Bullock v. Weatherly Truck Lines Inc et al

Filing 19

REPORT AND RECOMMENDATION re 15 JOINT/VOLUNTARY MOTION to Dismiss filed by Sugar Ray Bullock: IT IS RECOMMENDED that Plaintiff's Voluntary Motion to Dismiss be granted and that this civil action be dismissed without prejudice. Objections to R&R due by 6/15/2009. Signed by Magistrate Judge Mark Hornsby on 5/28/09. (crt,Cassanova, M)

UNITED STATES DISTRICT COURT W E S T ER N DISTRICT OF LOUISIANA S H R E V EP O R T DIVISION

S U G A R RAY BULLOCK VERSUS L E E ODOLLERY SMITH, JR., ET AL

C I V I L ACTION NO. 08-cv-1333 J U D G E HICKS M A G I S T R A T E JUDGE HORNSBY

R E P O RT AND RECOMMENDATION I n t r o d u c t io n S u g a r Ray Bullock ("Bullock") was driving a Dodge Durango north on Highway 3 in Bossier Parish, with his three daughters as passengers, when the Durango was involved in an accident with a commercial tractor-trailer rig. One of Bullock's daughters was killed, a n d Bullock and his other two children were allegedly injured. B u l l o c k and his former wife, Randi Kinyon, filed three state court suits arising from t h e accident. This case, one of the three, was removed based on assertions of diversity j u r is d i c ti o n . Bullock, the plaintiff in this case, has filed a Voluntary Motion to Dismiss ( D o c . 15) without prejudice. Bullock proposes to drop this removed case and pursue in state court the identical claims that he asserted in the two related cases. Defendants object to the dism issal. They urge that Bullock's goal of dropping this suit to pursue his claims in state court is moot because all three cases have since been removed. Defendants asks the court to

c o n s o l i d ate the three cases for trial in federal court. The court will set forth a summary of e a c h of the three related proceedings and then address the motion to dismiss filed in this case. The Three Suits A. Bullock's Bossier Parish Suit (This Suit) T h e first of the three suits was filed by Bullock, pro se, in a Bossier Parish state court a s No. 127-212. Bullock filed the suit on behalf of himself and his three daughters. The n a m e d defendants were Lee Smith, Jr. (the driver of the truck), Weatherly Truck Lines, Inc. (the owner of the truck), and Insurance Center, Inc. (the alleged insurer of the truck). De fend ants promptly filed a notice of removal based on an assertion of diversity j u r is d i c ti o n . They pointed to Bullock's allegation in his petition that he is "domiciled in the Co unty of Davidson, State of Tennessee." The removing defendants asserted that each of them is a citizen of Arkansas. See 08-cv-1333, Docs. 1 and 16. L e s s than a month after Bullock's case was removed, Attorney Sam Jenkins, Jr. e nr ol le d as counsel for Bullock. He immediately filed a motion to amend the complaint to allege that Bullock is actually a Louisiana citizen (residing only temporarily in Tennessee) a n d to add new defendants, including the State of Louisiana, through its Department of T r a n s p o r ta t i o n and Development ("DOTD"). Bullock's counsel simultaneously filed a m o t i o n to remand on the grounds that the addition of DOTD would destroy diversity and r e q u i re remand of the case.

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T h e undersigned found that the DOTD is equivalent to the State of Louisiana for p u r p o s e s of determining diversity of citizenship. A state is not a citizen at all, and its p r e s e n c e in the case would destroy diversity jurisdiction. Accordingly, the court analyzed t h e motion for leave to amend pursuant to the Hensgens factors. The court found no apparent merit to the claim against DOTD, so it denied the motion for leave to amend and the related m o t i o n to remand. The issue of Bullock's citizenship was not resolved. There was not s u f f i c ie n t evidence in the record to render a decision, and the denial of the motion for leave to amend made it unnecessary to determine whether Bullock was a citizen of Tennessee or L o u i s i a n a. Under either scenario, he was completely diverse from the Arkansas defendants. Bu llock v. Smith, 2008 WL 4853355 (W . D . La. 2008). L e s s than two weeks after the court denied the motion to amend and motion to r e m a n d , Bullock filed the motion to voluntarily dismiss his case without prejudice, the m o t i o n now before the court. He noted the two related cases filed in state court by R a n d i Kinyon (which named Bullock as a defendant) and stated that he had filed c ro s s- cl ai m s against his fellow defendants in those cases to make the same claims asserted i n this civil action. B. Kinyon's Bossier Parish Suit A few days after Bullock filed his suit in Bossier Parish, Randi Kinyon filed two suits a r i si n g from the accident. The two petitions were virtually identical, except one was filed in B o s s i e r Parish and the other was filed in neighboring Caddo Parish. The apparent reason for

