2019 WL 5684438

United States District Court, N.D. Ohio, Western Division.
Patricia AHNER, Plaintiff
v.
Jeffrey Allen SMITH, et al. Defendants
Case No. 3:17-cv-707
|
Signed 11/01/2019
Attorneys and Law Firms
Charles M. Murray, Murray & Murray, Sandusky, OH, John A. Rubis, Ritzler, Coughlin & Paglia, Cleveland, OH, for Plaintiff.
Cormac B. DeLaney, Manahan, Pietrykowski, Delaney & Wasielewski, Shannon J. George, Ritter, Robinson, McCready & James, Toledo, OH, Brett D. Altman, Goren, Goren & Harris, Bingham Farms, MI, for Defendants.

MEMORANDUM OPINION AND ORDER
Jeffrey J. Helmick, United States District Judge

I. INTRODUCTION
*1 Plaintiffs Patricia and Daniel Ahner brought this suit for personal injuries against Defendants Jeffrey Allen Smith and his employer, John David Mathena dba Mathena Trucking, as well as Randall Lee Hughes and his employer, Moon Star Express LLC. (Doc. No. 1). Plaintiffs’ negligence claims stem from two vehicle collisions that took place on May 23, 2016. In the first, Plaintiffs’ car collided with a tractor-trailer driven by Jeffrey Allen Smith as both were traveling westbound on State Route 2 in Erie County, Ohio. The second collision occurred shortly after, when Plaintiffs’ vehicle collided with a tractor-trailer driven by Randall Lee Hughes in the eastbound lanes of State Route 2. Both employers admit the drivers were acting on behalf of the businesses at the time of the accidents. (Doc. No. 12; Doc. No. 28). During the litigation, Daniel Ahner passed away and Patricia Ahner, Executrix, was substituted as the named plaintiff for Mr. Ahner’s estate. (Doc. No. 53).

Hughes and Moon Star Express filed a cross-claim against Smith and Mathena Trucking. (Doc. No. 12). Hughes also filed a counterclaim against Patricia Ahner, who was driving Plaintiffs’ vehicle at the time of the accident. Id. Smith and Mathena filed a cross-claim against Hughes and Moon Star Express seeking indemnity or contribution. (Doc. No. 28).

Hughes filed for summary judgment as to Plaintiffs’ claims against him and Defendants Smith and Mathena’s cross-claims against him. (Doc. No. 64). Both Plaintiffs and Defendants Smith and Mathena filed a memorandum in opposition. (Doc. Nos. 72 & 73). Plaintiffs also filed for summary judgment on certain affirmative defenses raised by Smith and Mathena. (Doc. No. 74). Both sets of defendants filed a memorandum in opposition to Plaintiffs’ motion for summary judgment. (Doc. Nos. 76&84). Plaintiffs filed a reply in support of their motion and objected under Rule 56(C) to Smith and Mathena’s use of certain materials produced during settlement negotiations. (Doc. No. 78). Smith and Mathena filed a memorandum in opposition to the Rule 56(C) objection noting that two days prior to the plaintiffs’ Rule 56(C) objection, Smith and Mathena requested supplemental discovery to cure any evidentiary problem created by their use of the settlement materials. (Doc. No. 79).

II. STANDARD
Summary judgment is appropriate if the movant demonstrates that there is no genuine dispute of material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A disputed fact is material only if its resolution might affect the outcome of the case under the governing substantive law. Rogers v. O’Donnell, 737 F.3d 1026, 1030 (6th Cir. 2013). All evidence must be viewed in the light most favorable to the nonmovant, White v. Baxter Healthcare Corp., 533 F.3d 381, 390 (6th Cir. 2008), and all reasonable inferences drawn in the nonmovant’s favor. Rose v. State Farm Fire & Cas. Co., 766 F.3d 532, 535 (6th Cir. 2014). A factual dispute is genuine if a reasonable jury could resolve the dispute and return a verdict in the nonmovant’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A party opposing summary judgment “may not rest upon the mere allegations or denials of his pleading and instead must set forth specific facts showing there is a genuine issue for trial.” Id. at 256.

III. DISCUSSION

A. Hughes and Moon Star Express’ Motion for Summary Judgment
*2 Defendants Hughes and Moon Star Express seek summary judgment on Plaintiffs’ negligence claims and the negligence cross-claims brought by Defendants Smith and Mathena. (Doc. No. 64). To prevail in a negligence case, a plaintiff must prove: (1) the existence of a legal duty; (2) defendant’s breach of that duty; and (3) injury that is the proximate cause of the defendant’s breach. Wallace v. Ohio Dep’t of Commerce, 773 N.E.2d 1018, 1025 (Ohio 2002).

1. Duty
The duty element of negligence is a question of law. Wallace, 773 N.E. 2d at 1026. In Ohio, duty refers to “the relationship between the plaintiff and the defendant from which arises an obligation on the part of the defendant to exercise due care toward the plaintiff.” Id. The existence of a duty depends on the foreseeability of harm. Id. “Generally, a motor vehicle has the right to proceed uninterruptedly in a lawful manner in the direction in which it is traveling in preference to any vehicle or pedestrian approaching from a different direction crossing its path.” Smith v. Bond, 2016-Ohio-5883, 2016 WL 4983311, at *3 (Ohio Ct. App. Sept. 15, 2016) (quotation omitted). “ ‘Right-of-way’ means…the right of a vehicle…to proceed uninterruptedly in a lawful manner in the direction in which it is moving in preference to another vehicle… approaching from a different direction into its…path.” O.R.C. § 4511.01(UU)(1).

“A driver need not look for pedestrians or vehicles violating his right-of-way.” Leahy ex rel. Rhinebolt v. Richardson, 2011-Ohio-3214, 2011 WL 2565640, at *8 (Ohio Ct. App. June 27, 2002) (citing Deming v. Osinski, 263 N.E.2d 554 (Ohio 1970)). But that does not mean that a driver with the right of way has no duty at all. Instead, when the driver has the right of way, the duty to exercise ordinary care arises only after the driver actually discovers some dangerous condition in his right of way. See, e.g., 2016-Ohio-5883, Smith v. Bond, 2016 WL 4983311 at *6 (reversing summary judgment because whether the driver saw the pedestrian was a material question of fact).

