United States District Court, D. Colorado
AUTUMN BRIN, individually, and on behalf or her son, DEVON HOFFMAN, a minor, Plaintiffs,
ACI MOTOR FREIGHT, INC., ROBERT L. CLAIBOURN, III, GIBSON & ASSOCIATES, INC., KROGER CO., JOSHUA ROWLEY, and STEVAN STIEFVATER, Defendants.
R. BROOKE JACKSON, District Judge.
This is a personal injury action brought in federal court on the basis of diversity of citizenship pursuant to 28 U.S.C. § 1332. Defendant Kroger Co. moves to dismiss for lack of subject matter jurisdiction, specifically, the lack of complete diversity of citizenship between the plaintiffs, on one side, and all defendants, on the other side [ECF No. 6]. Defendant Gibson & Associates, Inc. moves to dismiss on the same basis and, alternatively, for lack of personal jurisdiction as to it. [ECF No. 7]. Initially, Ms. Brin did not respond to either motion. The Court sua sponte issued an order for her to explain whether she wished to continue her case in federal court if the non-diverse defendant, Mr. Stiefvater, were dismissed, and also to show cause as to whether this Court has personal jurisdiction over defendant Gibson & Associates, Inc. The Court invited the other parties to submit briefing on these issues. Ms. Brin responded to the motions to dismiss and this Court's order to show cause, [ECF No. 13], and the other parties weighed in as well [ECF Nos. 12, 14, 17].
Looking for more evidence on the matter of personal jurisdiction over Gibson & Associates, the Court held an evidentiary hearing on March 27, 2014. At that hearing, Ms. Brin's counsel indicated for the first time that she would be filing a motion to transfer venue to the District of Kansas, and that her clients were in the process of relocating to Florida. On April 5, 2014, Ms. Brin filed the motion to transfer, [ECF No. 22], and at this point the motion is fully briefed.
For the reasons set forth herein, the Court orders the claims against Mr. Stiefvater dismissed without prejudice pursuant to Rule 21 and grants Ms. Brin's motion to transfer the remainder of the case to the U.S. District Court for the District of Kansas.
I. Alleged Facts
For the sake of completeness, the Court repeats the summary of facts from its earlier order to show cause. Autumn M. Brin alleges that on August 11, 2011 she and her minor son Devon Hoffman were passengers in a car being driven by defendant Stevan Stiefvater. They were traveling southbound in the left lane of I-135 in Kansas, behind a Kroger Co. van being driven by defendant Joshua Rowley, which in turn was behind a semi-truck owned by defendant ACI Motor Freight and driven by defendant Robert L. Claibourn, III. Suddenly an unknown employee of defendant Gibson & Associates, which was performing construction work on the highway, held up a stop sign for traffic in the left lane. Claibourn sharply braked the ACI truck, causing it to jack-knife in front of the Kroger van which crashed into the truck. The Stiefvater car in turn crashed into the van. Ms. Brin and her son were injured. Plaintiffs bring separate negligence-based claims against (1) Gibson; (2) Claibourn; (3)-(5) ACI; (6) Rowley; (7)-(9) Kroger; and (10) Stiefvater.
a. Time of Filing Rule.
The sole alleged basis for federal jurisdiction is diversity of citizenship pursuant to 28 U.S.C. § 1332. As this Court noted in its order to show cause, it is well settled that in order for there to be diversity jurisdiction there must be complete diversity of citizenship between the plaintiffs and all defendants. Ravenswood Inv. Co., L.P. v. Avalon Corr. Services, 651 F.3d 1219, 1223 (10th Cir. 2011) ("When jurisdiction is premised on diversity of citizenship... each plaintiff must be diverse from each defendant....") (citing Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 829 & n.1 (1989)). In response to defendants' motions to dismiss and this Court's order to show cause, Ms. Brin did not appear to deny that Mr. Stiefvater is a non-diverse defendant and must be dismissed from this case if there is any chance of preserving diversity jurisdiction. [ECF No. 13 at 2.]
Now, however, Ms. Brin appears to believe that complete diversity exists because she and her son are in the process of moving to Florida. She is mistaken. Citizenship is determined at the time of filing. Freeport-McMoRan, Inc. v. K N Energy, Inc., 498 U.S. 426, 428 (1991). Whether Ms. Brin and her son plan to move to Florida is legally irrelevant for purposes of establishing complete diversity. Her complaint lists herself, her son, and defendant Stiefvater as residents of Colorado. [ECF No. 1.] That alone illustrates the absence of complete diversity at the time of filing.
b. Rule 21 Dismissal.
When a non-diverse defendant threatens to destroy federal jurisdiction in a given case, the court can sever and dismiss that defendant without necessarily dismissing the entire case. Fed.R.Civ.P. 21. However, if the non-diverse defendant is an indispensable party the better option may be dismissal of the case. See Fed.R.Civ.P. 19. For the reasons that follow, I conclude that Mr. Stiefvater is not an indispensable party, so the case may proceed in federal court.
Under Rule 19, deciding whether a party is indispensable is a two-step process. First, the court must determine whether the party is "required." Under the rules, a required party is a
person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party 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 ...