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t h e twin lawsuits in Caddo and Bossier Parishes was concern about the proper venue under state procedural rules. Venue might be proper in Caddo Parish if Bullock were a resident of t h a t parish, but venue would be proper only in the parish in which the accident happened (Bo ssier ) if Bullock and the other defendants were all non-residents of Louisiana. Kinyon, a North Carolina citizen, filed wrongful death and survival claims in her c a p a c i ty as the mother of the deceased child, and she asserted claims in her capacity as the tutrix of the two injured children. The named defendants were Bullock (alleged to be d o m i c i l e d in Louisiana), State Farm (Bullock's insurer), Lee Smith (the truck driver), We atherly Truck Lines (truck owner), Great West Casualty Company (Weatherly's insurer), a n d Southwest Insurance Corporation (an alleged insurer). Kinyon alleged that both Bullock and Smith were at fault in causing the accident. Kiny o n 's Bossier Parish suit was assigned Suit No. 127-247. Bullock filed in the B o s s i e r Parish case a cross-claim against co-defendants Smith, Weatherly, Great West, and ( n e w party) DOTD. Bullock alleged survival and wrongful death claims arising from the d e a t h of his daughter, and he alleged that he and his other two children were injured in the accid ent. The cross-claim does not affirmatively state that it seeks damages on behalf of the t w o injured children, but the children and their injuries are mentioned in the cross-claim. S m i t h , Weatherly Truck Lines, and Great West removed the case based on an a s s e r ti o n of diversity jurisdiction. Randi Kinyon filed a motion to remand on several grounds,

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i n c l u d in g the failure of all served defendants to join in the notice of removal. The court rece ntly granted the motion, and the case has been remanded to the Bossier Parish court. C. Kinyon's Caddo Parish Suit K i n yo n , on the same day she filed her Bossier Parish suit, filed a virtually identical p e t i ti o n in state court in Caddo Parish. Bullock, a defendant in Kinyon's Caddo Parish suit, f i l ed a cross-claim against his fellow defendants and (new defendant) DOTD. Bullock did n o t purport to appear on behalf of any of his injured children, but he did mention their i n j u r i e s .1 He also asserted claims for survival and wrongful death damages for the loss of his d e c e a s e d daughter. It appears that Bullock, as the father, would retain the right (shared by both parents) to pursue survival and wrongful death actions based on the death of his d a u g h t e r who was killed in the accident. La. Civ. Code arts. 2315.1(A)(2) and 2315.2(A)(2). T h e parties negotiated regarding the venue issue. Counsel for some of the parties r e a c h e d an agreement by late November or early December 2008 that Kinyon would dismiss h e r Caddo Parish suit. In exchange, defendants would drop the exceptions that they filed in B o s s i e r Parish, and "agree to proceed in Bossier state court." A few days later, however, c o u n s e l for those same defendants removed the Caddo Parish case to this court based on an asse rtion of diversity jurisdiction. See 08-cv-1924.

There was state-court litigation earlier in the Caddo case as to the procedural p r o p r ie t y of Kinyon asserting claims on behalf of the injured minors. Kinyon clarified h e r pleadings to allege that she is the proper parent to assert the claims of the two injured child ren because a domestic decree granted her sole care of the minor children. See La .C.C .P. art. 4061.1(A)(2). Page 5 of 9

1

N o motion is pending in the removed Caddo Parish case. Defendants represent in their m e m o r a n d u m that Kinyon did dismiss all of her claims in the Caddo Parish case, leaving only Bu llock 's cross-claims pending in that case. Analysis of the Motion to Dismiss F e d e r a l Rule of Civil Procedure 41(a)(1) permits a plaintiff, subject to certain e x c e p t i o n s , to dismiss an action "without a court order" by merely filing "a notice of d i s m i ss a l before the opposing party serves either an answer or a motion for summary judg men t" or by filing a stipulation of dismissal signed by all parties who have appeared. De fend ants filed an answer before removal, and they did not sign a stipulation of dismissal, s o Rule 41(a)(1) is not available to Plaintiff. That forces Plaintiff to look to Rule 41(a)(2), w h i c h provides that "an action may be dismissed at the plaintiff's request only by court order, o n terms that the court considers proper." Unless the order states otherwise, a dismissal under the provision is without prejudice. Most defendants are delighted when a plaintiff asks that all claims against the d e f e n d a n t be dismissed, but Defendants insist that Plaintiff be required to continue suing t he m . They do not even propose any terms under which dismissal could be granted. De fend ants prefer that this federal suit continue against them, with the stated reason that the r e m o v a l of all three suits allows consolidated proceedings in this federal court. However, as not ed above, the court recently remanded one of the cases.

