Jones v. Queen City Corp et al

Filing 57

ORDER & REASONS: ORDERED that 40 Motion to Dismiss is GRANTED. FURTHER ORDERED that 50 Motion to Dismiss and 55 Motion to Dismiss is DISMISSED AS MOOT. Signed by Judge Eldon E. Fallon on 4/18/2016. (cml)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

OVERLAND JONES

CIVIL ACTION

VERSUS

NO. 15-6683

QUEEN CITY CORP., ET AL.

SECTION "L" (4)

ORDER & REASONS
Before the Court is a Motion to Dismiss filed by Defendants Argonaut Insurance
Company and Queen City Railroad Construction, Inc. 1 R. Doc. 40. Having reviewed the briefs
and the applicable law, the Court now issues this Order & Reasons.
I.

BACKGROUND
This case arose out of injuries allegedly sustained by Plaintiff Overland Jones (“Jones”)

while he was either employed by or working on the grounds of Defendants CSX Corporation
(“CSX”) and Queen City Railroad Construction, Inc. (“Queen City”). R. Doc. 1 at 1. Plaintiff
was awarded workman’s compensation, but now seeks additional compensation for his alleged
injuries. R. Doc. 1 at 1. Citing “La. tort laws and Fed. tort laws,” Plaintiff seeks $2,000,000 in
damages, court costs and legal expenses. R. Doc. 1 at 1.
Plaintiff’s Complaint does not provide any other details of the incident, but Defendant
Queen City has attached as exhibits to the pending motion a copy of both the 1998 Workers’
Compensation settlement related to the injury as well as the prior lawsuit Plaintiff brought in
1998 in Orleans Parish Civil District Court, which was ultimately dismissed by the Plaintiff after
the Workers’ Compensation settlement. R. Docs. 40-2, 40-3. Plaintiff’s 1998 petition alleges

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Defendant CSX Corporation has filed a Motion to Dismiss for Lack of Jurisdiction. R. Doc. 50.
Similarly, Defendant Halverson has filed a Motion to Dismiss for Lack of Jurisdiction and for Failure to State a

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that he was employed by Queen City as a railroad worker on March 12, 1997, when he sustained
an injury after a crane operator lowered a railroad track onto his right hand. R. Doc. 40-3 at 1.
In the instant case, Plaintiff appears to invoke this Court’s jurisdiction on the basis of
diversity, although Plaintiff also checked the box for “Federal Question” jurisdiction on the
complaint’s Civil Cover Sheet. R. Doc. 1-1. Plaintiff addresses jurisdiction by stating that: (1)
he is a resident of Louisiana; (2) Queen City is located in Tennessee; and (3) CSX is located in
Florida. R. Doc. 1 at 1.
Plaintiff also states he is filing claims on the basis of “equitable tolling statutes.” R. Doc.
1 at 4. Plaintiff claims he was misled by “all counsel involved,” including being defrauded and
misrepresented by his own, and that he signed waivers and releases he could not understand due
to being under the influence of psychotropic medications. R. Doc. 1 at 4. Plaintiff also claims he
was homeless and suffering from mental illness. R. Doc. 1 at 4. In essence, Plaintiff argues that
his claims against Defendants should not be prescribed because of his prior mental
incapacitation. R. Doc. 1 at 4.
Plaintiff filed an amended Complaint on January 4, 2016 adding numerous additional
defendants, including Argonaut Insurance Company (“Argonaut”), Queen City’s insurer, and
various individuals who either worked for Defendants, served as counsel for the Plaintiff or
Defendants, or were otherwise involved in the matter, including the staff of the state court
involved in his earlier lawsuit. 2 R. Doc. 5 at 1-2.

Claim. R. Doc. 55. The Court finds that the arguments presented in these motions are identical to those presented in
Argonaut’s motion.
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Some of the named Defendants may not be competent parties. Attorney Gary Pendergast, for example, is
deceased. While Plaintiff has sued Orleans Parish civil district court personnel, such as Clerk of Court Dale Atkins
and at least one court reporter, it is not clear who “Judge Coroly Bill” might be referring to. It also does not appear
that anyone with a name resembling “Lrenior Oeater” is the CEO of Queen City or that any attorney or firm named
“J.C. Hooker” practices at 1515 Poydras Street in New Orleans.

