United States District Court, W.D. Kentucky,

Bowling Green Division.

Steven E. JAVINS, Pamela Javins, Plaintiffs

v.

FIVE STAR FREIGHT COMPANY, INC., Lonnie Lovings Trucking Company, Inc., Oceanstar, LLC, Freightstar Trucking, Inc., Defendants

v.

Terry R. Brown, Emerald Isle Marina, Inc., Third-Party Defendants.

No. 1:06-CV-00124-R.

Feb. 24, 2009.

MEMORANDUM OPINION

THOMAS B. RUSSELL, Chief Judge.

This matter comes before the Court on Third-Party Defendants’ Motion for Summary Judgment (DN 49). Defendant Freightstar Trucking, Inc. (“Freightstar”) responded (DN 51) and Third-Party Defendants Terry R. Brown and Emerald Isle Marina, Inc. (“Third-Party Defendants”) replied (DN 52). This matter is now ripe for adjudication. For the following reasons, Third-Party Defendants’ Motion is GRANTED.

BACKGROUND

This matter arises from an injury suffered by Plaintiff Steven Javins, who was struck by a floatation billet that he was helping to unload from a truck at Third-Party Defendants’ marina. Javins, with his wife Pamela Javins, filed this action on August 8, 2006. On August 11, 2008, Freightstar was granted leave to file its Third-Party Complaint against Third-Party Defendants. Freightstar alleges in its Third-Party Complaint that Javins’s alleged injury was a direct and proximate result of the negligence of Third-Party Defendants, their employees, servants and/or agents. Freightstar states that it is entitled to a judgment of indemnity, contribution, and/or an apportionment instruction at trial in its favor against Third-Party Defendants.

Third-Party Defendant Terry Brown owns and operates the Emerald Isle Marina in Taylor County, Kentucky. Brown ordered new floating docks for the Marina from a manufacturer, who then ordered the floatation billets, or “floats,” to be delivered to the Marina. Donnie Loos, a truck driver employed by Defendant Lonnie Lovings Trucking Company, Inc. (“Lovings”) and working under a lease arrangement between Lovings and Freightstar, was originally scheduled to deliver the floats on the Wednesday prior to Thanksgiving. Loos, however, rescheduled the delivery to that Saturday. Because the Marina employees would not be at work that Saturday, Brown advised Loos that Loos would have to unload the trailer himself.

Prior to that Saturday, Brown spoke with Randy and Janice Buckner, a retired couple who stayed in a condo apartment owned by Brown and helped with the Marina and resort business. The Buckners volunteered to help Brown with the delivery. The Buckners were not paid to help unload the shipment, nor did they expect any payment. On the morning of the delivery, Randy Buckner stopped by his brother Jimmy’s condo and asked Plaintiff Steven Javins (“Javins”), who was at Jimmy’s, if he could he could help unload the floats delivery. Javins agreed to help. Javins was not paid for his service, nor did he expect payment.

While the trailer was being unloaded, Javins was struck by a float, knocked to the ground and rendered temporarily unconscious. His wife took him to the hospital later that day for testing. Ultimately, Javins underwent both surgery and rehabilitation.

STANDARD

Third-Party Defendants argue that they are entitled to summary judgment because Freightstar’s Third-Party Complaint fails to state a claim against them for which relief can be granted, and because there are no issues of material fact which preclude judgment as a matter of law. Summary judgment is appropriate where “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.”Fed.R.Civ.P. 56(c). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

“[N]ot every issue of fact or conflicting inference presents a genuine issue of material fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir.1989). The test is whether the party bearing the burden of proof has presented a jury question as to each element in the case. Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir.1996). The plaintiff must present more than a mere scintilla of evidence in support of his position; the plaintiff must present evidence on which the trier of fact could reasonably find for the plaintiff. See id.(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). Mere speculation will not suffice to defeat a motion for summary judgment: “the mere existence of a colorable factual dispute will not defeat a properly supported motion for summary judgment. A genuine dispute between the parties on an issue of material fact must exist to render summary judgment inappropriate.”Moinette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1177 (6th Cir.1996).

