The opinion of the court was delivered by: John E. Miller, Chief Judge.
On July 14, 1961, the plaintiff filed his complaint seeking
to recover large sums of money against the various defendants.
On August 5, 1961, the court granted the individual
defendants additional time to August 28, 1961, in which to
answer or otherwise plead.
On August 9, 1961, the court sustained the motion of
defendants Associated Employers Insurance Company and Light
Adjustment Company for a more definite statement and, in doing
so, wrote the attorneys for all the parties advising them of
the reasons which prompted the court to grant the motion for
a more definite statement. In the same order the court
directed that the plaintiff amend his complaint in accordance
with the motion and the order of the court. On the same date
the court further extended the time of the individual
defendants to plead until the plaintiff had complied with the
order for a more definite statement.
The plaintiff failed to comply with the order of the court
of August 9, 1961, and on September 29, 1961, the court by
order extended for thirty days the time of the plaintiff in
which to file his amended complaint. On November 16, 1961, the
plaintiff had failed, notwithstanding the additional time
allowed by the court, to file an amendment to his complaint or
a substitute complaint, and on that date all the defendants
filed a motion to dismiss. Upon the filing of the motion the
court advised all the attorneys that the case would not be
dismissed at that time, but that the plaintiff would be given
additional time in which to comply with the order of the
court. Finally, on November 29, 1961, the plaintiff filed what
he has designated as "Amendment Number One to Complaint" by
substituting for the original complaint a new complaint.
On December 11, 1961, defendants Associated Employers
Insurance Company and Light Adjustment Company filed their
motion to dismiss pursuant to Rule 12(b)(6), Fed.R.Civ.P., 28
U.S.C.A., "failure to state a claim upon which relief can be
On December 13, 1961, the individual defendants filed their
motion to dismiss upon the same grounds and other grounds not
contained in the motion of Associated Employers Insurance
Company and the Light Adjustment Company.
The court requested the attorneys for all the parties to
submit briefs in support of the various contentions. The
briefs have been received, and the motions of the defendants
are now ready for disposition.
In the consideration of a motion to dismiss for failure to
state a claim upon which relief can be granted, the court in
United States v. Farmers Mutual Insurance Association of
Kiron, Iowa, 288 F.2d 560 (8 Cir. 1961), at page 562 stated:
"A motion to dismiss a complaint should not be
granted unless `it appears
to a certainty that the plaintiff would be
entitled to no relief under any state of facts
which could be proved in support of his claim!
Thomason v. Hospital T.V. Rentals, Inc., 8 Cir.,
272 F.2d 263, 264; Conley v. Gibson, 355 U.S. 41,
45, 78 S.Ct. 99, 2 L.Ed.2d 80; Lada v. Wilkie, 8
Cir., 250 F.2d 211."
In the case of Dutton v. Cities Service Defense Corp.,
197 F.2d 458 (8 Cir. 1952), the court stated substantially the
same proposition at page 459:
"This Court has repeatedly pointed out the
hazards involved in attempting to terminate
litigation by dismissing a complaint for
insufficiency of statement. To justify such a
dismissal, it must appear as a matter of law that
under no state of facts which could be proved in
support of the claims pleaded would the plaintiff
be entitled to any relief. See Woods v. Hillcrest
Terrace Corporation, 8 Cir., 170 F.2d 980, 984,
and cases cited. In the case of McComb v.
Johnson, 8 Cir., 174 F.2d 833, 834, this Court
"`* * * We have twice before had occasion to
point out the impropriety of deciding questions
of coverage under the Fair Labor Standards Act
upon motions to dismiss a complaint for failure
to state a claim upon which relief could be
granted. Musteen v. Johnson, 8 Cir.,
133 F.2d 106, 108; Stratton v. Farmers Produce Co., Inc.,
8 Cir., 134 F.2d 825, 827. The futility of
attempting to terminate a lawsuit by granting
such a motion, unless it presents a simple,
definite, clear-cut issue of law, has been
pointed out by this Court in many cases. * * *'"
See, also, Michael v. St. Paul Mercury Indemnity Co.,
92 F. Supp. 140 (W.D.Ark. 1950).
Therefore, the motions should not be sustained unless it
appears to a certainty that the plaintiff would be entitled to
no relief under any state of facts which could be proved in
support of his claim as alleged.
The plaintiff is a citizen and resident of the State of
Texas. The individual defendants Watson, Adametz and Porter
are citizens of Arkansas and reside in the Eastern District.
They are engaged in the practice of neurological surgery. The
defendants Durham and McConkie are citizens of Arkansas and
residents of the Western District. They are engaged in the
practice of orthopedic surgery.
The complaint does not allege the citizenship of the
defendant Associated Employers Insurance Company, but the
defendant Light Adjustment Company is a corporation
incorporated under the laws of Arkansas, and was the adjuster
for the defendant Associated Employers Insurance Company of
the claim submitted by plaintiff for benefits under the
Workmen's Compensation laws of Arkansas.
In connection with the citizenship of the defendant
Associated Employers Insurance Company, the individual
defendants in their motion to dismiss have alleged that it is
a citizen of the State of Texas, and therefore they ask that
the case be dismissed for the lack of diversity of
citizenship, but the attorneys representing the said defendant
have not included in their motion to dismiss any claim that
the said defendant is a citizen of the State of Texas and that
diversity does not exist. The court realizes that it is its
duty to inquire into the jurisdiction, but in view of the
conclusion that the court has reached upon other grounds and
because of the state of the record, the court is not at this
time inquiring into the citizenship of said defendant or
whether its presence as a defendant destroyed diversity.
In the complaint the plaintiff has alleged that on or about
March 31, 1959, while acting within the scope of his
employment by the Kimbell Grocery Company, he sustained an
injury, for which he was entitled to compensation in the sum
of $12,500.00 and for medical, surgical and hospital expenses
in the sum of $10,000.00 from the employer and its
workmen's compensation insurance carrier. The claim was filed
and the defendant Employers Insurance Company, as the insurer
of the employer, paid him compensation for 13 weeks in the sum
of $455.00; that thereafter it refused to make further
payments and wrongfully withheld from the plaintiff payments
to which he was entitled under the Workmen's Compensation Law
of Arkansas in the sum of $22,045.00.
The plaintiff applied to the Workmen's Compensation
Commission for an order requiring the payment of the
additional compensation and benefits, but the Commission found
that he (plaintiff) was not entitled to additional
compensation and denied his claim. That the finding was based,
"inter alia," on statements of the defendants McConkie and
Watson which falsely and fraudulently indicated that the
plaintiff was not disabled. That such statements were in fact
false and misleading and deliberately designed to and did
deceive the Commission and defraud the plaintiff; that the
statement of the defendant Watson was false and misleading and
either deliberately designed to defraud the plaintiff, or was
made after an inadequate and negligent examination, and
constituted a fraud against the plaintiff by stating that the
plaintiff was not injured.
Attached to the motion of the individual defendants is a
copy of the opinion of the Workmen's Compensation Commission
filed June 20, 1961, following the hearing referred to by
plaintiff. The plaintiff does not deny or controvert in any
manner that the copy attached to said motion is a true and
correct copy of the order of the Commission. The order is as
"BEFORE THE ARKANSAS WORKMEN'S COMPENSATION COMMISSION
COMPANY, EMPLOYER RESPONDENT
INSURANCE CARRIER ...