2019 WL 637710

United States District Court, S.D. Alabama, Southern Division.
WILLIE J. FIGGERS, Plaintiff,
v.
CARROLL FULMER LOGISTICS CORP., d/b/a/ CARROLL FULMER TRUCKING, et al., Defendants.
CIVIL ACTION NO. 17-00476-KD-MU
|
Filed 02/14/2019

ORDER
KRISTI K. DuBOSE CHIEF UNITED STATES DISTRICT JUDGE
*1 This action is before the Court on the motion for summary judgment and supporting documents filed by Defendant Carroll Fulmer Logistics Corp. d/b/a Carroll Fulmer Trucking, the response filed by Plaintiff Willie J. Figgers, and Fulmer Trucking’s reply (docs. 21, 25, 26). Upon consideration, and for the reasons set forth herein, the motion for summary judgment is GRANTED in favor of Fulmer Trucking as to Count One1 and Count Four claiming wantonness, and Count Three claiming negligent entrustment.

The Court finds that genuine issues of material fact exist regarding negligence as claimed in Count Two2 and Count Four. Therefore, summary judgment is DENIED as to these claims.3

I. Factual and procedural background4
Figgers alleges that on the night of July 20, 2015, he was a pedestrian on Highway 43 North in Thomasville, Alabama, when he was struck by a tractor trailer truck owned by Fulmer Trucking and driven by employee John Doe (now identified as Richard Freeman). Figgers testified that he was walking on the grass beside the road when,
I felt something hit me from the back. It threw me up in the air and I landed on my right side. I came down on this side and my left leg got thrown in the highway. And that’s when the trailer ran over my leg. And then when the trailer hit my leg it popped me up like this here, (motioning) and I was able to kick my leg back out of the highway and roll back over further in the grass than I was.
(Doc. 21-3, p. 2-3).

Figgers testified that he was struck on his left shoulder and fell on his right side which caused him to break his right thumb and right toes (Id., p. 4). Figgers explained that his right leg was on the grass and his left leg was on either the concrete or the asphalt when the truck ran over his leg. (Id., p. 8-9). Figgers testified that he did not “know exactly what hit” him, but after he was struck he saw the trailer pass. (Id., p. 4).

Figgers could not say whether the truck drove up on the grass before he was struck because he was hit from the back. (Id., p. 9, “I can’t tell what it did before it got to me. I know it hit me from the back. So, I’m not gonna sit here and say it did or didn’t because it hit me from the back.”). Figgers stated that he did not know where the truck tires were but “tire marks weren’t on the grass.” (Id.). Figgers testified that the driver did not stop.

Figgers sustained bodily injury, primarily a broken tibia and fibula in his left leg, and experienced pain and suffering and mental anguish. He seeks damages for his injuries, out of pocket medical expenses, and future medical expenses. Figgers claims that Freeman/John Doe’s conduct was wanton (Count One) and negligent (Count Two) (doc. 1-2, Exhibit B, amended complaint). He also alleges that Fulmer Trucking negligently entrusted its vehicle to Freeman/John Doe (Count Three) and that Freeman/John Doe acting as an agent, servant or employee of Fulmer Trucking, negligently and/or wantonly operated the tractor trailer and caused it to collide with Figgers (Count Four). (Id.) Fulmer Trucking moves for summary judgment as to all counts in the amended complaint.

II. Conclusions of Law

A. Standard of Review
*2 “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a) (Dec. 2010). Defendant, as the party seeking summary judgment bears “the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991) (the party seeking summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.”) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553 (1986)). In deciding whether the Defendant has met its initial burden, the Court must review the record and draw all reasonable inferences therefrom in a light most favorable to Plaintiff, as the non-moving party. See Whatley v. CNA Ins. Co., 189 F.3d 1310, 1313 (11th Cir. 1999).

Once Defendant meets this responsibility, the burden shifts to Plaintiff, as the non-movant, to show the existence of a genuine issue of material fact that would preclude summary judgment. See Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “In reviewing whether the [non-movant has met the] burden, the court must stop short of weighing the evidence and making credibility determination of the truth of the matter. Instead, the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 999 (11th Cir. 1992) (citing Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S. Ct. 2505 (1986) ((bracketed text added). However, Defendant would be entitled to summary judgment if Plaintiff fails “to make a sufficient showing on an essential element of [his] case with respect to which [he has] the burden of proof.’ ” In re Walker, 48 F. 3d 1161, 1163 (11th Cir. 1995) (quoting Celotex Corp., 477 U.S. at 323, 106 S. Ct. at 2552) (bracketed text added). Overall, the Court must “resolve all issues of material fact in favor of the [Plaintiff], and then determine the legal question of whether [Defendant is] entitled to judgment as a matter of law under that version of the facts.” McDowell v. Brown, 392 F.3d 1283, 1288 (11th Cir. 2004) (citing Durruthy v. Pastor, 351 F.3d 1080, 1084 (11th Cir. 2003)) (bracketed text added).

