United States District Court, W.D. Oklahoma
TIMOTHY D. DeGIUSTI UNITED STATES DISTRICT JUDGE.
the Court is Defendant TDW Services, Inc.'s (TDW) Motion
to Dismiss Second Amended Complaint for lack of subject
matter jurisdiction [Doc. No. 39]. Plaintiff Jerry Scarlett
(Scarlett) has responded to the motion [Doc. No. 40] and TDW
has replied [Doc. No. 41]. The matter is fully briefed and at
was part of a crew working on a pipeline owned by Defendant
Northern Natural Gas Company (Northern) near Beaver,
Oklahoma. The crew prepared to remove a plunger and install a
completion plug on a sixteen-inch, high pressure, natural gas
pipeline. One or more stopples (plugs) were installed on the
pipeline by TDW, allowing work to proceed while the line was
pressurized. Scarlett contends that TDW's personnel told
him the line at issue had already been “blown
down” (contained no pressure) and it was safe to work
on. However, while Scarlett was attempting to remove a
stopple from the pipe, it released a large amount of highly
pressurized natural gas. The blast spun Scarlett around and
threw him into the pipe, causing severe injuries to his head
and lower back.
alleges the incident in question was caused by
Defendants' negligence in that Defendants failed to: (1)
“blow down” or de-pressurize the subject
pipeline; (2) test the line to ensure it had been blown down
or de-pressurized prior to Scarlett working on it; (3) have
safety devices in place to prevent the unbolting of a stopple
on a pressurized line; (4) follow a job-specific safety plan
while conducting the pipeline work; (5) provide a safe work
area; (6) warn Scarlett of a hidden, dangerous condition on
the jobsite; and (7) properly train their employees.
this suit was brought, Scarlett sued only TDW [Doc. No. 1].
Scarlett's Complaint asserted subject matter jurisdiction
based on diversity of citizenship. In his Complaint, Scarlett
stated he was a Nebraska resident and TDW was a Texas
corporation with its principal place of business in Tulsa,
Oklahoma. See id. at ¶¶ 1-2. Scarlett
later amended his complaint to include Northern and Defendant
Avery Pipeline Services (Avery) [Doc. No. 24] and he alleged
Northern was a Texas corporation with its principal place of
business in Des Moines, Iowa. See id. ¶ 3. In
its answer, however, Northern denied Scarlett's
allegations and stated it was a Delaware corporation with its
principal place of business in Omaha, Nebraska. See
Def. Northern's Answer at ¶ 3 [Doc. No. 34].
on Northern's disclosure, TDW moves to dismiss this
action on the grounds that diversity jurisdiction no longer
exists. Pursuant to Rule 21 of the Federal Rules of Civil
Procedure,  Scarlett asks that, in lieu of dismissing
this action in its entirety, the Court simply dismiss his
claims against Northern without prejudice, as it is a
the “time-of-filing” rule, diversity of
citizenship is determined at the time the complaint is filed.
Freeport-McMoRan, Inc. v. K N Energy, Inc., 498 U.S.
426, 428 (1991); Siloam Springs Hotel, L.L.C. v. Century
Sur. Co., 781 F.3d 1233, 1239 (10th Cir. 2015)
(“[I]t is clear the relevant time period for
determining the existence of complete diversity is the time
of the filing of the complaint.”).“Diversity
jurisdiction, once established, is not defeated by the
addition of a nondiverse party to the action.”
Freeport-McMoRan, 498 U.S. at 428. However,
diversity jurisdiction may be destroyed if it is determined
that a later-joined, nondiverse party was indispensable to
the action at the time it commenced. Salt Lake Tribune
Publ'g Co. v. AT & T Corp., 320 F.3d 1081, 1096
(10th Cir. 2003); Harris v. Ill.-Cal. Express, Inc.,
687 F.2d 1361, 1367 (10th Cir. 1982) (stating that diversity
jurisdiction is not lost by the intervention of a dispensable
parties agree that under the circumstances presented here,
the Court may either dismiss the case without prejudice in
its entirety for lack of subject matter jurisdiction,
pursuant to Rule 12(h), Federal Rules of Civil Procedure, or
dismiss a dispensable nondiverse party to effect complete
diversity. Ravenswood Inv. Co., L.P. v. Avalon
Correctional Servs., 651 F.3d 1219, 1224-25 (10th Cir.
2011). Scarlett could not have originally brought suit in
federal court naming Northern as a defendant, since Nebraska
residents would have been on both sides of the litigation.
Yet this result occurred when he amended his complaint to add
Northern as a defendant. Complete diversity was destroyed
just as surely as if Scarlett had sued Northern initially,
contrary to the mandate that diversity jurisdiction is not
available where any plaintiff is a citizen of the same State
as any defendant. Owen Equp. & Erection Co. v.
Kroger, 437 U.S. 365, 374 (1978).
Rule 21 of the Federal Rules of Civil Procedure provides that
“[o]n motion or on its own, the court may at any time,
on just terms, add or drop a party” and “it is
well settled that Rule 21 invests district courts with
authority to allow a dispensable nondiverse party to be
dropped at any time, even after judgment has been
rendered.” Newman-Green, Inc. v.
Alfonzo-Larrain, 490 U.S. 826, 832 (1989) (citation
omitted). The Tenth Circuit acknowledged this authority in
Ravenswood: “A district court can dismiss a
dispensable nondiverse party pursuant to Rule 21 to cure a
jurisdictional defect at any point in the litigation,
including after judgment has [been] entered.”
Id. at 1223 (citations omitted). Nothing in the
present record compels the conclusion that Northern was a
necessary or indispensable party to the civil action framed
by Scarlett's original Complaint. See Fed. R.
Civ. P. 19(a)(1), (b). TDW does not argue otherwise;
Northern, notably, has neither sought dismissal nor expressed
its opinion on the matter. The Court concludes that in the
context of the above-captioned action, Northern is both
nondiverse and dispensable, and this Court may exercise
original diversity jurisdiction under 28 U.S.C. §
1332(a) in this case absent this nondiverse and dispensable
Motion to Dismiss is DENIED as set forth herein.
Plaintiff's claims against Northern Natural Gas Company
are DISMISSED without ...