Klein v. Menard, Inc. et al

Filing 29

OPINION AND ORDER: Plaintiff's Motion to Remand 13 is GRANTED. This case shall be REMANDED to Minnesota District Court, Fourth Judicial District (Hennepin County) pursuant to 28 U.S.C. § 1447(c). (Written Opinion). Signed by Judge Eric C. Tostrud on 11/25/2024. (RMM)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Meghan Klein, as trustee for the heirs and
next-of-kin of James Lee Stanback,

File No. 24-cv-02362 (ECT/JFD)

Plaintiff,
v.

OPINION AND ORDER

Menard, Inc., a foreign corporation licensed
to do business in Minnesota; Joseph Bowser;
Jacob Ratliff; Janani Thayalan; Ben Willson;
Preston Tuma; John/Jane Doe(s), any other
Co-Employee(s);
John/Jane
Doe(s),
Contractor(s);
Unknown
Shipping
Company,
Defendants.
Joseph P. Tamburino, Caplan & Tamburino Law Firm, P.A., Minneapolis, MN, for
Plaintiff Meghan Klein.
Timothy P. Jung, Brandon D. Meshbesher, and Lauren M. Hoglund, Lind, Jensen, Sullivan
& Peterson, P.A., Minneapolis, MN, for Defendants Menard, Inc., Joseph Bowser, Jacob
Ratliff, Janani Thayalan, Ben Willson, and Preston Tuma.
Defendant Menard, Inc. removed this wrongful-death case based on diversity of
citizenship even though there is not complete diversity. Plaintiff Meghan Klein and all five
named individual Defendants share Minnesota citizenship. According to Menard, removal
was proper nonetheless because the non-diverse Defendants were fraudulently joined. Ms.
Klein disagrees. She has moved to remand the case. The motion will be granted because
there is arguably a reasonable basis for predicting that Minnesota law might impose
liability on at least three of the non-diverse individual Defendants.

I
Begin with the Parties and their citizenship. Ms. Klein is a Minnesota citizen. See
Notice of Removal [ECF No. 1] ¶ 17 (“Upon information and belief, Plaintiff is and was
at all relevant times a citizen who resides in Hennepin County, Minnesota.”); see also ECF
No. 1-4 ¶ 5 (showing Ms. Klein’s address in Maple Grove, Minnesota). Ms. Klein was
appointed trustee for the heirs and next-of-kin of her deceased son, James Lee Stanback.
Compl. [ECF No. 1-1] ¶ 1; ECF No. 16-5.1 Mr. Stanback was killed in a work-related
incident at Menard’s Golden Valley, Minnesota store. Compl. ¶¶ 13, 15. Menard is a
Wisconsin citizen. Answer [ECF No. 8] ¶ 2. Like Ms. Klein, the five individual defendants
are Minnesota citizens. Notice of Removal ¶ 25. They were Mr. Stanback’s coemployees
at Menard’s Golden Valley store at the time of his death. Id. ¶¶ 24–25.
Turn now to the basic allegations surrounding Mr. Stanback’s death. Menard hired
Mr. Stanback on June 16, 2021. Compl. ¶ 14. At that time, he was nineteen years old.
Id. ¶ 14. On July 22, 2021, Mr. Stanback was directed to reorganize lumber that had been
stacked unsafely. See id. ¶ 18. When he attempted to move the lumber with a forklift, the
stack fell onto the forklift, crushing him inside the forklift’s cage. Id. ¶¶ 15, 20. Mr.
Stanback had no prior forklift experience. Id. ¶ 32. The forklift training he received from

1

“[W]hen a trustee files a lawsuit or is sued in her own name, her citizenship is all
that matters for diversity purposes.” Americold Realty Tr. v. Conagra Foods, Inc., 577
U.S. 378, 383 (2016) (citing Navarro Sav. Ass’n v. Lee, 446 U.S. 458, 462–66 (1980));
Steinlage ex rel. Smith v. Mayo Clinic Rochester, 435 F.3d 913, 914–920 (8th Cir. 2006)
(“A Minnesota wrongful death trustee is a representative of a decedent’s surviving spouse,
next of kin, and certain enumerated creditors, but not a representative of a decedent’s estate
as required by the plain language of § 1332(c)(2). Accordingly, a Minnesota wrongful
death trustee’s own state of citizenship controls for purposes of diversity jurisdiction.”).
2