The mere existence of any factual dispute will not automatically require denial of a motion for summary judgment; rather, only factual disputes that are material preclude entry of summary judgment. Lofton v. Secretary of Dept. of Children and Family Services, 358 F.3d 804, 809 (11th Cir. 2004). “An issue of fact is material if it is a legal element of the claim under the applicable substantive law which might affect the outcome of the case. It is genuine if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party.” Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 807 (11th Cir. 2010) (citation omitted).

B. Analysis

1. Count One and Count Four alleging wantonness
In Count One, Figgers alleges that Freeman/John Doe wantonly operated a motor vehicle and allowed that motor vehicle to hit him. In Count Four, Figgers alleges that Freeman/John Doe, as an agent, servant or employee of Fulmer Trucking wantonly operated the motor vehicle and caused the vehicle to hit him.

On motion for summary judgment, Fulmer Trucking argues that Figgers has not produced any evidence to submit to the jury that Freeman/John Doe acted wantonly. Fulmer Trucking argues that if Freeman/John Doe’s actions were not wanton, then it cannot be held responsible for his actions. Fulmer Trucking states that there is no evidence that Freeman/John Doe consciously violated any law, consciously or intentionally committed any wrongful act or consciously omitted some know duty with reckless indifference to the consequences.

*3 Under Alabama law, “[t]o establish wantonness, the plaintiff must prove that the defendant, with reckless indifference to the consequences, consciously and intentionally did some wrongful act or omitted some known duty.” Hilyer v. Fortier, 227 So. 3d 13, 22–23 (Ala. 2017) (citations omitted).

Figgers responds that wantonness is shown because Freeman/John Doe consciously violated the law. Specifically, Freeman struck him with his motor vehicle and then left the scene of the accident. However, Figgers has presented no evidence that Freeman intentionally or with reckless indifference left his lane or that he was aware that Figgers had been struck when he left the scene. In sum, Figgers has failed to present any evidence that Freeman/John Doe acted with reckless indifference or consciously and intentionally committed a wrongful act. See In re Walker, 48 F. 3d at 1163 (Defendant is entitled to summary judgment if Plaintiff fails “to make a sufficient showing on an essential element of [his] case with respect to which [he has] the burden of proof.”). Accordingly, summary judgment is granted in favor of Fulmer Trucking as to the claims of wantonness in Count One and Count Four.

2. Count Two and Count Four alleging negligence
In Count Two, Figgers claims that Freeman/John Doe negligently operated a motor vehicle and allowed that motor vehicle to hit him. In Count Four, Figgers alleges that Freeman/John Doe, as an agent, servant or employee of the Fulmer Trucking negligently operated the motor vehicle and caused the vehicle to hit him.

On motion for summary judgment Fulmer Trucking argues that Figgers has no evidence that Freeman/John Doe failed to properly and reasonably operate the vehicle or otherwise breached any duty owed to Figgers. Fulmer Trucking points to Figgers’ testimony that he was walking in an elevated, curbed grassy area off the road and that the vehicle he claims hit him from behind, did not come onto the grass. Fulmer Trucking argues that Figgers’ own testimony shows that Freeman/John Doe did not breach any duty to stay in his lane of travel.

Under Alabama law, “[t]o establish negligence, the plaintiff must prove: (1) a duty to a foreseeable plaintiff; (2) a breach of that duty; (3) proximate causation; and (4) damage or injury.” Hilyer, 227 So. 3d at 22 (citations omitted).

Freeman owed a duty to not veer from his lane, especially when a pedestrian is present. However, there is a factual dispute whether there was a breach of that duty. Specifically, Figgers alleges that Fulmer Trucking’s vehicle struck him from behind while he was walking on a grassy area beside the road. Fulmer Trucking argues that there is no evidence that its vehicle left the road and came onto the grassy area. However, the evidence does not need to show that the truck came onto the grassy area. Negligence may be established if the jury finds that Freeman drove out of his lane onto the paved shoulder. If Figgers was struck by the truck while he was walking in the grass, the only reasonable inference is that Freeman veered out of the lane and onto the paved shoulder of the road. (See, Doc. 21-4). Because Figgers’ evidence is to be believed, and all justifiable inferences are to be drawn in his favor, the Court finds that there is a genuine issue of material fact as to whether Fulmer Trucking’s vehicle struck Figgers and whether Freeman maintained his lane of travel. Accordingly, Fulmer Trucking’s motion for summary judgment is denied as to Figgers’ claims of negligence.

3. Count Three alleging negligent entrustment
*4 In Count Three, Figgers claims that Fulmer Trucking is negligent for entrusting the truck and trailer to its driver Freeman/John Doe. On motion for summary judgment, Fulmer Trucking argues that Figgers has not presented any evidence that Freeman/John Doe was incompetent to drive the truck and trailer.

