Dion Thomas v. Burnham Trucking Company, Inc.

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued September 12, 2019
Decided October 1, 2019
Before
JOEL M. FLAUM, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
DANIEL A. MANION, Circuit Judge
No. 18-1738
DION THOMAS,
Plaintiff-Appellant,
v.
BURNHAM TRUCKING COMPANY, INC.,
Defendant-Appellee.
Appeal from the United
States District Court for the
Northern District of Indiana,
Fort Wayne Division.
No. 1:16-CV-112
William C. Lee, Judge.
Order
Dion Thomas, a truck driver employed by PTO Services, Inc., alleges that he was in-
jured on February 26, 2014, when equipment furnished to PTO by Burnham Trucking
Co. failed to operate properly. The suit began in state court and was removed under the
diversity jurisdiction. The district court granted summary judgment to Burnham, ruling
that PTO acted as an independent contractor for Burnham, which therefore did not owe
Thomas a duty of care under Indiana law. 2018 U.S. Dist. LEXIS 39536 (N.D. Ind. Mar.
12, 2018). Thomas was entitled to workers’ compensation payments from PTO, the
judge concluded, not to recovery in tort from a firm that hired PTO to provide transpor-
tation services.

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No. 18-1738 Page 2
At the oral argument of this appeal, we asked the parties to file supplemental briefs
addressing subject-matter jurisdiction. Thomas, a citizen of Indiana, alleged that Burn-
ham, which was incorporated in Delaware, had its principal place of business—indeed,
its sole employee—in Indiana. If that’s so, jurisdiction is missing because citizens of In-
diana are on both sides of the case. But Burnham asserted that its principal place of
business was in Chicago. If that’s so, then Burnham’s two corporate citizenships were
Delaware and Illinois, so that the parties are of diverse citizenship. 28 U.S.C. §1332(c)(1).
We use the past tense deliberately, because Burnham ended its operations before this
suit was filed.
Burnham’s supplemental filing tells us that it has not been an operational entity and
has not had any employees since May 31, 2015. By then, Burnham asserts, it was an in-
direct subsidiary of ArcelorMittal USA, LLC, but its corporate existence continued. Its
only possible principal place of business on February 25, 2016, when the suit was filed,
and March 31, 2016, when it was removed, was Chicago, where ArcelorMittal manages
its subsidiaries. A corporation’s principal place of business is its headquarters, see Hertz
Corp. v. Friend, 559 U.S. 77 (2010), and Chicago must have been Burnham’s headquarters
in early 2016, since it had no other place of business.
On December 2, 2016, Burnham merged into ArcelorMittal and ceased to have a
separate existence. It might have been appropriate to substitute ArcelorMittal as the real
party in interest, but as none of the litigants has asked for that step we shall resolve the
appeal in Burnham’s name. See Fed. R. Civ. P. 25(c); Luxliner P.L. Export, Co. v.
RDI/Luxliner, Inc., 13 F.3d 69, 71 (3d Cir. 1993). Jurisdiction depends on the state of af-
fairs when a suit begins, so it is not necessary to explore whether ArcelorMittal is a citi-
zen of Indiana.
Jurisdictional allegations may be amended on appeal. 28 U.S.C. §1653. We deem
Burnham’s post-argument memorandum as an amendment to its notice of removal.
None of the facts it alleges is contested, so a remand is unnecessary.
On the merits, we agree with the district court’s assessment, which need not be re-
peated. And Thomas could not gain even if the district court were wrong and he should
be treated as an employee (or at least an agent) of Burnham. For then Burnham would
be his employer, and recovery in tort would be forbidden by the state’s Workers’ Com-
pensation Act. See Ind. Code §22-3-2-6; Nickels v. Bryant, 839 N.E.2d 1211, 1215 (Ind.
App. 2005) (“even where an employee has multiple employers, the Act remains the em-
ployee’s exclusive remedy”). Thomas has received a workers’-compensation remedy
through PTO; he cannot get another through Burnham.
AFFIRMED

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