Finally, while Kentucky state law is applicable to this case pursuant to Erie Railroad v. Tompkins, 304 U.S. 64 (1938), a federal court in a diversity action applies the standards of Fed.R.Civ.P. 56, not “Kentucky’s summary judgment standard as expressed in Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476 (Ky.1991).” Gafford v. Gen. Elec. Co., 997 F.2d 150, 165 (6th Cir.1993).

DISCUSSION

A defendant, as a third-party plaintiff, may bring into a case a third party “who is or may be liable to it for all or part of the claim against it.”Fed. R. Civ. Pro. 14(a)(1). Thus, the Court must first determine whether Freightstar may be entitled to indemnity or contribution from Third-Party Defendants. Under Kentucky law, the right to indemnity “is available to one exposed to liability because of the wrongful act of another with whom he/she is not in pari delicto.” Degener v. Hall Contracting Corp., 27 S.W.3d 775, 780 (Ky.2000). Tortfeasors are “in pari delicto” when they “are guilty of concurrent negligence of substantially the same character which converges to cause the plaintiff’s damages.” Id. at 778.When tortfeasors are “in pari delicto,” a tortfeasor who satisfies more than its share of the judgment is entitled to contribution from a joint tortfeaser for its share. Id. at 778-79.In contrast, indemnity applies when “a constructively or secondarily liable party” has a right “to total indemnity from the primarily liable party with whom he/she is not in pari delicto.” Id. at 780.Apportionment of liability has no application to the right to indemnity. Id.

Here, Freightstar argues that the jury may apportion at least some fault to Third-Party Defendants for their negligence in allowing Steven Javins to be present and assist in the unloading of the floats. In other words, Freightstar argues that it is possible for the jury to find that Freightstar is “in pari delicto” with Third-Party Defendants. Freightstar does not argue that it is only constructively or secondarily liable. Therefore, the Court finds that Freightstar cannot be entitled to indemnity from Third-Party Defendants.

Under Kentucky law, liability among joint tortfeasors is several only. Dix & Assocs. Pipeline Contractors, Inc. v. Key, 799 S.W.2d 24, 27 (Ky.1990). Kentucky does not follow the common law rule that each negligent party may be held entirely responsible for a single indivisible injury. Id. As a result, one tortfeasor will not be required to pay more than its share of apportioned damages. Therefore, the Court finds that Freightstar cannot be entitled to contribution from Third-Party Defendants because Freightstar’s tort liability is limited to the damages found to be caused by Freightstar. See Kevin Tucker & Assocs., Inc. v. Scott & Ritter, Inc., 842 S.W.2d 873, 874 (Ky.Ct.App.1992).

In its Third-Party Complaint, Freightstar also requests an apportionment instruction. Third-Party Defendants do not object to this request. If the evidence at trial shows that Third-Party Defendants caused some portion of Plaintiffs’ damages, then Freightstar may be entitled to an apportionment instruction. See id. at 875; Adam v. J.B. Hunt Transport, Inc., 130 F.3d 219, 228 (6th Cir.1997) (“[I]f there has ever been an active assertion of a claim against the Third-Party-if the Third-Party has been impleaded by the original defendant, in other words-liability can be apportioned to the third-party defendant notwithstanding a dismissal prior to trial.”).

In sum, because Third-Party Defendants may not be held liable under Kentucky law to Freightstar for all or part of Plaintiffs’ claim against Freightstar, Third-Party Defendants must be dismissed from this action. Nevertheless, Freightstar may be entitled to an apportionment instruction at trial because Freightstar has made an active assertion of a claim against Third-Party Defendants.

CONCLUSION

For the foregoing reasons, Third-Party Defendants’ Motion for Summary Judgment is GRANTED.

An appropriate order shall follow.

United States District Court,

M.D. Alabama,

Northern Division.

Bishop A. IVEY, as Personal Representative of the Estate of Derrick Lamar Ivey, deceased, Plaintiff,

v.

LEWIS TRUCKING COMPANY, et al., Defendants.

No. 2:08-CV-991-WKW [WO].

Feb. 27, 2009.