In response, Figgers summarily states that Fulmer Trucking “negligently trained” the driver and that Fulmer Trucking “allowed him to operate in violation of the current law” (doc. 25, p. 13). In support, Figgers states that the driver hit him, a pedestrian, and kept “going in conflict with the rules of the road and the Code of Alabama subsection 32” (Id.).

In order to state a claim for negligent entrustment, Figgers must show “(1) an entrustment of the vehicle; (2) to an incompetent; (3) with knowledge that he is incompetent; (4) negligent … use of the entrusted vehicle which proximately cause the plaintiff’s damages; and (5) damages.” White v. Miller, No. 2018 WL 6181170, at *2 (N.D. Ala. Nov. 27, 2018) (quoting Penland v. Allsup, 527 So. 2d 715, 715 (Ala. 1988)). “The doctrine of negligent entrustment is founded on the primary negligence of the entrustor in supplying a motor vehicle to an incompetent driver, with the manifestations of the incompetence of the driver as a basic requirement of the negligent entrustment action.” Mason v. New, 475 So. 2d 854, 856 (Ala. 1985). The Alabama Supreme Court5 has generally defined “incompetency” as habitual carelessness which shows unreliability. Southland Bank A&A Drywall Supply Co., 21 So. 3d 1196, 1215 (Ala. 2008). However, a “mistake or single act of negligence on the part of an employee does not establish incompetency: Negligence is not synonymous with incompetency. The most competent may be negligent.” Id. at 1216 (internal citations omitted).

Figgers has failed to provide any evidence that Freeman/John Doe was an incompetent driver or that Fulmer Trucking knew he was incompetent and entrusted the truck and trailer to him. Instead, Figgers argues that incompetence is shown because the driver did not stop after hitting him. As stated above, a mistake or single act of negligence does not establish incompetency. Accordingly, summary judgment is granted in favor of Fulmer Trucking as to Count Three.

III. Conclusion
Upon consideration, and for the reasons set forth herein, the motion for summary judgment is GRANTED in favor of Fulmer Trucking as to Count One and Count Four claiming wantonness, and Count Three claiming negligent entrustment.6 The Court finds that genuine issues of material fact exist regarding negligence as claimed in Count Two and Count Four. Therefore, summary judgment is DENIED as to these claims.

DONE and ORDERED this the 14th day of February 2019.

All Citations
Slip Copy, 2019 WL 637710

Footnotes

1

Although Count One appears to be asserted against the driver, in his demand Figgers references “defendants”.

2

Count Two is asserted against John Doe only.

3

Count Five (fictitious parties) is dismissed for failure to state a cognizable claim.

4

“Although the ‘facts,’ as accepted for purposes of summary judgment, may not be the actual facts of the case, ‘our analysis … must begin with a description of the facts in the light most favorable to the plaintiff, and our decision must accept those facts.” Feliciano v. City of Miami Beach, 707 F.3d 1244, 1247 (11th Cir. 2013) (citation omitted).

5

Parks Institute v. Target Corp., 812 F.3d 824, 829 (11th Cir. 2016) (“[A] federal court sitting in diversity applies the substantive law of the state in which it sits.”).

6

Count Five (fictitious parties) is dismissed for failure to state a cognizable claim.

2019 WL 528441

United States District Court, E.D. California.
LEONEL GONZALEZ, et al., Plaintiffs,
v.
JAG TRUCKING, INC. et al, Defendants.
1:18-cv-01046-LJO-JLT

Filed 02/11/2019

MEMORANDUM DECISION AND ORDER RE DEFENDANT TODD KITTINGER’S MOTION TO DISMISS (ECF No. 45, 48)
Lawrence J. O’Neill UNITED STATES CHIEF DISTRICT JUDGE

I. PRELIMINARY STATEMENT TO PARTIES AND COUNSEL
*1 Judges in the Eastern District of California carry the heaviest caseloads in the nation, and this Court is unable to devote inordinate time and resources to individual cases and matters. Given the shortage of district judges and staff, this Court addresses only the arguments, evidence, and matters necessary to reach the decision in this order. The parties and counsel are encouraged to contact the offices of United States Senators Feinstein and Harris to address this Court’s inability to accommodate the parties and this action. The parties are required to reconsider consent to conduct all further proceedings before a Magistrate Judge, whose schedules are far more realistic and accommodating to parties than that of U.S. Chief District Judge Lawrence J. O’Neill, who must prioritize criminal and older civil cases.

Civil trials set before Chief Judge O’Neill trail until he becomes available and are subject to suspension mid-trial to accommodate criminal matters. Civil trials are no longer reset to a later date if Chief Judge O’Neill is unavailable on the original date set for trial. Moreover, this Court’s Fresno Division randomly and without advance notice reassigns civil actions to U.S. District Judges throughout the Nation to serve as visiting judges. In the absence of Magistrate Judge consent, this action is subject to reassignment to a U.S. District Judge from inside or outside the Eastern District of California.

