Roberson v. McDonald Transit Associates, Inc.
ORDER denying 31 Motion to Appeal Magistrate Judge Decision. Signed by District Judge Michael P. Mills on 6/20/2017. (lpm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
CARROL D. ROBERSON
Civil Action No.: 3:16-cv-00162-MPM-RP
McDONALD TRANSIT ASSOCIATES, INC.
This cause comes before the Court on defendant McDonald Transit Associates, Inc.’s
(“McDonald”) Objection and Motion to Appeal Magistrate Judge’s Decision . Plaintiff
Carrol D. Roberson (“Roberson”) filed a response. The Court has reviewed the arguments made
by the parties, along with relevant evidence and authorities, and is now prepared to rule.
The Oxford University Transit System (“OUT”) operates multiple shuttle buses that
travel throughout Oxford, Mississippi, providing transportation services to the public. Roberson,
a student at the University of Mississippi, frequently rides the OUT buses. McDonald is under
contract with the City of Oxford and the University of Mississippi to provide management and
oversight of OUT. This action is based upon two separate events involving Roberson and the
The first alleged incident occurred on July 30, 2013. Roberson alleges that while he was
attempting to board an OUT bus, the bus driver—Calvin Hill (“Hill”)—“slammed the bus doors
against [him] seizing him between the doors and then quickly opened the doors causing [him] to
fall upon the steps[.]” Roberson alleges that he “suffered spinal trauma, cuts, and bruises.”
Roberson states that prior to this incident, he had submitted several complaints to Ron Biggs—
the Vice President of McDonald and Hill’s supervisor—concerning traffic violations that Hill
had committed. On July 28, 2014, Roberson filed a pro se complaint in this Court against
McDonald, alleging that it was liable for the negligence of Hill.
Despite the pendency of that suit, Roberson continued to utilize the OUT system and
alleges that on March 26, 2015, he “was riding as a passenger aboard an OUT bus . . . when he
was tripped and kicked several times by an intoxicated passenger who then got off the bus and
ran away.” Roberson avers that he again suffered spinal trauma, cuts, and bruises, and was
required to undergo two spinal surgeries “as the result of the July 30, 2013 incident, combined
with the March 26, 2015 incident[.]”
On June 2, 2016, Roberson filed a motion to voluntarily dismiss without prejudice his
initial lawsuit pending in this Court. Senior Judge Biggers, the presiding judge in that case,
granted Roberson’s request, and his suit was dismissed without prejudice. Shortly thereafter, on
July 20, 2016, Roberson filed the present action, in which he sets forth largely the same facts
concerning the July 2013 incident but added allegations concerning the March 2015 incident. In
his pro se complaint, he asserts that McDonald was grossly negligent as to both incidents and
requests judgment in the amount of $200,000, together with interests and costs.1
On December 13, 2016, Roberson filed a motion to amend his complaint so that he could
add Ron Biggs and Oxford Transit Management, Inc. (“OTM”) as defendants. As stated by
Roberson, Biggs served as a corporate executive for OTM, which is a subsidiary of McDonald
and was directly responsible for oversight of OUT. Thus, Roberson now alleges that Biggs,
OTM, and McDonald are vicariously liable for Hill’s conduct. In addition to filing a motion to
dismiss Roberson’s complaint under Rule 12(b)(6), McDonald filed a response in opposition to
Roberson’s motion to amend. In its response, McDonald states that the addition of OTM and
Because Roberson is a Mississippi citizen and McDonald is a Texas corporation with its
principal place of business in Texas, diversity jurisdiction is proper in this Court.
Biggs would destroy diversity jurisdiction, as both OTM and Biggs, like McDonald, are
On January 30, 2017, Magistrate Judge Percy issued an order requesting additional
briefing from the parties, ordering them to address the issue of whether OTM and Biggs were
indispensable parties at the time the complaint was filed. The parties complied, and Judge Percy
issued an order granting the motion to amend on February 14, 2017. In his order, Judge Percy,
relying largely upon the United States Supreme Court’s decision in Freeport-McMoran, Inc. v.
KN Energy, Inc., 498 U.S. 426 (1991), held that OTM and Biggs were not indispensable parties
at the time the suit was filed and, therefore, the addition of them to the action would not destroy
complete diversity. Roberson filed his amended complaint the following day.
