Opinion
Case No. 6:02-cv-641-Orl-31KRS
August 5, 2002
ORDER
Plaintiff, Anna Reynolds, as personal representative of the estate of Thomas P. Porter, Jr., deceased, originally filed suit in state court against Con-Way Transportation Services, Inc. (Con-Way), Star-Lite Expedited Transportation Services, Inc. (Star-Lite) and the estate of John T. Percoco, deceased (Percoco). On June 3, 2002, Defendants removed the case to federal court (Doc. 1). On June 28, 2002, this Court issued an Order to Show Cause why the case should not be remanded to state court for lack of subject matter jurisdiction (Doc. 18). Defendants filed their Response to the show cause order on July 12, 2002 (Doc. 20). Plaintiff did not file a response. Based upon its initial review of the Amended Complaint and the Notice of Removal, this Court sua sponte dismisses this action for lack of subject matter jurisdiction, as explained herein.
The allegations
The two decedents, Tom Porter and John Percoco, were employed as truck drivers for Star-Light. On September 21, 2000, Percoco was driving and Porter was a passenger in a Star-Lite truck en route from Michigan, when an accident occurred near Hope, Arkansas, which killed Porter. At the time of the accident, the Star-Lite truck being operated by Percoco and Porter was operating under a lease agreement with Con-Way.
It is common practice in the trucking industry for common carriers such as Con-Way to perform transportation under a lease arrangement whereby another company provides the equipment and drivers who operate under the direction of the licensed carrier. These arrangements are subject to regulation pursuant to 49 U.S.C. § 14102.
In her Amended Complaint, Plaintiff contends that Porter's death was caused by Percoco's negligent operation of the truck, for which she (presumably) seeks to hold all Defendants liable (Count I). In Counts II and III, Plaintiff asserts separate claims against Star-Lite and Con-Way. Count II asserts a claim against Star-Lite under common law, and "under the provision of federal statutes and regulations pertaining to motor carrier safety. . . ." (Am. Compl. at ¶ 22). In Count III, Plaintiff asserts a claim against Con-Way for the negligence of Star-Lite's driver, under the terms of the lease agreement "and pursuant to federal statutes and regulations governing such carrier and equipment owner leases. . . ." (Id at ¶ 29). In essence, Plaintiff relies on federal statutes and regulations to create a duty on the part of both Star-Lite and Con-Way to provide Plaintiff with suitable equipment and competent fellow drivers.
Defendants removed this case pursuant to 28 U.S.C. § 1441, claiming that this Court would have had original jurisdiction had the action been commenced in federal court. As a basis for federal question jurisdiction, Defendants assert that this case "arises" under federal law by reason of the federal statute which governs common carrier leasing arrangements, 49 U.S.C. § 14102. Section 14102 requires a motor carrier which uses equipment owned by another, to do so under the terms of a written lease agreement, and to assume responsibility for operating that equipment in compliance with various safety regulations. Thus, the question to be addressed here is whether that statute and the corresponding regulations create a claim which "arises under" federal law.
A review of the Amended Complaint reveals that there is no diversity jurisdiction as the Plaintiff and two of the three Defendants are residents of Florida. Therefore, the case was removable only if the suit raises a federal question, that is, if the suit is an action "arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331.
Discussion
Removal is governed by 28 U.S.C. § 1441, which provides in pertinent part that "[e]xcept as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction may be removed by the defendant or the defendants to the district court of the United States for the district and division embracing the place where such action is pending." Federal courts have original jurisdiction of all civil actions that arise under the Constitution or laws of the United States. 28 U.S.C. § 1331. Such federal-question jurisdiction may be based on a civil action alleging a violation of the Constitution, or asserting a federal cause of action established by a congressionally created expressed or implied private remedy for violations of a federal statute. City of Huntsville v. City of Madison, 24 F.3d 169, 171-72 (11th Cir. 1994).
Federal courts have federal-question jurisdiction over suits "in which a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiffs right to relief necessarily depends on resolution of a substantial question of federal law." Newton v. Capital Assur. Co., Inc., 245 F.3d 1306, 1308-09 (11th Cir. 2001) (quoting Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 27-28 (1983)). The federal cause of action or question of federal law upon which federal jurisdiction is based must be apparent from the face of the well-pleaded complaint and not from a defense or anticipated defense. Franchise Tax, 463 U.S. at 9-11. Thus, a case may be removed based on federal question jurisdiction "only when the plaintiffs statement of his own cause of action shows that it is based" on federal law. Louisville Nashville R.R. v. Mottley, 211 U.S. 149, 152 (1908).
Here, Plaintiff did not reference 49 U.S.C. § 14102 and it is unclear from the Plaintiffs complaint whether she intended to state a federal cause of action, or whether she intended a reference to federal standards to provide the basis for her negligence claims under Florida law. Accordingly, this Court finds removal improper. Despite this conclusion, based upon the Defendants' response to the Court's Order to Show Cause, the Court will consider whether Plaintiffs claims arise under federal law.
