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RAGSDALE v. WATSON

January 24, 1962

ALFRED L. RAGSDALE, PLAINTIFF,
v.
ROBERT WATSON, JOHN H. ADAMETZ AND WILLIAM I. PORTER, A PARTNERSHIP, D/B/A DOCTORS WATSON, ADAMETZ AND PORTER; THOMAS M. DURHAM AND STUART B. MCCONKIE, A PARTNERSHIP, D/B/A DOCTORS DURHAM AND MCCONKIE; ASSOCIATED EMPLOYERS INSURANCE COMPANY AND LIGHT ADJUSTMENT COMPANY, DEFENDANTS.



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 granted."

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
  said:
    "`* * * 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 follows:

"BEFORE THE ARKANSAS WORKMEN'S COMPENSATION COMMISSION

"CLAIM NO. A911234

"ALFRED L. RAGSDALE,

EMPLOYEE               CLAIMANT

KIMBELL GROCERY

COMPANY, EMPLOYER         RESPONDENT
"ASSOCIATED EMPLOYERS
INSURANCE COMPANY,
INSURANCE CARRIER     ...

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