On February 20, 2017, McDonald filed the present motion, appealing Judge Percy’s
decision under Rule 72(a) of the Federal Rules of Civil Procedure and Rule 72(a)(1) of the Local
Uniform Civil Rules. It argues that Roberson should not have been permitted to amend his
complaint and that Judge Percy erred on multiple grounds in his order granting the motion to
A district judge’s review of an order issued by a magistrate judge is governed by Rule 72
of the Federal Rules of Civil Procedure. Regarding non-dispositive matters, “[t]he district judge
in the case must consider timely objections and modify or set aside any part of the order that is
clearly erroneous or is contrary to law.” FED. R. CIV. P. 72(a). Moreover, “[i]n reviewing such
an order, the district court must find that the magistrate judge’s order is ‘clearly erroneous or
contrary to law.’ Absent such a finding, an order by the magistrate judge should be upheld.”
Brinston v. Dunn, 919 F.Supp. 240, 242 (S.D. Miss. 1996).
As mentioned above, Judge Percy relied heavily on Freeport-McMoRan in making his
ruling, specifically stating:
In Freeport-McMoRan, Inc. v. KN Energy, Inc., 498 U.S. 426, 428 (1991),
the district court allowed the substitution of a non-diverse plaintiff and, after a
bench trial, held in favor of the plaintiffs. The court of appeals held that although
complete diversity was present when the complaint was filed, the addition of the
non-diverse plaintiff destroyed jurisdiction, and as such the court of appeals
reversed and directed that the suit be dismissed for want of jurisdiction. FreeportMcMoRan, Inc., 498 U.S. at 428. On review, the Supreme Court noted the “wellestablished rule that diversity of citizenship is assessed at the time the action is
filed” and that “such jurisdiction may not be divested by subsequent events.” Id.
Noting further that the added non-diverse plaintiff “was not an ‘indispensable’
party at the time the complaint was filed,” the Supreme Court reversed the
judgment of the court of appeals. Id. at 428-29.
With respect to the rule that jurisdiction is assessed at the time an action is
filed, the Fifth Circuit has interpreted the Freeport-McMoRan decision as
acknowledging an exception to the rule where the added non-diverse party “was
an indispensable party at the time the action was filed.” Whalen v. Carter, 954
F.2d 1087, 1096 (5th Cir. 1992) (emphasis in original). Under FreeportMcMoran, an indispensable party’s citizenship “is an appropriate factor in the
‘complete diversity’ calculus even though the [party] was added as a party after
the action was filed.” Whalen, 954 F.2d at 1096. “In other words, the Court in
Freeport McMoRan concluded that the addition of a nondiverse party does not
defeat diversity jurisdiction unless the party was indispensable at the time the
plaintiff filed its complaint.” Id.
Applying this authority to the case at hand, Judge Percy held that “[t]he court is not
convinced that either [OTM] or Biggs are indispensable parties.” Therefore, Roberson was
permitted to amend his complaint to add them as defendants.
In the present motion, McDonald asserts four specific arguments of error: (1) that Judge
Percy erred in applying Rule 19(b); (2) that the burden was erroneously placed on it, rather than
Roberson, to establish that OTM and Biggs are indispensable parties; (3) that Judge Percy
interpreted Freeport-McMoran too broadly; and (4) that granting the motion to amend is
contrary to the principles of judicial economy. The Court will address each of these arguments
The Court will first consider McDonald’s assertion that Judge Percy erred by applying
Rule 19(b). On this point, McDonald states that Roberson moved to amend his complaint under
Rule 15(a)(2) and that his motion should have been decided under Rule 15 rather than Rule
19(b). Specifically, McDonald argues that “the Magistrate chose to introduce and analyze
[Roberson’s] [m]otion under Rule 19 and corresponding authorities that, when read in the
context presented by the Magistrate, tend to support [Roberson’s] [m]otion.” He also avers that
Judge Percy “abandoned his neural [sic] and detached role by setting forth the arguments and
authorities, seemingly on [Roberson’s] behalf[.]”
Frankly, McDonald has not provided sufficient authority to convince the Court that the
magistrate’s decision to apply Rule 19(b) was erroneous. McDonald cited only one case,
DeGruy v. Wade, 586 F. App’x 652 (5th Cir. 2014). However, Degruy is easily distinguishable,
as it concerned the interplay between Rule 15(a) and Rule 59(e). Id. at 654.
Additionally, McDonald argues that Judge Percy erred by “setting forth the arguments
and authorities” which tended to favor Roberson. However, the Fifth Circuit has previously
recognized that “[b]ringing a case pro se is challenging . . . [and the courts] traditionally extend
leniency to pro se litigants[.]” Jones v. FJC Sec. Servs., Inc., 612 F. App’x 201, 203 (5th Cir.