Although a case may arise under federal law "where the vindication of a right under state law necessarily turned on some construction of federal law," Franchise Tax Bd. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 9 (1983), "the mere presence of a federal issue in a state cause of action does not automatically confer federal-question jurisdiction." Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 813 (1986); Avres v. General Motors Corp., 234 F.3d 514, 517-18 (11th Cir. 2000). Federal-question jurisdiction may also be available if a substantial, disputed question of federal law is a necessary element of a state cause of action. City of Huntsville, 24 F.3d at 173-74 (analyzing the relevant Supreme Court cases, including Merrell Dow); Jairath v. Dyer, 154 F.3d 1280, 1282 (11th Cir. 1998). However, this statement must be "read with caution," because "determinations about federal jurisdiction require sensitive judgments about congressional intent, judicial power, and the federal system." Merrell Dow, 478 U.S. at 809-10.
Section 14102 does not create a private right of action or a federal tort remedy for drivers because a driver is not an intended beneficiary of the statute. White v. Excaliber Ins. Co., 599 F.2d 50, 51, 55-56 (5th Cir. 1979). But see Johnson v. SOS Transport, Inc., 926 F.2d 516 (6th Cir. 1991) (concluding that the Fifth Circuit opinion in White was dicta and finding a private right of action, in a diversity case, for drivers under § 14102). The White case is strikingly similar to the instant case. In White, the decedent, Terry White and John Lindsay were working as truck drivers for O.D. Crawford. At the time of the accident, Crawford had leased a truck, driven by White and Lindsay, to Superior Trucking Company, a licensed interstate motor carrier. Terry White's mother sued Lindsay in state court and recovered a judgment of $100,000 which she attempted to collect in a subsequent federal suit from Superior's insurance company, Excaliber.
All decisions of the Fifth Circuit prior to October 1, 1981 are binding precedent on this Court, unless overruled by the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
It is not clear whether plaintiff in Johnson even intended to assert a claim under federal law, as opposed to simply relying upon federal standards to provide the basis for a state law negligence claim. 926 F.2d at 521, n.ll.
The opinion does not reflect whether federal jurisdiction was founded on diversity or federal question jurisdiction. However, it appears that the plaintiff was a resident of Georgia while Excalibur's principal place of business was Minnesota.
The District Court determined that Mrs. White had no claim against Excaliber because Terry White was, by virtue of federal law, a statutory employee of Superior. Id. at 51. Accordingly, the court held that Mrs. White was limited to a workers' compensation claim under Georgia law. Id. at 51-52. The lower court declined to find an independent right of recovery in tort against Superior under federal law because it concluded that fellow employees were outside the scope of the protection afforded by Congress under Title 49. The Fifth Circuit affirmed, holding that drivers were statutory employees under the statute and that the statute does not create an independent tort remedy. Id, at 55. Thus, despite the fact that a court may consider a motor carrier's violation of the statute in determining the applicable law to the tort action, the federal statute is not a necessary element of the state cause of action.Id. Judy v. Tri-State Motor Transit Co., 844 F.2d 1496, 1500-01 (11th Cir. 1988) (state law determines if the federal statutory employment relationship is sufficient to constitute employment for workers' compensation purposes; rejecting the notion that the finding of a federal statutory employment relationship under section 14102 necessarily creates an employment relationship for purposes of state workers' compensation law). Hence, there is no federal question jurisdiction.
The Eleventh Circuit has found section 14102 to create a statutory employer-employee relationship. See Judy v. Tri-State Motor Transit Co., 844 F.2d 1496, 1500-01 (11th Cir. 1988) (discussing White and concluding that sole tort remedy for injured driver against motor carrier was under Florida workers' compensation law); see also White, 599 F.2d at 55;Simmons v. King, 478 F.2d 857 (5th Cir. 1973).
Jurisdiction in Judy was based upon diversity. See Compl. in Judy v. Tri-State Motor Transit Co., Case No. 84-588-CIV-ORL (M.D. Fla.).
Furthermore, the Fifth Circuit has found that Congress' intent behind the statute was to protect the public from unsafe drivers and tractor trailers. In Simmons v. King, 478 F.2d 857 (5th Cir. 1973), the Fifth Circuit, in determining the statute's validity, discussed the Congressional intent of Title 49 and the subsequent ICC regulations which provide that leases of equipment "shall provide for the exclusive possession, control, and use of the equipment, and for the complete assumption of responsibility in respect thereto, by the lessee for the duration of said contract, lease or other arrangement." Id. at 866-67. The court concluded that the non-economic purpose behind these requirements of the statutory and regulatory scheme was "to correct abuses that had arisen under often fly-by-night arrangements with consequent damage to the development and maintenance of a sound transportation system and to the public interest from a helter-skelter operation of thousands of unregulated vehicles on the highways as a menace to safety." Id. The court further determined that "[o]ne way to assure responsibility was to impose on the certificated carrier the full responsibility for the entire operation of temporarily leased equipment, whether owner-driver, or otherwise." Id. at 867. Accordingly, this Court concludes that there is no Congressional intent to create a private cause of action under section 14102 and thus no federal question jurisdiction.
Conclusion
Based on the foregoing, it is therefore
ORDERED AND ADJUDGED that this Court lack federal subject matter jurisdiction over this action. Accordingly, this case shall be remanded to the Circuit Court of the Ninth Judicial Circuit, in and for Orange County, Florida.