of law, Lashlee v. Sumner, C.A. 6th (1978), 570 F.2d 107, 111. Having failed to meet that heavy burden, the motion herein of the defendant for a partial summary judgment, as to the claim of the plaintiff for punitive damages, hereby is

DENIED.

Considered in the light most favorable to the plaintiff, see Smith v. Hudson, supra, the record herein demonstrates that the defendant was counsel for the plaintiff in the matter of an appeal pending in the Supreme Court of Kentucky; that notice was given to the defendant and his Kentucky cocounsel by the clerk of that court of the necessity of filing a brief with such Court; that, despite being so notified, the defendant failed to file, or cause to be filed, such a brief; that, as a proximate result of such failure to file a brief, the Kentucky Supreme Court reversed a judgment which had been rendered in favor of the plaintiff and directed that his claim for workers' compensation benefits be dismissed; and that the defendant failed to advise the plaintiff of such reversal and dismissal.

Whether any negligence of the defendant in this regard arose to the level of being wanton, reckless, deliberate, intentional or malicious, as is alleged by the plaintiff, must be decided at trial, not on a motion for summary judgment. Questions of motive and intent are implicated, and these are not suited to disposition by summary judgment. Ibid., 600 F.2d at 669. A full inquiry into the facts surrounding the conduct of the defendant...