Opinion
Civ. No. 98-3293 c/w 99-0110, SECTION "N".
February 4, 2000.
ORDER AND REASONS
Before the Court are three motions: (1) Defendants ADM Trucking, Inc.'s and Old Republic Insurance Company's Motion to Dismiss for Lack of Jurisdiction; (2) Defendants James K. Williams', Welling Truck Service, Inc.'s and Old Republic Insurance Company's Motion to Dismiss for Lack of Jurisdiction; and (3) Plaintiffs Harry and Gwen Everts' Alternative Motion to Dismiss Defendant Thomas Finn. For the following reasons, the Motions to Dismiss for Lack of Jurisdiction are DENIED, and the Motion to Dismiss Defendant Thomas Finn from Civil Action no. 98-3293 is GRANTED.
By Minute Entry dated January 20, 2000, the Court stated that it would treat the Everts' Alternative Motion to Dismiss Defendant Thomas Finn as an opposition to the Motions to Dismiss. The Court lists the Everts "Alternative Motion" as a separate motion now only for clerical purposes. See also footnote 7, infra.
A. BACKGROUND
This matter consists of two lawsuits, both of which arise Out of a multi-vehicle accident in St. Tammany Parish, Louisiana, on January 13, 1998.
Brian Evert, a passenger in one of the vehicles, died in the accident. On December 11, 1998, Brian's parents, Harry and Gwen Evert (collectively "the Everts"), filed a suit for damages in this Court against Thomas S. Finn ("Finn"), Russell Bickham ("Bickham"), A.D.M. Trucking ("ADM"), Old Republic Insurance Company ("Old Republic"), James K. Williams ("Williams"), and Welling Truck Service, Inc. ("Welling"). The Everts invoked this Court's diversity jurisdiction: they alleged that they are "domiciled in and citizens of the state of Florida", that the individual defendants, including Thomas Finn, "are citizens of the State of Louisiana", and that the corporate defendants "are organized under the laws of states other than Florida with their principal places of business in states other than Florida."
Evert Complaint ¶ I. The Everts re-allege their Florida citizenship in ¶ III and, in ¶ IV, allege that Thomas Finn is "an adult resident of St. Tammany Parish, State of Louisiana".
On January 12, 1999, Thomas Finn, a defendant in the Everts' suit, filed his own suit in this Court for damages from the St. Tammany accident against James L. Mason ("Mason"), Commerce Industry Insurance Company, Bickham, ADM, Old Republic, Williams, and Welling. Finn also invoked this Court's diversity jurisdiction, alleging that he "is domiciled in and [a] citizen of the State of Florida", that the individual defendants are "citizens of the State of Louisiana", and that the corporate defendants are "organized and existing under the laws of states other than Florida with their principal places of business in states other than Florida." Consistent with this allegation of Florida citizenship, Finn filed an Answer to the Evert Complaint on February 12, 1999 wherein he denied that he is a Louisiana citizen. Finn did not name the Everts as defendants in his Complaint.
Finn Complaint ¶ 1.
Finn Answer "Third Defense" ¶¶ 1 and 4. Finn also asserts that the Court lacks subject matter jurisdiction over this matter, presumably (although not explicitly) because of the absence of complete diversity. Finn Answer "Second Defense"
Following the filing of both suits, several cross-claims, counter-claims, and third-party claims were filed.
Defendants ADM, Old Republic, Williams, and Welling now move for dismissal of the Everts' case on the basis that the Court lacks subject matter jurisdiction. Specifically, these defendants argue that the plaintiffs are not completely diverse from all of the defendants because Finn, like the Everts, was a Florida citizen at the time the Everts filed suit. In opposition, the Everts argue that Finn did not become a Florida domiciliary until after they filed suit. Alternatively, should the Court determine that Finn was domiciled in Florida when they filed suit, the Everts move the Court to perfect its jurisdiction by dismissing Finn from their suit as a nonindispensable party. Mason also filed a memorandum, opposing the Motion to Dismiss insofar as it relates to Finn's suit. Mason points out that the Court has jurisdiction over Finn's suit because the parties are diverse.
Defendants ADM and Old Republic first moved to dismiss, Defendants Williams, Welling and Old Republic then filed their own motion to dismiss, adopting the arguments from the first motion as their own. Old Republic filed the first motion in its capacity as insurer of ADM and the second in its capacity as insurer for Welling.