The first issue is whether Hughes was bound to any duty of care in this case. Hughes argues he owed no duty to the Ahners because it was unforeseeable that their car would come across the highway and into his right of way. (Doc. No. 64 at 10-11.) Neither Ahner nor Smith have addressed this argument.

Hughes had no freestanding duty to remain alert to the possibility of a vehicle coming across the median and into his right of way. At the same time, Hughes did have some duty—a duty that arose once Hughes discovered the dangerous condition that Ahner’s vehicle represented.

Hughes was traveling in the right lane of the eastbound lanes at sixty-five miles per hour in a seventy mile an hour speed limit zone. (Doc. No. 64 at 5). Hughes was traveling in a lawful manner with the right of way and as such enjoyed a “preferential status” in relation to the oncoming Ahner vehicle. See Koepke v. Metropolitan Property and Casualty Company Insurance Company, 92 N.E.3d 76, 79 (Ohio Ct. App. 2017) (citing Deming v. Osinski, 263 N.E.2d 554 (Ohio 1970)).

Hughes testified to seeing Ahner’s vehicle coming through the 75 median separating the westbound and eastbound lanes, (Doc. No. 67 at 22), but that was not when his duty came into existence. At that point, Ahner’s vehicle was only a potential danger. He may have noticed it and reacted to it, but he had no legal duty to try to avoid Ahner’s vehicle until it physically entered the eastbound lanes.

2. Breach
*3 The next issue is whether Hughes breached his duty. Because this duty did not exist until Ahner’s vehicle entered Hughes’s right of way, evidence of breach must be based on Hughes’s actions, or inaction, in the time between Ahner’s vehicle entered the eastbound lanes and the eventual collision. To prevail on his motion for summary judgment, Hughes must show that no reasonable jury could find he breached this duty.

Hughes testified that he began braking as soon as the first collision occurred and applied maximum pressure to his brakes once he realized Ahner’s vehicle would be entering the eastbound lanes. (Doc. No. 64 at 11). Hughes’s account is corroborated by an expert and two non-party eyewitnesses. (Doc. No. 82-1 at 36-38, 49). In the face of this evidence, Plaintiffs submit only Patricia Ahner’s belief that Hughes could have avoided the collision by braking or swerving. (Doc. No. 66 at 49, 67). This is mere speculation, not fact. See, e.g., Leahy 2011 WL 2565640, at *12 (upholding summary judgment in driver’s favor and rejecting the argument that other evasive actions should have been performed as 20-20 hindsight).

Since there are no facts by which a reasonable jury could conclude Hughes acted unreasonably during the time his duty existed, Hughes cannot be found to have breached his duty.

3. Causation
Causation is generally established using the “but for” test. Anderson v. St. Francis St. George Hosp., Inc., 671 N.E.2d 225, 227 (Ohio 1996). “[A] defendant’s conduct is the cause of the event (or harm) if the event (or harm) would not have occurred but for that conduct; conversely, the defendant’s conduct is not the cause of the event (or harm) if the event (or harm) would have occurred regardless of the conduct.” Id. More specifically, it is the defendant’s duty-breaching conduct that must be linked to the alleged loss. Id.

Therefore, the duty-breaching conduct that Plaintiffs must show caused their injury must be conduct that took place during the time Hughes had a duty. According to the accident reconstruction report offered by Hughes, less than a second passed between the time the Ahner’s vehicle entered the eastbound lanes and the time it collided with Hughes’s vehicle.1 (Doc. No. 82-1 at 62). Neither the Plaintiffs nor the other Defendants have offered any evidence to dispute this point. The report also provides detail about driver reaction times: the typical perception and reaction time for a simple event is 1.5 seconds; the typical perception and reaction time for a complex event can be anywhere from 3.5 to 4.5 seconds. (Doc. No. 82-1 at 61). The report characterizes the situation Hughes was faced with as a “complex event.” Id. But even if this were a “simple event,” viewing the evidence in the light most favorable to the non-moving parties, Hughes would not have been able to perceive and react in time to avoid the Ahners. Therefore, there are no facts by which a reasonable jury could conclude Hughes caused the collision.

4. Conclusion
Hughes is entitled to summary judgment because no reasonable jury could find he breached the limited duty he owed under Ohio law or that the accident would not have occurred but for his alleged breach. Because Hughes was not negligent, his employer, Moon Star Express, is also entitled to summary judgment.

B. Plaintiffs’ Motion for Summary Judgment
*4 Plaintiffs moved for summary judgment on the following four of the affirmative defenses raised by Smith and Mathena:
1. Further answering, defendants state that plaintiffs have failed to join all necessary and indispensable parties as set forth in the Federal Rules of Civil Procedure pursuant to Rules 19 and 19.1.
2. Further answering, defendants state that the injuries and damages of which plaintiffs complain were caused by their own negligence, actual or imputed, which proximately contributed thereto.
3. Further answering, defendants state that the plaintiffs have failed to mitigate damages, if any.
4. Further answering, defendants state that they are entitled to all defenses and provisions covered under Senate Bill 80.
(Doc. No. 28 at 4-5).

1. Joinder
The Sixth Circuit has established a three-step process to determine whether joinder is proper under Rule 19:
First, the court must determine whether the person or entity is a necessary party under Rule 19(a). A person is a necessary party under Rule 19 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)(1).
Glancy v. Taubman Centers, Inc., 373 F.3d 656, 666 (6th Cir. 2004). Smith and Mathena contend insurers who made payments to Daniel Ahner or Patricia Ahner are necessary parties.2 (Doc. No. 72 at 1-2). Plaintiffs argue these insurers are not necessary because there is no danger of these insurers pursuing claims against these Defendants, meaning there is no danger of these Defendants incurring multiple obligations.

Ohio law recognizes three distinct kinds of subrogation: legal, statutory, and conventional. N. Buckeye Educ. Council Grp. Health Benefits Plan v. Lawson, 814 N.E.2d 1210, 1215 (Ohio 2004) (citing State v. Jones, 399 N.E. 2d 1215, 1216-17 (Ohio 1980)).3 The scope of a subrogee’s rights depend in many ways on which form of subrogation exists. Id. at 1217. Without more information about whether there was a contract between the insurers and the insured here, I cannot decide if the insurers are necessary parties.

