A lawsuit arising from an accident between a pickup truck and a tractor trailer, Phelps v. Schwab, has bounced around between state and federal courts in Missouri for several years. A federal judge remanded the case back to state court earlier this year, finding that the case no longer had diversity of citizenship. The suit alleges that the tractor trailer driver was operating his vehicle while fatigued or otherwise distracted, which caused an accident that resulted in the death of the plaintiffs’ father.
According to the plaintiffs’ second amended petition, filed in the Circuit Court of Carter County, Missouri on November 2, 2011, the accident occurred on June 5, 2009 on U.S. Highway 60. While Robert Lee Phelps was driving west on Highway 60 in a 1992 Chevrolet S-10 pickup truck, Douglas W. Gresham was driving a 1999 Peterbilt Conventional tractor trailer pulling a flatbed trailer. Gresham allegedly pulled out of a private driveway and into the westbound lanes of Highway 60, attempting to cross the highway and turn into the eastbound lanes. Gresham’s vehicle collided with Phelps’ truck, and Phelps suffered fatal injuries.
Phelps’ two adult daughters filed suit, alleging that Gresham was negligent in his operation of the trailer, resulting in Phelps’ death. The lawsuit alleged that Gresham breached a duty of care to others on the road to maintain a lookout, to avoid a foreseeable collision, and to yield to oncoming traffic. The failure to yield the right-of-way, according to the plaintiffs, constituted negligence per se. They also alleged that Gresham violated a duty of care by driving while “fatigued, inattentive, and impatient,” and that he violated statutory duties of care as a commercial vehicle operator.
Gresham died in December 2010, before the plaintiffs filed suit. Shortly after the suit was filed, Clark Gresham filed an unopposed motion to substitute himself as a defendant in place of the deceased Douglas Gresham. Clark Gresham, who resides in Illinois, then removed the case to the U.S. District Court for the Eastern District of Missouri. When the probate court appointed a public administrator, Phyllis Schwab, as the representative for Douglas Gresham’s estate, the plaintiffs moved to substitute Schwab for Clark Gresham. The court granted the motion, then remanded the case to state court because, since Schwab was a Missouri resident, diversity had been destroyed. Schwab removed the case back to federal court and filed a motion to substitute Clark Gresham for her as defendant. The plaintiffs responded with a motion to remand the case once again to federal court.
The U.S. District Court held that it lacked subject matter jurisdiction over the case because of the lack of diversity. It found that Schwab sought to restore diversity of citizenship by replacing herself with Clark Gresham, but that it lacked the authority to hear her motion. The determination of diversity is based on the status of the actual parties at the time of removal, the court said. Because Schwab was still a party at the time of the second removal to federal court, there was no diversity of citizenship and the federal court lacked jurisdiction.
Auto accident attorney Doug Horn is an advocate for safe driving in the greater Kansas City area. He represents the rights of people who have suffered injuries or lost loved ones due to the negligent or illegal conduct of others. Contact us today online or at (816) 795-7500 to schedule a free and confidential consultation.
Plaintiffs’ Second Amended Petition (PDF file), Case No. 11AK-CC00010, Phelps, et al v. Schwab, Circuit Court of Carter County, Missouri, November 2, 2011