Parker v. Miller
United States District Court for the Southern District of Ohio, Eastern Division
April 12, 2018, Filed
Case No: 2:16-cv-1143

Reporter
2018 U.S. Dist. LEXIS 62155 *
SHANICE J. PARKER, Plaintiff, v. ERIC M. MILLER, et al., Defendants.

OPINION AND ORDER
This matter is before the Court upon the Motion of Defendants Fowlds Brothers Trucking, Inc. for Reconsideration, or in the alternative, Motion for Leave to Fully Brief the Issue of Alter Ego (“Fowlds’ Motion for Reconsideration”) (Doc. 39). Plaintiff Shanice Parker filed in a response a Motion for an Order Staying Plaintiff’s Time to File a Response to Defendant’s Motion (“Parker’s Motion to Stay”) (Doc. 41). Because the time for Fowlds to respond to Parker’s Motion to Stay has now elapsed without a request for [*2] extension, and because Parker’s Motion to Stay also effectively comprises a brief in opposition to Fowlds’ Motion for Reconsideration, the Court deems both motions ripe for disposition. For the following reasons, Fowlds’ Motion for Reconsideration is DENIED and Parker’s Motion to Stay is DENIED AS MOOT.

I. BACKGROUND
Plaintiff Shanice Parker was injured in an accident on April 12, 2016, when the stationary car in which she was seated was struck by a tractor trailer driven by Defendant Eric Miller. (Doc. 8, Am. Compl. ¶¶ 19-28). At the time of the accident, Miller was a truck driver employed by Defendant Dakotaland Transportation, Inc. (“Dakotaland”) and was driving the truck as part of his job duties. (Id. ¶ 31). The truck involved in the accident was leased by Dakotaland from Defendant Fowlds Brothers Trucking, Inc. (“Fowlds”). (Id. ¶¶ 7-8; Doc. 21-1, PAGEID #309, Aff. of Jerald Fowlds, ¶ 5). Parker brought suit against Miller, Dakotaland, and Fowlds to recover for her injuries sustained in the accident.
Fowlds previously moved for summary judgment on all claims against it on grounds that Fowlds was merely the owner of the truck and not Miller’s employer. (Doc. 21). Parker countered [*3] that Dakotaland (whom the parties agree was Miller’s employer at the time of the accident) is so related to Fowlds that they are essentially the same entity, and therefore Miller was also employed by Fowlds and Fowlds also entrusted the truck to Miller.
Both parties structured their arguments as to the relationship between Fowlds and Dakotaland under the framework of the Graves Amendment, 49 U.S.C. § 30106, which limits vicarious liability for owners of vehicles that are involved in accidents caused by the negligence of the lessee of the vehicle. However, in order to avoid liability, the owner of the vehicle must establish the absence of negligence on both its part and on the part of any of its “affiliates.” A person qualifies as an affiliate of the owner if that person “directly or indirectly controls, is controlled by, or is under common control with the owner.” 49 U.S.C. § 30106(d). The statute further states that “‘control’ means the power to direct the management and policies of a person whether through ownership of voting securities or otherwise.” Id. Parker argued, and Fowlds denied, that Dakotaland is an affiliate of Fowlds, and because Dakotaland was negligent in hiring Miller and entrusting him with the truck, Fowlds is not [*4] shielded from liability by the Graves Amendment.
In its order denying Fowlds’ motion for summary judgment, the Court determined that the Graves Amendment did not apply to Parker’s claims, because they were not based on Fowlds’ ownership of the truck. Rather, all allegations against Fowlds stem from Parker’s position that Miller was actually employed by Fowlds in addition to Dakotaland. (Doc. 38). Additionally, Ohio does not impose the kind of strict, vicarious liability on vehicle lessors that the Graves Amendment was designed to limit. Thus, “it is irrelevant whether Fowlds and Dakotaland qualify as ‘affiliates’ under the Graves Amendment. What matters is whether Fowlds was Miller’s employer under Ohio law.” (Doc. 38, Order Denying Summ. J. at 7).
The parties having both mistakenly briefed an inapplicable standard, the Court was left with a decision: (1) deny Fowlds’ motion for summary judgment without further analysis, because Fowlds had not carried its burden to show that it was immune from liability as a matter of law; or (2) consider the facts submitted by parties in furtherance of the “affiliate” analysis to determine whether Fowlds might nevertheless be entitled to summary judgment under the correct “alter ego” analysis. In the interest of efficiency [*5] and avoiding waste of the parties’ efforts, the Court chose the second option.
The Graves Amendment requires that two entities be under “common control” to qualify as affiliates, and the alter ego analysis requires that the two entities are functionally the same. (Doc. 38, Order Denying Summ. J. at 7-8, listing factors considered in the alter ego analysis). Thus, many of the relevant facts will overlap for the two analyses. The Court considered all facts submitted by the parties and determined that a fact issue existed as to whether Fowlds and Dakotaland were alter egos of each other. (Id. at 8-9). Therefore, the Court could not grant summary judgment in favor of Fowlds on the record before it.
Fowlds now moves the Court to reconsider its Order denying Fowlds’ motion for summary judgment, or, in the alternative, for leave to fully brief Ohio’s alter ego standard. (Doc. 39).