*5 I do note that even if the Plaintiffs are correct there is no risk to Defendants of multiple obligations, that would only address one of Rule 19(a)’s concerns. Without more information about the rights of Plaintiffs’ insurers, it is impossible to determine whether disposing of this action without the insurers’ involvement would impair the insurers’ ability to protect their interest. Because Plaintiffs’ have not shown there is no way the insurers are necessary parties, I cannot grant Plaintiffs’ motion for summary judgment.

Aside from any private insurance companies, Smith and Mathena contend the Center for Medicare and Medicaid Services (CMS) is a necessary party because under federal regulations, “if Medicare is not reimbursed…the primary payer must reimburse Medicare even though it has already reimbursed the beneficiary or other party.” (Doc. No. 76 at 2). But even if these Defendants did owe this reimbursement, courts in this circuit have refrained from compelling CMS to join litigation under similar circumstances. See e.g., Gobrecht v. McGee, 249 F.R.D. 262 (N.D. Ohio 2007); see also Estate of Barbeaux v. Lewis, 196 F.Supp.2d 519, 521 (W.D. Mich. 2002) (holding that sovereign immunity also prevented the court from joining CMS).

In Gobrecht, even though it was undisputed that Medicare had made payments, the court explained “the obligation for reimbursement does not arise unless and until there has been a recovery by a beneficiary, one receiving the benefits of Medicare. There then follows an administrative procedure which is required in order to resolve Medicare’s claims.” Gobrecht, 249 F.R.D. at 262. Because Daniel Ahner has not yet made any recovery, he, just like the plaintiff in Gorbecht, is not in any position to begin the administrative process. Therefore, 42 U.S.C. § 405(h)’s exhaustion requirement bars jurisdiction over claims against CMS at this time.

Thus, I reject Defendants’ argument that CMS should be joined in this action. But since there is evidence that Plaintiffs’ were insured by a private insurer and Plaintiff failed to provide evidence of any subrogation rights of these insurance companies, a genuine issue of material fact remains as to whether another party should be joined. As such, I deny Plaintiffs’ motion for summary judgment on Smith and Mathena’s second affirmative defense.

2. Plaintiffs’ Negligence
To prevail on their motion for summary judgment, Plaintiffs must show no reasonable jury could find Patricia Ahner negligently contributed to Plaintiffs’ injuries. Plaintiffs argue Patricia Ahner cannot be found negligent because she was traveling lawfully with the right of way. This is correct, to a point. But Patricia Ahner is only shielded from negligence during the time she had no common-law duty to exercise ordinary care. Because that shield is limited to the events leading up to the first accident, I cannot grant plaintiffs’ motion for summary.

I start with the events leading up to the first accident. “The law gives to the operator of a vehicle on the highway who has the right of way a shield, an absolute right to proceed uninterruptedly, but he forfeits that shield if he fails to proceed in a lawful manner.” Carrozza v. Landis, 2012-Ohio-6194, 2012 WL 6738497, at *3 (Ohio Ct. App. Dec. 12, 2012) (quoting Vavrina v. Greczanik, 318 N.E.2d 408, 413 (Ohio Ct. App. 1974)).

Because there is no evidence to suggest that Patricia Ahner’s vehicle was not proceeding in a lawful manner, there is no basis for evaluating her conduct under the common-law duty to exercise ordinary care.4 Thus, even if Defendants are correct that Patricia Ahner increased the risk of an accident by driving in Jeffrey Smith’s blind spot, she was entitled to continue along her right of way without any obligation to speed up or slow down to ensure Mr. Smith was aware of her presence on the road.

*6 But defendants also allege that Patricia Ahner negligently operated her vehicle after the first collision occurred. Here, there are enough factual disputes to prevent summary judgment on this issue. For example, whether Ms. Ahner should have perceived and reacted to the risk of a second collision sooner is a question of fact, as is whether it was reasonable for her to try to accelerate across the eastbound lanes rather than brake before entering them.

Plaintiffs argue Ms. Ahner could not be negligent because she was confronted with a sudden emergency. (Doc. No. 74 at 8). Defendants contend that Patricia Ahner was not faced with a sudden emergency because the situation arose from her own conduct and circumstances under her control. (Doc. No. 82-1 at 6-7).

I do not decide whether this qualifies as a sudden emergency because even if it did, plaintiffs would not be entitled to summary judgment on that ground. Plaintiffs, relying on Szilagyi v. Wynn, argue “the doctrine of sudden emergency does not require the…most judicious choice…[but instead requires only] that it be reasonable for a person in that position.” 2012-Ohio-6132, 2012 WL 6727371 at *5 (Ohio Ct. App. Dec. 24, 2012). Critically, while the presence of a sudden emergency may lower the standard of care required, it does not eliminate the duty completely. Therefore, even if Patricia Ahner was confronted by a sudden emergency after the first collision, whether Ahner acted reasonably under the circumstances of that emergency is a question for the jury to decide. I deny Plaintiffs’ motion for summary judgment as to this defense.

3. Mitigation
“[A]n injured party has a duty to mitigate and may not recover for damages that could reasonably have been avoided.” Lake v. Love, 90 N.E.3d 36 (Ohio Ct. App. 2017) (quoting Chicago Title Ins. Co. v. Huntington Natl. Bank, 719 N.E.2d 955 (Ohio 1999)). Because failure to mitigate is an affirmative defense, the party raising it has the burden of proving it. Id. Defendants have not responded to plaintiffs’ arguments for summary judgment on this issue. Nor have defendants pointed to any acts of mitigation that Plaintiffs could or should have taken. Because defendants have failed to come forward with evidence to meet their burden, I grant Plaintiffs’ motion for summary judgment on this defense.

4. Apportionment
Here, Smith and Mathena claim “defendants…are entitled to all defenses and provisions covered under Senate Bill 80.” (Doc. No. 28 at 5). Senate Bill 80 implemented many changes to Ohio tort law, including caps on certain types of damages. See Arbino v. Johnson & Johnson, 880 N.E.2d 420 (Ohio 2007). In Plaintiffs’ motion for summary judgment on this defense, Plaintiffs characterize this as an apportionment defense. (Doc. No. 74 at 10). Apportionment of fault among defendants and nonparties is one of the defenses provided for in Senate Bill 80. Defendants Smith and Mathena have not responded to Plaintiffs’ characterization.