The Everts filed two oppositions, addressing both motions to dismiss. The Everts styled their first opposition as an "Alternative Motion to Dismiss Thomas Finn." By Minute Entry dated January 20, 2000, the Court stated that it would treat this "Alternative Motion" as an opposition rather than as a separate motion. The Everts' second opposition adopts the reasoning of the first.
B. LAW AND ANALYSIS
Defendants ADM, Old Republic, Williams, and Welling move the Court to dismiss the Evert Complaint, as well as all counterclaims, cross-claims and third-party demands arising out of the Everts' suit, pursuant to Federal Rule of Civil Procedure 12(b)(1), for lack of subject matter jurisdiction. Resolution of this matter requires the Court first to determine whether defendant Thomas Finn was domiciled in Louisiana or Florida when the Everts, who are unquestionably Florida citizens, filed suit. If Finn was a Louisiana domiciliary, then the Court has jurisdiction over the Everts' suit. If, on the other hand, Finn was a Florida domiciliary, then the Court must consider whether Finn is a "necessary and indispensable" party to the Everts' suit. If Finn is necessary and indispensable, then the Everts' suit must be dismissed. If Finn in unnecessary or dispensable, he may be dismissed from the Everts suit in order to perfect the Court's jurisdiction.
1. WHETHER THOMAS FINN WAS DOMICILED IN FLORIDA OR LOUISIANA WHEN THE EVERTS FILED SUIT
The Court begins its analysis with the threshold issue of whether Finn was domiciled in Florida or Louisiana when the Everts filed suit on December 11, 1998. As discussed more fully below, the Court finds that Finn was domiciled in Florida when the Everts filed suit.
Federal district courts have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000 and is between citizens of different states. 28 U.S.C. § 1332 (a)(1). In Mas v. Perry, 489 F.2d 1396 (1974), the Fifth Circuit succinctly set forth the requirements of diversity jurisdiction:
The parties do not allege, and the Court does not discern, any basis for federal question jurisdiction.
It has long been the general rule that complete diversity of parties is required in order that diversity jurisdiction obtain; that is, no party on one side may be a citizen of the same State as any party on the other side. This determination of one's State Citizenship for diversity purposes is controlled by federal law, not by the law of any State. As is the case in other areas of federal jurisdiction, the diverse citizenship among adverse parties must be present at the time the complaint is filed. Jurisdiction is unaffected by subsequent changes in the citizenship of the parties. The burden of pleading the diverse citizenship is upon the party invoking federal jurisdiction; and if the diversity jurisdiction is properly challenged, that party also bears the burden of proof.
To be a citizen of a State within the meaning of section 1332, a natural person must be both a citizen of the United States and a domiciliary of that State. For diversity purposes, citizenship means domicile; mere residence in the State is not sufficient.
A person's domicile is the place of "his true, fixed, and permanent home and principal establishment, and to which he has the intention of returning whenever he is absent therefrom. . . ."Id. at 1398-99 (internal citations omitted).
Once established, domicile persists until it is clearly abandoned or until a new one is acquired. See Coury v. Prot, 85 F.3d 244, 250 (5th Cir. 1996). A change of domicile may be effected only by a combination of two elements: (1) taking up residence in a different domicile with (2) the intention to remain there indefinitely. See id.; Mas, 489 F.2d at 1399. Practically speaking, "[i]n most cases, the difficult issue is not presence but whether the intent to change domicile can be shown." Coury, 85 F.3d at 250. In determining intent, a court should look to "all evidence shedding light on the litigant's intention to establish domicile." Id. at 251. The court "must address a variety of factors", and "[n]o single factor is determinative." Id. (providing a non-exclusive list of factors); see also Knapp v. State Farm Ins., 584 F. Supp. 905, 906-07 (E.D. La. 1989) (Feldman, J.) (providing a list of factors and evaluating domicile under the totality of the circumstances);McDonald v. Equitable Life Ins. Co. of Iowa, 13 F. Supp.2d 1279, 1281 (M.D. Ala. 1998) (applying a "totality of the evidence approach").
The party attempting to show a change in domicile assumes the burden of going forward on the issue, but the ultimate burden on the issue of jurisdiction rests with the party invoking federal jurisdiction. See Coury, 85 F.3d at 250-51; Webb v. Banquer, 19 F. Supp.2d 649, 653 (S.D. Miss. 1998). Thus, ADM, Old Republic, Williams, and Welling bear the burden of coming forward with evidence showing that Finn changed his residence, but the Everts bear the burden of proving that he did not. ADM, et al., have met their burden of coming forward and the Court now turns to the evidence.
