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Harbison v. Rich Gullet and Sons, Inc.

United States District Court, E.D. Missouri, Eastern Division

October 29, 2014

RICH GULLET AND SONS, INC., et al., Defendants.



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.


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 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.


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 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, AFL-CIO, 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. ยง 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. 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. 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) the extent to which a judgment rendered in the person's absence might prejudice that person or the existing ...

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