                      United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                      ___________

                                      No. 00-2996
                                      ___________

Kristopher Ryan, a minor, by and           *
through his next friends, Harvey           *
Ryan and Hope Ryan;                        *
                                           *
             Plaintiff-Appellant,          *
                                           *
Harvey Ryan;                               *
                                           *
             Plaintiff,                    *
                                           * Appeal from the United States
Hope Ryan, individually and as             * District Court for the Western
heir-at-law of Howard Keller,              * District of Missouri.
deceased; Elaine Galloway; Mark            *
Ring; Diana Ring,                          *      [PUBLISHED]
                                           *
             Plaintiffs-Appellants,        *
                                           *
      v.                                   *
                                           *
Schneider National Carriers, Inc.,         *
                                           *
             Defendant-Appellee.           *
                                      ___________

                             Submitted: March 28, 2001

                                     Filed: August 27, 2001
                                      ___________

Before RICHARD S. ARNOLD, FAGG, and BOWMAN, Circuit Judges.
                           ___________
PER CURIAM.

      This lawsuit arises from a vehicle collision on a Missouri interstate highway, and
presents an issue of federal subject matter jurisdiction. The plaintiffs are the driver and
passengers of a recreational vehicle (RV) that rear-ended a Missouri Department of
Transportation (MDOT) truck. Before the collision, a tractor-trailer (semi) owned by
Schneider National Carriers, Inc. was between the RV and the MDOT truck.
Schneider’s semi pulled out of the lane to avoid the slow-moving MDOT vehicle, and
the RV hit the MDOT vehicle, killing two and seriously injuring the others in the RV.

       The plaintiffs initially filed a petition in Missouri state court against Schneider
and its unidentified driver. In the petition, Harvey Ryan, his wife, Hope Ryan, their
son, Kristopher Ryan, and Diana and Mark Ring alleged Schneider's driver was
negligent in failing to warn of the impending dangerous slow-moving MDOT vehicle.
Hope Ryan and her sister, Elaine Galloway, also alleged the wrongful death of their
father, Howard Keller. Because the Ryans and Galloway are Oklahoma residents, the
Rings are Texas residents, and Schneider is a Nevada corporation with its principal
place of business in Wisconsin, Schneider removed the case to federal court alleging
federal subject matter jurisdiction based on diversity of citizenship under 28 U.S.C. §
1332. Schneider also filed an answer to the petition asserting a counterclaim against
Harvey Ryan, the RV’s driver, for negligence. In the first amended complaint, Hope
Ryan, Kristopher Ryan, and the Rings reasserted their negligence claims against
Schneider and its driver, and added negligence claims against the MDOT truck driver,
a Missouri resident. Harvey Ryan did not assert any claims. Hope Ryan and Elaine
Galloway reasserted their wrongful death claims. In answering the first amended
complaint, Schneider again alleged Harvey Ryan’s negligence caused the plaintiffs’
injuries. Hope Ryan, Kristopher Ryan, Elaine Galloway, and the Rings then filed a
motion for leave to file a second amended complaint adding Harvey Ryan as a
defendant. Schneider opposed the motion, asserting that since Harvey Ryan had not
sought leave to dismiss his individual claims against Schneider, he remained a plaintiff

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in the action, and the other plaintiffs’ claims against him should be designated as cross-
claims. Schneider also filed a motion to dismiss asserting its driver owed no duty to
the RV under Missouri law. The district court* granted the plaintiffs leave to amend
to add cross-claims against Harvey Ryan.

       The plaintiffs filed a motion for remand to state court contending the district
court lacked subject matter jurisdiction because both Hope Ryan and Harvey Ryan are
residents of Oklahoma. The plaintiffs asserted that whether the claims against Harvey
Ryan are designated cross-claims or not, there is not complete diversity of citizenship
when the court looks beyond the pleadings and arranges the parties according to their
sides in the dispute. In opposing the motion, Schneider argued there is complete
diversity between all plaintiffs and all defendants, and the court has supplemental
jurisdiction over the plaintiffs’ cross-claim against Harvey Ryan under 28 U.S.C. §
1367(a). Harvey Ryan filed a motion for voluntary dismissal, and Schneider opposed
the motion, relying on Federal Rule of Civil Procedure 41(a)(2) (after defendant files
answer, action shall be dismissed at plaintiff’s request only by order of court and if
court deems proper).

       The district court granted Schneider's motion to dismiss, concluding Missouri
law does not impose a duty on lead drivers to either warn following drivers of
approaching dangers or to keep a constant lookout for the safety of following vehicles.
Because there was no longer any opposition to the plaintiffs’ motion to remand, the
district court remanded the action back to the original state court. The plaintiffs filed
a motion to alter or amend the judgment asserting the district court lost subject matter
jurisdiction when it allowed the cross-claim against Harvey Ryan. The district court
denied the motion.



      *
        The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.

