Danehower v. Cooper Tire & Rubber Company et al

Filing 24

ORDER granting Plaintiff's 17 Motion to Remand; denying Defendant's 22 Motion to Strike; and directing the Clerk of the Court to immediately remand this case to the Circuit Court of St. Francis County. Signed by Judge Billy Roy Wilson on 7/27/2017. (ljb)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
NORTHERN DIVISION
DERRICK DANEHOWER
VS.

PLAINTIFF
2:17-CV-00048-BRW

COOPER TIRE & RUBBER COMPANY, et al.

DEFENDANTS

ORDER
Pending is Plaintiffs’ Motion to Remand (Doc. No. 17), to which Defendant Cooper Tire
& Rubber Company has responded, and Plaintiff has replied.1 Also pending is Defendant’s
Motion to Strike (Doc. No. 22), to which Plaintiffs have responded.2 As set out below, the
Motion to Strike is DENIED, and the Motion to Remand is GRANTED.
On August 14, 2016, Justin Clements bought from Defendants Mary and Denson Rivers
(doing business as Rivers’ Odds & Ends) a tire made by Defendant Cooper Tire and Rubber
Company. Later that day, as Mr. Clements was driving with his wife Marla Clements in the
front seat, and Plaintiff Derrick Danehower’s daughters, Mackenzie and Madison Danehower, in
the back seat. Suddenly, without warning, the tire separated, causing Mr. Clements “to lose
control of his vehicle, crash into the median cable barrier and three cable posts, and roll over
several times into the opposite side of the median.”3 Ms. Clements and Mackenzie Danehower
died in the wreck, and Madison Danehower was severely injured.4

1

Doc. Nos. 18, 21.

2

Doc. No. 23.

3

Doc. No. 2.

4

Mr. Clements may have also suffered injuries. Doc. No. 2 (“Upon information and
belief, Justin Clements suffered injuries as a result of the crash.”).
1

Plaintiff Derrick Danehower (a Tennessean), filed his Complaint in the Circuit Court of
St. Francis County, Arkansas, on behalf of his daughters (Arkansawyers) against Defendants
Denson Rivers and Mary Rivers (Arkansawyers), doing business as Rivers’ Odds & Ends in
Jonesboro, Arkansas, Defendant Cooper Tire (a citizen of Delaware and Ohio), and others
unknown to Plaintiffs at the time of filing.5 Defendants removed this case to federal court,
asserting that the Rivers’ residency should be disregarded because they were fraudulently joined;
and that, without the Rivers, diversity jurisdiction exists.6
Plaintiffs seek remand, asserting that the Rivers have not been fraudulently joined, so
complete diversity does not exist.7 Defendant asserts that, as a sole proprietorship, Rivers’ Odds
& Ends is an entity incapable of being sued; and, since the Rivers – the proprietors of Rivers’
Odds & Ends – did not personally sell the tire to Mr. Clements, they cannot be held personally
liable.8
The Rivers are not shielded from liability simply because their employee9 was running
the register at the time the sale occurred.10 Because the Rivers have not been fraudulently joined,
I lack jurisdiction over the subject matter of this case. Accordingly, the Clerk of the Court is

5

Doc. No. 2 (specifically, John Does 1 through 5, Jane Does 1 through 5, Black and
White Corporations 1 through 5, and Black and White Partnerships 1 through 5).
6

Doc. Nos. 1, 18.

7

Doc. No. 17.

8

Doc. Nos. 1, 18.

9

Through limited pre-remand discovery, Plaintiffs have discovered that Larry Childs is
the name of the Rivers’ employee who transacted the sale on behalf of the Rivers. Doc. No. 21.
10

Jackson v. Ivory, 353 Ark. 847, 863, 120 S.W.3d 587, 596 (2003) (“Under the doctrine
of respondeat superior, an employer may be held vicariously liable for the tortious conduct of an
employee . . . acting within the scope of employment.”).
2

directed to IMMEDIATELY REMAND this case to the Circuit Court of St. Francis County,
Arkansas.
IT IS SO ORDERED this 27th day of July, 2017.

/s/ Billy Roy Wilson
UNITED STATES DISTRICT JUDGE

3