United States District Court, D. North Dakota
ORDER DISMISSING THIRD-PARTY COMPLAINT WITHOUT
Charles S. Miller, Jr., Magistrate Judge
August 10, 2017, plaintiff Adam Peterson commenced this
action against defendant Murex Petroleum Corporation
(“Murex”) seeking recovery for personal injuries
he sustained in an accident at an oil well pumping site
operated by Murex. Later, Peterson amended his complaint to
add the additional named defendants. The basis for the
court's jurisdiction over the claims against Murex and
the other defendants was diversity of citizenship under 28
U.S.C. § 1332.
Murex was sued, it filed and served upon WISCO, Inc.
(“WISCO”) a third-party complaint seeking a
defense and indemnification from WISCO for the claims brought
by Peterson pursuant to a Master Services Agreement it
acquired from WISCO's predecessor-in-interest. Because
Murex and WISCO are both Delaware-domiciled corporations and
because Murex's third-party complaint does not involve a
federal question, Murex invoked the court's supplemental
jurisdiction under 28 U.S.C. § 1367(a).
case was originally scheduled for a seven-day jury trial,
beginning on April 29, 2019. On April 17, 2019, the Court
entered an Order severing the third-party claims and the
cross-claims. Soon thereafter, Murex and the other defendants
settled Peterson's claims as well as the cross-claims.
This left only Murex's third-party claims against WISCO.
April 25, 2019, the court entered an order denying
Murex's and WISCO's cross-motions for summary
judgment and, on May 2016, the court scheduled a bench trial
on Murex's third-party complaint for September 19, 2019.
On the same day, Murex filed a motion requesting that the
court not exercise its supplemental jurisdiction over the
remaining third-party action and “remand” the
case to state court. Later, the court entertained a request
for a settlement conference before acting on the motion and
cancelled the trial.
before the court is plaintiff's motion asking the court
to not continue to exercise supplemental jurisdiction over
the third-party complaint and for a remand to state court.
WISCO opposes the motion. Because both parties assumed in
their briefing that the court had the power to remand the
case, the court held a telephone conference with the parties
on August 19, 2019, to explain that remand only applies to
actions that have been removed from state court, which this
case was not. See, e.g., Streambend
Properties II, LLC v. Ivy Tower Minneapolis, LLC, 718
F.3d 1003, 1017 (8th Cir. 2015) (“A district court has
no power to remand a non-removed case to state
court.”). If the court declines to exercise
supplemental jurisdiction pursuant to Murex's request,
its only option is to dismiss the case without prejudice.
Id. The court asked the parties if they wanted to
weigh in on this before the court ruled and both declined.
Further, Murex did not object to the court dismissing the
action without prejudice.
is pending in state court another personal injury action in
which Murex has sought indemnity from WISCO pursuant to the
same Master Services Agreement and in which WISCO has
asserted the same defenses. The defenses to liability that
WISCO asserts and the arguments Murex makes for overcoming
the defenses involve questions of state law for which there
is no North Dakota Supreme Court precedent directly on point.
Also, at least with respect to the claim in this case, there
are difficult legal issues with respect to the scope of
damages in light of the settlement with the plaintiff and the
other defendants for which there is also no North Dakota
Supreme Court precedent.
this case is quite advanced, so is the state court action. In
fact, much of the discovery that was presented to the court
here in support of the cross-motions for summary judgment on
Murex's claims against WISCO came from the state court
action. Further, at one point, a state court judge granted
Murex summary judgment on its claim for a defense, which this
court declined to do after concluding there were material
fact issues in dispute with respect to whether WISCO is bound
by the Master Services Agreement.
court continued to adjudicate the third party complaint,
there is a real danger of the parties getting different
results on the same issues in this action from what they
might get in state court. Also, there is the very real
possibility of appeals over the same issues to two different
reasons of preservation of judicial resources, difficult
questions of state law, and comity, the court GRANTS
IN PART Murex's motion for the court not to
exercise supplemental jurisdiction over its third-party
complaint against WISCO (Doc. No. 157). Murex's
third-party complaint against WISCO is hereby
DISMISSED WITHOUT PREJUDICE.