The parties agree on several points. Finn was domiciled in Louisiana on January 13, 1998, when the accident took place: Finn owned a home in Abita Springs, Louisiana, the address of which was listed as his address on the traffic accident report. Finn sustained brain damage during the accident and was hospitalized at Charity Hospital in New Orleans until January 27, 1998. Upon his release from Charity, Finn moved to Florida to live with his mother at 1620 Athens Avenue, Pensacola, Florida. At some point, Finn apparently moved to another residence in Florida; no evidence has been submitted that Finn has moved back to Louisiana. Thus, it is undisputed that Finn resides in Florida, and the Court so finds.
Finn's former attorney gave Finn's last known address as 8121 Lillian Highway, Lot 31, Pensacola, Florida. Court personnel have been unable to reach Finn recently. See, e.g., November 19, 1999 Minute Entry.
The parties disagree as to Finn's intent to remain in Florida. The Court finds that Finn either moved to Florida with the intent to remain there indefinitely or developed the intent shortly thereafter, before the Everts filed suit on December 11, 1998. The Court bases its finding in large part on the evidence submitted that indicates that Finn abandoned his Louisiana residence: another individual, Keith Moore, lived in Finn's home during September of 1998, and Finn stopped paying the bills for his Abita Springs property — the electricity was disconnected from February to August 1998 and from October 1998 to the present, and Finn stopped making his mortgage payments in January of 1999. Finn also failed to appear for criminal hearings in Louisiana on March 9, 1998 and October 21, 1998.
It appears that Keith Moore reconnected the electricity while he lived in Finn's former residence.
The Everts argue for a different interpretation of Finn's mortgage-payment history. In their view, the fact that Finn continued to make mortgage payments on his Louisiana home until January 1999 demonstrates that he intended to remain a Louisiana domiciliary throughout 1998 and stopped making the payments when, in January 1999, he decided to remain in Florida permanently. This is a plausible inference, but it does not exclude other, equally plausible inferences. For example, Finn might have continued making his mortgage payments simply to avoid losing his investment. And even if Finn made the payments because he harbored some hope of eventually returning to his Abita Springs residence, this does not preclude a finding that he changed his domicile to Florida. As the Tenth Circuit stated in Crowley v. Graze, 710 F.2d 676 (1983), a "`floating intention' to return to a former domicile does not prevent the acquisition of a new domicile." Id. at 678. Even when viewed in the light most favorable to the Finns, the evidence only supports a finding that Finn manifested a "floating intention" to return to Abita Springs, not an "existing intention to return upon the happening of a reasonably foreseeable event." McDonald, 13 F. Supp.2d at 1281.
The Court finds it more plausible that Finn moved to Florida so that he could receive assisted living from his family, as long as he needed it. Suffering from a brain injury and other, serious, preexisting medical conditions, it is likely that Finn moved to Florida fully aware that he might never be able to live without his family's assistance. His subsequent actions, such as moving to a new residence in the same city as his family and filing his own lawsuit as a Florida citizen, although not determinative of domicile because they happened after the Everts filed their suit, tend to confirm this inference. See Mas, 489 F.2d at 1400 n. 2 (noting that evidence of a litigant's subsequent moves away from a state are "not determinative of the issue of diverse citizenship", but are relevant to the fact question of the litigant's "intent to remain permanently" in that state); Wright v. Combined Ins. Co. of America, 959 F. Supp. 356, 361 (N.D. Miss. 1997) (events subsequent to commencement of the lawsuit, "such as a change of citizenship, will not divest this court of subject matter jurisdiction. However, any such subsequent events may be relevant as reflective of intent at the time of the commencement of this action.") (internal citation omitted). Thus, the Court finds that the Everts have failed to sustain their burden of proving that Finn was not domiciled in Florida when they filed suit.
In reaching this conclusion, the Court finds guidance in two remarkably similar cases: Crowley v. Graze, 710 F.2d 676 (10th Cir. 1983), and Leavitt v. Scott, 338 F.2d 749 (10th Cir. 1964). In both cases, the plaintiffs met their burdens of proving that they had changed domicile and that the federal court had diversity jurisdiction.