MEMORANDUM OPINION AND ORDER

W. KEITH WATKINS, District Judge.

Defendants Swift Transportation Co. (“Swift Transportation”) and John E. Nunez (“Nunez”) removed this case from the Circuit Court of Montgomery County, Alabama, on December 15, 2008. (Doc. # 4.) Defendants Lewis Trucking Company and Andrew Carter Jr. later joined and consented to removal. (Doc. # 1.) Defendants removed on the basis of diversity jurisdiction, 28 U.S.C. § 1332. (Pet. Removal 2.) They claim, as the ground for removal, that Defendant Leeposey Daniels (“Daniels”) was fraudulently joined to the action and that without him, complete diversity of citizenship exists. (Pet. Removal 3.) Plaintiff Bishop A. Ivey (“Ivey”) filed a motion for leave to amend his complaint, and filed an Amended Complaint adding Defendant Kenneth Jones (“Jones”). (Docs. # 12 & 16.) Subsequent to the Amended Complaint, Mr. Jones filed a motion to dismiss, which he supplemented. (Docs. # 21 & 22.) Mr. Ivey also filed a timely motion to remand for lack of subject matter jurisdiction, with an accompanying brief. (Docs. # 13 & 14.) Swift Transportation and Mr. Nunez responded to the motion to remand (Doc. # 24), and Mr. Ivey replied (Doc. # 27).

Lewis Trucking Company adopted their response. (Doc. # 25.)

Mr. Ivey is one of seven plaintiffs who have removed lawsuits to this district from state court stemming from this accident. Judge Thompson remanded the three cases before him for failure to prove fraudulent joinder or fraudulent misjoinder. (Docket No. 2:08cv986 (Doc. # 37); Docket No. 2:08cv989 (Doc. # 28); Docket No. 2:08cv992 (Doc. # 26).)

Mr. Ivey’s Motion to Remand challenges jurisdiction on two grounds. It opposes Defendants’ assertion of fraudulent joinder, and denies that the requisite amount in controversy has been met. (Mot. Remand Br. 1.) If non-diverse parties are fraudulently joined to an action, their citizenship will not be considered for purposes of determining diversity jurisdiction. Tedder v. F.M.C. Corp., 590 F.2d 115, 117 (5th Cir.1979) (per curiam). The Eleventh Circuit recognizes three forms of fraudulent joinder. Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir.1998) (citing Coker v. Amoco Oil Co., 709 F.2d 1433, 1440 (11th Cir.1983), superseded by statute on other grounds as stated in Georgetown Manor, Inc. v. Ethan Allen, Inc., 991 F.2d 1533 (11th Cir.1993)). The one relevant to this case is fraudulent joinder “when there is no possibility that the plaintiff can prove a cause of action against the resident (non-diverse) defendant.”Id.

In Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions handed down by the former Fifth Circuit prior to October 1, 1981.

The removing party bears the burden of proving fraudulent joinder, and the burden is “heavy.” Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir.1997) (internal quotation marks and citation omitted).“[A]ll factual issues and questions of controlling substantive law” must be viewed in the light most favorable to the plaintiff, and “[i]f there is even a possibility that a state court would find that the complaint states a cause of action against any one of the resident defendants, the federal court must find that the joinder was proper and remand the case to the state court.” Coker, 709 F.2d at 1440-41;accord Pacheco de Perez v. AT & T Co., 139 F.3d 1368, 1380 (11th Cir.1998). Although for purposes of determining fraudulent joinder, courts may consider affidavits and deposition transcripts submitted by either party, in addition to the plaintiff’s pleadings at the time of removal, Legg v. Wyeth, 428 F.3d 1317, 1322 (11th Cir.2005), “the jurisdictional inquiry must not subsume substantive determination,” Crowe, 113 F.3d at 1538 (internal quotation marks and citation omitted). Courts must be “certain” of their jurisdiction and “are not to weigh the merits of a plaintiff’s claim beyond determining whether it is an arguable one under state law.”Id. (internal quotation marks and citation omitted).

Defendants here have not proven fraudulent joinder. The Complaint alleges negligence against Mr. Daniels.(Compl. ¶ 20 (Pet. Removal Ex. 1).) Mr. Ivey’s son Derrick Lamar Ivey (“Derrick Ivey”) died in a vehicle accident on October 3, 2008. (Compl.¶¶ 1, 9-15.) Derrick Ivey and other job applicants for employment with the Alabama Department of Corrections were riding in a van on a highway to another location for a training session when a truck allegedly hit the van. (Compl.¶¶ 9-11.) The van caught fire, and Derrick Ivey died as the result of injuries sustained in the collision, and from a subsequent fire that burned the passengers to death. (Compl.¶¶ 13-14.) Mr. Daniels, the warden for Draper Prison, allegedly “had a duty to oversee the modification of the subject van and had a duty to ensure the safe travel of the occupants of the van[,][and] negligently failed to ensure a safe modification and negligently failed to ensure the safe travel of the occupants of the van.”(Compl.¶¶ 8, 20.)

