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Trisko v. Kropf Farms

United States District Court, M.D. Tennessee, Nashville Division

July 31, 2019

DEE TRISKO, Plaintiff,
KROPF FARMS, et al., Defendants.

          Eli J. Richardson Judge.



         This case addresses the question, not of why, but how 10, 000 chickens crossed interstate roads. Pro se Plaintiff Dee Trisko alleges that Defendants Kropf Farms, Tony Kropf, John Kropf, and Bo Whitson (the Kropf defendants) and Progressive Specialty Insurance Agency, Inc. (Progressive), United Financial Insurance Agency, Inc. (United Financial), and CT Corporations Systems (CT Corporation) delivered thousands of chickens to her that were sick or dead after a cold and rainy trip in cramped conditions from Arkansas to Tennessee. (Doc. No. 1.) Now before the Court are motions to dismiss filed by the Kropf defendants and by Movant United Financial Casualty Company (UFCC) on behalf of Defendants Progressive and United Financial. (Doc. Nos. 14, 16.) Trisko has responded in opposition. (Doc. No. 20.) For the reasons that follow, the Magistrate Judge will recommend that the Court (1) grant in part and deny in part the Kropf defendants' motion to dismiss; and (2) find that UFCC is not a party to this action and deny its motion without prejudice on that basis.

         I. Factual and Procedural Background [1]

         On February 10, 2018, Dee Trisko received a delivery of 10, 400 chickens-more than 9, 000 of them deceased-at her property in Portland, Tennessee. (Doc. No. 1.) Tony and John Kropf had falsely told Trisko that their business, Kropf Farms, was “NPIP certified” and had “proper USDA licensing to cross state lines with chickens.”[2] (Id. at PageID# 3) Trisko later discovered that Kropf Farms is licensed to drive only within Arkansas and that Tony and John Kropf “did not get health certificate paperwork or certifications to cross state lines” with the chickens. (Id.)

         Bo Whitson had driven the chicken truck on a more-than-fourteen-hour journey to Tennessee from Lamar, Arkansas. (Id.) The thousands of chickens were packed into just twenty cages with no food or water and no protective covering. (Id.) It rained for the entire drive, and Whitson took only back roads, not stopping at any weigh stations and not keeping any logs. (Id.) At one point, Whitson “was stuck at [a] gas station for over 4 hours because he had no gas” and his “credit cards [were] declined.” (Id. at PageID# 10.) Tony Kropf told Trisko to pay $200.00 for gas so that Whitson could finish the drive. (Id.)

         Tony Kropf had promised Trisko that she would only have to pay for live chickens and that he would take back any chickens that did not survive the journey. (Doc. No. 1.) After Whitson arrived, Trisko paid him $6, 900.00 in cash and had him sign a receipt. (Id.) Whitson then told Trisko that “he was going to move [the truck] out of the road due to oncoming traffic and come back to help collect the dead” chickens. (Id. at PageID# 3.) Instead, he “r[an] away and [left Trisko] with the dead” birds. (Id. at PageID# 7.) He then called “[People for the Ethical Treatment of Animals] and the police department to try to have [Trisko] and [her] husband put into jail for animal cruelty . . . .” (Id. at PageID# 4.)

         Trisko filed a pro se complaint against the Kropf defendants, Progressive, United Financial, and CT Corporation on March 22, 2018, alleging fraud and negligence based on the facts described above. (Doc. No. 1.) Trisko also states that “Progressive Insurance has been made aware of the violations and fail[ed] to do anything about the matter, so they have acquiesced to the fraud and deception . . . .” (Id. at PageID# 3.) She seeks “$76, 000 for punitive damages, clean up of [the] birds, pain and suffering and untold gross trauma, all court cost[s], attorney fees and filings[, ]” and reimbursement for “[a]ny state fines imposed . . . .” (Id. at PageID# 10.) The complaint also mentions several federal and state statutes and regulations that Trisko believes the defendants have violated.[3] (Doc. No. 1.)