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II. PRESENT MOTION
Before the Court is the Motion to Dismiss filed by Argonaut and Queen City, which
asserts three defenses enumerated in Federal Rule of Civil Procedure 12(b): (1) lack of subject
matter jurisdiction; (2) insufficient service of process; and (3) failure to state a claim upon which
relief can be granted. R. Doc. 40.
A. Lack of Subject Matter Jurisdiction
Defendants invoke FRCP 12(b)(1) and ask this Court to dismiss Plaintiff’s case for lack
of jurisdiction. While Plaintiff checked the “Federal Question” box on the Civil Cover Sheet, his
Complaint does not assert any basis for federal question jurisdiction. R. Doc. 40-1 at 1. Plaintiff
was injured while working at his job, which is not the basis of a civil action arising under the
Constitution, laws, or treaties of the United States. R. Doc. 40-1 at 2. Plaintiff’s claim is also
not related to the areas of federal law which Congress has authorized federal district courts to
hear. R. Doc. 40-1 at 2. Therefore, Defendants argue that this Court lacks federal question
jurisdiction over Plaintiff’s claim. R. Doc. 40-1 at 2.
Plaintiff’s Complaint implies that he is invoking diversity jurisdiction because he lists the
citizenship of three of the parties. R. Doc. 40-1 at 2. Defendants argue that the requirement of
complete diversity of citizenship cannot be met because Plaintiff, a citizen of Louisiana, has
named individual defendants in the Amended Complaint who are also citizens of Louisiana. R.
Doc. 40-1 at 2. Defendants do not identify which defendant’s citizenship destroys complete
diversity, but Plaintiff’s Amended Complaint does indicate that multiple defendants are residents
of Louisiana. See R. Doc. 5.
B. Insufficient Service of Process
Defendants also move to dismiss pursuant to FRCP 12(b)(5), claiming that they were not
served in accordance with FRCP 4(h), which governs service of process for corporations. R.
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Doc. 40-1 at 3. Defendant Queen City claims that it received a copy of the summons and the
petition via certified mail at its Knoxville, TN address. R. Doc. 40-1 at 4. Queen City argues
that service was improper because the copies were not delivered to an officer, a managing or
general agent, or any other authorized agent pursuant to Rule 4(h), nor was service made on
Queen City’s registered agent according to Rule 4(e) and La. C.C.P. art. 1261. R. Doc. 40-1 at 4.
Defendant Argonaut likewise argues that service was improper because it was not served in
accordance with Rule 4. R. Doc. 40-1 at 5.
C. Failure to State a Claim
Defendants claim that Plaintiff’s Complaint does not state factual allegations sufficient to
provide the grounds for any entitlement to legal relief. R. Doc. 40-1 at 5. Defendants point out
that the Complaint lacks any facts about the identity of Plaintiff’s employer, when the injury
occurred, or the nature of the injury. R. Doc. 40-1 at 7. Defendants argue that a mere allegation
that the Plaintiff was injured at some past date on the job is insufficient and requires a dismissal
pursuant to Rule 12(b)(6). R. Doc. 40-1 at 7.
Additionally, Defendants contend that the Complaint should be dismissed on res judicata
grounds because Plaintiff acknowledges that he received workers’ compensation benefits for his
injury and that there was a prior lawsuit related to the incident. R. Doc. 40-1 at 7. While the res
judicata defense is typically appropriate at the summary judgment stage rather than in a 12(b)(6)
motion, Defendants claim that the exception to the general rule is met here because the issue of
res judicata is apparent on the face of the Complaint, which references both the receipt of
workers’ compensation benefits as well as Plaintiff’s prior “civil court” case. R. Doc. 40-1 at 8.
Defendants also argue that Plaintiff’s Complaint is clearly prescribed and should be dismissed.
R. Doc. 40-1 at 9.
In support of these arguments, Defendants have attached two prior Orders of Dismissal
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from 1998 as exhibits to the motion. Exhibit A, from the Louisiana Office of Workers’
Compensation, includes a copy of Plaintiff’s previously filed Disputed Claim for Compensation
Form 1008, the signed Order approving the settlement of Plaintiff’s workers’ compensation
claim, the signed Order dismissing the same, with prejudice, and an executed Receipt & Release.
R. Doc. 40-2. Exhibit B includes a copy of Plaintiff’s Petition for Damages filed in Orleans
Parish Civil District Court as well as the signed Order dismissing Plaintiff’s referenced “Civil
Court” case as to Queen City and Argonaut, with prejudice. R. Doc. 40-3.
D. Jones’s Opposition
In his Opposition, Jones fails to address the grounds for Defendants’ Motions to Dismiss.
R. Doc. 45. Jones’s Response provides a description of the accident, but even when liberally