In Crowley v. Graze, 710 F.2d 676 (10th Cir. 1983), the plaintiff suffered severe head and back injuries in a car accident while he was a Colorado domiciliary. Approximately four months later, the plaintiff moved to a clinic near his mother's home in Minnesota and later moved in with his mother. A year after his move to Minnesota, and while still residing with his mother, the plaintiff filed suit in federal court for damages sustained in the accident. The plaintiff invoked the federal court's diversity jurisdiction, alleging that he was a Minnesota citizen and that the three defendants were Colorado citizens. On appeal, one of the defendants challenged the plaintiffs citizenship, arguing (1) that the plaintiffs brain injury precluded his ability to form an intent to change his citizenship from Colorado to Minnesota and (2) that if the plaintiff had the mental ability to ideate, he did not, at the time he filed suit, have an intent to remain in Minnesota permanently or indefinitely. 710 F.2d at 677. The Tenth Circuit rejected both arguments. Most important for the instant dispute, the court held that, even though the plaintiff "had indeed expressed a desire, or possibly only a hope, to return to Colorado if, as and when his condition permitted", such a "`floating intention' to return to a former domicile [did] not prevent the acquisition of a new domicile" where the "permissible inferences" and testimony supported a finding that the plaintiff intended to remain in Minnesota indefinitely when he filed suit, Id. at 678,
The Everts do not argue that Finn lacked the mental ability to form an intent to establish a new domicile in Florida.
In Leavitt v. Scott, 338 F.2d 749 (10th Cir. 1964), the plaintiff, while domiciled in Utah, sustained a cerebral concussion in a head-on collision of two trucks. Suffering from mental and emotional difficulties as a result of the accident, the plaintiff followed the advice of his physician and moved with his family to Colorado for therapeutic reasons. A little over a year after moving to Colorado, the plaintiff filed suit in federal court for damages sustained in the accident, alleging that he was a Colorado citizen and that the defendant was a Utah citizen. During the course of the litigation, however, the plaintiff moved back to Utah, and the defendant challenged the district court's diversity jurisdiction. On appeal, the Tenth Circuit found that the family's actions — moving the family belongings, enrolling the children in Colorado schools, actively engaging in the community, and leasing the family's home in Utah upon a yearly basis — evidenced an "intent for permanent change" of domicile from Utah to Colorado, "dependent, of course, upon [the plaintiffs] condition", despite the fact that the plaintiff retained ownership of the family's Utah home and even though the plaintiff and his wife "frankly entertained the hope that they could one day return to [that] home", which they did. 338 F.2d at 751.
2. WHETHER THOMAS FINN IS A NECESSARY AND INDISPENSABLE PARTY
Having concluded that complete diversity did not exist when the Everts filed suit, the Court now faces two possibilities: if Thomas Finn is a "necessary and indispensable" party, the Court must dismiss the Everts' suit; if he is not, then the Court may dismiss Finn and retain jurisdiction over the suit. See FED. R. CIV. P. 19 and 21. As more fully discussed below, the Court finds that Finn is "necessary" but dispensable and therefore shall drop him as a defendant from the Everts' suit.
Federal Rule of Civil Procedure 21 empowers a district court to "drop a nondiverse party whose presence is not essential to the suit to preserve and perfect diversity jurisdiction." Aetna Cas. Sur. Co. v. Hillman, 796 F.2d 770 (5th Cir. 1986). See also Newman-Green. Inc., v. Alfonzo-Larrain, 490 U.S. 826, 834, 109 S.Ct. 2218, 2223, 104 L.Ed.2d 893 (1989) ("it is well settled that Rule 21 invests district courts with authority to allow a dispensable nondiverse party to be dropped at any time"); Temple v. Synthes, 498 U.S. 5, 6, 111 S.Ct. 315, 316, 112 L.E.2d 263 (1990) (dropping an unnecessary party). In order to determine whether Finn is a "necessary and indispensable" party, the Court must employ the two-step inquiry set forth in Federal Rule of Civil Procedure 19. First, the Court must determine whether Finn is a "necessary" party by asking whether (1) in Finn's absence complete relief cannot be accorded among those already parties, or whether (2) Finn claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. See FED. R. CIV. P. 19(a). If either of these tests is met, then, because the Court cannot retain Finn as a party to the Evert suit and at the same time retain jurisdiction, the Court must consider whether "in equity and good conscience the action should proceed among the parties before it, or should be dismissed, [Finn] being thus regarded as indispensable." See FED. R. CIV. P. 19(b). For this inquiry, the Court must consider: (1) to what extent a judgment rendered in Finn's absence might be prejudicial to Finn or the other parties; (2) the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; (3) whether a judgment rendered in Finn's absence will be adequate; and (4) whether the Everts will have an adequate remedy if the action is dismissed for nonjoinder. See id.