Menard did not comply with regulations promulgated by the Occupational Safety and
Health Administration (“OSHA”). Id. ¶ 33. The forklift Mr. Stanback used did not meet
OSHA standards for conducting work in Menard’s lumberyard. Id. ¶¶ 34–35.
The Complaint includes six counts, each of which is asserted under Minnesota’s
wrongful-death statute, Minn. Stat. § 573.0. Count One alleges gross negligence against
all Defendants. Compl. ¶ 45. Count Two alleges grossly negligent training against Menard
and three of Mr. Stanback’s coemployees, Joseph Bowser, Janani Thayalan, and Ben
Willson. Id. ¶¶ 48–51, 54. Count Three alleges grossly negligent supervision against
Menard, Mr. Bowser, Ms. Thayalan, Mr. Willson, and Preston Tuma. Id. ¶¶ 57–60, 62.
Count Four alleges grossly negligent stacking and storage of lumber against Menard, Mr.
Bowser, Mr. Ratliff, Ms. Thayalan, Mr. Willson, John/Jane Doe co-employees, John/Jane
Doe contractors, and an unknown shipping company. Id. ¶¶ 66–68. Count Five alleges
failure to exercise reasonable care in providing a safe place to work against Menard and
Ms. Thayalan. Id. ¶¶ 71–72. Count Six alleges a survivorship claim against all Defendants
under Minn. Stat. §§ 573.01–02. Id. ¶ 76. The Complaint seeks compensatory damages
“in an amount far in excess of fifty thousand dollars.” Id.
II
A
A civil action pending in state court may be removed to federal court by the
defendant when the action could have been filed in federal court originally. See 28 U.S.C.
§ 1441(a). Remand is required under 28 U.S.C. § 1447(c) “when the district court lacks
subject matter jurisdiction or the removal was procedurally defective.” St. John v. Int’l
3

Ass’n of Machinists & Aerospace Workers, 139 F.3d 1214, 1216 (8th Cir. 1998). The party
who removed the case bears the burden to show federal subject-matter jurisdiction. In re
Bus. Men’s Assurance Co. of Am., 992 F.2d 181, 183 (8th Cir. 1993). Here, Menard
removed based on diversity jurisdiction under 28 U.S.C. § 1332(a)(1), claiming the nondiverse coemployee Defendants had been fraudulently joined.
“Fraudulent joinder is an exception to the complete diversity rule.” Johnson v.
Midwest Div. - RBH, LLC, 88 F.4th 731, 735 (8th Cir. 2023). “[J]oinder is fraudulent when
there exists no reasonable basis in fact and law supporting a claim against the resident
defendants.” Filla v. Norfolk S. Ry., 336 F.3d 806, 810 (8th Cir. 2003) (quoting Wiles v.
Capitol Indem. Corp., 280 F.3d 868, 871 (8th Cir. 2002)). “However, if there is a
‘colorable’ cause of action—that is, if the state law might impose liability on the resident
defendant under the facts alleged—then there is no fraudulent joinder.” Id. (footnote
omitted). It must be “clear under governing state law that the complaint does not state a
cause of action against the non-diverse defendant.” Id. (quoting Iowa Pub. Serv. Co. v.
Med. Bow Coal Co., 556 F.2d 400, 406 n.6 (8th Cir. 1977)). As the Eighth Circuit
explained in Filla,
the district court’s task is limited to determining whether there
is arguably a reasonable basis for predicting that the state law
might impose liability based upon the facts involved. In
making such a prediction, the district court should resolve all
facts and ambiguities in the current controlling substantive law
in the plaintiff’s favor.
Id. at 811. When uncertain about the state law outcome, courts resolve all doubts in favor
of remand. Wilkinson v. Shackelford, 478 F.3d 957, 963 (8th Cir. 2007). If the diverse

