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ANDERSON v. SCHEFFLER3/25/1988
The opinion of the court was delivered by
This is a personal injury action. Jacob Anderson appeals the granting of summary judgment by the Wyandotte District Court in favor of Randy Scheffler and Industrial Bearing and Transmission Company, Inc.
The relevant facts are: On February 2, 1984, Jacob Anderson, 19, was helping his brother James deliver a load of ground poultry meal to a plant owned and operated by Badger By-Products
Company in Wyandotte County, Kansas. Jacob backed his 18-wheel truck to the entrance of an enclosed unloading area so the bottom of the hopper trailer was above the plaint's pit in which an auger was located. After insuring that the poultry meal was flowing through the bottom of the trailer into the auger pit, Jacob climbed out of the hopper trailer and walked toward a low wall to hang his jacket. The only way to get across was to walk across the grate over the auger pit. While attempting to do so, Jacob stepped through an opening between the parallel bars and his left foot and leg plunged downward into the auger. His leg was severed above the knee. James heard Jacob's screams and ran over to find Jacob bleeding profusely at the point where his leg had been amputated.
Jacob, a Missouri resident, filed suit against Badger By-Products Company in the district court of Wyandotte County, Kansas, on March 5, 1984. Badger By-Products, as a division of Beatrice Companies, Inc., (Beatrice) a Delaware corporation with its principal place of business in Illinois , successfully petitioned for removal of the case to the United States District Court for the District of Kansas on March 29, 1984. Jacob moved the United States District Court on December 17, 1984, to remand the case to state court, which motion was denied on March 12, 1985.
On May 1, 1984, Jacob moved to amend his petition to join four additional defendants: Beatrice, because it was inherently liable; Conveyors, Inc., a Texas corporation which manufactured the auger; Arthur J. Gallagher & Co., a Delaware corporation which supervised attempts to eliminate hazardous conditions on the premises of Badger By-Products; and finally, Industrial Bearing and Transmission Company, Inc., (IBT) a Missouri corporation which sold and delivered the auger to Badger By-Products. No attempt was made to add IBT employee Randy Scheffler to the federal court action.
On that same date, James, also a Missouri resident, intervened in the federal action to assert claims for infliction of emotional distress. James' claims were subsequently dismissed by summary judgment on May 14, 1986.
On June 13, 1985, Jacob again moved that the case be remanded to state court for the reason that the addition of IBT as a party defendant would destroy diversity jurisdiction. On June
20, 1985, the court granted Jacob's previous motion to add additional defendants, but did not include IBT because the addition of another Missouri corporation would destroy diversity jurisdiction. On July 11, 1985, the court denied Jacob's motion to remand, stating that because it had denied the addition of IBT, diversity jurisdiction was not destroyed and there was thus no reason for a remand to state court.
Jacob made no further effort to remand the case to state court. Instead, he filed a second action in the district court of Wyandotte County on January 31, 1985, naming IBT and Randy Scheffler as defendants. Scheffler had accepted the order from Badger By-Products for the auger involved in the accident; IBT had ordered the auger from Conveyors, Inc. Jacob was joined in his petition by his brother James, who asserted a claim for negligent infliction of emotional distress.
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