II. INTRODUCTION
This action stems from a motor vehicle accident that occurred on May 8, 2018, involving multiple vehicles on northbound Interstate Highway 5, one mile south of Grapevine Road in Kern County, California. On June 14, 2018, Plaintiffs Leonel Gonzalez and Jonathan Basulto (collectively “Plaintiffs”) sued Defendants JAG Trucking, Inc. (“JAG”) and Joshua Nicholson (collectively “Defendants”) in Superior Court of the State of California, County of Kern. ECF No. 1, Ex. A. The complaint generally alleges that Defendants negligently owned or operated a tractor trailer which caused Plaintiffs’ personal and property damages, in connection with the accident. Id. On August 9, 2018, Defendants removed the action to this Court on the basis of diversity jurisdiction pursuant to 28 U.S.C. § 1332, submitting that both Plaintiffs are citizens of California and both Defendants are citizens of Oregon. Id. at 2. Defendants answered the complaint on August 16, 2018, ECF No. 4, and filed a “Cross-Claim” impleading Juan Carlos Hernandez & Francisco Javier Jimenez Tapia d/b/a Pitufos Transport (“Pitufos”), alleging that Pitufos was the proximate cause of any alleged injuries to Plaintiffs and stating five causes of action, including equitable and implied indemnity, apportionment of fault, contribution, and declaratory relief. ECF No. 5.

The Defendants then filed a first amended “Cross-Claim” and in addition to Pitufos added seventeen additional “cross-defendants” by way of a sixth cause of action for declaratory relief. ECF No. 8.1 The additional Third-Party Defendants include: (1) Jose Alvarado, (2) Juana Leuvano, (3) Leah Alvardo, (4) Andrew Lerma, (5) Frank Lopez, (6) Isiah Gonzalez, (7) Stephanie Rutherford, (8) Noelle Krawiec, (9) Andres Krawiec, (10) Rafael Martinez, (11) Eduardo Guardia, (12) Stephen Fisher, (13) Todd Kittinger,2 (14) Martin Gomez, (15) Mark Blanchard, (16) Ana Rodriguez, and (17) Gilberto Rodriguez. Id. at 10. These individuals were allegedly either drivers or passengers of other vehicles involved in the May 8, 2018 collision and Defendants claim that these seventeen Third-Party Defendants “are potential claimants in the underlying lawsuit filed by Plaintiffs herein.” Id. at ¶ 74. The Third-Party Complaint further contends that Defendants JAG and Nicholson “desire a judicial determination of the percentage or ratio of contributing fault as between all parties so that the actual contributing fault of each party can be determined” and that “[d]eclaratory relief is necessary and appropriate at this time in order to avoid multiplicity of suits and circuit [sic] of actions and in order that all parties may ascertain their rights and duties.” Id. at ¶¶ 76-77. As the basis for jurisdiction in its TPC against these eighteen Third-Party Defendants, Defendants submit that there is original jurisdiction under 28 U.S.C. § 1332 and additionally submit that “[a] defendant may implead a Third-Party Defendant who is of the same citizenship as the plaintiff without destroying diversity if ancillary jurisdiction over the third-party claim is present. (F.R.C.P. 14).” ECF No. 8 at ¶¶ 11, 13.

*2 Of the eighteen Third-Party Defendants named in the TPC, Todd Kittinger makes a motion pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss the sixth cause of action against seventeen Third-Party Defendants, arguing that the “Sixth Cause of Action would be better stated as an Interpleader cause of action pursuant to FRCP 22 and not a Declaratory Judgment cause of action pursuant to FRCP 57” and therefore should be dismissed. ECF No. 45-3 at 4. Defendants JAG and Nicholson filed an opposition to the motion to dismiss and Kittinger replied. ECF Nos. 54-55. The matter was taken under submission on the papers pursuant to Local Rule 230(g). For reasons set forth below, Kittinger’s motion to dismiss is denied.

III. LEGAL STANDARD
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) is a challenge to the sufficiency of the allegations set forth in the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A 12(b)(6) dismissal is proper where there is either a “lack of a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). In determining whether a complaint states a claim upon which relief may be granted, the Court accepts as true the allegations in the complaint, construes the pleading in the light most favorable to the party opposing the motion, and resolves all doubts in the pleader’s favor. Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008).

Under Rule 8(a), a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief,” in order to “give the defendant fair notice of what the … claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A plaintiff is required to allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).

“Dismissal without leave to amend is proper if it is clear that the complaint could not be saved by amendment.” Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1051 (9th Cir. 2008). To the extent that the pleadings can be cured by the allegation of additional facts, the Court will afford the plaintiff leave to amend. Cook, Perkiss and Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990) (citations omitted).