4

defendant meets its burden of establishing fraudulent joinder, the district court can “assume
jurisdiction over a facially nondiverse case temporarily and . . . dismiss the nondiverse
party from the case and retain subject matter jurisdiction over the remaining claims.”
Murphy v. Aurora Loan Servs., LLC, 699 F.3d 1027, 1031 (8th Cir. 2012) (citing Block v.
Toyota Motor Corp., 665 F.3d 944, 951 (8th Cir. 2011)).
In adjudicating a fraudulent-joinder question, courts in the Eighth Circuit may
consider “material beyond the complaint’s allegations to ‘determine if there is any factual
support’ for the claims against the allegedly fraudulently joined defendant.” Toyota Motor
Corp., 665 F.3d at 948 (quoting Masepohl v. Am. Tobacco Co., 974 F. Supp. 1245, 1250
(D. Minn. 1997)). Here, however, Menard relies on just the Complaint’s allegations to
demonstrate fraudulent joinder. See generally Mem. in Opp’n [ECF No. 23]. For this
reason, the Complaint’s factual allegations will be accepted as true. See Filla, 336 F.3d at
811 (requiring the district court to “resolve all facts . . . in the plaintiff’s favor”). Ms. Klein
submitted materials in support of her remand motion. See ECF Nos. 16, 17. These
materials supplement the Complaint’s allegations. To the extent reasonably possible, they
too will be construed in Ms. Klein’s favor.
B
Here, whether there is arguably a reasonable basis for predicting that Minnesota law
might impose liability on one or more of the non-diverse coworker defendants turns on
Minnesota law governing coemployee immunity.

Generally, compensation under

Minnesota’s Workers’ Compensation Act is an employee or survivor’s sole remedy for
personal injury or death arising in the course of employment. Minn. Stat. § 176.031 (“The
5

liability of an employer prescribed by this chapter is exclusive and in the place of any other
liability to such employee . . . .”); see also McGowan v. Our Savior’s Lutheran Church,
527 N.W.2d 830, 833 (Minn. 1995). The Act is intended to strike a compromise between
employer and employee. See Minn. Stat. § 176.001. In exchange for expedient workers’
compensation benefits for a work-related personal injury, an employee gives up other
damages claims stemming from the same injury. See id.; Minn. Stat. § 176.031. And in
exchange for this limited liability, the Act imposes strict liability for workplace injuries on
employers. See Minn. Stat. §§ 176.001, 176.021, subdiv. 1.
An exception to the Workers’ Compensation Act’s exclusive-remedy provision
applies in cases where a plaintiff brings a claim against a coemployee for injuries stemming
from the coemployee’s grossly negligent or intentional acts. Minn. Stat. § 176.061, subdiv.
5(e) (“A coemployee working for the same employer is not liable for a personal injury
incurred by another employee unless the injury resulted from the gross negligence of the
coemployee or was intentionally inflicted by the coemployee.”); see also Ekblad v. Indep.
Sch. Dist. No. 625, 744 F. App’x 325, 327–28 (8th Cir. 2018). Under Minnesota law,
“[g]ross negligence is substantially and appreciably higher in magnitude than ordinary
negligence . . . [and is] the absence of slight diligence, or the want of even scant care.”
Anderson v. Rugged Races, LLC, 42 F.4th 955, 958 (8th Cir. 2022) (alterations in original)
(quoting State v. Bolsinger, 21 N.W.2d 480, 485 (Minn. 1946), overruled on other grounds,
State v. Engle, 743 N.W.2d 592 (Minn. 2008)); see also Olson v. Gausen, No. A08-1576,
2009 WL 2151182, at *5–6 (Minn. Ct. App. July 21, 2009).

