United States District Court, N.D. Oklahoma
DAN DIETTE, individually and as natural father and next of kin of Christian Diette, deceased, Plaintiff,
ARCOSA WIND TOWERS, INC. f/k/a TRINITY STRUCTURAL TOWERS, INC., TRINITY STRUCTURAL TOWERS, INC., TRINITY INDUSTRIES, INC., and ARCOSA, INC., Defendants.
OPINION AND ORDER
CLAIREV. EAGAN, UNITED STATES DISTRICT JUDGE.
before the Court are defendants Arcosa Wind Towers,
Inc.'s (formerly known as Trinity Structural Towers,
Inc.), Trinity Structural Towers, Inc., and Arcosa, Inc's
motion to dismiss pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6). Dkt. # 12. Defendants ask
the Court to dismiss plaintiff Dan Diette's claim against
them for lack of subject matter jurisdiction and failure to
state a claim on the grounds that plaintiff's claim is
barred by the exclusive remedy provision of the Oklahoma
Workers' Compensation Act, Okla. Stat. tit. 85, § 1
et seq. (OWCA), and that he has not stated an
intentional tort claim under Parret v. UNICCO Service
Company, 127 P.3d 572 (Okla. 2005). Dkt. # 12, at 2.
Plaintiff has filed a response (Dkt. # 15), and defendants
have filed a reply (Dkt. # 16).
Dan Diette, father and next of kin of Christian Diette,
alleges that on July 18, 2017, Christian Diette was fatally
injured while removing bolts from flanges on one of his
employer's wind tower sections. Dkt. # 2-2, at 2. His
employer, Trinity Structural Towers, Inc.'s (now known as
Arcosa Wind Towers, Inc.), had bolted two tower sections
together and placed them on three separate wheel supports
(trunnions), one in the center and one on each end.
Id. While Christian Diette was working inside one of
the sections using a grinder to remove “the last or
next to last bolt, ” the end trunnion shifted, causing
a section to fall and strike Christian Diette. Id.
at 3. Christian Diette died the next day from his injuries.
Id. The Occupational Safety and Health
Administration (OSHA) determined that Trinity Structural
Towers, Inc. “had failed to furnish employment and a
place of employment which were free from recognized
hazard[s].” Id. Further, OSHA determined that
“due to the sections weighing approximately 80, 000
[pounds], any potential for uncontrolled movement could
result in serious death.” Id.
filed a lawsuit in the Tulsa County District Court against
• . . . there were options available to Trinity
Structural Towers, Inc. that would have easily prevented this
accident, including connecting the trunnions and placing
chalk under the wheels and/or using existing turning rolls
that are not on wheels.
• Defendant Trinity Structural Towers, Inc. directed
Christian Diette to work under conditions to which it was
certain or substantially certain Mr. Diette would be
seriously injured or killed.
• Defendant Trinity Structural Towers, Inc. did so with
the specific knowledge of the dangers and potential lethal
condition under which Christian Diette was assigned to work.
• Defendant Trinity Structural Towers, Inc. desired to
bring about Christian Diette's injuries and acted with
the knowledge that injury to him was substantially certain to
result from [its] conduct. As a result, Defendant's
actions were willful and intentional.
Id. at 1, 3-4. Plaintiff seeks in excess of $75, 000
in economic loss for Christian Diette's death, and in
excess of $75, 000 for grief and loss of companionship.
Id. at 4.
August 8, 2019, defendants filed a joint notice of removal in
this Court (Dkt. # 2), asserting that both elements of
diversity jurisdiction are present. The amount in controversy
exceeds $75, 000, exclusive of interest and costs, and
complete diversity exists: plaintiff is a citizen of
Oklahoma, and all defendants are citizens of Delaware and
Texas. Dkt. # 2-2, at 1-2, 4; see also Dkt. # 2, at
2-3. The notice of removal also states that defendants Arcosa
Wind Towers, Inc., Trinity Structural Towers, Inc., and
Arcosa, Inc. were served with process. Id. at 2.
Following the events leading to plaintiff's lawsuit,
Trinity Industries, Inc. sold Trinity Structural Towers, Inc.
to Arcosa, Inc., and the subsidiary changed its name to
Arcosa Wind Towers, Inc. Dkt. # 9.
assert in their motion that there is no subject matter
jurisdiction and that the lawsuit should be dismissed for
failure to state a claim.
courts are courts of limited jurisdiction and, as the parties
seeking to invoke federal jurisdiction, plaintiffs bear the
burden of proving such jurisdiction is proper. Basso v.
Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir.
1974). A court lacking jurisdiction “cannot render
judgment but must dismiss the cause at any stage of the
proceedings in which it becomes apparent that jurisdiction is
lacking.” Id. A district court “shall
have original jurisdiction of all civil actions where the
matter in controversy exceeds the sum or value of $75, 000,
exclusive of interest and costs, and is between-(1) citizens
of different States . . . .” 28 U.S.C. § 1332(a).
“Thus, diversity jurisdiction attaches only when all
parties on one ...