II. STANDARD FOR RECONSIDERATION
Fowlds asks the Court to exercise its discretion under Federal Rule of Civil Procedure 54(b) to reconsider the Order to the extent it denied summary judgment in favor of Fowlds. Interlocutory orders “may be revised at any time before the entry of a judgment adjudicating all the claims.” Fed. R. Civ. P. 54(b). “District courts have authority both under common law and Rule 54(b) to [*6] reconsider interlocutory orders and to reopen any part of a case before entry of final judgment.” Harrington v. Ohio Wesleyan Univ., No. 2:05-CV-249, 2008 U.S. Dist. LEXIS 3411, 2008 WL 163614, at *1 (S.D. Ohio Jan. 16, 2008) (Holschuh, J.) (quoting Rodriguez v. Tenn. Laborers Health & Welfare Fund, 89 Fed. App’x 949, 959 (6th Cir. 2004)). “The Court has ‘significant discretion’ in considering a motion to reconsider an interlocutory order.” Harrington, 2008 U.S. Dist. LEXIS 3411, 2008 WL 163614, at *2 (quoting Rodriguez, 89 Fed. App’x at 959 n. 7.)
Typically, however, courts will reconsider previous interlocutory orders only “when there is (1) an intervening change of controlling law; (2) new evidence available; or (3) a need to correct a clear error or prevent manifest injustice.” Louisville/Jefferson Cty. Metro Gov’t v. Hotels.com, L.P., 590 F.3d 381, 389 (6th Cir. 2009). “Generally, a manifest injustice or a clear error of law requires unique circumstances, such as injunctive relief scenarios or superseding factual scenarios.” McWhorter v. ELSEA, Inc., No. 2:00CV473, 2006 U.S. Dist. LEXIS 87113, 2006 WL 3483964, at *2 (S.D. Ohio Nov. 30, 2006) (Kemp, M.J.). Motions for reconsideration are not intended to be utilized to re-litigate issues previously considered. Macdermid Inc. v. Electrochemicals Inc., 142 F.3d 435 (Table), [published in full-text format at 1998 U.S. App. LEXIS 6663] 1998 WL 165137, * 6 n. 7 (6th Cir. 1998).

III. DISCUSSION
Fowlds’ Motion for Reconsideration cites several cases that Fowlds did not previously include in its Motion for Summary Judgment. But Fowlds identifies neither an intervening change of controlling law, nor additional evidence relevant to the alter ego analysis and not previously considered by the Court, nor a need to correct a clear [*7] error or prevent a manifest injustice. Rather, Fowlds merely disagrees with the Court’s conclusion that “[w]hen construing the facts in the light most favorable to Parker, the Court cannot say as a matter of law that Fowlds and Dakotaland are not alter egos of one another.” (Doc. 38, Order Denying Summ. J. at 9).
Having mistakenly chosen to focus on an inapplicable standard on summary judgment, Fowlds has identified no basis for being permitted a second bite at the apple on reconsideration. The Court therefore declines to exercise its discretion to reconsider its previous Order. Nor has Fowlds identified a basis for additional briefing related to the alter ego doctrine at this stage. This Court’s Local Rules provide only for memoranda in support of a motion, memoranda in opposition, and reply memoranda in the normal course. S.D. Ohio Civ. R. 7.2(a). Any further memoranda require leave of court based on a showing of good cause. Id. The proper forum for Fowlds’ alter ego arguments was its briefing during the summary judgment stage. The Court does not find good cause for additional briefing on the record before it.

