Harbison v. Rich Gullet and Sons, Inc.

Filing 102

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiff's motion to dismiss Plaintiff's claim against Defendant McDonough-Whitlow, P.C., dismiss and/or sever Defendant Rich Gullet and Sons, Inc.'s cross-claim against McDonoug h-Whitlow, P.C., and dismiss and/or sever McDonough-Whitlow, P.C.s third-party claims against McCann Concrete Products, Inc., McGrath and Associates, and Ameren UE (Doc. 93 ) is GRANTED IN PART and DENIED IN PART. The motion to dismiss Plaintiff& #039;s claim against Defendant McDonough-Whitlow, P.C. is GRANTED; the motion to dismiss and/or sever Defendant Rich Gullet and Sons, Inc.'s cross claim against McDonough is DENIED; and the motion to dismiss and/or sever McDonoughs third part y claims against McCann Concrete Products, Inc., McGrath and Associates, and Ameren UE is DENIED. IT IS FURTHER ORDERED that Plaintiff's claim against Defendant McDonough-Whitlow, P.C., is DISMISSED. IT IS FURTHER ORDERED that Rich Gullet and Sons, Inc.'s request that its crossclaim against McDonough-Whitlow be treated as a third-party claim (Doc. 87 ) is GRANTED. Signed by Magistrate Judge Shirley P. Mensah on 10/29/14. (JWD)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
FRED HARBISON,
Plaintiff,
vs.
RICH GULLET AND SONS, INC., et al,
Defendants.

)
)
)
)
)
)
)
)
)

No. 4:13-CV-1138 SPM

MEMORANDUM AND ORDER
This matter is before the Court on the Court’s own request for briefing on the question of
subject matter jurisdiction. In response to the request, Plaintiff Fred Harbison (“Plaintiff”) filed a
motion to dismiss Plaintiff’s claim against Defendant McDonough-Whitlow (“McDonough”); to
dismiss and/or sever Defendant Rich Gullet & Sons, Inc.’s (“Rich Gullet’s”) cross-claim against
McDonough; and to dismiss and/or sever McDonough’s third-party claims against McCann
Concrete Products, Inc. (“McCann”), McGrath and Associates (“McGrath”), and Ameren UE
(“Ameren”). (Doc. 93). For the reasons stated below, Plaintiff’s motion will be granted in part
and denied in part.
I.

PROCEDURAL HISTORY
On June 14, 2013, Plaintiff, a citizen of the State of Illinois, filed a complaint in this

Court against Rich Gullet, a citizen of the State of Missouri, alleging that Rich Gullet’s
negligence during the unloading of a piece of concrete vault caused Plaintiff injury when the
piece of concrete vault fell on Plaintiff’s truck. In his First Amended Complaint, Plaintiff added a
claim against McDonough, a citizen of Illinois, alleging that McDonough’s negligent design of

1

engineering drawings and instructions had also caused Plaintiff’s injuries. (Doc. 22).1 Rich
Gullet and McDonough subsequently filed cross-claims against one another for contribution and
indemnity. (Docs. 25, 35). McDonough also filed third-party claims seeking contribution and/or
indemnity against McCann (a citizen of Illinois), McGrath (a citizen of Missouri), and Ameren
UE (a citizen of Missouri). (Doc. 35). Thereafter, Plaintiff filed a Second Amended Complaint
adding direct claims against McGrath. (Doc. 54).2
At no time during the filing or answering of these amended complaints, cross-claims, and
third-party claims did the parties or the Court address the possible impact of the addition of these
parties (in particular, the addition of McDonough as a defendant not diverse to Plaintiff) on the
Court’s subject matter jurisdiction. At a Rule 16 conference on September 24, 2014, the Court
raised the issue and requested briefing on the question of the Court’s subject matter jurisdiction.
Rich Gullet and McDonough filed memoranda with the Court, and Plaintiff filed the instant
motion to dismiss its claims against McDonough.
II.

