Brin et al v. ACI Motor Freight, Inc. et al

Filing 18

ORDER: Parties to set a combined evidentiary hearing and scheduling conference within the next 30 days. by Judge R. Brooke Jackson on 2/21/14. (rbjcd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No. 13-cv-02035-RBJ
AUTUMN M. BRIN, Individually, and on behalf
of her son, DEVON HOFFMAN, a minor,
Plaintiffs,
v.
ACI MOTOR FREIGHT, INC.,
ROBERT L. CLAIBOURN, III,
GIBSON & ASSOCIATES, INC.,
KROGER CO.,
JOSHUA ROWLEY, and
STEVAN STIEFVATER
Defendants.

ORDER

This is a personal injury action arising out of a motor vehicle accident in Kansas.
Plaintiff claims that on August 11, 2011 Gibson & Associates was doing road construction on I135 when one of its employees suddenly displayed a stop sign to southbound traffic. An ACI
Motor Freight truck driven by Robert L. Claibourn, III braked and was hit by a Kroger Co. truck
driven by Joshua Rowley. The car in which plaintiffs were riding, driven by Steven Stiefvater,
then struck the Kroger truck. Plaintiffs filed this lawsuit on July 31, 2013, alleging that the
negligence of each named defendant caused them to sustain injuries and related losses.
The Court ordered the parties to set a scheduling conference, but that has not yet
occurred. Meanwhile, ACI and Claibourn answered the complaint; Kroger moved to dismiss on
subject matter jurisdiction grounds (lack of complete diversity of citizenship, because the
Colorado plaintiffs had joined Stiefvater, a Colorado resident, as a defendant); and Gibson
moved to dismiss for lack of subject matter and personal jurisdiction.
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The Court issued an order asking plaintiffs whether they wished to pursue the case here if
Stiefvater were dismissed, and directing plaintiffs to show cause why their claim against Gibson
shouldn’t be dismissed for lack of personal jurisdiction. ECF No. 9. Thereafter,
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Rowley filed a motion to dismiss on subject matter and personal jurisdiction
grounds.

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Kroger and Rowley filed a response to the order to show cause in which they
suggested that proceeding with a suit in Kansas, in which they believe all parties
could be joined, would be preferable to proceeding piecemeal; they did not
comment on whether plaintiff would face a statute of limitations problem if they
attempted now to file their case in Kansas state court.

•

Plaintiffs responded to Gibson’s motion to dismiss and the show cause order,
indicating that they had no objection to the dismissal of Stiefvater without
prejudice, and that they believed that Gibson has sufficient contacts with
Colorado to sustain personal jurisdiction here. They did not comment on personal
jurisdiction with respect to Rowley.

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ACI and Claibourn responded to the show cause order and agreed that proceeding
in Kansas is preferable. They added that dismissing Stiefvater does not solve the
diversity problem, because he is an indispensable party, and they questioned
whether plaintiffs can satisfy the amount in controversy requirement of 28 U.S.C.
§ 1332. ACI and Claibourn have not, however, disputed personal jurisdiction.

I agree that if this lawsuit had been timely filed in state court in Kansas, plaintiffs could
have pursued their claims against all defendants without jurisdictional problems. Plaintiffs claim
that Colorado is a better forum because their health care providers are in Colorado, implicitly
discounting the flip-side that some defendants and witnesses live in Kansas. It seems to me that
testimony of the Colorado providers could relatively easily have been obtained in video
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depositions. But, at this point that is water over the dam, and the Court has to deal with what it
has.
I do not wish to resolve the personal jurisdiction issues raised by Gibson and Rowley on
the papers. The complaint asserts no facts that would support personal jurisdiction over those
defendants, and while plaintiffs have responded to the Gibson motion, I am satisfied that
personal jurisdiction should be decided after these parties have had an opportunity to present
evidence and argument at a hearing. A hearing would also permit an opportunity for the Court to
consider argument and evidence, as appropriate, on the indispensable party and amount in
controversy issues.
Accordingly, the Court directs the parties to set a combined evidentiary hearing and
scheduling conference within the next 30 days. Following the presentation of evidence and
argument, the Court will rule on the pending motions and, if there are issues and parties left that
are sufficient to proceed with the suit in this Court, set a case schedule.
DATED this 21st day of February, 2014.
BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

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