The scope of the remand motion is limited to addressing the only named non-diverse Defendant at the time of removal, Mr. Daniels. See Legg, 428 F.3d at 1322 (noting that the relevant pleadings for fraudulent joinder are those from the plaintiff at the time of removal). Mr. Ivey’s amended complaint, which added Mr. Jones as a defendant, was filed post-removal. Even if, however, the scope of the motion to remand included Mr. Jones, the resolution of the motion would be no different.

Defendants argue on removal that Mr. Ivey “cannot establish any set of facts that would show Mr. Daniels ‘had a duty to oversee the modification of the van.’ “ (Pet. Removal 5.) Defendants’ factual basis is that the van modifications were made at Draper Fleet Services, which had no connection to Draper Prison. (Pet. Removal 5 .) Even if Defendants’ factual assertion is true, however, it does not speak to whether Mr. Daniels had a duty to oversee the van modifications or to ensure safe travel, and does not preclude the possibility that the development of other facts could show a duty and breach.

The more developed theory for fraudulent joinder is Defendants’ state-agent immunity argument. Defendants contend that, because Mr. Daniels is entitled to immunity as a state agent, Mr. Ivey cannot state a viable claim against him. (Pet. Removal 6-8; Remand Resp. 3-5.) Defendants acknowledge that there are exceptions to the application of state-agent immunity, but state that the motions and affidavits show Mr. Daniels is not entitled to those exceptions. (Pet. Removal 7-8.) Mr. Ivey’s response accurately recognizes, however, that the state of the law in Alabama on state-agent immunity “is anything but settled” and “depends on the specific facts.” (Mot. Remand Br. 13.) State agents are not entitled to immunity if they “failed to discharge duties pursuant to detailed rules or regulations, such as those stated on a checklist, or acted willfully, maliciously, fraudulently, in bad faith, beyond [ ] authority, or under a mistaken interpretation of the law.”Ex parte Ala. Dep’t of Mental Health & Retardation, 837 So.2d 808, 814 (Ala.2002) (quoting Ex parte Butts, 775 So.2d 173, 178 (2000)). Factual development is crucial to determining whether state agents fall into these exceptions to immunity.

There has not been enough factual development at this stage to find that there is no possibility that Mr. Ivey can prove a claim against Mr. Daniels. Although negligence falls below the standard of malicious, willful, or fraudulent behavior, a claim of negligence does not preclude proving facts that support a higher level of culpability. Furthermore, the possibility that Mr. Daniels acted outside his authority or failed to discharge duties pursuant to rules and regulations is not foreclosed by an assertion of negligence. Only further factual development can determine whether Defendants can successfully assert state-agent immunity.

Viewing the facts and applicable law in the light most favorable to Mr. Ivey, Defendants have not supported their burden of establishing that the non-diverse party Mr. Daniels was fraudulently joined in this action. The issue on fraudulent joinder is whether it can be definitely stated at this stage that the claim is foreclosed. It quite simply cannot. Because remand is justified for lack of diversity of citizenship (see Compl. ¶¶ 1, 7-8), it is not necessary to address whether the amount in controversy has been satisfied.

It is also unnecessary to resolve the motion to dismiss.“ ‘Without jurisdiction the court cannot proceed at all in any cause’; it may not assume jurisdiction for the purpose of deciding the merits of the case.” Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 432 (2007) (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998)).

Accordingly, it is ORDERED that:

(1) Mr. Ivey’s Motion to Remand (Doc. # 13) is GRANTED;

(2) This case is REMANDED to the Circuit Court for Montgomery County, Alabama; and

(3) The Clerk of the Court is DIRECTED to take appropriate steps to effect the remand.

M.D.Ala.,2009.

Ivey v. Lewis Trucking Co.

Slip Copy, 2009 WL 499451 (M.D.Ala.)

END OF DOCUMENT