Ohio law sets forth procedures for determining the percentage of tortious conduct attributable to each party. See Ohio Rev. Code. § 2307.23. In granting summary judgment to Hughes and Moon Star, I found that Hughes was not responsible for any tortious conduct in this case. Thus, even though the collision with Hughes may be a cause-in-fact of some of Plaintiffs’ injuries, Defendants Smith and Mathena cannot apportion fault for these injuries to Hughes or Moon Star under § 2703.23.

IV. CONCLUSION
*7 For the foregoing reasons, I grant Defendants Hughes and Moon Star Express’s motion for summary judgment. (Doc. No. 64). Plaintiffs’ motion for summary judgment on Defendants Smith and Mathena’s affirmative defenses is granted in part, and denied in part. Specifically, the motion is granted as to the mitigation defense, as well as the defense seeking to apportion some of the Plaintiffs’ damages to Hughes and Moon Star.

So Ordered.

All Citations
Slip Copy, 2019 WL 5684438

Footnotes

1
Using the information supplied by Ms. Ahner in her deposition, the report states that it would have taken approximately .3 seconds for the Ahner’s vehicle to go from entering the median to colliding with Hughes’s vehicle. The report also offers a “more conservative reconstruction” in which it would have taken approximately .5 seconds. (Doc. No. 82-1 at 62).

2
To prove such insurers exist, Smith and Mathena relied on documents Plaintiffs had given them during settlement discussions. Plaintiffs objected to this. I do not rule on the objection here. Smith and Mathena have since relied on other evidence to show there are some insurers who made payments to Patricia Ahner. As for the alleged payments to Daniel Ahner, plaintiffs evidentiary objection is moot because this court cannot compel the Center for Medicare and Medicaid Services to join this suit.

3
Although part of its substantive holding appears to be superseded by R.C. § 2323.44, which prevents parties from contracting around the “make-whole” doctrine, N. Buckeye Educ. Council Grp. Health Benefits Plan remains a useful illustration of the way a subrogee’s rights may depend on which form of subrogation exists.

4
The analysis here can also be understood as an application of the duty rule discussed in section III.A.1.

2019 WL 5700355

United States Court of Appeals, Fourth Circuit.
TRUSTGARD INSURANCE COMPANY, Plaintiff – Appellee,
v.
Sharon COLLINS; Dorothy L. Jackson, individually and as Executor of the Estate of Alfred Jackson Sr.; John A. Godfrey; Mattie E. Render, Defendants – Appellants,
and
Michael Brown, individually, d/b/a Triple S Transport, Defendant.
No. 18-2187
|
Argued: May 7, 2019
|
Decided: November 5, 2019
Synopsis
Background: Insurer sought declaratory judgment that it was not required to cover a judgment in an underlying state court personal injury case against insured as a third-party for injuries sustained by a passenger riding in a vehicle which rear-ended a car trailer being towed by a tow truck, even though neither insured nor insured’s vehicles were involved in the automobile accident. The United States District Court for the District of South Carolina, J. Michelle Childs, J., granted insurer’s summary judgment motion. Insured appealed.

[Holding:] The Court of Appeals, Richardson, Circuit Judge, held that district court abused its discretion in reaching merits of insurer’s declaratory judgment action.

Vacated and remanded.

Harris, Circuit Judge, filed concurring opinion.

West Headnotes (21)

[1]
Federal Civil Procedure
In general;  injury or interest

Standing is a jurisdictional issue courts must consider independently.

[2]
Federal Civil Procedure
In general;  injury or interest

The irreducible constitutional minimum of standing requires the petitioner to allege a concrete injury that is actual or imminent, not conjectural or hypothetical.

[3]
Federal Courts
Fitness and hardship

“Ripeness” determines when a case or controversy is fit for federal judicial review.

[4]
Federal Courts
Nature of dispute;  concreteness

The basic rationale for the ripeness doctrine is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.

[5]
Constitutional Law
Advisory Opinions

The doctrines of standing and ripeness guard against courts rendering of an opinion advising what the law would be upon a hypothetical state of facts.

[6]
Federal Courts
Ripeness;  Prematurity

Courts must wait until a case has taken on fixed and final shape so that the court can see what legal issues the court is deciding, and what effect the court’s decision will have on the adversaries.

[7]
Federal Courts
Necessity of Objection;  Power and Duty of Court

Though courts must generally decide jurisdictional questions first, courts may address a discretionary jurisdictional question before a nondiscretionary jurisdictional question.

[8]
Declaratory Judgment
Discretion of lower court

Appellate court would review district court’s implicit decision to exercise jurisdiction over insurer’s declaratory judgment action for abuse of discretion.

[9]
Declaratory Judgment
Discretion of Court

The Declaratory Judgment Act gives federal courts discretion to decide whether to declare the rights of litigants. 28 U.S.C.A. § 2201(a).

[10]
Declaratory Judgment
Construction and Operation of Statutes

Rather than grant litigants a right to judgment in their case, the Declaratory Judgment Act merely permits the courts to hear those cases. 28 U.S.C.A. § 2201(a).

[11]
Declaratory Judgment
Necessity, utility and propriety

Whether exercising jurisdiction to hear a declaratory judgment case is appropriate must be informed by the teachings and experience of the courts concerning the functions and extent of federal judicial power.

[12]
Declaratory Judgment
Discretion of Court

In the declaratory judgment context, the normal principle that federal courts should adjudicate claims within their jurisdiction yields to considerations of practicality and judicial administration.

[13]
Federal Courts
Federal-state relations, questions of state law, and parallel state proceedings

Even where jurisdiction is not discretionary, courts may abstain from exercising jurisdiction under certain circumstances that may intrude on the prerogative of state courts.

[14]
Federal Courts
Federal-state relations, questions of state law, and parallel state proceedings

Abstention helps avoid duplicative litigation and interference with state-court proceedings.

[15]
Declaratory Judgment
Pendency of other action

In declaratory judgment actions, courts must consider whether federalism, efficiency, and comity counsel against exercising jurisdiction when an ongoing proceeding in state court overlaps with a federal case.

[16]
Federal Courts
Federal-state relations, questions of state law, and parallel state proceedings

In making the determination of whether to exercise jurisdiction when an ongoing proceeding in state court overlaps with a federal case, courts often look to (1) the state’s interest in having its own courts decide the issue, (2) the state courts’ ability to resolve the issues more efficiently than the federal courts, (3) the potential for unnecessary entanglement between the state and federal courts based on overlapping issues of fact or law, and (4) whether the federal action is mere forum-shopping.