DISCUSSION
A. This Court’s Subject Matter Jurisdiction and Plaintiff’s Claims Against
McDonough
“Federal courts are not courts of general jurisdiction and have only the power that is

authorized by Article III of the Constitution and the statutes enacted by Congress pursuant
thereto.” Marine Equip. Mgm’t Co. v. United States, 4 F.3d 643, 646 (8th Cir. 1993) (citing
Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)). “Jurisdiction may not be
conferred by consent and lack of jurisdiction of the subject matter cannot be waived by the
1

Plaintiff represents in his brief that the First Amended Complaint was filed “by leave of court.”
(Doc. 93, at 2). However, Plaintiff never filed any motion seeking leave to amend his complaint
or add additional parties; he simply filed his amended complaint. The Second Amended Case
Management Order that was in effect at the time stated, “All motions for joinder of additional
parties or amendment of pleadings shall be filed no later than March 31, 2014.” (Doc. 21).
2
Again, Plaintiff did not seek leave before filing his Second Amended Complaint.
2

parties or ignored by the court.” Pac. Nat’l Ins. Co. v. Transp. Ins. Co., 341 F.2d 514, 516 (8th
Cir. 1965). Thus, a federal court must assure itself that the threshold requirement of subject
matter jurisdiction has been met in every case. Bradley v. American Postal Workers Union, AFLCIO, 962 F.2d 800, 802 n.3 (8th Cir. 1992).
The only asserted basis for federal subject matter jurisdiction in this case is the diversity
jurisdiction statute, 28 U.S.C. § 1332(a), which provides that “[t]he district courts shall have
original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value
of $75,000, exclusive of interests and costs, and is between—(1) citizens of different states . . .”
Section 1332(a) applies only when “the citizenship of each plaintiff is different from the
citizenship of each defendant.” Ryan v. Schneider Nat’l Carriers, Inc., 263 F.3d 816, 819 (8th
Cir. 2001) (citing Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996)).
Here, the requirements of the diversity statute were satisfied when the original complaint
was filed, because Plaintiff and Rich Gullet are citizens of different states and because the
complaint indicated that the amount in controversy exceeded $75,000. As a general rule, a
federal court’s jurisdiction attaches when an action is filed, and subsequent developments
ordinarily will not divest the court of jurisdiction. See Freeport-McMoRan, Inc. v. K N Energy,
Inc., 498 U.S. 426, 428 (1991). However, the Supreme Court has explained that “when a plaintiff
files a complaint in federal court and then voluntarily amends the complaint, courts look to the
amended complaint to determine jurisdiction.” Rockwell Int’l. Corp v. United States, 549 U.S.
457, 473-74 (2007).
As Plaintiff, Rich Gullet, and McDonough all acknowledge, Plaintiff’s amendment of his
complaint to include a claim against McDonough destroyed diversity and thus divested the Court
of subject matter jurisdiction in this case. See Owen Equip. & Erection Co. v. Kroger, 437 U.S.

3

365, 374-75 (1978) (holding that when the plaintiff amended its complaint to add a non-diverse
defendant, “complete diversity was destroyed just as surely as if [the plaintiff] had sued [the
non-diverse defendant] in the first instance”); Estate of Alvarez v. Donaldson Co., 213 F .3d 993,
994-95 (7th Cir. 2000) (holding that the plaintiff’s amendment of complaint to add non-diverse
defendants destroyed diversity jurisdiction); American Fiber & Finishing, Inc. v. Tyco
Healthcare Group, LP., 362 F.3d 136, 141-42 (1st Cir. 2004) (same); Martinez v. Duke Energy
Corp., 130 F. App’x. 629, 635 (4th Cir. 2005) (same).
In the instant motion to dismiss, Plaintiff states that he mistakenly believed that his
joinder of McDonough would not destroy subject matter jurisdiction, and he asks the Court to
dismiss his claim against McDonough in order to preserve this court’s subject matter jurisdiction.
Similarly, Defendant Rich Gullet suggests that the Court deny Plaintiff’s motions for leave to
amend his complaint to add McDonough as a defendant,3 thereby rendering the original
complaint in effect and preserving this Court’s subject matter jurisdiction. McDonough requests
that the case be dismissed due to the lack of diversity jurisdiction but does not address the
possibility that Plaintiff may dismiss his direct claims against McDonough.
It is well established that a jurisdictional defect may be cured by dismissal of a party
whose presence destroys diversity jurisdiction, provided that the party being dismissed is not an
indispensable party under Rule 19. See Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826,
832 (1989) (“It is well settled that Rule 21 invests district courts with authority to allow a
dispensable nondiverse party to be dropped at any time, even after judgment has been
rendered.”); Buckley v. Control Data Corp., 923 F.2d 96, 97-98 (8th Cir. 1991) (noting that a
court of appeals may grant a motion to dismiss a dispensable party whose presence spoils
diversity jurisdiction but refusing to dismiss a claim against an indispensable party); Johnson v.
3