IV. DISCUSSION
In sum, Third-Party Defendant Kittinger’s motion to dismiss submits that because Defendants’ Third-Party Complaint is solely seeking a determination of the extent of liability attributable to Defendants for each parties’ injuries, “[w]hat the Defendants should be alleging is an Interpleader cause of action pursuant to FRCP 22 and not a Declaratory Judgement cause of action pursuant to FRCP 57” and therefore the sixth cause of action for declaratory relief should be dismissed. ECF No. 45-3 at 5. Kittinger submits no legal authority for the contention that this action should have been brought as an Interpleader action under Federal Rule of Civil Procedure 22 nor does he submit any authority for the proposition that the existence of a better procedural mechanism is an appropriate basis for dismissing a cause of action. Accordingly, the Court declines to address this argument as it made without any supporting legal authority besides the bald contention contained in the motion.3

*3 Kittinger submits another argument based on the discretionary nature of the Court’s decision to exercise jurisdiction over cases brought pursuant to the Declaratory Judgment Act. ECF No. 45-3 at 5-7. Kittinger argues that the Court should dismiss the sixth cause of action for declaratory relief because “[i]t is not one of the purposes of the declaratory judgement acts [sic] to enable a prospective negligence action defendant to obtain a declaration of non-liability.” Id. at 6. As the sole support for this proposition, Kittinger cites to Cunningham Bros., Inc. v. Bail, 407 F.2d 1165, 1167-68 (7th Cir. 1969). Id.4

In response, Defendants/Third-Party Plaintiffs JAG and Nicholson argue that the motion to dismiss should be denied and that a declaratory judgment action cannot be dismissed merely on the ground that another remedy is available. ECF No. 54 at 2. Defendants submit that they brought the Third-Party Complaint “in order to determine of [sic] the percentage or ratio of contributing fault as between all involved parties, including Mr. Kittinger, so that the actual contributing fault of each party can be determined and in order to avoid multiplicity of suit.” Id. Defendants further argue that “Mr. Kittinger’s personal disapproval of Declaratory Relief does not warrant granting this motion.” Id. at 4. The Court agrees. Kittinger’s motion to dismiss is not legally well-supported and it is DENIED for the reasons set forth herein.

A. Discretion to Adjudicate Under the Declaratory Judgment Act
*4 The Declaratory Judgment Act provides that “[i]n a case of actual controversy within its jurisdiction… any court of the United States … may declare the rights and other legal relations of any interested party seeking such declaration.” 28 U.S.C. § 2201(a) (emphasis added). If a lawsuit seeking federal declaratory relief meets the constitutional requirements of presenting an actual case and controversy and fulfills statutory jurisdictional prerequisites, the district court must also be satisfied, in its discretion, that entertaining the action is appropriate. Gov’t Employees Ins. Co. v. Dizol, 133 F.3d 1220, 1222-23 (9th Cir. 1998) (en banc). “[T]he Declaratory Judgment Act is ‘deliberately cast in terms of permissive, rather than mandatory, authority’ ” and gives federal courts discretion to make a declaration of rights but does not impose a duty to do so. Id. at 1223 (quoting Public Serv. Comm’n of Utah v. Wycoff Co., 344 U.S. 237, 250 (1952) (J. Reed, concurring)). The district court’s discretion is not “unfettered”; instead, “[p]rudential guidance for retention of the district court’s authority is found in Brillhart v. Excess Ins. Co. of America, 316 U.S. 491 [ ] (1942), and its progeny.” Id. at 1223; Am. States Ins. Co. v. Kearns, 15 F.3d 142, 144 (9th Cir. 1994) (“The Supreme Court has provided guidance for the exercise of the district court’s discretionary decision whether to entertain declaratory relief.”).

The Ninth Circuit has read Brillhart to articulate three factors that courts should consider when examining the propriety of entertaining a declaratory judgment action: (1) avoiding needless determination of state law issues; (2) discouraging litigants from filing declaratory actions as a means of forum shopping; and (3) avoiding duplicative litigation. Dizol, 133 F.3d at 1225; R.R. St. & Co. Inc. v. Transp. Ins. Co., 656 F.3d 966, 975 (9th Cir. 2011). The Brillhart factors are not exclusive and other factors for consideration when determining whether to exercise jurisdiction in declaratory judgment actions include:
whether the declaratory action will settle all aspects of the controversy; whether the declaratory action will serve a useful purpose in clarifying the legal relations at issue; whether the declaratory action is being sought merely for the purposes of procedural fencing or to obtain a ‘res judicata’ advantage; or whether the use of a declaratory action will result in entanglement between the federal and state court systems. In addition, the district court might also consider the convenience of the parties, and the availability and relative convenience of other remedies.
Principal Life Ins. Co. v. Robinson, 394 F.3d 665, 672 (9th Cir. 2005) (quoting Dizol, 133 F.3d at 1225 n.5). “Although courts may also consider a number of other factors, the three ‘Brillhart factors remain the philosophic touchstone’ ” for the analysis. R.R. St. & Co. Inc., 656 F.3d at 975 (quoting Dizol, 133 F.3d at 1225). “Essentially, the district court ‘must balance concerns of judicial administration, comity, and fairness to the litigants.’ ” Robinson, 394 F.3d at 672 (quoting Kearns, 15 F.3d at 144).