2015). Thus, the Court finds that even if Judge Percy did extend leniency toward Roberson—a
pro se party, he would not have erred in doing so.
Finally, the Court notes that McDonald argues for the application of Rule 15(a) instead of
Rule 19(b). Rule 15(a)(2), though, provides extensive leniency toward plaintiffs seeking to
amend their complaint, specifically stating that “a party may amend its pleading only with the
opposing party’s written consent or the court’s leave. The court should freely give leave when
justice so requires.” FED. R. CIV. P. 15(a)(2) (emphasis added). Thus, the Rule 15 standard
would have provided Judge Percy the ability to freely grant leave to amend.
For these reasons, the Court finds that McDonald’s first argument against Judge Percy’s
decision is without merit.
McDonald next argues that the burden to show that OTM and Biggs are indispensable
was wrongfully placed upon it, rather than Roberson—the moving party. To support its
argument, McDonald cites Judge Percy’s order, wherein he stated that “[t]he court is not
convinced that either [OTM] or Biggs are indispensable parties and the defendant has not
provided the court with sufficient law or fact to find otherwise.” (emphasis added). It is upon
this sentence which McDonald relies for his argument.
The Court, however, finds that the burden was not placed upon McDonald. It appears
that McDonald has read this one sentence in a vacuum instead of in the context of the entire
order. In this Court’s view, Judge Percy was simply emphasizing that McDonald failed to
provide any authority to support its position—not completely shifting the burden of proof.
The last paragraph of the order states that “Plaintiff asserts that when Calvin Hill works
as a bus driver for [OUT], he is under the direct control of Ron Biggs and [McDonald].
According to plaintiff, Hill is acting as an employee of Biggs and McDonald pursuant to
Mississippi labor law. While the court is not fully convinced that such is the case, it does
conclude that for purposes of amending the complaint, [Biggs] and [OUT] were not
indispensable parties at the time suit was filed.” Thus, in reaching his conclusion, Judge Percy
looked to and emphasized Roberson’s arguments. While he did note that McDonald failed to
cite any authority to rebut those assertions—or address the Supreme Court’s Freeport-McMoran
decision, that statement alone did not result, in this Court’s view, in the burden being erroneously
shifted to McDonald. Rather, it seems as though Judge Percy was simply highlighting
McDonald’s failure to provide sufficient authority to support its position. This does not strike
the Court as a shift of the burden of proof. McDonald’s second argument is rejected.
McDonald next argues that Judge Percy’s interpretation of Freeport-McMoRan was
overly broad and incorrect. In its motion, McDonald contends that “[t]he Freeport Court was
faced with a proposed substitution under Federal Rule of Civil Procedure 25; not joinder under
Rule 19. . . However, it has been consistently held the Freeport holding is extremely narrow, and
several courts have suggested that it is limited to additions under Rule 25.”
In Freeport-McMoran, the Supreme Court explicitly held that “diversity of citizenship is
assessed at the time the action is filed. We have consistently held that if jurisdiction exists at the
time an action is commenced, such jurisdiction may not be divested by subsequent events.” 498
U.S. at 428 (citations omitted) (emphasis added); see also Wichita Railroad & Light Co. v.
Public Util. Comm’n of Kansas, 260 U.S. 48, 54, 43 S.Ct. 51, 67 L.Ed. 124 (1922) (“Jurisdiction
once acquired . . . is not divested by a subsequent change in the citizenship of the parties. Much
less is such jurisdiction defeated by the intervention, by leave of the court, of a party whose
presence is not essential to a decision of the controversy between the original parties.”) (internal
citations omitted). While Freeport-McMoran was based upon Rule 25 joinder—not Rule 19, the
principles announced therein appear to nevertheless be applicable to the case at hand. Relying
on this decision, the Fifth Circuit held that “the Court [in Freeport-McMoran] concluded that the
addition of a nondiverse party does not defeat diversity jurisdiction unless the party was
indispensable at the time the plaintiff filed its complaint.” Whalen v. Carter, 954 F.2d 1087,
1095 (5th Cir. 1992). The Court finds that this analysis is applicable to the case at bar.
Consequently, if OTM and Biggs were not indispensable parties at the time the action was filed,
diversity jurisdiction is not destroyed by their joinder.
“Under Federal Rule of Civil Procedure 19(b), a party is regarded as ‘indispensable’ if a
court cannot proceed without the party ‘in equity and good conscience.’” Id. (citing FED. R. CIV.