As discussed above, however, no such motions were ever filed.
4

Welsh Equip., Inc., 518 F. Supp. 2d 1080, 1085-86 (D. Minn. 2007) (dismissing claims brought
in an amended complaint against nondiverse parties; noting that as joint tortfeasors, the
nondiverse defendants were permissive and not indispensable parties). Dismissal of nondiverse
parties is typically accomplished through Rule 21, which provides that “[p]arties may be dropped
or added by order of the court on motion of any party or of its own initiative at any stage of the
action on such terms as are just.” Fed. R. Civ. P. 21. Alternatively, the Eighth Circuit has
recognized that “when a trial court grants a plaintiff leave to amend the complaint by naming
additional defendants, and the plaintiff fails to inform the court that one or more of those
defendants will destroy diversity, the trial court may reconsider its earlier decision.” Bailey v.
Bayer CropScience L.P., 563 F.3d 302, 307 (8th Cir. 2009).
To determine whether a party is indispensable, the court must first determine whether the
party is one who is “required to be joined if feasible” under Rule 19(a); this is sometimes
referred to as the question of whether the party is “necessary.” See id. at 308. Rule 19(a) requires
a party to be joined if feasible “if: (A) in that person’s absence, the court cannot accord complete
relief among existing parties; or (B) that person claims an interest relating to the subject of the
action and is so situated that disposing of the action in the person’s absence may: (i) as a
practical matter impair or impede the person’s ability to protect the interest; or (ii) leave an
existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent
obligations because of the interest.” Fed. R. Civ. P. 19(a). If the party is required to be joined if
feasible but cannot be joined, the Court then turns to Rule 19(b) to determine whether the party is
indispensable, which requires an assessment of “whether, in equity and good conscience, the
action should proceed among the existing parties or should be dismissed.” Rule 19(b); see also
Bailey, 563 F.3d at 308. To make this determination, the court considers factors that include “(1)

5

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: (A)
protective provisions in the judgment; (B) shaping the relief; or (C) 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.”
Here, none of the parties argue that McDonough is a “necessary” party who must be
joined if feasible under Rule 19(a), nor does the Court so find. It is well established that, as a
general rule, “it is not necessary for all joint tortfeasors to be named as defendants in a single
lawsuit.” Bailey, 563 F.3d at 308; Lustgraaf v. Behrens, 619 F.3d 867, 885 (8th Cir. 2010)
(same). No party suggests that the dismissal of Plaintiff’s claims against McDonough would
preclude the court from according complete relief, would impede any party’s ability to protect its
interests, or would expose any party to a risk of multiple or inconsistent judgments.
Moreover, even if McDonough were a “necessary” party, the Court finds that it is not an
indispensable party under Rule 19(b) whose absence as a defendant would warrant dismissal of
the case. No party has asserted that it will suffer any prejudice from the dismissal of Plaintiff’s
direct claims against McDonough. Notably, as discussed below, the parties in this case other
than Plaintiff may still assert third-party claims against McDonough. It appears that the only
party who might possibly be prejudiced as a result of the dismissal of Plaintiff’s claims against
McDonough is Plaintiff himself, who may be unable to recover from McDonough directly in this
action if Plaintiff’s claims against McDonough are dismissed. However, as the party requesting
the dismissal of the claim, Plaintiff apparently believes that the possible prejudice to him does
not outweigh his desire to remain in federal court.

6

Under these circumstances, the Court finds that McDonough is a dispensable party, and it
will grant Plaintiff’s motion to dismiss its claims against McDonough from its Amended
Complaints, thereby restoring this Court’s subject matter jurisdiction over the action.4
B.

Defendant Rich Gullet’s Claim Against McDonough

Rich Gullet requests that if the Court dismisses Plaintiff’s claim against McDonough,
Rich Gullet’s current “cross-claim” against McDonough be considered instead to be a third-party
claim. Plaintiff opposes this request and moves that the Court dismiss and/or sever this claim.
Under Rule 14(a)(1), “[a] defending party may, as a third-party plaintiff, serve a
summons and complaint on a nonparty who is or may be liable to it for all or part of the claim
against it.” Defendant Rich Gullet’s claim against McDonough is for contribution and asserts
that McDonough “is or may be liable to [Defendant Rich Gullet] for all or part of a claim
asserted by Plaintiff against [Defendant Rich Gullet] . . .” Thus, Defendant Rich Gullet’s claim
against McDonough could have been brought as third-party complaint under the Federal Rules of
Civil Procedure, and the Court will treat this claim as a third-party claim rather than a crossclaim.

