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Moyle v. Concrete Industries, Inc.

United States District Court, D. Nebraska

May 22, 2014

WILLIAM J. MOYLE, Plaintiff,
v.
CONCRETE INDUSTRIES, INC., and ROGER T. CLARKE, Defendants.
v.
MECHANICAL SYSTEMS, INC., and ACUITY INSURANCE COMPANY, its workers' compensation insurer, Intervenors/Defendants.

MEMORANDUM OPINION

LYLE E. STROM, Senior District Judge.

This matter is before the Court on defendants' motion (Filing No. 124) for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b) for lack of subject matter jurisdiction. Alternatively, the defendants move for a remittitur or new trial pursuant to Federal Rule of Civil Procedure 59(a). The defendants have filed a brief (Filing No. 125) and index of evidence (Filing No. 126) in support of that motion. Plaintiff Moyle filed a brief (Filing No. 137) and index of evidence (Filing No. 138) in opposition of the motion. Intervenors Mechanical Systems, Inc. and Acuity Insurance Co. also filed a brief (Filing No. 139) in opposition of the motion. The defendants filed their final brief (Filing No. 142), declaration (Filing No. 143), and index of evidence (Filing No. 145).

I. BACKGROUND

The plaintiff is William Moyle ("Moyle"). The defendants are Roger Clarke, his employer, Concrete Industries of Nebraska City, Nebraska, and its owner, NEBCO Incorporated. All defendants are domiciled in Nebraska ( Id. at 2-4).

This action arises from a traffic accident in Cass County, Nebraska, that occurred on October 31, 2012. That day, Moyle drove his company's Ford F450 pickup truck northbound on United States Highway 75. Clarke was also driving northbound on Highway 75 in his employer's concrete mixer truck. Clarke was operating the truck in the scope of his employment at Concrete Industries. As Clarke attempted a right turn onto Highway 34, the vehicles driven by Moyle and Clarke collided. The momentum of Moyle's truck and the collision caused his vehicle to leave the roadway and turn on its roof. During the course of these events, Moyle was left a paraplegic. The plaintiff, Moyle, filed the instant action alleging negligence. The defendants, Clarke, Concrete Industries, and NEBCO, filed counter claims against Moyle for negligence.

On January 28, 2014, after a six-day trial, a jury of twelve reached a unanimous verdict for the plaintiff (Filing No. 108) in the amount of $19, 607, 486.00. The issue before the Court concerns diversity jurisdiction.

II. SUBJECT MATTER JURISDICTION

Moyle asserts federal jurisdiction under 28 U.S.C. § 1332 as a citizen of Montana. Filing No. 1. Under that section, district courts have original subject matter jurisdiction in all civil matters where the controversy exceeds $75, 000 and exists between citizens of different states. 28 U.S.C. § 1332. Moyle, as the party seeking federal forum, has the burden of establishing jurisdiction by a preponderance of the evidence. See Yeldell v. Tuft, 913 F.3d 533, 537 (8th Cir. 1990) (citing Blakemore v. Mo. P. R.R., 789 F.2d 616, 618 (8th Cir. 1986)). Diversity jurisdiction requires each defendant to be a citizen of a different state from each plaintiff. See id. (citing Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978)).

The "determination of citizenship for the purpose of diversity is a mixed question of law and fact, but mainly fact." Altimore v. Mt. Mercy Coll., 420 F.3d 763, 768 (8th Cir. 2005) (citing Blakemore, 789 F.2d at 618). Simultaneous physical presence and intent to remain in a state indefinitely create citizenship in that state. See id. (citing Yeldell, 913 F.2d at 537) ; see also Homes v. Sopuch, 639 F.3d 431, at 433 n.2 (8th Cir. 1981). The existence of diversity of citizenship is determined at the time the suit is instituted, and not when the cause of action arose. Yeldell, 913 F.2d at 537 (citing Smith v. Snerling, 354 U.S. 91, 93 n. 1 (1957)).

A. FACTS

Moyle has consistently claimed citizenship in Montana (Filing No. 125, at 2-3). The last time Moyle resided in Montana was mid-2011. Filing No. 126-2, at 7. After a series of moves, Moyle settled in North Dakota in October 2011 with a friend, Chad Heller ("Heller") (Filing No. 125, at 8; Filing No. 126-2, at 7). On June 19, 2012, Moyle and Heller traveled to Omaha to see a concert and they decided to move to Omaha (Filing No. 126-2, at 7). Moyle and Heller came to Omaha numerous times before the final move in order to find lodging and work ( Id. ). They signed an eleven-month lease and moved to Omaha (Filing No. 126-2, at 8). In deposition, Moyle stated that he intended to remain in Omaha for the duration of the lease and had no plans thereafter ( Id. ).

On direct examination, Moyle testified that meeting his future fiancee was 90% of the reason he moved to Omaha ( Id. at 7). Originally, Moyle lined up a job with a carpet company, but after meeting his fiancee in August, Moyle decided the work was too unstable (Filing No. 126-2, at 15; Filing No. 118, at 7-9), so Moyle left his old job, joined the union, started "a grown-up job" at MSI, and planned a career path (Filing No. 118, at 8). At trial, he testified:

But I figured I was going to be in Omaha a while, as - meeting Paulina so it was time to get a grown-up job so I joined the union and I started working for Mechanical Systems to plot out basically a career and a path that I could go down rather than the uncertainty of carpet. At the time it was great but I wanted something a little - job security, I suppose.

( Id. ). Because of her, Moyle planned to get the "grown-up job, " planned on being in Omaha for a while, and wanted job security ( Id. ). From August 2012 until October 31, 2012, the date of the collision, Moyle moved to ...


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