B. Application
Here, Kittinger does not dispute that there is jurisdiction or that the constitutional dictates of an actual case or controversy have been met. However, Kittinger argues that the Court, in its discretion, should decline to exercise jurisdiction over this declaratory action based on Seventh Circuit’s decision in Cunningham. ECF No. 51 at 6-8 (citing 407 F.2d 1165, 1167-68 (7th Cir. 1969)). Kittinger’s motion does not address any of the Brillhart or other factors that Courts consider in deciding whether to exercise jurisdiction over a declaratory judgment action. In Cunningham, “a plaintiff general contractor sought declaratory relief against a sub-contractor and the sub-contractor’s allegedly injured employees to determine: (1) plaintiff was not directing the sub-contractor’s employees when they were injured and that the employees had no cause of action against plaintiff for their alleged injuries; and (2) the sub-contractor was liable under the contract to indemnify plaintiff and hold plaintiff harmless if plaintiff was found liable to the employees.” Bou-Matic, LLC v. Ollimac Dairy, Inc., No. CV-F-05-203 OWW/SMS, 2007 WL 2898675, at *4 (E.D. Cal. Sept. 28, 2007). The Seventh Circuit, in affirming the district court’s dismissal of the declaratory judgment complaint, observed:
*5 [W]e are of the opinion that to compel potential personal injury plaintiffs to litigate their claims at a time and in a forum chosen by the alleged tort-feasor would be a perversion of the Declaratory Judgment Act. The primary purpose of that Act is to avoid accrual of avoidable damages to one not certain of his rights and to afford him an early adjudication without waiting until his adversary should see fit to begin suit, after damage had accrued.
407 F.2d at 1167-1168 (internal quotation marks omitted). Besides the general proposition that tort claims are ill-suited for declaratory relief as articulated in Cunningham, the Court has no other basis for declining to exercise jurisdiction since Kittinger did not brief any other relevant factors for the Court’s consideration.5 Other district courts have followed Cunningham’s general proposition, albeit in factual contexts that are dissimilar to the one presented here. See St. Paul Fire & Marine Ins. Co. v. Tug EAST COAST, No. CIV.A. 01-3333, 2002 WL 1906912, at *4 (E.D. La. Aug. 20, 2002) (collecting cases); The Mut. Life Ins. Co. of New York v. Adams, 972 F. Supp. 1386, 1394 (N.D. Ala. 1997) (“Other courts have recognized the undesirability of using declaratory judgment actions to resolve tort claims.”); United Ins. Co. of Am. v. Harris, 939 F. Supp. 1527, 1531 (M.D. Ala. 1996) (collecting cases) (“although few courts have addressed the issue now before this court, those that have, have almost uniformly concluded that tort claims are ill-suited for declaratory relief”). However, these cases almost uniformly also consider various other factors besides Cunningham’s general proposition before declining to exercise jurisdiction in tort-related Declaratory Judgment actions. See, e.g., Harris, 939 F. Supp. at 1533 (“This court need not determine whether it should buy into Cunningham Bros.’s general proposition that tort claims are poorly suited for declaratory relief. Applying several of the factors listed by the Fifth, Sixth, and Tenth Circuits, this court concludes that circumstances presented in this case … countenance firmly against the exercise of declaratory relief.”); Buchnan v. Greene, No. CIV. A. 97-2569-KHV, 1998 WL 184448, at *2 (D. Kan. Mar. 12, 1998) (“Aside from the general proposition that tort claims are ill suited for declaratory relief, as articulated in Cunningham Bros., this Court finds ample reason to decline to entertain plaintiffs’ claim for declaratory relief.”). “[G]iven the discretionary character of declaratory relief, the decision whether to entertain a declaratory-judgment action in one case is not a precedent in another case in which the facts are different.” 10B Charles Alan Wright & Arthur R. Miller et al., Fed. Prac. & Proc. Civ. § 2759 (4th ed.) (“Wright & Miller”). “In addition, it cannot be overlooked that there is no outright prohibition in the Declaratory Judgment Act against the hearing of tort actions.” Harris, 939 F. Supp. at 1532. “In the appropriate factual circumstances, it has been held that impleader is available in declaratory judgment actions.” Ortiz v. Cordoba, No. 3:13CV01276 (DJS), 2015 WL 93863, at *2 (D. Conn. Jan. 7, 2015) (citation omitted).