The Everts argue that Finn is a "non-essential" party because, under Louisiana law, his comparative negligence can be evaluated without his being a party to the litigation. As authority for this proposition, the Everts cite Louisiana Civil Code article 2323, which states that, "[i]n any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined regardless of whether the person is a party to the action or a nonparty ;" The Everts also argue that Finn is dispensable because he "is an anchor on the entire litigation. He is not represented, he cannot be located, he is brain damaged and impecunious."
The Everts also argue that it "has always been [their] contention that the death of their son was caused by the negligence of the two 18 wheeler trucks driven by the employees of ADM and Welling Truck", and that "it was never their contention that [Finn] was the party responsible for the death of their son." Memorandum in Opposition to Motion to Dismiss pp. 6-7. This statement is inaccurate if taken literally, as the Everts quite clearly alleged in their Complaint that Finn was a responsible party. Looking to the spirit of the argument rather than the actual words used to advance it, the Court concludes that the Everts are arguing that it was never their contention that Finn was the sole tortfeasor responsible for their son's death, but rather one of several.
Memorandum in Opposition to Motion to Dismiss pp. 6.
In response, ADM, Old Republic, Williams, and Welling argue that, "[g]iven the circumstances surrounding the accident, and the fact that Finn is the alleged direct tortfeasor, Finn is undoubtedly an indispensable party without whom this litigation could not proceed." In support of their position, the defendants cite Estrella v. VG Management Corp., 158 F.R.D. 575 (D.N.J. 1994), Allendale Mutual Insurance Co. v. Excess Insurance Co. Ltd., 62 F. Supp.2d 1116 (S.D.N.Y. 1999), and Chiasson v. Karl Storz Endoscopy-America, Inc., 1994 WL 532613 (E.D. La. 1994) (Carr, J.).
Defendants' Memorandum in Opposition to the Everts' Motion to Dismiss Thomas Finn pp. 3-4.
In Estrella v. VG Management Corp., 158 F.R.D. 575 (D.N.J. 1994), the plaintiffs' claim arose out of a bus accident, but, in bringing their suit in federal court on the basis of diversity jurisdiction, the plaintiffs did not join the bus operator and owner, who were non-diverse. In dismissing plaintiffs' action, the district court found that the bus operator and owner were necessary because the bus operator was "the cause in fact of the bus accident" and as the "alleged direct tortfeasor, [the operator's] absence could result in the named defendants incurring greater liability than they otherwise would, or it could preclude plaintiffs from receiving complete relief." Id. at 580. The district court also found the bus operator and owner indispensable because: (1) their absence could prejudice the named defendants; (2) protective provisions could not adequately lessen or avoid such prejudice; (3) the bus owner and operator were the alleged direct tortfeasors, while the named defendants were only alleged indirect tortfeasors, creating the risk of an incomplete record as to the direct cause of plaintiff's injuries; and (4) plaintiffs had adequate remedies available in state court. Id. at 580-81.
In Allendale Mutual Insurance Co. v. Excess Insurance Co. Ltd., 62 F. Supp.2d 1116 (S.D.N.Y. 1999), an insurer brought an action in federal court against several reinsurers, many of whom turned out to be nondiverse, on a breach of contract claim. The district court dismissed the action because it found each reinsurer to be indispensable. Citing Newman-Green. Inc., v. Alfonzo.-Larrain, 490 U.S. at 828-29, for the rule that "a court may only dismiss non-diverse defendants where the jurisdictionally-defective defendants are jointly liable with the remaining defendants," 62 F. Supp.2d at 1132, the court found that, because the reinsurers were not jointly liable on the reinsurance contract, but were instead "liable only for their own individual respective shares", "[d]ropping any one defendant may deprive [the plaintiff] of the possibility of complete recovery if, for example, [the plaintiff] becomes entitled to a new trial after appellate review of the merits." Id.
