United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL United States District Judge.
November 30, 2017, plaintiff Douglas Konopasek filed suit
against defendants Ozark Kenworth, Inc.
(“Ozark”), O'Donnell-Way Construction Company
Inc. (“O'Donnell-Way”) and Seth Beckman.
Plaintiff's Complaint For Damages (Doc. #1).
Plaintiff asserts that Ozark provided negligent maintenance
of a motor vehicle (Count 1) and seeks recovery from
O'Donnell-Way and Beckman for negligent operation of that
vehicle (Count 2). Id., ¶¶ 5, 14-18, 20,
30-36, 40-42. This matter is before the Court on the
Motion To Dismiss Of Defendants O'Donnell-Way
Construction Company, Inc. And Seth Beckman, With Suggestions
In Support (Doc. #11) filed January 19, 2018. For
reasons below, the Court overrules defendants' motion to
And Procedural Background
summarized, plaintiff alleges the following. On December 8,
2014, he was driving a tractor-trailer southbound on Roe
Avenue in Overland Park, Kansas. Complaint (Doc.
#1), ¶ 19. At the same time, Beckman was driving a dump
truck northbound on Roe Avenue. Id., ¶ 20.
Beckman made a left turn, crossing into the southbound lanes
directly in front of plaintiff. Id., ¶ 23. When
plaintiff attempted to brake, he received a low air alert.
Id., ¶ 27. The tractor-trailer did not stop,
and it collided with the dump truck. Id., ¶ 28.
As a result of the accident, plaintiff suffered injuries that
required extensive medical treatment. Id., ¶
29. Plaintiff's employer apparently owned the
tractor-trailer. Id., ¶¶ 16-19. Both
plaintiff and Beckman were driving in the course of their
employment. Id., ¶¶ 7-8. 17-19.
stated, on November 30, 2017, plaintiff filed suit against
Ozark - the company that performed maintenance on the
tractor-trailer - plus Beckman and his employer
O'Donnell-Way. Plaintiff asserts that Ozark provided
negligent maintenance on the tractor-trailer by failing to
service its brakes at an appointment before the accident
(Count 1). Id., ¶¶ 5, 14-18, 30-36.
Plaintiff also asserts that Beckman negligently operated a
motor vehicle within the scope of his employment for
O'Donnell-Way (Count 2). Id., ¶¶ 6-8,
20, 40-42. Plaintiff, a citizen of Oklahoma, alleges that the
Court has diversity jurisdiction because he seeks more than
$75, 000 and sues residents of Missouri (Ozark) and Kansas
(O'Donnell-Way and Beckman). Id., ¶ 9; 28
U.S.C. § 1332(a).
District Court Of Johnson County, Kansas Proceedings
March 31, 2017, approximately eight months before plaintiff
filed suit in this Court, Farmland Mutual Insurance Company
(“Farmland”) - which insured plaintiff's
employer - filed suit in the District Court of Johnson
County, Kansas. Motion To Dismiss (Doc. #11),
¶¶ 4-14 (describing Farmland Mut. Ins. Co. v.
Beckman, No. 17-CV-01890); see Petition For
Damages (Doc. #11-1). In that suit, which remains
pending, Farmland asserts that plaintiff's employer owned
the tractor-trailer and that O'Donnell-Way and Beckman
negligently damaged it. See Petition For Damages
(Doc. #11-1), ¶¶ 9-12 (Farmland paid for repair of
tractor-trailer and seeks repair costs - not declaratory
relief - from O'Donnell-Way and Beckman).
15, 2017, O'Donnell-Way and Beckman filed a third-party
complaint against plaintiff and his employer, claiming
contributory negligence. See Separate Answer And
Third-Party Petition Of Defendant O'Donnell-Way
Construction Company, Inc. (Doc. #11-2). On August 16,
2017, plaintiff and his employer filed a joint answer to the
third-party complaint. See Answer Of Third-Party
Defendants Hampel Oil, Inc. And Doug Konopasek (Doc.
#11-3). On December 8, 2017, eight days after plaintiff filed
this instant suit, he amended his state court answer to
include negligence counterclaims against O'Donnell-Way
and Beckman and to add Ozark as a fourth-party defendant.
See Amended Answer Of Third-Party Defendant Doug
Konopasek, Counterclaim And Fourth Party Petition (Doc.
#11-4) at 4-11.
February 2, 2018, plaintiff filed a motion to dismiss the
third-party complaint in Johnson County for insufficient
service and expiration of the statute of limitations.
Third-Party Defendant Doug Konopasek's Motion To
Dismiss Third-Party Petitioner And Suggestions In
Support (Doc. #15-1). In particular, plaintiff claims
that without his authorization, an attorney who represents
Farmland and his employer filed an answer and amended answer
in the state case. Id. at 2, ¶¶ 4-9.
Plaintiff asserts that he had retained his own attorney to
pursue his personal injury claims and did not learn of the
Johnson County suit until December 7, 2017 - one week after
he filed suit in this Court. Id. at 2, ¶ 9. On
March 21, 2018, the Johnson County court heard argument on
this motion. Plaintiff's Opposition To Defendants
O'Donnell-Way Construction Company, Inc. And Seth
Beckman's Motion To Dismiss (Doc. #15) filed
February 2, 2018 at 2, ¶ 9. Because the parties have not
indicated otherwise, the Court presumes that the motion
Motion To Dismiss (Doc. #11)
January 19, 2018, O'Donnell-Way and Beckman moved to
dismiss Count 2 - the sole claim which plaintiff asserts
against them in this suit - based on two
arguments. Motion To Dismiss (Doc. #11) at
5-9. First, defendants argue that plaintiff cannot maintain
Count 2 because he failed to raise negligence as a compulsory
counterclaim in the Johnson County suit. Id. at 5-6.
Second, defendants assert that the Court should dismiss Count
2 based on its “longstanding practice of declining
jurisdiction in a second-filed action under the first-to-file
rule.” Id. at 4, 6-8. In response, plaintiff
asserts that the Court has diversity jurisdiction.
Plaintiff's Opposition (Doc. #15) at 2-4.
Further, he argues that because he never received proper
service of the third-party complaint in the Johnson County
suit, the compulsory counterclaim rule cannot bar Count 2.
Id. at 4-5.
move to dismiss Count 2 under Rule 12(b)(1), Fed. R. Civ. P.,
for lack of subject matter jurisdiction. See Motion To
Dismiss (Doc. #11) at 4. Federal courts must have a
constitutional basis to exercise jurisdiction because they
are courts of limited jurisdiction. Devon Energy Prod.
Co., v. Mosaic Potash, 693 F.3d 1195, 1201 (10th Cir.
2012). The party seeking to invoke federal jurisdiction bears
the burden of establishing that jurisdiction is proper.
a Rule 12(b)(1) motion to dismiss takes one of two forms: a
facial attack or a factual attack. Holt v. United
States, 46 F.3d 1000, 1002-03 (10th Cir. 1995). In a
factual attack, the moving party does not attack the
sufficiency of the complaint but asserts that the Court lacks
subject matter jurisdiction based on facts outside of the
pleadings. Id. at 1003. Here, defendants challenge
the facts on which subject matter jurisdiction depend,
i.e. whether the Court maintains jurisdiction in
light of a prior-filed state court lawsuit. When reviewing a
factual attack, the Court ...