construed the Response does not directly address the asserted Rule 12(b) grounds for dismissal.
R. Doc. 45 at 2–4.
Jones fails to allege facts in support of a finding of diversity. Jones brings minimal facts
which may raise a federal question. He claims that the accident occurred on federal property,
and alludes that some unconstitutional event occurred. R. Doc. 45 at 2–3. But the grounds for
federal question jurisdiction are not clear. Jones also fails to address the propriety of service, or
to confront Defendants’ res judicata argument.
E. Defendants’ Reply
Defendants timely reply. R. Doc. 53. Defendants repeat the arguments in their Motion to
Dismiss, emphasizing the gaps in Jones’s unfocused Opposition.
III. LAW AND ANALYSIS
A. Applicable Law
Jones proceeds pro se, so his filings must “be liberally construed.” Estelle v. Gamble,
429 U.S. 97, 106 (1976). “[A] pro se complaint, however inartfully pleaded, must be held to less
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stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89,
94 (2007) (internal citations and quotations omitted); cf. Fed. R. Civ. P. 8(f) (“All pleadings shall
be so construed as to do substantial justice.”). The following law must be applied with Jones’s
pro se status in mind.
i. Rule 12(b)(1)
Plaintiff’s Complaint appears to invoke diversity jurisdiction. Federal district courts have
“original jurisdiction of all civil actions where the matter in controversy exceeds the sum or
value of $75,000, exclusive of interest and costs, and is between . . . citizens of different States.”
28 U.S.C. § 1332(a)(1) (2012).
Rule 12(b)(1) of the Federal Rules of Civil Procedure governs challenges to a court’s
subject matter jurisdiction. A court must dismiss a case for lack of subject matter jurisdiction
“when the court lacks the statutory or constitutional power to adjudicate the case.” Home
Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (quoting
Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996). Dismissal
under Rule 12(b)(1) of the Federal Rules of Civil Procedure is appropriate when subject matter
jurisdiction is lacking. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). The party
asserting jurisdiction bears the burden of proof. Id. (citing Barrera-Montenegro v. United States,
74 F.3d 657, 659 (5th Cir. 1996)). A court reviewing subject matter jurisdiction pursuant to Rule
12(b)(1) may base its opinion on the face of the complaint, “the complaint supplemented by
undisputed facts evidenced in the record,” or “the complaint supplemented by undisputed facts
plus the court’s resolution of disputed facts.” Ramming v. United States, 281 F.3d 158, 161 (5th
Cir. 2001) (internal citations omitted). A district court evaluating subject matter jurisdiction
“must resolve disputed facts without giving a presumption of truthfulness to the plaintiff’s
allegations.” Vantage Trailers, Inc. v. Beall Corp., 567 F.3d 745, 748 (5th Cir. 2009) (citing
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Williamson, 645 F.2d at 413).
ii. Rule 12(b)(5)
Rule 12(b)(5) of the Federal Rules of Civil Procedure allows parties to assert the defense
of insufficient service of process by motion. “When service of process is challenged, the serving
party bears the burden of proving its validity or good cause” for failing properly to effect service.
Shabazz v. City of Houston, 515 F. App'x 263, 264 (5th Cir. 2013) (quoting Sys. Signs Supplies v.
U.S. Dep't of Justice, 903 F.2d 1011, 1013 (5th Cir. 1990) (per curiam)).
Federal Rule of Civil Procedure 4(h) provides that service of a corporation can be
achieved by either 1) delivering a copy of the summons to an officer, a managing or general
agent, or any other agent authorized by appointment or law to receive service of process, or 2) by
following the method for serving an individual laid out in Rule 4(e)(1) that requires following
the state law for serving a summons in an action brought in courts of general jurisdiction in the
state where the district court is located or where service is made.
Louisiana Code of Civil Procedure article 1261 governs service of either domestic or
foreign corporations within Louisiana and provides that service is to be made by personal service
on any of its agents for service of process. If personal service on an agent is not possible, after
due diligence, or if the corporation has not designated an agent or there is no designated agent by
reason of death, removal, or resignation, service may also be accomplished:
(1) By personal service on any officer, or director, or on any person named as
such in the last report filed with the secretary of state. (2) By personal service
on any employee of suitable age and discretion at any place where the
business of the corporation is regularly conducted. (3) By service of process
under the provisions of R.S. 13:3204, if the corporation is subject to the
provisions of R.S. 13:3201.
La. C.C.P. art. 1261(B).