6

Notwithstanding section 176.061, subdivision 5(e)’s text, a plaintiff seeking to
establish the coemployee exception must show more than just a coemployee’s gross
negligence or intentional act. In Stringer v. Minn. Vikings Football Club, LLC, the
Minnesota Supreme Court explained that, to satisfy the coemployee exception, a plaintiff
must show that a coemployee owed the plaintiff a “personal duty.” 705 N.W.2d 746, 755
(Minn. 2005). “To have a personal duty to the injured employee, the coemployee must
have (1) taken direct action toward or have directed another to have taken direct action
toward the injured employee, and (2) acted outside the course and scope of employment.”
Id. at 757 (citations omitted).
Though the Minnesota Supreme Court has not explicitly defined the concept, “direct
action” seems to be “conduct that might reasonably be foreseen to cause injury to” a
coemployee. Wicken v. Morris, 527 N.W.2d 95, 98 (Minn. 1995). A but-for causal
relationship between an employee’s injury and a coemployee’s acts is not enough. Id. at
99. Nor can direct action be shown vicariously. Id. at 98 (“A co-employee may be held
liable when, through personal fault as opposed to vicarious fault, he breaches a duty owed
to plaintiff.” (quoting Dawley v. Thisius, 231 N.W.2d 555, 557–58 (Minn. 1975))).2

2

Few Minnesota cases address the direct-action element. Wicken and Dawley are
two that do. In Wicken, a manager made false statements when he applied for a Department
of Natural Resources permit to burn explosive material. 527 N.W.2d at 97. The court held
the manager did not owe a personal duty to the workers who were killed by the resulting
explosion because applying for a permit was not an act directed toward the injured
employees. Id. at 99. In Dawley, a sheet metal company worker died after falling into a
tank of caustic detergent solution. 231 N.W.2d at 556. The court held the company’s
general manager could have no personal liability for the worker’s death absent allegations
of “direct negligence toward the [decedent].” Id. at 557–58. To be clear, I understand

7

“Course and scope of employment” share “the same meaning as the course and
scope of employment test used to determine whether an employee qualifies for workers’
compensation benefits.” Stringer, 705 N.W.2d at 760. Several seemingly fact-intensive
rules govern whether an employee acted within the scope of employment. For example,
“[w]hen an employee engages in acts exceeding his authorization, including the violation
of an instruction or a rule, he is acting outside the course and scope of his employment.”
Id. at 761 (citing Bartley v. C–H Riding Stables, Inc., 206 N.W.2d 660, 662 (Minn. 1973)
and Lange v. Metro. Airports Comm’n, 99 N.W.2d 915, 918 (Minn. 1959)). “[T]he
performance of prohibited acts is outside the scope of employment and does not come
within the protection of the statute.” Id. Conversely, “the performance of authorized acts
in a prohibited manner” falls within the scope of employment. Id. “[A]n activity not
explicitly within the employee’s defined duties can nevertheless be related to the
employee’s duties if the work is in ‘furtherance of the employer’s business.’” Id. (quoting
Ramczik v. Winona Mach. & Foundry Co., 218 N.W. 545, 545 (Minn. 1928)). “But not
every act which might benefit the employer is in the course and scope of employment.” Id.
“An employer may also extend the scope of employment by directing or requesting an
employee to perform some act outside the usual scope of employment.” Id. (citing
Weidenbach v. Miller, 55 N.W.2d 289, 296 (Minn. 1952)).3

Dawley and Wicken at least to be consistent with applying a reasonable-foreseeability test
to answer the direct-action question.
3

Depending on the case, the course-and-scope-of-employment rules might be
difficult to reconcile. For example, we know that an employee who engages in