[17]
Federal Courts
Jurisdiction of Entire Controversy;  Pendent and Supplemental Jurisdiction

Courts should exercise their discretionary jurisdiction with caution when doing so would raise serious questions about Article III jurisdiction. U.S.C.A. Const. Art. 3, § 2, cl.1.

[18]
Declaratory Judgment
Construction and operation of judgment

In deciding whether to exercise the discretion to issue a declaratory judgment, courts must look closely at any potentially preclusive consequences that a decision might have on a state-court proceeding, or vice versa.

[19]
Declaratory Judgment
Construction and operation of judgment

Preclusion following an imprudent federal declaratory judgment might frustrate the orderly progress of a state-court proceedings by leaving the state court with some parts of the case foreclosed from further examination but still other parts in need of full scale resolution.

[20]
Declaratory Judgment
Pendency of other action
Federal Courts
Insurers and insurance

District court abused its discretion in reaching merits of insurer’s declaratory judgment action regarding responsibility under surety endorsement in underlying state court personal injury action involving automobile accident in which neither insured nor insured’s vehicles were involved without addressing decision to exercise its discretionary jurisdiction, and despite a thin and ambiguous factual record, creating both a substantial question about whether Article III jurisdiction existed and serious potential to interfere with ongoing state proceedings; case involved state-law issues about how to apportion liability following an automobile accident, and considerations of comity and judicial efficiency weighed strongly in favor of permitting state court to address relationship among defendants. U.S.C.A. Const. Art. 3, § 2, cl.1.

[21]
Principal and Agent
Agreements for appointment

Under South Carolina law, an agency relationship can be established without a written agreement.

Appeal from the United States District Court for the District of South Carolina at Columbia. J. Michelle Childs, District Judge. (3:17-cv-00807-JMC)
Attorneys and Law Firms
ARGUED: Maxwell Kent Thelen, SUMMERVILLE FIRM, Atlanta, Georgia, for Appellants. Peter Harris Dworjanyn, COLLINS & LACY, PC, Columbia, South Carolina, for Appellee. ON BRIEF: Kurt Kastorf, SUMMERVILLE FIRM, Atlanta, Georgia, for Appellants.
Before HARRIS, RICHARDSON, and QUATTLEBAUM, Circuit Judges.
Opinion

Vacated and remanded by published opinion. Judge Richardson wrote the majority opinion, in which Judge Quattlebaum joined. Judge Harris filed an opinion concurring in the judgment.
RICHARDSON, Circuit Judge:

*1 This case involves an attempt to have the federal courts resolve an insurance dispute. A passenger injured in an automobile accident has asserted claims in state court against several people involved. She has also sued a third party, Michael Brown, not present at the accident, claiming he is also liable. Brown’s insurer asks us to decide whether an endorsement attached to his insurance contract requires the insurer to pay any judgment against Brown that might result from the ongoing state-court proceedings. The district court issued a declaratory judgment in favor of the insurer. However, we conclude the district court abused its discretion when it assumed jurisdiction under the Declaratory Judgment Act.

I.
In 2014, Dorothy Jackson rear-ended a car trailer being towed by a Dodge tow truck. The collision injured both Jackson and her passenger, Sharon Collins. Collins sued the driver and the owner of the tow truck (Mr. McWilliams)1 in a South Carolina Court of Common Pleas. And she sued the owner of the car trailer (Kerion Murray) as well as two other passengers in the tow truck (James Moore and Gerroll Lingard). Collins also asserted claims against Michael Brown, who does business as “Triple S Transport.” Although Brown did not own any of the vehicles and was not present at the scene, it appears that McWilliams’s tow truck displayed Brown’s Interstate Commerce Commission number. According to Collins, McWilliams towed the car trailer on Brown’s behalf. Though neither the complaint nor the record detail how, Collins’s state-court suit appears to claim that Brown and McWilliams are each both directly and vicariously liable for the accident.

As the state lawsuit proceeded, Brown’s insurance provider asked the federal district court to declare whether it must pay any judgment against Brown if Collins prevails in state court. Brown and McWilliams are, by coincidence, both insured by Appellee Trustgard Insurance Company. Trustgard does not contest that it must cover a judgment against McWilliams if he is found liable to Collins for the negligent operation of the tow truck. But Trustgard does claim that it need not cover a judgment against Brown for damages arising from an accident in which neither Brown nor his insured vehicles were involved. Trustgard seeks a declaratory judgment to that effect.

Trustgard included an endorsement along with Brown’s traditional insurance policy. That endorsement, called an “MCS-90” endorsement, is not technically insurance. Rather, it is a surety agreement that requires Trustgard to pay up to $1,000,000 for “any final judgment recovered against the insured for public liability resulting from negligence in the operation, maintenance or use of motor vehicles.” J.A. 88. Federal law requires that a motor carrier have an endorsement like this (or some substitute) to establish a minimal financial responsibility baseline. 49 C.F.R. §§ 387.7, 387.9, 387.15; see generally Carolina Cas. Ins. Co. v. Yeates, 584 F.3d 868, 873–74 (10th Cir. 2009) (describing the legal and regulatory framework).

*2 The endorsement serves a risk-shifting function for the benefit of an adversarial party. When it applies, the insurer is obligated to pay a judgment against the insured. But upon payment, the insurer may demand reimbursement from the insured. Thus the insurer—not the adversarial party—bears the risk of the insured’s nonpayment. So if the endorsement applies here, Trustgard would be on the hook for a final judgment against Brown. And Trustgard could then seek to recover a payment from Brown. If the endorsement does not apply, then Collins must seek to recover a judgment against Brown from Brown himself—she cannot recover from Trustgard.2

Granting summary judgment for Trustgard, the district court determined that neither Brown’s insurance nor the surety endorsement applied. First, the court concluded that Brown’s insurance did not apply because the accident did not involve a covered vehicle. Because the court found that Brown and McWilliams had not entered into “an owner-operator agreement or lease agreement,” J.A. 152, the court also rejected Collins’s argument that Brown was liable for McWilliams’s negligence as “the motor carrier for hire on the job.” J.A. 152. Collins also argued that Brown might be liable under a theory of negligent hiring, training, or supervision; but the court determined that any such liability did not fall within the scope of Brown’s policy.