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A defendant's interests are relevant to a Rule 41(a)(2) request, but "in most cases a d i s m i ss a l should be granted unless the defendant will suffer some legal harm." LeCompte v . Mr. Chip, Inc., 528 F.2d 601, 604 (5th Cir. 1976). That legal harm or legal prejudice must b e more than the mere prospect of a second lawsuit. Davis v. Huskipower, 936 F.2d 193, 1 9 9 (5th Cir. 1991). And it is not a bar to dismissal that the plaintiff may obtain some t a c ti c a l advantage. Manshack v. SWEPCO, 915 F.2d 172, 174 (5th Cir. 1990). See also E l b a o r v. Tripath Imaging, Inc., 279 F.3d 314, 317 (5th Cir. 2002)("[A]s a general rule, m o t i o n s for voluntary dismissal should be freely granted unless the non-moving party will s u f f e r some plain legal prejudice other than the mere prospect of a second lawsuit.") It does not appear the Fifth Circuit has adopted any rigorous formula for the court to cons ider in exercising its broad discretion in this arena, but the Court in Elbaor cited some factors that other circuits have considered relevant. They are: (1) the defendants' effort and t h e expense involved in preparing for trial; (2) excessive delay and lack of diligence on the part of the plaintiffs in prosecuting the action; (3) insufficient explanation of the need to take a dismissal; and (4) the fact that a motion for summary judgment has been filed by the d e f e n d a n t s. 279 F.3d at 317, n. 2. This case is relatively new. There is no indication in the record or representation by De fend ants that Defendants have expended any significant effort or expense in preparing for trial. There has yet to be even an initial scheduling conference. There is no indication of l a c k of diligence by Plaintiff, and Plaintiff has explained the reason he wishes to dismiss the

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c a s e : he wants to enjoy the efficiency of a single lawsuit to determine all claims and avoid mu ltiple suits in different forums over the same accident. Defendants have not articulated a n y defense that would be lost by dismissal or other form of legal harm or prejudice. De fend ants do not even face the ordinary prospect of a second lawsuit, as the suit in which the claims will be litigated is already pending. Defendants will merely shed themselves of one of the three lawsuits. After a consideration of the relevant factors and the applicable jurisprudence, the court f i n d s that Plaintiff should be allowed to dismiss this action without prejudice. That will leave ( 1 ) the civil action that was remanded to the Bossier Parish court and (2) the cross-claims a s s e r te d by Plaintiff that were removed from Caddo Parish and remain pending in this case in 08-cv-1924. Plaintiff has not filed a similar motion to dismiss in that action. A scheduling c o n f e r e n c e will be set in that matter in due course. A cc or di ng ly; I T IS RECOMMENDED that Plaintiff's Voluntary Motion to Dismiss (Doc. 15) b e granted and that this civil action be dismissed without prejudice. O b j e c t io n s U n d e r the provisions of 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ. Proc. 72(b), parties a g g r i e v ed by this recommendation have ten (10) business days from service of this report and r e c o m m e n d a t i o n to file specific, written objections with the Clerk of Court, unless an e x t e n s io n of time is granted under Fed.R.Civ.P. 6(b). A party may respond to another party's

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o b j e c ti o n s within ten (10) days after being served with a copy thereof. Counsel are directed to furnish a courtesy copy of any objections or responses to the District Judge at the time of f i l in g . A party's failure to file written objections to the proposed findings, conclusions and r e c o m m e n d a t i o n set forth above, within 10 days after being served with a copy, shall bar that pa rty, except upon grounds of plain error, from attacking on appeal the unobjected-to p r o p o s e d factual findings and legal conclusions accepted by the district court. See Douglass v . U.S.A.A., 79 F.3d 1415 (5th Cir. 1996) (en banc). THUS DONE AND SIGNED in Shreveport, Louisiana, this 28th day of May, 2008.

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