8

A review of Minnesota cases shows that applying the coemployee-immunity
exception usually entails a fact-intensive analysis. Every case the parties have cited, or I
have found, adjudicates the exception’s applicability on a record created through discovery.
This is especially true of Stringer. The case involved review of a summary-judgment order,
and the Minnesota Supreme Court was careful to describe the case’s facts in considerable
detail over roughly six pages in the reported version. 705 N.W.2d at 748–53. The same is
true of other cases. See, e.g., Salguero v. Hernandez, No. A24-0479, 2024 WL 4751163,
at *1–2, *3–5 (Minn. Ct. App. Nov. 12, 2024) (reviewing summary-judgment order);
Thoemke v. Lamke, No. A23-1949, 2024 WL 4113736, at *1–5 (Minn. Ct. App. Sept. 9,
2024) (same); Olson v. Gausen, No. A08-1756, 2009 WL 2151182, at *1–6 (Minn. Ct.
App. July 21, 2009) (reviewing jury verdict and post-trial motions); Otto v. Christianson,
No. A07-300, 2007 WL 2703143, at *1–4 (Minn. Ct. App. Sept. 18, 2007) (reviewing
summary-judgment order); Guess v. Priore, No. A05-2467, 2006 WL 2474095, at *1–3
(Minn. Ct. App. Aug. 29, 2006) (same). The need for a factual record makes sense.
Consider just the questions to be answered in resolving the scope-of-employment question.
Answering whether an employee exceeded his authorization, violated an instruction or rule,
or performed prohibited acts, see Stringer, 705 N.W.2d at 761, require some understanding

unauthorized acts, “including the violation of an instruction or a rule,” acts outside the
course and scope of employment. Stringer, 705 N.W.2d at 761. At the same time, an
employee who performs “authorized acts in a prohibited manner” falls within the scope of
employment. Id. What if an employee in the latter category acted “in a prohibited manner”
by violating a supervisor’s verbal instruction? Answering the fraudulent-joinder question
here does not require resolving this or other possible ambiguities in Minnesota law.
9

of what directions an employee received and what policies or rules an employer
maintained. Ordinarily, these matters are the subject of discovery.
C
Resolving all facts and ambiguities in Minnesota law in Ms. Klein’s favor, is there
arguably a reasonable basis for predicting that one or more of Mr. Stanback’s named
coemployees might not be granted immunity under Minn. Stat. § 176.061, subdiv. 5(e), as
interpreted by the Minnesota Supreme Court? I think yes. Consider the three elements
necessary to show coemployee immunity in reverse order, applying each to the
Complaint’s taken-as-true allegations, the supporting materials Ms. Klein filed, and
plaintiff-friendly inferences reasonably drawn from those allegations and materials.
(1) It is arguably reasonable to predict that at least Mr. Bowser, Mr. Willson, and
Mr. Ratliff acted outside the course and scope of their Menard employment in connection
with Mr. Stanback’s death. Mr. Bowser and Mr. Willson were Mr. Stanback’s direct
supervisors. Compl. ¶¶ 3, 5. Mr. Stanback’s forklift training did not comply with OSHA
regulations. Id. ¶ 33. Though Mr. Willson told law enforcement that Mr. Stanback had
twenty hours of forklift training, id. ¶ 32, Mr. Bowser signed a document certifying Mr.
Stanback’s completion of forklift training just three days after Mr. Stanback’s hiring date,
id. ¶ 31. These allegations arguably support the conclusions that Mr. Stanback did not
receive those training hours and that his training was inadequate. Cf. id. ¶ 43 (alleging
other employees received improper and inadequate forklift training). And the forklift Mr.
Stanback was assigned had a load limit well below the weight of the lumber he was directed
to move. Id. ¶ 34. Especially considering the significance of OSHA regulations and
10