         On April 25, 2018, the Kropf defendants moved to dismiss Trisko's complaint for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim under Rule 12(b)(6).[4] (Doc. Nos. 14, 14-1.) They argue that Trisko has failed to allege diversity jurisdiction under 28 U.S.C. § 1332, and that “all of [Trisko's] substantive claims . . . are based upon rules and statutes for which no private rights of action exist.” (Doc. No. 14-1, PageID# 56.) Trisko responds that diversity jurisdiction is properly invoked because she resides in Tennessee and the defendants all reside in either Arkansas or Ohio and because the amount in controversy exceeds $75, 000. (Doc. No. 20.) She also argues that she has “allege[d] causes of action for fraud[] and breach of contract.” (Id. at PageID# 78.)

         On April 30, 2018, UFCC filed a corporate disclosure statement and a motion to dismiss Trisko's claims against Progressive and United Financial. (Doc. Nos. 15, 16.) The corporate disclosure statement explains that UFCC “is not aware of any corporate entities existing under the names [Progressive or United Financial] as stated in the Complaint, but believes they may be misnomers for [UFCC, ]” which is owned by “The Progressive Corporation.” (Doc. No. 15, PageID# 64.) UFCC argues in its motion to dismiss that Trisko has failed to state claims against Progressive or United Financial under Rule 12(b)(6) because her complaint includes insufficient facts about their alleged roles and because Tennessee law generally prohibits direct actions against a defendant's insurance carrier. (Doc. No. 16-1, PageID# 70.) UFCC also notes that Trisko has not caused a summons to be issued for either Progressive or United Financial and that neither of those defendants appears to have been served. (Doc. No. 16-1.) In response, Trisko states that “Matthew[ ]K[ ]Rolfes at Progressive . . . admitted that his client is in the wrong and should pay for the damages” and argues that “Progressive has now deliberately tried to prevent this lawsuit and conspire against [Trisko] in order not to have to pay out [these] claims . . . .” (Doc. No. 20, PageID# 83.) She also argues that her complaint “has detailed enough factual allegations” against all of the defendants to proceed. (Id. at PageID# 81.)

         II. Legal Standard

         A. Federal Rule of Civil Procedure 12(b)(1)

         Federal courts are courts of limited subject-matter jurisdiction and can adjudicate only those claims authorized by the Constitution or an act of Congress. Chase Bank USA, N.A. v. City of Cleveland, 695 F.3d 548, 553 (6th Cir. 2012). Article III of the Constitution extends the federal judicial power “to all Cases, in Law and Equity, arising under this Constitution [and] the Laws of the United States, ” and several other categories of cases not at issue here.[5] U.S. Const. art. III, § 2, cl. 1. Congress has also granted federal courts diversity jurisdiction over civil actions in which the parties are citizens of different states and the amount in controversy exceeds $75, 000.00. 28 U.S.C. § 1332. Whether the Court has subject-matter jurisdiction is a “threshold” question in any action. Am. Telecom Co. v. Republic of Lebanon, 501 F.3d 534, 537 (6th Cir. 2007). This reflects the fundamental principle that “‘[j]urisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.'” Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998) (quoting Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868)).

         The party asserting jurisdiction bears the burden of establishing that subject-matter jurisdiction exists. Ammons v. Ally Fin., Inc., 305 F.Supp.3d 818, 820 (M.D. Tenn. 2018). A motion to dismiss under Rule 12(b)(1) for lack of subject-matter jurisdiction “may either attack the claim of jurisdiction on its face or it can attack the factual basis of jurisdiction.” Golden v. Gorno Bros., Inc., 410 F.3d 879, 881 (6th Cir. 2005). A facial attack challenges the sufficiency of the pleading and, like a motion under Rule 12(b)(6), requires the Court to take all factual allegations in the pleading as true. Wayside Church v. Van Buren Cty., 847 F.3d 812, 816-17 (6th Cir. 2017) (quoting Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007)). A factual attack challenges the allegations supporting jurisdiction, raising “a factual controversy requiring the district court to ‘weigh the conflicting evidence to arrive at the factual predicate that subject-matter does or does not exist.'” Id. at 817 (quoting Gentek Bldg. Prods., Inc., ...

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