Second, the district court determined that the surety endorsement did not apply. Here, the court reasoned that the purpose of the statutorily mandated endorsement is to protect the people injured by motor carriers by ensuring that they can recover up to the limits of the required insurance coverage. Concluding that McWilliams’s policy covered the accident beyond the required amount, the court held that Brown’s endorsement could not be “stacked” on top of McWilliams’s insurance coverage. J.A. 155.

After the district court entered judgment, Collins asked it to reconsider based on two new theories of liability. First, Collins argued that Brown might be vicariously liable for McWilliams’s negligence because they had a master-servant relationship. And second, Collins contended that Brown negligently entrusted his Interstate Commerce Commission number to McWilliams. The district court denied Collins’s request, concluding that, even if Brown were found liable under either theory, Trustgard would not be on the hook.

II.

A.
[1]Before we address the prudence of exercising jurisdiction under the Declaratory Judgment Act, we first note our uncertainty about whether we have Article III jurisdiction at all. See Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239–40, 57 S.Ct. 461, 81 L.Ed. 617 (1937) (“The Declaratory Judgment Act of 1934, in its limitation to ‘cases of actual controversy’ … is operative only in respect to controversies which are such in the constitutional sense.”). The district court considered only one jurisdictional issue: its exercise of diversity jurisdiction. But “[s]tanding is a jurisdictional issue we must consider independently.” Gen. Tech. Applications, Inc. v. Exro Ltda, 388 F.3d 114, 118 (4th Cir. 2004).

[2] [3] [4]The “irreducible constitutional minimum of standing” requires the petitioner to allege a concrete injury that is “actual or imminent, not conjectural or hypothetical.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotation marks omitted).3 Ripeness, another justiciability doctrine, determines when a case or controversy is fit for federal judicial review. “[I]ts basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.” Abbott Labs. v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967).4

*3 [5] [6]These constitutional doctrines ensure that we do not exceed the limits of Article III judicial power, see Spokeo, Inc. v. Robins, ––– U.S. ––––, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016), and so guard against our rendering of an opinion “advising what the law would be upon a hypothetical state of facts.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 126, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007) (internal citations omitted). Instead, we must wait until the case has “taken on fixed and final shape so that [we] can see what legal issues [we are] deciding, [and] what effect [our] decision will have on the adversaries.” Pub. Serv. Comm’n of Utah v. Wycoff Co., 344 U.S. 237, 244, 73 S.Ct. 236, 97 L.Ed. 291 (1952) (internal citations omitted).

Trustgard’s alleged injury—that it might have to guarantee a future judgment against Brown—is of a hypothetical and contingent nature: the injury may or may not occur depending on the outcome of the state lawsuit. If Collins does not win a state-court judgment against Trustgard’s insured, then a decision from this Court concerning Trustgard’s obligation to guarantee such a judgment will have no effect. Thus, before any determination of liability, we risk issuing an advisory opinion.

For this reason, we have found unripe for adjudication a suit seeking indemnification against both “expenses and possible liability” that might arise from pending lawsuits filed after two workers were killed during the unloading of a ship. A/S J. Ludwig Mowinckles Rederi v. Tidewater Const. Co., 559 F.2d 928, 931 (4th Cir. 1977). Like the litigants before us, the parties in that case wished to know who would ultimately be responsible for paying any judgment obtained by the estates of the two men killed (and a third who was injured). Yet we refused to decide that question because it was unripe until liability was determined.5 As here, indemnification turned on the relationship and relative responsibility among the potential wrongdoers—facts that remained unclear. Id. at 933.

In doing so, we distinguished duty-to-defend cases that addressed who was required to pay the costs of defending a suit prior to judgment. Id. at 932; see also Ellett Bros. v. U.S. Fid. & Guar. Co., 275 F.3d 384, 388–89 (4th Cir. 2001). Thus, suits about the duty to indemnify—unlike the duty-to-defend suits—would ordinarily be advisory when the insured’s liability remains undetermined. Compare Lear Corp. v. Johnson Elec. Holdings Ltd., 353 F.3d 580, 583–85 (7th Cir. 2003) (“We regularly say that decisions about indemnity should be postponed until the underlying liability has been established.”), with Med. Assurance Co. v. Hellman, 610 F.3d 371, 381–82 (7th Cir. 2010) (permitting a declaratory judgment action addressing an insurer’s duty to defend because “[t]hat question is sufficiently distinct from the issues that have arisen thus far in the state proceedings”). And here, we do not face any claim about Trustgard’s duty to defend the state lawsuit, only to pay a resulting judgment.

That courts may not issue advisory opinions is one of the most long-standing and well-settled jurisdictional rules, reflected as early as 1793 when the Supreme Court refused to render an advisory opinion for President Washington. See Letter from Supreme Court Justices to George Washington (Aug. 8, 1793), in 13 THE PAPERS OF GEORGE WASHINGTON, PRESIDENTIAL SERIES 392–93 (Christine Sternberg Patrick ed., 2007). Although we recognize how valuable it might be for the parties to know an insurer’s obligations before liability is resolved, practical value cannot overcome this fundamental limitation on our jurisdiction.

*4 [7]That said, we need not resolve this constitutional question today. Even if jurisdiction could constitutionally be exercised, we should not do so. Though we must generally decide jurisdictional questions first, we may address “a discretionary jurisdictional question before a nondiscretionary jurisdictional question.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 100 n.3, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (citing Moor v. Cty. of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973), as an example).6 So in Sinochem International Co. v. Malaysia International Shipping Corp., 549 U.S. 422, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007), the Supreme Court held that a court may dismiss a case on forum non conveniens grounds, without first addressing personal and subject-matter jurisdiction. That was because the Court could first address questions that “involve[ ] a deliberate abstention from the exercise of jurisdiction.” Id. at 430, 127 S.Ct. 1184. We may thus look to whether jurisdiction should have been exercised in this declaratory judgment action without first addressing whether Article III jurisdiction exists.

B.
[8]We now turn to that question—whether the district court should have exercised jurisdiction in this case. Although the district court here did not expressly address whether it should issue a declaratory judgment, it went ahead and issued one on the merits. We review that implicit decision to exercise jurisdiction for abuse of discretion. Wilton v. Seven Falls Co., 515 U.S. 277, 289–90, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995).