*6 The Court here is not convinced that the general proposition articulated in Cunningham, without more, is sufficient to warrant dismissal of the sixth cause of action. The Declaratory Judgment Act “is intended to allow earlier access to federal courts in order to spare potential defendants from the threat of impending litigation” and “is also intended to help potential defendants avoid a multiplicity of actions by affording an adequate, expedient, and inexpensive means for declaring in one action the rights and obligation of the litigants.” Seattle Audubon Soc. v. Moseley, 80 F.3d 1401, 1405 (9th Cir. 1996); see also Smith v. Transit Cas. Co., 281 F. Supp. 661, 670 (E.D. Tex. 1968), aff’d, 410 F.2d 210 (5th Cir. 1969) (“One important function of a declaratory judgment is to avoid multiplicity and circuity of actions”). “The declaratory-judgment remedy enlarges the judicial process and makes it more pliant and malleable by putting a new implement at the disposal of the courts. It always is discretionary with the courts whether to make use of this procedure.” 10B Wright & Miller, Fed. Prac. & Proc. Civ. § 2751. However, “[i]t would be inconsistent with the remedial purpose of the Act to imply an exception to the Act’s coverage without substantial reason.” United Food & Commercial Workers Local Union Nos. 137, 324, 770, 899, 905, 1167, 1222, 1428, & 1442 v. Food Employers Council, Inc., 827 F.2d 519, 524 (9th Cir. 1987). “In the declaratory judgment context, the normal principle that federal courts should adjudicate claims within their jurisdiction yields to considerations of practicality and wise judicial administration.” Wilton v. Seven Falls Co., 515 U.S. 277, 288 (1995)

Defendants here submit that they “seek [a] determination [of] the rights and responsibilities of all involved parties and [seek to] avoid multiplicity of suit.” ECF No. 54 at 5. Under Federal Rule of Civil Procedure 14, “[a] defending party may, as 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.” Fed. R. Civ. P. 14(a)(1) (emphasis added). Here, viewing the Third-Party Complaint in the light most favorable to Defendants, it appears that they contend that these seventeen Third-Party Defendants may be liable to it for all or part of Plaintiffs’ claims against them. “[I]f there is any possible scenario under which the third party defendants may be liable for all or part of the defendants’ liability to the plaintiffs, the third party complaint should be allowed to stand.” Banks v. City of Emeryville, 109 F.R.D. 535, 540 (N.D. Cal. 1985).6 Additionally, Kittinger is one of seventeen defendants named in the sixth cause of action and none of the other parties have moved to dismiss. Accordingly, to date it appears that “considerations of practicality and wise judicial administration” weigh strongly in favor of exercising this Court’s discretion to hear the declaratory judgment action since all the twenty-two parties involved in the accident appear to be joined in this action. See Wilton, 515 U.S. at 288. As none of the other parties have requested dismissal based on the consideration of discretionary factors under the Declaratory Judgment Act, it also appears that consideration of convenience to the other parties weighs against dismissal of the case at this stage. See, e.g., Robinson, 394 F.3d at 672. Entertaining this multiparty suit would also serve to further one of the purposes of the Declaratory Judgment Act, to “avoid a multiplicity of actions by affording an adequate, expedient, and inexpensive means for declaring in one action the rights and obligation of the litigants.” Seattle Audubon Soc., 80 F.3d at 1405. “[I]f a case can be settled most expeditiously in the federal court, numerous courts have ruled that they should exercise discretion to assume jurisdiction.” 10B Wright & Miller, Fed. Prac. & Proc. Civ. § 2759. Under the circumstances, the Court does not find any convincing reason to dismiss the declaratory relief claim.

*7 On the arguments submitted to the Court in Kittinger’s motion, the Court declines to exercise its discretion to dismiss sixth cause of action for declaratory relief.

V. CONCLUSION AND ORDER
For the reasons set forth above, Kittinger’s motion to dismiss, ECF No. 45, the sixth cause of action for declaratory relief in the Third-Party Complaint is DENIED.

IT IS SO ORDERED.

Dated: February 10, 2019

All Citations
Slip Copy, 2019 WL 528441

Footnotes

1

For the sake of clarity, the Court refers to the first amended “Cross-Claim” as the Third-Party Complaint or “TPC” as it appears Defendants are utilizing Federal Rule of Civil Procedure 14 to implead these additional parties. See ECF No. 8 at ¶¶ 13, 73. The impleaded parties will be referred to as the “Third-Party Defendants.”

2

Mr. Todd Richard Kittinger was erroneously sued as Todd Richard Kittenger (herein “Kittinger”). ECF No. 45-3 at 2.

3

The Court notes that “[t]he existence of another adequate remedy does not preclude a declaratory judgment that is otherwise appropriate.” Fed. R. Civ. P. 57. Additionally, Federal Rule of Civil Procedure 22 provides that “[t]his rule supplements–and does not limit–the joinder of parties allowed by Rule 20.” Fed. R. Civ. P. 22. Because Kittinger has failed to support his contention that availability of another mechanism for relief provides a basis for dismissal of a declaratory judgment claim, the Court declines to further address the unsupported contention.