P. 19(b)). Rule 19(b) provides four factors to be considered in the determination of whether a
party is indispensable: (1) the extent to which a judgment rendered in the person’s absence might
prejudice that person or the existing parties; (2) the extent to which any prejudice could be
lessened or avoided by protective provisions in the judgment, shaping the relief, or other
measures; (3) whether a judgment rendered in the person’s absence would be adequate; and (4)
whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder.
FED. R. CIV. P. 19(b). The Fifth Circuit has made clear that “[t]hese factors are not rigid tests,
but rather are guides to the overaching ‘equity and good conscience’ determination. Pragmatic
and equitable considerations control the Rule 19(b) analysis.” Whalen, 954 F.2d at 1096
Mississippi law provides that “[u]nder the doctrine of respondeat superior, the employer
and employee are jointly and severally liable for injury caused by the employee’s negligence.
The practical implication of joint and several liability is that a plaintiff in a respondeat superior
action may sue either the employer or the employee, or both. Sykes v. Home Health Care
Affiliates, Inc., 125 So.3d 107, 109 (Miss. Ct. App. 2013) (citations omitted) (emphasis added).
Moreover, “American Jurisprudence states the general rule as to necessary parties: ‘The right of
an injured party to sue the employer is not a direct or primary right because the claim is distinct
and separate from the claim against the employee; therefore, the employee is not a necessary
party to an action against an employer.’” Id. (quoting Am.Jur.2d Employment Relationship §
Thus, it appears clear to this Court that Roberson had a choice when he initially filed
suit—he could sue Hill, Hill’s employer, or both. He chose the second option, naming
McDonald as the sole defendant in this cause. Now, he seeks to add Biggs, who was Hill’s
supervisor, and OTM—a subsidiary of McDonald. In the Court’s view, Roberson had the right
under Mississippi law to initially sue only McDonald. Moreover, he remains within his rights to
now add Biggs and OTM, who are allegedly vicariously liable for Hill’s actions. The Court
finds Judge Percy’s ruling that Biggs and OTM were not indispensable parties to be accurate.
Along with the fact that Roberson could sue the employer or employee under Mississippi law,
the Rule 19(b) factors listed above do not weigh in favor of OTM and Biggs being classified as
indispensable parties, especially since a judgment could properly be entered in this cause without
the presence of Biggs or OTM. Therefore, McDonald’s argument is rejected.
Lastly, McDonald avers that allowing Roberson to amend his complaint “is contrary to
the principles of judicial economy.” McDonald emphasizes that Roberson has filed an action
against Calvin Hill in Lafayette County Circuit Court, “alleging the same cause of action and
same set of facts as he alleges in this case.” Further, it argues that “[t]he Magistrate’s Order
allowing Plaintiff to add OTM in this action goes against the established principles of judicial
economy due to the existence of Plaintiff’s parallel state court action against OTM’s employee.”
However, extensive precedent permitting this type of litigation exists. In 1922, the
United States Supreme Court held that “[t]he rule, therefore, has become generally established
that where the action first brought is in personam and seeks only a personal judgment, another
action for the same cause in another jurisdiction is not precluded.” Kline v. Burke Const. Co.,
260 U.S. 226, 230, 43 S.Ct. 79, 67 L.Ed. 226 (1922). The Fifth Circuit has recognized this
principle, holding that “nothing in Article III prevents a state court from litigating the same
controversy pending before a district court.” Marine Shale Processors, Inc. v. U.S. Envtl. Prot.
Agency, 81 F.3d 1371, 1377 (5th Cir. 1996) (citing Kline, 260 U.S. at 230). The Fifth Circuit has
also held that where there are parallel proceedings in state and federal court, and “both suits are
in personam, . . . each court may proceed to adjudicate the controversy independently despite the
pendency of a similar suit in the other court[.]” PPG Indus., Inc. v. Cont’l Oil. Co., 478 F.2d
674, 677 (5th Cir. 1973).
Therefore, despite the fact that duplicative litigation is not extremely efficient, it is not
prohibited. McDonald’s argument is rejected.
Relying on this analysis, the Court finds that McDonald’s motion is not well-taken.
Accordingly, it is hereby ORDERED that the Objection and Motion to Appeal Magistrate
Judge’s Decision  is DENIED.
SO ORDERED, this the 20th day of June, 2017.
/s/ MICHAEL P. MILLS
UNITED STATES DISTRICT JUDGE
NORTHERN DISTRICT OF MISSISSIPPI
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