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Diette v. Arcosa Wind Towers, Inc.

United States District Court, N.D. Oklahoma

October 8, 2019

DAN DIETTE, individually and as natural father and next of kin of Christian Diette, deceased, Plaintiff,
v.
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.

         Now 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.[1] 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).

         I.

         Plaintiff 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.

         Plaintiff filed a lawsuit in the Tulsa County District Court against defendants, alleging:

• . . . 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.

         On 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.

         Defendants assert in their motion that there is no subject matter jurisdiction and that the lawsuit should be dismissed for failure to state a claim.

         II.

         Federal 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 ...


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