4

Kittinger’s motion is accompanied by a request for judicial notice (“RJN”) for the Court to take notice of the Plaintiffs’ and Defendants’ joint scheduling report, which was filed in this matter on October 4, 2018. ECF No. 45-2 at 20-28. Kittinger’s motion highlights the following assertions contained in the joint statement:
Plaintiffs ‘contend that Defendants, Jag Trucking, Inc. and its driver Joshua Nicholson were negligent in the maintenance and operation of Jag’s tractor trailer so as to cause the tractor trailer to become a runaway vehicle on the downhill slope of northbound Interstate 5. As a result, 11 other vehicles were involved in this incident, with numerous individuals claiming injuries according to the California Highway Patrol Traffic Collision Report.’…
Defendants go on to admit in the Joint Scheduling Report that they ‘filed a cross-complaint against [Pitufos Transport] alleging Pitufos Transport caused and/or contributed to the multi-car collision. Pitufos Transport was involved in a separately documented motor vehicle collision immediately prior to the multi-vehicle incident for which Plaintiffs [ ]bring suit. Defendants assert the Pitufos Transport accident was the sole causal factor leading to the multi-vehicle incident ….’
The Defendants further admit that their ‘cross-complaint also included a declaratory relief cause of action naming all other parties involved in the May 8, 2018 incident in order to consolidate existing and/or potential claims into one action.’ Finally, according to the Defendants, the only ‘Contested Facts’ in this action are ‘i. [t]he extent of liability attributable to Defendants[ ] [and] ii. [t]he scope and extent of each party’s injuries and damages.’
ECF No. 45-3 at 3-4 (emphases and alterations in original) (quoting ECF No. 15, Joint Scheduling Report) (internal citations omitted). However, it is not apparent if or how these statements are pertinent to the legal arguments in Kittinger’s motion to dismiss and therefore it appears unnecessary to consider them as they do not provide a basis to grant or deny the motion.

5

The Court does not presently have sufficient information before it to make a meaningful evaluation of the Brillhart factors besides as stated herein. The Court notes that Defendants here removed a later filed, related state court action, wherein Third-Party Defendant Rutherford sued JAG and Nicholson along with Third-Party Defendants Kittinger and Noelle Krawiec (“Rutherford action”). See Stefanie Rutherford v. JAG Trucking, Inc. et al., 1:19-cv-00033-LJO-JLT. This later filed removed action was related to this action but later remanded to state court for lack of subject matter jurisdiction. Id. at ECF No. 12. However, the Rutherford action involves a smaller subset of the parties named herein and therefore would not resolve the entire controversy. Cf. Dizol, 133 F.3d at 1225 (“If there are parallel state proceedings involving the same issues and parties pending at the time the federal declaratory action is filed, there is a presumption that the entire suit should be heard in state court.”) (emphasis added). “The pendency of a state court action does not, of itself, require a district court to refuse federal declaratory relief.” Id. at 1225. As to the first Brillhart factor, the determination of state law issues, this weighs against this Court’s exercising jurisdiction but since there is no pending state court action encompassing all the parties named herein, the third Brillhart factor, avoiding duplicative litigation, does not weigh against exercising jurisdiction. See, e.g., Brillhart, 316 U.S. at 495 (the inquiry may entail “the scope of the pending state court proceeding and the nature of defenses open there. The federal court may have to consider whether the claims of all parties in interest can satisfactorily be adjudicated in that proceeding, whether necessary parties have been joined, whether such parties are amenable to process in that proceeding, etc.”). As to the second Brillhart factor, discouraging forum shopping, Kittinger does not present any reason to assume that Defendants/Third-Party Plaintiffs are forum shopping or attempting to gain a procedural advantage. “[T]he desire for a federal forum is assured by the constitutional provision for diversity jurisdiction and the congressional statute implementing Article III[,]” and the Ninth Circuit is “cautious about labeling as ‘forum shopping’ a plaintiff’s desire to bring previously unasserted claims in federal court.” R.R. St. & Co. Inc, 656 F.3d at 982. The Court finds that the second Brillhart factor does not weigh for or against exercising jurisdiction.

6

The Court notes that “[i]t is well settled that Rule 14 creates no substantive rights to reimbursement, contribution or indemnity, but merely simplifies procedure, where such a right exists, by allowing its determination at the trial of original claim.” Banks, 109 F.R.D. at 541 (internal quotation marks and citation omitted). Substantive rights to contribution or indemnity are determined by state law. Id. The Court does not reach the issue of whether the substantive law of California provides for contributory fault in this context as the parties have not briefed it. To the extent that there is a reference in the TPC to the Third-Party Defendants being “potential claimants” Rule 14 provides for joining parties who “may be liable to [a defending party] for all or part of the claim against it.” Fed. R. Civ. P. 14.