Hallmark County Mutual Insurance Company v. Wilson et al
OPINION & ORDER by Magistrate Judge Kimberly E. West denying 17 Motion to Dismiss for Lack of Jurisdiction. (adw, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
HALLMARK COUNTY MUTUAL
INSURANCE COMPANY, a Texas
J.D. WILSON, an individual;
CHAD SCOTT, an individual;
SOONER EMERGENCY SERVICE, INC., )
an Oklahoma corporation; and
MORGAN TOWING AND RECOVERY,
an Oklahoma corporation,
Case No. CIV-16-120-KEW
OPINION AND ORDER
This matter comes before the Court on Defendants Sooner
Emergency Service, Inc. and Morgan Towing and Recovery’s Motion to
Dismiss (Docket Entry #17).
Plaintiff initiated this action on
April 7, 2016, seeking recovery for negligence, contribution and
indemnification, and for the recovery of property stemming from a
traffic accident occurring on February 18, 2016 in Wagoner County,
Plaintiff brings its claims as the insurer of and a
subrogee to the rights of Jesus Sanchez d/b/a JVS Transport
(“Sanchez), a party whose tractor trailer was destroyed as a result
Defendants Sooner Emergency Service, Inc. and Morgan Towing and
Recovery (collectively referred to as the “Moving Defendants”)
incurred expenses in the removal of disabled vehicles from the
scene and to provide environmental cleanup services.
The Moving Defendants contend in the subject Motion that
dismissal is appropriate since (1) the amount in controversy is
necessary to remain in federal court; and (2) Plaintiff failed to
join an indispensable party, the inclusion of whom would defeat
complete diversity of citizenship.
The Complaint alleged that the
Moving Defendants billed Sanchez and Plaintiff for towing and
cleanup services in the amount of $78,131.40.
They now assert,
however, that in a related state court action they have decreased
their demand for services to an amount less than $75,000.00.
decreased amount of $71,910.10 was asserted in the state court
action on May 31, 2016 after it was determined that Defendant
Morgan Towing and Recovery’s combined billing with Defendant Sooner
Emergency Service, Inc. include a 25 percent mark up of Sooner’s
bill which was not appropriate.
Federal jurisdiction based upon diversity of citizenship
requires complete diversity of citizenship of the parties named in
the action and an amount in controversy in excess of $75,000.00,
exclusive of interest and costs.
28 U.S.C. § 1332(a).
of-filing” rule requires a determination of “the jurisdictional
facts as they are when the complaint is filed, not as they might be
upon final judgment.”
Symes v. Harris, 472 F.3d 754, 758 (10th
This includes the amount in controversy.
time the Complaint was filed, the Moving Defendants had submitted
invoices in the amount of $78,131.40 for payment.
evidence supported Plaintiff’s assertion that the jurisdictional
amount was satisfied.
The Moving Defendants’ subsequent and
apparently voluntary reduction in the invoice does not affect the
The Moving Defendants also assert that Sanchez, a resident of
Texas, is an indispensable party to this litigation.
that complete relief cannot be afforded the parties to this case
without Sanchez’s inclusion as a party.
The determination as to
whether a party is indispensable is governed by the application of
Fed. R. Civ. P. 19(a).
This Rule provides that a party is
in that person’s absence, the court cannot accord
complete relief among existing parties; or
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
as a practical matter impair or impede the
person’s ability to protect the interest; or
(ii) leave an existing party subject to a
obligations because of the interest.
Fed. R. Civ. P. 19(a).
Once the determination is made on the person’s necessity to
the action, the Court must determine whether joinder of the
necessary party is feasible.
Fed. R. Civ. P. 19(b).
If joinder is
not feasible, the Rule requires an analysis of whether the action
should continue or should be dismissed.
The necessity of Sanchez’s joinder in this case turns upon an
examination of the nature of this action. Plaintiff brings a claim
against Defendants Wilson and Scott as alleged tortfeasors in the
accident for the recovery of the property damages paid pursuant to
its contractual obligation under the insurance policy it issued to
It does not bring any negligence claims for recovery of
damages from these tortfeasors for other losses which Sanchez may
or may not have sustained but which were not covered by the
insurance policy with Plaintiff. Additionally, the claims asserted
by Plaintiff against the Moving Defendants are limited to a
determination of the cleanup and towing fees charged by these
parties, again for which Plaintiff may be contractually liable to
As a subrogee, Plaintiff will step into the shoes of
Sanchez for the purpose of determining these amounts and is subject
to the defenses that the Moving Defendants may assert, including
Employers Mut. Cas. Co. v. Mosby, 943
P.2d 593, 595 (Okla. 1997).
Since any defenses which the Moving
Defendants might possess can be asserted against Plaintiff, the
parties to this action may be afforded complete relief and Sanchez
is not indispensable to this action.
As a result, diversity of
citizenship and the attendant jurisdiction may be maintained.
IT IS THEREFORE ORDERED that Defendants Sooner Emergency
Service, Inc. and Morgan Towing and Recovery’s Motion to Dismiss
(Docket Entry #17) is hereby DENIED.
IT IS SO ORDERED this 11th day of January, 2017.
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
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