FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF OKLAHOMA (D.C. NO. 4:16-CV-00459-GKF-FHM)
Michael D. Robbins, Doyle Restrepo Harvin & Robbins,
L.L.P. (Michael Patrick Doyle, Doyle LLP, Houston, Texas, and
James Eloi Doyle, Doyle Restrepo Harvin & Robbins,
L.L.P., Houston, Texas, with him on the briefs), Houston,
Texas, for Appellants.
Smithyman (Arthur E. Rhodes with him on the brief), Smithyman
& Zakoura, Chartered, Overland Park, Kansas, for
TYMKOVICH, Chief Judge, McKAY, and CARSON, Circuit Judges.
TYMKOVICH, CHIEF JUDGE.
Grice suffered severe burns after an oil pump exploded at the
refinery where he worked. He and his wife brought suit
against the refinery's two parent corporations, CVR
Energy and CVR Refining. They alleged the parent companies
assumed responsibility for workplace safety at the oil
refinery by entering into a services agreement for the
benefit of Grice's employer, Coffeyville Resources. The
district court granted summary judgment in favor of the
parent companies, concluding that the agreement did not
obligate them to provide safety services to the oil refinery.
first conclude that CVR Refining must be dismissed as a party
under 28 U.S.C. § 1332, to preserve complete diversity
of citizenship. We then affirm the district court's grant
of summary judgment in favor of CVR Energy. The company did
not have a duty to Grice to maintain the oil pump since the
services agreement was for administrative and legal services
and not for safety services that would subject CVR Energy to
liability under Kansas law.
Grice worked for Coffeyville Resources Refining &
Marketing (Coffeyville) as a refinery employee. While he was
on shift, a leak sprung in a refinery pump, causing flammable
hydrocarbons to pool on the unit floor. The hydrocarbons
ignited when Grice and three coworkers responded to the leak.
The resulting explosion severely burned Grice and killed one
of his coworkers.
cause of the leak and explosion is undisputed. Excessive wear
and tear allowed the pump's rotating parts to contact and
shatter the pump's seal. It is also undisputed that a
double mechanical seal would have prevented the leakage of
flammable hydrocarbons. Coffeyville had commissioned a
Process Hazard Analysis study before the accident that
recommended an upgrade from a single to a double mechanical
seal, and the company had scheduled to replace and upgrade
the seals sometime after the accident occurred.
received workers' compensation benefits for his injuries,
extinguishing any civil claims against Coffeyville. Grice and
his wife then filed tort claims against Coffeyville's two
parent corporations-CVR Energy and CVR Refining. CVR Energy
indirectly owns sixty-six percent of CVR Refining, which in
turn indirectly owns one-hundred percent of Coffeyville.
Grices argued to the district court that CVR Energy assumed
responsibility for workplace safety by entering into a
services agreement with CVR Refining. CVR Energy and CVR
Refining executed the agreement in 2012 for the benefit of
the two parties' six mutual subsidiaries engaged in the
business of refining and transporting oil, including
Coffeyville. The services CVR Energy was to perform for these
six subsidiaries included providing "safety and
environmental advice" and managing the subsidiaries'
"day-to-day business and operations." App. 191.
Included within those enumerated services, according to the
Grices' interpretation of the agreement, was the
obligation to ensure workplace safety by maintaining refinery
discovery, both parties filed motions for summary judgment.
The district court denied the Grices' motion, noting
there existed genuine issues of material fact. The court
concluded that there were questions as to "(1) whether
the parties intended the Services Agreement as a safety
services contract or cost-allocation mechanism; and (2) if a
safety services contract was intended, the scope and nature
of the duties owed by CVR Energy to Coffeyville
employees." Grice v. CVR Energy, Inc., No.
16-CV-459-GKF-FHM, 2017 WL 1100906, at *4 (N.D. Okla. Mar.
23, 2017). But the district court later reversed course and
granted CVR Energy and CVR Refining's motion for summary
judgment after further considering extrinsic evidence. The
court concluded the agreement was best read "to provide
a cost-allocation mechanism for shared services,"
Grice v. CVR Energy, Inc., No. 16-CV-459-GKF-FHM,
2017 WL 3032221, at *5 (N.D. Okla. July 17, 2017), and
therefore CVR Energy was not responsible for Grice's
first determine our jurisdiction in this diversity matter.
When our jurisdiction relies solely on diversity of
citizenship under 28 U.S.C. § 1332, each defendant must
be diverse from each plaintiff. See, e.g.,
Ravenswood Inv. Co., L.P. v. Avalon Corr. Servs.,
651 F.3d 1219, 1223 (10th Cir. 2011). The parties concede
that the case lacked complete diversity when the complaint
was filed because CVR Refining had unitholders in Kansas (the
resident state of the Grices), a disclosure not revealed
until this appeal was pending. There is no dispute,
therefore, that the district court was without jurisdiction
to rule on the merits of the case.
this fact does not necessarily divest our court of
jurisdiction. The Supreme Court has clarified that appellate
courts may cure this type of jurisdictional defect by
dismissing a jurisdiction-spoiling dispensable party on
appeal. Newman-Green, Inc. v. Alfonzo-Larrain, 490
U.S. 826, 827 (1989). ...