In Chiasson v. Karl Storz Endoscopy-America, Inc., 1994 WL 532613 (E.D. La. 1994) (Carr, J.), the plaintiff sustained injuries after the ceramic tip of a resectoscope broke off and became lodged in his bladder during an operation. The plaintiff, a Louisiana citizen, brought a products liability claim against the resectoscope's manufacturer in federal court on the basis of diversity jurisdiction, then sought to join the hospital and the doctor, even though the doctor was also a Louisiana citizen. The doctor moved only for dismissal of the claim against him, but the court instead dismissed the entire action, finding that "the issues of liability are so intertwined" that the absence of the nondiverse defendants would "preclude complete relief as between the original parties". Id. at *3
The Court finds pursuant to Federal Rule of Civil Procedure 19 (a) that Finn is a "necessary" party to the Evert action because, in his absence, the Everts cannot obtain complete relief. Louisiana has eliminated joint and several liability, and, if Finn is not a party but is found to be comparatively negligent, then the Everts will not be able to recover damages for his share of fault. The fact that Louisiana procedural rules provide for calculating risk in the absence of a joint tortfeasor and that the Everts are willing to waive their federal claim against Finn does not change the analysis at this point.
See La. Civ. Code art. 2324 (except for intentional torts, "liability for damages caused by two or more persons shall be a joint and divisible obligation. A joint tortfeasor shall not be liable for his degree of fault and shall not be solidarily liable with any other person for damages attributable to such person . . .")
See Keith v. United States Fidelity Guaranty Co., 694 So.2d 180, 183 (La. 1997).
Because Finn should but cannot remain a party to the Everts' suit, the Court must determine whether Finn is "indispensable" under Rule 19(b). The Court finds that Finn is not an "indispensable" party within the meaning of Rule 19(b) and that he should therefore be dropped as a party to the Everts' suit. First, in light of the fact that Finn remains a party to the consolidated case, the Court finds little threat of prejudice to any party. Finn's presence will be required at the trial and the factfinder will be able to evaluate his share of the negligence in comparison to the other alleged tortfeasors. This will afford Finn an opportunity to present his case and prevent any risk that the jury will unfairly assess damages against the other defendants solely because of Finn's absence. The only tangible prejudice that the Court can discern is to the Everts, who will not be able to obtain complete recovery but, as stated above, are willing to accept that risk. Cf. Allendale, 62 F. Supp.2d at 1123 (giving weight to plaintiffs refusal to consent to the dismissal of non-diverse parties). Second, the Court easily can shape the verdict form and the judgment to reflect this situation: the factfinder will be asked to calculate Finn's percentage of fault, but the Everts will not be able to recover any potential damages from him. Third, between the two consolidated actions, all of the alleged tortfeasors are — and have been for over a year — before this Court. Thus, the essential facts of this case can be adjudicated in one forum, which favors dismissing Finn from the Everts' suit but retaining jurisdiction over it. See Pulitzer-Polster v. Pulitzer, 784 F.2d 1305, 1308-09 (5th Cir. 1986) (noting that the federal rules "seek to bring all persons that may have an interest in the subject of an action together in one forum so that the lawsuit can be fairly and completely disposed of", and that the federal rules emphasize "pragmatism" and "a highly practical, fact-based decision").
Because Finn is not indispensable to the Everts' suit, the Court will exercise its discretion under Federal Rule of Civil Procedure 21 and drop Finn as a defendant from the Everts' suit.
C. CONCLUSION
The Court finds that Thomas Finn was domiciled in Florida when the Everts filed suit and that the Court therefore lacked subject matter jurisdiction over him. The Court also finds, pursuant to Federal Rule of Civil Procedure 19, that Finn is a "necessary" but not "indispensable" party to the Everts' suit. Accordingly, the Court will exercise its discretion under Federal Rule of Civil Procedure 21 and drop Finn as a defendant in Civil Action No. 98-3293. The Court emphasizes that this decision has no effect on Civil Action No. 99-110.
For the reasons set forth above,
IT IS ORDERED that Defendants ADM Trucking, Inc.'s and Old Republic Insurance Company's Motion to Dismiss for Lack of Jurisdiction and Defendants James K. Williams', Welling Truck Service, Inc.'s and Old Republic Insurance Company's Motion to Dismiss for Lack of Jurisdiction are DENIED and Plaintiffs Harry and Gwen Everts' Alternative Motion to Dismiss Defendant Thomas Finn is GRANTED. IT IS FURTHER ORDERED that Thomas S. Finn is DISMISSED AS A DEFENDANT in CIVIL ACTION NO. 98-3293, but REMAINS A PARTY to CIVIL ACTION NO. 99-110.
New Orleans, Louisiana, this 2nd day of February, 2000.
MINUTE ENTRY JUDGE SEAR FEBRUARY 4, 2000