[9] [10] [11] [12]Under the Declaratory Judgment Act, a district court, in “a case of actual controversy within its jurisdiction … may declare the rights and other legal relations of any interested party seeking such declaration.” 28 U.S.C. § 2201(a) (emphasis added). This Act gives federal courts discretion to decide whether to declare the rights of litigants. Wilton, 515 U.S. 277 at 286, 115 S.Ct. 2137. Rather than grant litigants a right to judgment in their case, it merely permits the courts to hear those cases. Id. at 287, 115 S.Ct. 2137. Whether exercising this jurisdiction is appropriate must be “informed by the teachings and experience [of the courts] concerning the functions and extent of federal judicial power.” Id. Put another way, “[i]n the declaratory judgment context, the normal principle that federal courts should adjudicate claims within their jurisdiction yields to considerations of practicality and judicial administration.” Id. at 288, 115 S.Ct. 2137.

[13] [14]But even where jurisdiction is not discretionary, courts may abstain from exercising jurisdiction under certain circumstances that may intrude on the prerogative of state courts. See generally Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976); Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); La. Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959); Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943); R.R. Comm’n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). Abstention helps avoid duplicative litigation and interference with state-court proceedings.

[15] [16] [17]For similar reasons, in declaratory judgment actions, courts must consider whether “federalism, efficiency, and comity” counsel against exercising jurisdiction when an ongoing proceeding in state court overlaps with the federal case. Penn-Am. Ins. Co. v. Coffey, 368 F.3d 409, 412 (4th Cir. 2004). In making this determination, we often look to (1) the state’s interest in having its own courts decide the issue; (2) the state courts’ ability to resolve the issues more efficiently than the federal courts; (3) the potential for unnecessary entanglement between the state and federal courts based on overlapping issues of fact or law; and (4) whether the federal action is mere forum-shopping. See Penn-Am. Ins. Co., 368 F.3d at 412 (citing Nautilus Ins. Co. v. Winchester Homes, Inc., 15 F.3d 371, 376 (4th Cir. 1994), abrogated in part on other grounds by Wilton, 515 U.S. 277, 115 S.Ct. 2137). And courts should exercise their discretionary jurisdiction with caution when doing so would raise serious questions about Article III jurisdiction, as this case does. See Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. and Constr. Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988).

*5 [18] [19]In deciding whether to exercise the discretion to issue a declaratory judgment, we must look closely at any potentially preclusive consequences that our decision might have on the state-court proceeding, or vice versa. Preclusion following an imprudent federal decision might “frustrate the orderly progress of the state-court proceedings by leaving the state court with some parts of the case foreclosed from further examination but still other parts in need of full scale resolution.” Nautilus, 15 F.3d at 377 (internal quotation marks omitted). By contrast, letting the state first resolve ambiguities in the record before us may permit us to make a more informed decision than we could do otherwise. Cf. A/S J. Ludwig Mowinckles Rederi, 559 F.2d at 932 (“An important factor in considering ripeness is whether resolution of the tendered issue is based upon events or determinations which may not occur as anticipated.”).

[20]Trying to resolve Trustgard’s responsibility under the surety endorsement now would lead to confusion and unnecessary entanglement with the state-court lawsuit. In their briefs, the parties have focused in large part on legal issues surrounding the interpretation of the surety endorsement. But, at least according to Collins, resolving the applicability of the endorsement also requires us to resolve factual issues about Brown’s liability. Other issues before the district court similarly counsel against exercising jurisdiction. Whether Brown’s liability policy covered the accident is antecedent to the endorsement, at least in a practical sense: if Brown’s liability policy covered the accident, there would be no need to resort to the endorsement. In such a circumstance, the interpretation of the endorsement would be the epitome of an advisory opinion.

As Trustgard acknowledges, the district court was forced to “engag[e] in significant analysis of Appellants’ potential state law claims” when deciding this case. Appellee Br. 16. The district court began its analysis by discussing Collins’s two potential avenues for imposing liability on Brown, with the first involving the doctrine of respondeat superior. The district court determined that this theory failed on the facts, effectively deciding a factual question at issue in the state proceeding.

This overlap with the state-court proceeding is significant. Both suits involve whether an agency relationship—or some other basis for vicarious liability—exists between Brown and McWilliams. Resolving those issues in a federal venue might have the unfortunate result of precluding the parties from fully litigating them in state court. Meanwhile, the state court, with access to the full transcript and other information, has begun the process of addressing those issues.

[21]We are particularly concerned about the court’s entanglement with those state-court issues given how thin and ambiguous the record was at the time of the district court’s analysis.7 The district court relied on the lack of an “owner-operator agreement or lease agreement” between Brown and McWilliams to conclude that there was no agency relationship for respondeat superior liability to apply. J.A. 152; see also J.A. 139. But, under South Carolina law, an agency relationship can be established without a written agreement. See Fernander v. Thigpen, 278 S.C. 140, 293 S.E.2d 424, 426 (1982) (“A true agency relationship may be established by showing evidence of apparent or implied authority, even where the parties have entered an agreement to the contrary.”). And the Joint Appendix includes a single page of the transcript of McWilliams’s deposition from the state suit, in which McWilliams states that he was displaying Brown’s motor carrier license because he was “hauling cars for [him] at the time.” J.A. 135. While we express no opinion whether it will, this statement, with more context, could conceivably suggest some kind of agency relationship when fully litigated in state court.

*6 The district court not only resolved the nature of the relationship in the context of Brown’s insurance policy, but it also extended its reasoning to Brown’s surety endorsement. Addressing whether Brown’s endorsement was implicated, the district court appeared to conclude that Brown was not a “motor carrier” because he “did not own, operate, maintain or use” a vehicle involved in the accident, he “was not even present during the accident,” and he was not a party to “an owner-operator agreement or lease agreement” with McWilliams. J.A. 154–55. But the uncertainty about the relationship between Brown and McWilliams (and about the theory by which Brown may be liable) renders it particularly unclear who qualified as a “motor carrier.” See 49 U.S.C. § 13102(14); 49 C.F.R. § 387.29. It could be only one or, at least theoretically, up to three motor carriers (Brown, McWilliams, and Murray).