IV. CONCLUSION
For the foregoing reasons, Fowlds’ Motion for Reconsideration, or in the alternative, [*8] Motion for Leave to Fully Brief the Issue of Alter Ego, is DENIED. Parker’s Motion for an Order Staying Plaintiff’s Time to File a Response to Defendant’s Motion is DENIED AS MOOT.
The Clerk shall remove Documents 39 and 41 from the Court’s pending motions list.
IT IS SO ORDERED.
/s/ George C. Smith
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT

Hughes v. Transwood, Inc.
United States District Court for the Eastern District of Missouri, Eastern Division
April 12, 2018, Decided; April 12, 2018, Filed
Case no. 4:17cv01943 PLC

Reporter
2018 U.S. Dist. LEXIS 62074 *
DAVID HUGHES, Plaintiffs, v. TRANSWOOD, INC., and RICHARD TERRY, Defendants.

MEMORANDUM AND ORDER
This matter is before the Court on review of the record regarding the Court’s subject matter jurisdiction in this removed lawsuit in which Plaintiff pursues negligence claims under Missouri state law. Plaintiff seeks monetary relief for personal injuries and property damage he allegedly sustained on June 16, 2016, when a tire on a tractor-trailer driven by Defendant Richard Terry, who was an employee of Defendant Transwood, Inc., exploded and hit Plaintiff’s vehicle while on a highway in Missouri. In July 2017, Defendant Terry, with Defendant Transwood, Inc.’s consent, removed the case to this Court based on this Court’s diversity jurisdiction. See 28 U.S.C. §§ 1441, 1332. Concluding there is complete diversity between Plaintiff and Defendants, the Court questioned whether there is more than $75,000.00, exclusive of interest and costs, at issue to satisfy the amount [*2] in controversy prerequisite for diversity jurisdiction.1 The Court set deadlines by which (1) Defendants needed to “provid[e] evidence and supplement[ their] notice of removal” to avoid remand due to lack of subject matter jurisdiction, and (2) Plaintiff could respond to Defendants material(s).2
Defendants timely filed a supplemental notice of removal, with six exhibits (identified as exhibits A through F) attached.3 The exhibits are copies of: (1) Plaintiff’s June 8, 2017 letter to Defendants’ counsel demanding $100,000 to settle the case,4 (2) Plaintiff’s responses to Defendants’ first request for admissions directed to Plaintiff,5 (3) Plaintiff’s post-accident medical treatment records,6 (4) a table summarizing the $33,223.68 in expenses Plaintiff incurred for medical treatment from the day of the accident through January 30, 2017, with a notation “waiting on estimate” with respect to the “Future Surgery/Medical” expenses,7 (5) an excerpt from Plaintiff’s deposition,8 and (6) the itemization of repairs to Plaintiff’s motor vehicle.9 Plaintiff did not file a response to Defendants’ materials.
In their supplemental notice of removal, Defendants state that Plaintiff seeks property damages [*3] for $9,816.55 in repairs to Plaintiff’s car;10 an undisclosed amount for serious injuries to Plaintiff’s right arm, neck, and back, which will allegedly require future treatment;11 an undisclosed amount for past and future medical treatment, with such expenses totaling more than $33,000.00 for care through January 2017 and documentation of expenses for medical care since January 2017 not yet available;12 and an undisclosed amount in past and future lost wages due to the need to close Plaintiff’s business “following the accident.”13
Defendants further assert, and in his response to the request for admissions Plaintiff admits, that Plaintiff did not sign a proposed stipulation that Plaintiff seeks less than $75,000.00.14 The record also discloses, through Plaintiff’s responses to Defendants’ requests for admissions, that Defendants countered Plaintiff’s settlement offer, by offering to settle the case for $10,000.00.15 Defendants urge “jurisdiction is not premised on [D]efendants’ position on liability and damages. It is based on [P]laintiff’s settlement demand of $100,000.00 and his refusal to stipulate, agree or otherwise plead that his damages are less than $75,000.00.”16