                                           -3-
       Before we consider the merits of the plaintiffs’ appeal, we must decide whether
the district court had subject matter jurisdiction. Under 28 U.S.C. § 1332(a), district
courts have original diversity jurisdiction over civil actions when the matter in
controversy exceeds $75,000, without considering interest and costs, and when the
citizenship of each plaintiff is different from the citizenship of each defendant.
Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). In the case of a removed action,
diversity must exist both when the state petition is filed and when the petition for
removal is filed. See 28 U.S.C. § 1447(e); Koenigsberger v. Richmond Silver Mining
Co., 158 U.S. 41, 49-50 (1895). At the time of the state petition and the petition for
removal in this case, diversity jurisdiction existed. All plaintiffs were citizens of
different states than all defendants. Although federal courts must look beyond the
pleadings and arrange the parties according to their sides in the dispute, later events do
not deprive a court of jurisdiction over parties who were properly aligned in the first
instance. Universal Underwriters Ins. Co. v. Wagner, 367 F.2d 866, 870-71 (8th Cir.
1966). Here, the parties were properly aligned at the time of the state petition and
petition for removal. Harvey Ryan was injured in the accident and like the other
plaintiffs sought to recover for his injuries from Schneider. The plaintiffs other than
Harvey Ryan made no claims against him.

        The district court correctly allowed the plaintiffs to amend their complaint to
assert their claims against Harvey Ryan as cross-claims against a co-plaintiff rather than
as claims against a defendant. In deciding whether to grant leave to amend, courts must
balance the defendant’s interest in retaining the federal forum with the plaintiff’s
competing interest in avoiding parallel federal and state litigation. Courts consider
whether the purpose of the amendment is to defeat federal jurisdiction, whether the
plaintiff has delayed in requesting amendment, whether the plaintiff will be significantly
injured if amendment is refused, and any other factors bearing on the equities. Mayes
v. Rapoport, 198 F.3d 457, 462 (4th Cir. 1999). Here, it appears the plaintiffs’ main
reason for adding Harvey Ryan as a defendant, rather than filing a cross-claim against
him, was to destroy diversity jurisdiction. More importantly, allowing the plaintiffs to

                                           -4-
assert a cross-claim against Harvey Ryan gave them the same protection they sought
by asserting a claim against him as a defendant, so the plaintiffs suffer no injury from
the district court’s solution. Although the plaintiffs have an interest in protecting
themselves if Harvey Ryan is found liable for their injuries, the proper means for
protecting their interest is the filing of a cross-claim against their co-plaintiff under
Federal Rule of Civil Procedure 13(g). Williams v. Carmean, 1999 WL 717645, at *2
(E.D. La. Sept. 13, 1999). The cross-claim meets the requirements of Rule 13(g)
because it is “by one party against a co-party arising out of the transaction or
occurrence [here, the automobile accident] that is the subject matter . . . of the original
action.” The addition of the cross-claim did not defeat diversity jurisdiction. Id. On
the other hand, if the district court had allowed the claims against Harvey Ryan as a
defendant, complete diversity would have been destroyed, and the district court would
have had to either deny joinder or permit joinder and remand the action to state court.
28 U.S.C. § 1447(e); see Cobb v. Delta Exports, Inc., 186 F.3d 675, 677 (5th Cir.
1999); ARE Sikeston Ltd. v. Weslock Nat’l, Inc., 120 F.3d 820, 833 (8th Cir. 1997).



       The district court had supplemental jurisdiction over the claim against Harvey
Ryan by the other plaintiffs. Williams, 1999 WL 717645, at *2. District courts “have
supplemental jurisdiction over all other claims that are so related to claims in the action
within such original jurisdiction that they form part of the same case or controversy,”
28 U.S.C. § 1367(a), except when original jurisdiction is based solely on diversity of
citizenship, district courts “shall not have supplemental jurisdiction . . . over claims by
plaintiffs against persons made parties under Rule 14 [impleader], 19 [compulsory
joinder], 20 [permissive joinder], or 24 [intervention] of the Federal Rules of Civil
Procedure, . . . when exercising supplemental jurisdiction over such claims would be
inconsistent with the jurisdictional requirements of section 1332,” id. § 1367(b). Here,
the plaintiffs’ claim against Harvey Ryan was part of the same case or controversy as
the original claims, and Harvey Ryan was not made a party by the other plaintiffs under
any of the Rules specified in § 1367(b).

                                           -5-
       Having decided complete diversity still exists, we turn to the merits of the appeal
from the district court’s order granting Schneider’s motion to dismiss. The plaintiffs
argue the Schneider driver created the dangerous situation and owed a duty to
following vehicles under Missouri's broad duty to keep a careful lookout. We review
de novo questions of state law in a diversity case. Having carefully reviewed the
record and the parties’ briefs, we are satisfied the district court correctly applied the
controlling state law and properly resolved the issue. Because an extended opinion
would have no precedential value in this diversity case, we affirm on the basis of the
district court's dismissal order. See 8th Cir. R. 47B.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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