That left two unappealing options for the district court were it to exercise jurisdiction. The first, which the district court chose, was to rule on the merits using the limited record. As discussed, this option may have a preclusive effect on issues of fact before the state court, which has the more robust record and thus is better equipped to resolve them. The second option, which we could order on a remand, would be to allow for more discovery in federal court to supplement the record.

Yet this second path would lead to a substantial duplication of effort with the state court. As the deposition excerpts in the record show, discovery in state court is already well underway. Making the district court conduct discovery on those same issues would be a waste of everyone’s time. Rather than begin duplicative discovery on issues already being addressed in state court, we think it is best for the state court to resolve these questions itself. After that court has a chance to settle these uncertainties, the parties may return, if necessary, to ask a federal court to decide any remaining coverage questions.

In the end, this case involves state-law issues about how to apportion liability following an automobile accident. Considerations of comity and judicial efficiency weigh strongly in favor of permitting the state court to address the relationship among the various defendants. These considerations become overwhelming given the dearth of information available in the federal case. So, while we have no reason to think that Trustgard brought this suit to shop for a friendlier forum, the factual uncertainties in the record before us and the likelihood of entanglement with the state-court lawsuit compel us to dismiss the case.

* * *

We recognize the practical benefits to the parties in the state-court litigation of knowing the extent of the available money to satisfy any judgment. But just because a federal court could exercise jurisdiction under the Declaratory Judgment Act does not mean that it should. The combination of factors here requires us to find that the district court abused its discretion: without addressing the decision to exercise its discretionary jurisdiction, the court reached the merits despite a thin and ambiguous record. In doing so, the court created both a substantial question about whether Article III jurisdiction existed and a serious potential to interfere with ongoing state proceedings. We therefore vacate the decision and remand with instructions to dismiss the action without prejudice.

VACATED AND REMANDED

PAMELA HARRIS, Circuit Judge, concurring in the judgment:

I concur in the majority’s holding that the district court abused its discretion under the Declaratory Judgment Act when it assumed jurisdiction over this insurance dispute, and in its judgment vacating the district court’s decision on that basis. For the reasons the majority very persuasively sets out in Part II.B of its opinion – including the state-law nature of the issues presented, the potential for interference with state-court proceedings, and the notable thinness of the factual record before the federal court – the district court should have declined to exercise jurisdiction here.

*7 Unlike the majority, however, I see no need to opine on the constitutional status of certain duty-to-indemnify claims or the dangers of advisory opinions. See Maj. Op. Part II.A. As the majority explains, it is not necessary that we address Article III standing; though ordinarily we resolve such jurisdictional questions first, that rule does not apply here, where “a discretionary jurisdictional” doctrine is sufficient to dispose of the case. Maj. Op. at –––– (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 100 n.3, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)). We have the benefit of no briefing or argument on the constitutional issue. And this question, it seems to me, is far from settled.

It is true, as the majority explains, that we, along with some other courts of appeals, have found claims for indemnification “premature” when there has been no “determination of liability,” see A/S J. Ludwig Mowinckles Rederi v. Tidewater Const. Co., 559 F.2d 928, 932 (4th Cir. 1977), though we also recognized that the authorities on the issue are “conflicting,” id. at 931. But none of those cases (and no other court of appeals case that I have found) clearly treat this as a matter of Article III jurisdiction, as opposed to a concern about ripeness in the more prudential sense, and some of the case law makes that distinction explicit. See, e.g., Lear Corp. v. Johnson Elec. Holdings Ltd., 353 F.3d 580, 583 (7th Cir. 2003) (“A declaration that A must indemnify B if X comes to pass has an advisory quality; and if the decision would not strictly be an advisory opinion (anathema under Article III) it could be a mistake, because it would consume judicial time in order to produce a decision that may turn out to be irrelevant.”). What case law there is on this subject, in other words, is “more a matter of when the court should exercise its discretion to decline jurisdiction, rather than its lack of jurisdiction under principles of justiciability.” 16 Couch on Insurance § 227:37 (3d ed. 2019).

My aim here is not to question the direction in which the majority’s Article III analysis points. It may be that the courts ultimately will conclude that there is no subject matter jurisdiction over duty-to-indemnity claims absent a finding of liability, and that they will do so under the rubric of standing rather than ripeness, as posited by the majority. But given the lack of clarity in the case law and the absence of any need to address the issue here, I would not wade as far into this constitutional question as the majority has gone.

All Citations
— F.3d —-, 2019 WL 5700355

Footnotes

1
The limited record provides mixed signals on whether Mr. McWilliams’s first name is Jerome or Michael. Compare J.A. 9, 116, 133, 148 (referring to Mr. McWilliams as “Jerome McWilliams”), with J.A. 9, 133, 148 (also referring to Mr. McWilliams as “Michael McWilliams”).

2
We set aside any theories supporting joint and several liability under South Carolina law because they do not impact the analysis at hand.

3
Lujan articulated three elements of standing: (1) injury in fact, (2) causation, and (3) redressability. 504 U.S. at 560–61, 112 S.Ct. 2130.

4
Though distinct doctrines, the Supreme Court has explained that justiciability problems, like those here, can often be described as either standing or ripeness while addressing the same fundamental question. See MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128 n.8, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007); see also Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 n.5, 134 S.Ct. 2334, 189 L.Ed.2d 246 (2014) (noting that the “doctrines of standing and ripeness originate from the same Article III limitation” and may “boil down to the same question” (internal citations omitted)).

5
In A/S J. Ludwig Mowinckles Rederi, we described the problem in terms of ripeness but acknowledged that “the question of the ripeness of a claim for adjudication in a federal court is essentially a question of the judicial power of the court over the claim and whether the court should exercise that power.” 559 F.2d at 931 n.4.

6
The Court in Moor permitted a discretionary declination of pendent jurisdiction, without first addressing whether a federal court’s pendent jurisdiction could ever extend to state-law claims against a new party. The Steel Co. Court also blessed the decision in Ellis v. Dyson, 421 U.S. 426, 436, 95 S.Ct. 1691, 44 L.Ed.2d 274 (1975), which permitted the declination of jurisdiction based on abstention without first addressing whether a “case or controversy” was presented. Steel Co., 523 U.S. at 100 n.3, 118 S.Ct. 1003.

7
During oral argument the parties noted that the federal court record lacked the applicable state-court complaint from 2017.