When a court [*4] questions the amount in controversy, evidence establishing the amount is required. See Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S. Ct. 547, 554, 190 L. Ed. 2d 495 (2014) (“Dart Cherokee”). The removing defendants must establish the amount in controversy by a preponderance of the evidence. Bell v. Hershey Co., 557 F.3d 953, 956 (8th Cir. 2009); see Dart Cherokee, 135 S. Ct. at 554; 28 U.S.C. § 1446(c)(2)(B). Importantly, the issue is not whether the damages are in fact greater than $75,000.00, “but whether a fact finder might legally conclude that they are.” Hartis v. Chicago Title Ins. Co., 694 F.3d 935, 944 (8th Cir. 2012) (emphasis in original) (internal quotation marks omitted) (quoting Bell 557 F.3d at 959). “Once the removing party has established by a preponderance of the evidence that the jurisdictional minimum is satisfied, remand is only appropriate if the plaintiff can establish to a legal certainty that the claim is for less than the requisite amount.” Id. at 946 (internal quotation marks omitted) (quoting Bell, 557 F.3d at 956); accord Raskas v. Johnson & Johnson, 719 F.3d 884, 888 (8th Cir. 2013) (once the removing party shows the amount in controversy by a preponderance of the evidence, the case belongs in federal court unless the plaintiff demonstrates it is legally impossible, and not just “highly improbable,” to recover that amount).
To establish the amount in controversy by a preponderance of the evidence, a removing defendant must present “some specific facts or evidence demonstrating that the jurisdictional amount has been met[.]” [*5] Hill v. Ford Motor Co., 324 F. Supp. 2d 1028, 1036 (E.D. Mo. 2004). Engaging in speculation or presumptions about the amount in controversy is insufficient to demonstrate satisfaction of the required amount. Id. A court may consider materials submitted after removal that show “in fact, the required amount was or was not in controversy at the” time federal court jurisdiction was invoked.17Schubert v. Auto Owners Ins. Co., 649 F.3d 817, 823 (8th Cir. 2011) (internal quotation marks omitted) (quoting State Farm Mut. Auto Ins. Co. v. Powell, 87 F.3d 93, 97 (3rd Cir. 1996)); accord Pudlowski v. The St. Louis Rams, LLC, 829 F.3d 963, 964-65 (8th Cir. 2016) (per curiam). The materials a removing defendant submits to demonstrate satisfaction of the amount in controversy by a preponderance of the evidence may include “affidavits, declarations, and other documentation.” McNamee v. Knudsen & Sons, Inc., 4:15-CV-572 (CEJ), 2016 U.S. Dist. LEXIS 26964, 2016 WL 827942, at *3 (E.D. Mo. Mar. 3, 2016).
Defendants argue Plaintiff’s post-complaint letter demanding $100,000.00 to settle the case supports a conclusion the amount in controversy prerequisite for diversity jurisdiction is satisfied. The United States Court of Appeals for the Eighth Circuit has not yet decided “whether a post-complaint settlement offer alone is sufficient to establish the requisite amount in controversy,” but characterized a post-complaint demand letter as “offer[ing] . . . support for the valuation of the [plaintiff’s] claims.” In re: Minnesota Mut. Life Ins. Co. Sales Practices Litig., 346 F.3d 830, 835 (8th Cir. 2003). This Court considers a post-complaint settlement [*6] demand or offer, along with other circumstances of the case, to resolve whether the amount in controversy requirement for diversity jurisdiction is satisfied. See, e.g., Branch v. Wheaton Van Lines, Inc., No. 4:14-CV-01735-AGF, 2014 U.S. Dist. LEXIS 161081, 2014 WL 6461372, at *2 (E.D. Mo. Nov. 17, 2014) (concluding the defendant had not satisfied its burden of demonstrating the amount in controversy requirement for diversity jurisdiction when the plaintiff’s “settlement demands all fell below $75,000,” the plaintiff’s “allegations of medical expenses and lost wages . . . total[ed] far less than $75,000” and the plaintiff “explicitly [sought] damages in an amount ‘not to exceed’ $74,000” in his petition). Here, Plaintiff (1) did not expressly limit his request for damages in his petition to less than $75,000 and, after filing the lawsuit but before removal, (2) demanded more than $75,000 (specifically, $100,000) to settle the case. Under the circumstances (including Plaintiff’s unlimited prayers for relief and the documentation submitted by Defendants with respect to the scope and cost of treatment for Plaintiff’s serious injuries to his neck, arm and back, the extent of repairs to Plaintiff’s damaged vehicle, and the loss of Plaintiff’s business), Plaintiff’s post-complaint, [*7] pre-removal letter demanding $100,000 to settle the case supports a determination that a fact finder might legally conclude Plaintiff’s damages are more than $75,000.00. See Parshall v. Menard, Inc. d/b/a Menards, No. 4:16-CV-828 (CEJ), 2016 U.S. Dist. LEXIS 94437, 2016 WL 3916394, at *3-4 (E.D. Mo. July 20, 2016) (denying remand upon finding the defendant established by a preponderance of the evidence that a fact finder might legally conclude damages were greater than $75,000 based on: (1) a settlement demand over $75,000, (2) the plaintiff’s allegations of serious injuries to the plaintiff’s upper left extremity, left shoulder, and neck, including continuing medical expenses and lost wages, and (3) the plaintiff’s request for an unlimited amount of damages).
Defendants also urge Plaintiff’s failure to stipulate that he is seeking less than $75,000 supports a conclusion that the amount in controversy exceeds $75,000. Such a refusal in and of itself is not sufficient to satisfy the amount in controversy requirement. Biomedical Sys. Corp. v. Crawford, No. 4:15CV1775 CDP, 2016 U.S. Dist. LEXIS 3978, 2016 WL 147146, at *2 (E.D. Mo. Jan. 13, 2016); Branch, 2014 U.S. Dist. LEXIS 161081, 2014 WL 6461372, at *2. When other evidence of record supports a finding that the amount in controversy is satisfied, however, a plaintiff’s refusal “to stipulate to a damage award amount of $75,000.00 or less” may be persuasive. [*8] Gebert v. United Rentals (North Am.), Inc., No. 4:05CV717SNL, 2005 WL 2789332, at *1 (E.D. Mo. Oct. 26, 2005). In Gebert, the Court denied a motion to remand upon finding the defendant had “offered undisputed evidence of the plaintiff’s [$50,000.00 annual] salary at the time of her termination” more than two years earlier and the plaintiff’s petition included an unlimited “prayer for compensatory and punitive damages, as well as front pay and back pay.” Id. Concluding “a fact finder could legally award [the plaintiff] damages . . . in an amount greater than the jurisdictional threshold,” the Court in Gebert found the plaintiff’s “consistent refusal to stipulate that she would not demand more than the jurisdictional amount sufficiently convinc[ing to establish] that plaintiff is pursuing damages in excess of $75,000.00.” Id. Under the circumstances, including Plaintiff’s unlimited prayers for damages, and the materials submitted by Defendants demonstrating the extent of Plaintiff’s medical care and other damages, as well as Plaintiff’s settlement demand, Plaintiff’s consistent refusal to stipulate to the recovery of $75,000.00 or less supports a decision that a fact finder might legally conclude Plaintiffs damages exceed $75,000.00. [*9] Plaintiff has not provided any evidence or argument showing that either (1) there is a legal certainty that his claims for relief are for less than the requisite amount or (2) it is legally impossible for him to recover more than $75,000.00. Therefore, after careful consideration, the Court finds it has diversity jurisdiction over this case.
IT IS SO ORDERED.
/s/ Patricia L. Cohen
PATRICIA L. COHEN
UNITED STATES MAGISTRATE JUDGE
Dated this 12 day of April, 2018