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iii. Rule 12(b)(6)
The Federal Rules of Civil Procedure permit a defendant to seek a dismissal of a
complaint based on the “failure to state a claim upon which relief can be granted.” Fed. R. Civ.
P. 12(b)(6). A complaint should not be dismissed for failure to state a claim “unless it appears
beyond doubt that the plaintiff can prove no set of facts in support of his claim which would
entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 47 (1957). Generally, when evaluating a
motion to dismiss pursuant to Rule 12(b)(6), the court should not look past the pleadings.
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The
district court must construe facts in the light most favorable to the nonmoving party and must
accept as true all factual allegations contained in the complaint. Ashcroft, 556 U.S. at 678. “A
claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. A
court “do[es] not accept as true conclusory allegations, unwarranted factual inferences, or legal
conclusions.” Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005).
Additionally, the doctrine of res judicata bars the litigation of claims that were previously
litigated or could have been raised in an earlier suit. Nilsen v. City of Moss Point, 701 F.2d 556,
560 (5th Cir. 1983). “Generally a res judicata contention cannot be brought in a motion to
dismiss; it must be pleaded as an affirmative defense.” Test Masters Educ. Servs., Inc. v. Singh,
428 F.3d 559, 570 n. 2 (5th Cir. 2005). However, dismissal may be appropriate on res judicata
grounds if it is apparent on the face of the pleadings. Murry v. Gen. Servs. Admin., 553 Fed.
Appx. 362, 364 (5th Cir. 2014). “The four elements of res judicata are whether: (1) the parties
are identical or in privity; (2) the judgment in the prior action was rendered by a court of
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competent jurisdiction; (3) the prior action was concluded by a final judgment on the merits; and
(4) the same claim or cause of action was involved in both actions.” Id.
B. DISCUSSION
Upon review of the Complaint and the undisputed facts, the Court finds that Jones fails to
plead facts sufficient for this Court to find either diversity of citizenship or federal question
jurisdiction. The Court will address each in turn.
i. Diversity Jurisdiction
The face of the Amended Complaint undercuts Jones’s assertion of diversity jurisdiction.
To qualify for diversity jurisdiction, all plaintiffs must have citizenship different from all
defendants. Exxon Mobil Corp. v. Allapattah Serv., Inc., 545 U.S. 546, 582 (2005). In his
Amended Complaint, Jones asserts claims against numerous parties currently residing in the state
of Louisiana. R. Doc. 5 at 1–4. These parties include local clerks, attorneys, court reporters, and
one judge. R. Doc. 5 at 1–2. Place of residency does not prove domicile, so it is possible that
diversity may exist even on these facts. See Mississippi Band of Choctaw Indians v. Holyfield,
490 U.S. 30, 48 (1989). However, the burden is on the party asserting subject matter
jurisdiction, and Jones completely fails to address the issue. See Budget Prepay, Inc. v. AT&T
Corp., 605 F.3d 273, 278 (5th Cir. 2010) (internal citations omitted). Even liberally construed,
the Court cannot find diversity of citizenship among this cast of New Orleans characters.
ii. Federal Question Jurisdiction
Jones also fails to plead a federal question pursuant to 28 U.S.C. § 1331 (2012). Jones’s
Civil Cover Sheet indicates that he asserts a federal question, R. Doc. 1-1, but his Complaint and
Amended Complaint both fail to assert a cognizable claim under federal law. Jones asserts that
he is seeking personal injury damages based on both Louisiana and federal tort law, but he
provides no evidence supporting a finding that the alleged tort is federal in character in his
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Complaint. R. Doc. 1 at 1. Jones pleads that he was awarded workers’ compensation in civil
court, but that he was not given money for his personal injuries. R. Doc. 5 at 1. Even construed
liberally, this allegation does not state a claim which arises under the Constitution, laws, or
treaties of the United States. R. Doc. 1 at 1.
The location of Jones’s injury also suggests that this action is not federal in character.
Jones pleads in his Complaint that he was disabled on C.S.X. grounds. R. Doc. 1 at 2. As its
name implies, C.S.X. Corporation is a private entity. In his Opposition, Jones attempts to
reclassify the location of his injury as federal property, stating that he was injured on
“government private property” and “federal grounds.” R. Doc. 45 at 2. Even if liberally
construed for a pro se Plaintiff, this information is insufficient for the Court to find subject
matter jurisdiction outside of the Complaint. Jones provides no address of the CSX project.
Further, Jones’s account is inconsistent—he asserted that the accident occurred on “C.S.X.
Grounds,” “government private property,” and “federal grounds.” R. Doc 1 at 2; R. Doc. 45 at 2.
Jones carries the burden of proving a federal question, and he fails to plead sufficient facts for
the Court to find that the injury occurred on federal property. See Ramming, 281 F.3d at 161.
At best, Jones’s Complaint and Opposition suggests that he was compensated for a
personal injury through Louisiana’s workers’ compensation program, but that some element of
his damages remain unaddressed. Without more, the Court cannot find that this scenario
presents a federal question.

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IV. CONCLUSION
For the foregoing reasons, IT IS ORDERED that Defendant Argonaut’s Motion to
Dismiss, R. Doc. 40, is hereby GRANTED.
IT IS FURTHER ORDERED that Defendant CSX’s Motion to Dismiss, R. Doc. 50,
and Defendant Halverson’s Motion to Dismiss, R. Docs. 50, 55, are hereby DISMISSED AS
MOOT.
New Orleans, Louisiana this 18th day of April, 2016.

UNITED STATES DISTRICT JUDGE

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