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Konopasek v. Ozark Kenworth, Inc.

United States District Court, D. Kansas

April 11, 2018

OZARK KENWORTH, INC, et al., Defendants.


          KATHRYN H. VRATIL United States District Judge.

         On 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 dismiss.

         Factual And Procedural Background

         Highly 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.

         As 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).

         I. District Court Of Johnson County, Kansas Proceedings

         On 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).

         On May 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.

         On 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 remains pending.

         II. Motion To Dismiss (Doc. #11)

         On 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.[1] 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.

         Legal Standards

         Defendants 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. Id.

         Generally, 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 ...

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