4

The Court could reach the same result by reconsidering the question of whether Plaintiff should
ever have been permitted to file its First Amended Complaint adding McDonough as a
defendant. See Bailey, 563 F.3d at 307 (holding that where “the district court granted [the
plaintiff’s] motion to amend his complaint and permitted [the plaintiff] to name two additional
defendants without the court realizing such joinder destroyed the court’s diversity jurisdiction,”
the court “had discretionary authority to reconsider and reverse its previous joinder decision”).
However in light of all of the pleadings that have been filed since Plaintiff’s original Complaint,
the Court finds that it would be more efficient and less confusing to simply dismiss Plaintiff’s
claims against McDonough. This has the substantially same effect as denying Plaintiff leave to
amend his complaint to add a claim against McDonough while granting Plaintiff leave to amend
his complaint to add a claim against McGrath and to add the various other factual allegations
contained in the Second Amended Complaint.
7

The Court must also determine whether this Court has subject matter jurisdiction over
Rich Gullet’s third-party claim against McDonough. That question is governed by the
supplemental jurisdiction provisions of 28 U.S.C. § 1367, which provide, in relevant part:
(a) Except as provided in subsections (b) and (c) or as expressly provided
otherwise by Federal statute, in any civil action of which the district courts have
original jurisdiction, the district courts shall have supplemental jurisdiction over
all other claims that are so related to claims in the action within such original
jurisdiction that they form part of the same case or controversy under Article III
of the United States Constitution. Such supplemental jurisdiction shall include
claims that involve the joinder or intervention of additional parties.
(b) In any civil action of which the district courts have original jurisdiction
founded solely on section 1332 of this title, the district courts shall not have
supplemental jurisdiction under subsection (a) over claims by plaintiffs against
persons made parties under Rule 14 . . . when exercising supplemental jurisdiction
over such claims would be inconsistent with the jurisdictional requirements of
section 1332.

It is undisputed that Rich Gullet’s third-party claim against McDonough forms part of the
same case or controversy as Plaintiff’s original claim against Rich Gullet. Thus, this Court has
supplemental jurisdiction over the claim unless the exception of § 1367(b) applies. The Court
finds that it does not. First, Rich Gullet and McDonough are citizens of different states, so
exercising jurisdiction over this claim would not be inconsistent with the jurisdictional
requirements of section 1332. Second, regardless of the citizenship of Rich Gullet and
McDonough, § 1367(b) applies by its terms only to “claims by plaintiffs,” and courts have
repeatedly held that it does not apply to claims made by defendants. See Ubben v. Saunder
Woodworking Co., No. C05-3043-PAZ, 2006 WL 1285104, at *2 (N.D. Iowa May 10, 2006)
(holding that the defendant’s third-party claim against a party not diverse to the original plaintiff
did not destroy diversity jurisdiction; noting that “section 1367(b) is designed to prevent
plaintiffs from asserting claims they otherwise would not be able to bring for want of subject

8

matter jurisdiction”); State Nat’l Ins.Co. v. Yates, 391 F.3d 577, 580 (5th Cir. 2004) (holding that
the court had jurisdiction over a defendant’s claims against a third-party defendant not diverse to
the original defendant; stating, “‘plaintiff’ in § 1367(b) refers to the original plaintiff in the
action—not to a defendant that happens also to be a counter-plaintiff, cross-plaintiff, or thirdparty-plaintiff”); Grimes v. Mazda N. Am. Operations, 355 F.3d 566, 572 (6th Cir. 2004) (“The
supplemental jurisdiction provision, 28 U.S.C. § 1367(b), states congressional intent to prevent
original plaintiffs—but not defendants or third parties—from circumventing the requirements of
diversity.”). Thus, the Court concludes that it has supplemental jurisdiction over Rich Gullet’s
third-party claims against McDonough.
Next, the Court must address Plaintiff’s motion to dismiss and/or sever Defendant’s
third-party claim against McDonough. Under Rule 14(a)(4), “Any party may move to strike [a]
third party claim, to sever it, or to try it separately.” The Advisory Committee Notes to the 1963
Amendment state, “the court has the discretion to strike the third-party claim if it is obviously
unmeritorious and can only delay or prejudice the disposition of the plaintiff’s claim, or to sever
the third-party claim or accord it separate trial if confusion or prejudice would otherwise result.”
Plaintiff provides no authority or argument in support of his motion to dismiss Rich
Gullet’s third-party claim against McDonough, and the third-party claim is not “obviously
unmeritorious,” so the motion to dismiss will be denied.
Plaintiff argues that the third-party claim should be severed and left to a separate trial
because it “complicates the present litigation and prejudices plaintiff.” He claims that the
prejudice “includes: detraction from plaintiff’s theory of liability, multiplicity of claims, multiple
instruction submissions, and confounding evidence.” (Doc. 100, at 3). Plaintiff provides no
additional argument and cites no cases in which a court granted a motion to sever. In its