forklift load limits, it is reasonable to think Menard had instructions, rules, or policies
mandating compliance in both areas, and that Mr. Bowser and Mr. Willson’s actions may
have violated one or more of these instructions or rules. Stringer, 705 N.W.2d at 761.
A similar analysis leads to the same conclusion with respect to Mr. Ratliff. Mr.
Ratliff was an assistant manager. Compl. ¶ 4. He either stacked the lumber (that Mr.
Stanback was directed to move), or directed that it be stacked, in a manner that was
unsecure and unsafe. Id. ¶ 66; see ECF No. 17-2 at 3 (recording witness’s observation that
the stack was not safe). Prior to Mr. Stanback’s death, a Menard employee reported that
the lumber had been stacked in an “unsafe and unstable” manner. Compl. ¶ 38. The task
list given to Mr. Stanback on the day of his death described the lumber as: “Unsafe
stacking.” Id. ¶ 18. Again, owing to the safety risks associated with large lumber stacks,
it seems arguably reasonable to believe that Menard had instructions, rules, or policies
regarding lumber stacking, and that Mr. Ratliff’s actions may have violated one or more of
these instructions or rules. Stringer, 705 N.W.2d at 761.
(2) It is arguably reasonable to predict that Mr. Bowser, Mr. Willson, and Mr. Ratliff
took direct action toward, or directed another to take direct action toward, Mr. Stanback.
With respect to Mr. Bowser and Mr. Willson, it is rationally debatable whether Mr.
Stanback’s death was a reasonably foreseeable result their failure to provide adequate
forklift training. The same is true for Mr. Ratliff. Reasonable minds could find that the
lumber’s unsafe stacking—which the Complaint says Mr. Ratliff either did or directed—
would pose a reasonably foreseeable risk of death or serious bodily injury to another
employee assigned to move or work around the lumber, including Mr. Stanback.
11

(3) Finally, it is arguably reasonable to predict that Mr. Bowser, Mr. Willson, and
Mr. Ratliff’s actions might be found grossly negligent under Minnesota law. Paired with
the extent of the alleged OSHA violations, Mr. Bowser’s allegedly fabricated certification
of Mr. Stanback’s training and Mr. Willson’s assertedly false description of it to law
enforcement raise the question of what training Mr. Stanback received. And these same
facts support the arguably reasonable conclusion that the forklift training Mr. Bowser and
Mr. Willson provided to Mr. Stanback lacked even slight diligence or scant care.
Anderson, 42 F.4th at 958. That the lumber’s stacking resulted from gross negligence is a
reasonably debatable inference from widespread knowledge of the lumber’s obviously
unsafe condition, see Compl. ¶¶ 18–19, 21, and from the sheer volume of lumber that fell
on Mr. Stanback, see id. ¶ 34.4
This case’s procedural stage seems like another remand-supporting consideration.
All we have are the Complaint, the Complaint’s taken-as-true allegations, Complaintsupporting materials filed by Ms. Klein, and arguably reasonable plaintiff-friendly
inferences drawn from the Complaint’s allegations and the accompanying materials. The
Complaint does not address many particulars relevant to the coemployee exception, but it
didn’t have to. Minnesota is a notice-pleading jurisdiction. Minn. R. Civ. P. 8.01. And in
Minnesota’s courts “[a] claim is sufficient against a motion to dismiss if it is possible on

4

Resolution of the fraudulent-joinder question as to Mr. Bowser, Mr. Willson, and
Mr. Ratliff means there is not complete diversity, and subject-matter jurisdiction is absent
regardless of how fraudulent joinder is answered as to the other two coemployee
defendants. It is therefore unnecessary to address the issue as to those two defendants.

12

any evidence which might be produced, consistent with the pleader’s theory, to grant the
relief demanded.” Walsh v. U.S. Bank, N.A., 851 N.W.2d 598, 603 (Minn. 2014).5
Applying fraudulent-joinder rules to Minnesota’s coemployee exception thus requires
greater emphasis on identifying arguably reasonable inferences that may be drawn from
the Complaint’s allegations. The number and nature of those inferences are not boundless.
But until discovery becomes available that might narrow and establish relevant facts, that
universe is comparatively extensive.
Menard advances sensible arguments supporting its position that the individual
coemployee defendants were fraudulently joined, but these arguments ultimately are not
persuasive. Menard argues that coemployees in Minnesota cannot be liable “for any claims
related to the duty to provide a safe workplace and/or safe equipment.” Mem. in Opp’n at
6. It is true that the Minnesota Supreme Court has “explained that the duty to provide
employees with a safe workplace is a nondelegable duty held by the employer.” Stringer,
705 N.W.2d at 756 (citing Dawley, 231 N.W.2d at 558). But this rule does not describe an
expansive coemployee immunity in any case related to a safety violation. If it did, that
would seem at odds with Minn. Stat. § 176.061, subdiv. 5(e). The statute includes no
carve-out for safety-related injuries. Regardless, the court went on to explain:

5

To be clear, Minnesota’s notice-pleading rule and dismissal standard explain the
absence of more detailed allegations in the Complaint. That’s all. Though some federal
courts answer fraudulent joinder, at least in part, by comparing complaints against state
dismissal standards, see, e.g., Hazelwood v. S Serv., LLC, No. 3:19-cv-105-RGJ, 2020 WL
13543882, at *2 (W.D. Ky. Feb. 13, 2020), that seems unnecessary and perhaps improper.
The Eighth Circuit’s fraudulent-joinder rules establish the standard against which to assess
Ms. Klein’s claims against the coemployee defendants.
13

In other words, when the alleged breach of duty falls within the
workers’ compensation compromise between employers and
employees, the coemployee should not be held liable. To
create personal liability for the coemployee, we require that
“[t]he acts of negligence for which a co-employee may be held
liable must be acts constituting direct negligence toward the
plaintiff, tortious acts in which he participated, or which he
specifically directed others to do.”
Id. (quoting Dawley, 231 N.W.2d at 557). The coemployee exception thus may apply in
cases implicating workplace safety.6 The dividing line seems to fall between cases alleging
general workplace safety violations on the one hand (where there is no coemployee
liability), and cases alleging the violation of a personal duty on the other (where there may
be coemployee liability). For fraudulent joinder’s limited purposes, this case falls in the
latter category.
Menard argues that the coemployee exception requires Ms. Klein to allege “direct
contact” between each of the coemployee defendants and Mr. Stanback. This is not correct.
Stringer does not identify “direct contact” as an element of the coemployee exception. See
id. at 754, 757. The first element of the personal-duty inquiry asks whether an employee
has “taken direct action toward or have directed another to have taken direct action toward
the injured employee.” Id. at 757. Direct “action” could describe many activities short of
“contact.” Regardless, if directing another to “take direct action” can be enough, direct
contact cannot be essential.

6

If that weren’t so, Stringer’s outcome would have been much easier and the court’s
opinion much shorter. The case dealt with a host of obvious workplace-safety issues.
14

Menard argues that the Complaint’s allegations establish not that any coemployee
defendant acted outside the course and scope of employment, but at most that every
coemployee defendant “performed their jobs in an inadequate, unsafe, or unauthorized
manner.” Mem. in Opp’n at 16. This is not persuasive for two reasons. First, an employee
who performs a job in an “unauthorized manner” arguably acts outside the course and
scope of employment. Return to Stringer, this time with emphasis: “When an employee
engages in acts exceeding his authorization, including the violation of an instruction or a
rule, he is acting outside the course and scope of his employment.” Id. at 761 (citing
Bartley, 206 N.W.2d at 662, and Lange, 99 N.W.2d at 918). In other words, Stringer is
reasonably understood to say that an employee who performs his job in an unauthorized
manner acts outside the course and scope of his employment. Second, the argument rests
on a fair description of the Complaint’s course-and-scope-of-employment allegations, but
it does not account for arguably reasonable inferences that may be drawn from those
allegations.
The conclusion that Mr. Bowser, Mr. Willson, and Mr. Ratliff are not fraudulently
joined means there is not subject-matter jurisdiction over this case. Strawbridge v. Curtiss,
7 U.S. (3 Cranch) 267, 267 (1806). The case will therefore be remanded pursuant to 28
U.S.C. § 1447(c).

15

ORDER
Therefore, based on the foregoing, and on all the files, records, and proceedings
herein, IT IS ORDERED THAT:
1.

Plaintiff’s Motion to Remand [ECF No. 13] is GRANTED.

2.

This case shall be REMANDED to Minnesota District Court, Fourth Judicial

District (Hennepin County) pursuant to 28 U.S.C. § 1447(c).
Date: November 25, 2024

s/ Eric C. Tostrud
Eric C. Tostrud
United States District Court

16