9

opposition, Rich Gullet argues that Plaintiff has failed to show any real prejudice from trying the
claims together and contends that trying the claims separately would result in a greater likelihood
of jury confusion and an unnecessary expenditure of judicial resources.
The Court agrees with Rich Gullet. Plaintiff’s claims against Rich Gullet and Rich
Gullet’s claims against McDonough both arise out of the same occurrence: the lifting of the
concrete vault and the dropping of the vault on Plaintiff’s truck. The jury will be in the best
position to evaluate the possible of the various parties involved if it hears all of the relevant
evidence. Moreover, the Court sees no reason to require the expenditure of judicial resources
necessary to have two separate juries evaluate these claims. Although the Court acknowledges
that the inclusion of an additional claim would “complicate” the present litigation, that is
something that would be true of almost any third-party claim and is not a sufficient reason to
grant a motion to sever.
For the above reasons, Plaintiff’s motion to dismiss or sever Rich Gullet’s claims against
McDonough will be denied.
C.

McDonough’s Claims Against Defendants McCann, McGrath, and Ameren

McDonough has filed third-party claims against McCann, McGrath, and Ameren. As a
preliminary matter, the Court finds that it has supplemental jurisdiction over these claims under
28 U.S.C. § 1367. These claims for contribution and/or indemnity clearly form part of the same
case or controversy as Plaintiff’s claim against Rich Gullet. Plaintiff argues that no jurisdiction
exists over McDonough’s claim against McCann because McDonough and McCann are both
citizens of Illinois. However, as discussed above, the exception to supplemental jurisdiction
described in § 1367(b) for claims that do not satisfy the requirements of § 1332 applies only to
claims brought by “plaintiffs,” and not to claims brought by other parties such as McDonough.

10

See State Nat’l Ins. Co. v. Yates, 391 F.3d 577, 580 (5th Cir. 2004) (holding that the court had
supplemental jurisdiction over a defendant’s claims against a third-party defendant where the
defendant and third-party defendant were citizens of the same state); Grimes v. Mazda N. Am.
Operations, 355 F.3d 566 (6th Cir. 2004). Thus, the Court will deny Plaintiff’s motion to dismiss
McDonough’s claim against McCann on this ground.
Plaintiff also asks the Court to dismiss McDonough’s third-party claim against McCann
because the Missouri Workmen’s Compensation Law releases defendant McCann from liability.
However, Plaintiff has not fully briefed this argument (it is mentioned only in two sentences of
Plaintiff’s brief) and neither McDonough nor McCann have had the opportunity to address it.
The Court will deny the motion to dismiss the claim against McCann on this ground at this time.
Presumably, if McCann believes that the claims against it are barred under Missouri law,
McCann will move to dismiss those claims.
Finally, Plaintiff requests that the Court sever these third-party claims on the ground that
they complicate the present litigation and prejudice Plaintiff. However, as with Plaintiff’s motion
to sever Rich Gullet’s third-party claim, Plaintiff offers the Court no explanation of how it would
be prejudiced by the inclusion of these claims in this action and offers the Court no persuasive
reason to exercise its discretion to sever the claims. As with Rich Gullet’s third-party claim, the
Court finds that the interests of clarity for the jury and judicial economy favor including all of
these claims in a single action.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s motion to dismiss Plaintiff’s claim against
Defendant McDonough-Whitlow, P.C., dismiss and/or sever Defendant Rich Gullet and Sons,
Inc.’s cross-claim against McDonough-Whitlow, P.C., and dismiss and/or sever McDonough-

11

Whitlow, P.C.’s third-party claims against McCann Concrete Products, Inc., McGrath and
Associates, and Ameren UE (Doc. 93) is GRANTED IN PART and DENIED IN PART. The
motion to dismiss Plaintiff’s claim against Defendant McDonough-Whitlow, P.C. is
GRANTED; the motion to dismiss and/or sever Defendant Rich Gullet and Sons, Inc.’s cross
claim against McDonough is DENIED; and the motion to dismiss and/or sever McDonough’s
third party claims against McCann Concrete Products, Inc., McGrath and Associates, and
Ameren UE is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s claim against Defendant McDonoughWhitlow, P.C., is DISMISSED.
IT IS FURTHER ORDERED that Rich Gullet and Sons, Inc.’s request that its crossclaim against McDonough-Whitlow be treated as a third-party claim (Doc. 87) is GRANTED.

Dated: October 29, 2014.
/s/ Shirley Padmore Mensah
SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE

12