Long v. Oakley Fertilizer, Inc. et al

Filing 32

MEMORANDUM OPINION.. Plaintiff's motions to amend and remand will be granted. (See order) Signed by District Judge Stephen N. Limbaugh, Jr on 1/15/13. (MRS) (Main Document 32 replaced on 1/15/2014) (MRS). (Main Document 32 replaced on 1/16/2014) (MRS).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

PAULA LONG,
Plaintiff,
vs.
OAKLEY FERTILIZER, INC., et al.,
Defendants.

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Case No. 1:13-CV-130 SNLJ

MEMORANDUM
This action was previously pending in the Circuit Court of Mississippi County, Missouri.
Plaintiff seeks damages for the death of her son, Nicholas McCormick, who died when he fell
from a collapsing catwalk on the premises of Oakley Missouri, Inc. on September 7, 2010. In
her original state court action, plaintiff named Oakley Missouri, Inc. and others as defendants.
However, Oakley Missouri was dismissed without prejudice by the state court because the
decedent was alleged to have been employed by Oakley Missouri as a longshoreman and
therefore the matter was exclusively within the federal jurisdiction of the Longshore and Harbor
Workers’ Compensation Act, 33 U.S.C. § 901, et seq. (“LHWCA”).
Plaintiff later named Oakley Fertilizer, Inc., Bruce Oakley, Inc., Edward “Bubba” Vance,
and Agrico Sales, Inc. as defendants and abandoned claims against other defendants. Defendants
Oakley Fertilizer and Bruce Oakley (with consent of defendants Vance and Agrico Sales)
removed this matter to federal court citing both diversity and federal question jurisdiction (#1).
Plaintiff is a Missouri citizen, and defendants are each citizens of Arkansas or Texas, thus the
diversity of citizenship requirements of 28 U.S.C. § 1332(a) have been met. Further, defendants

contend that this Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331 because
they assert a federal statute, the LHWCA, provides exclusive jurisdiction.
Plaintiff responded to the removal of this matter by moving to amend her complaint and
moving to remand. Specifically, plaintiff seeks to re-name Oakley Missouri as a party because
she says she has learned through discovery that Oakley Missouri was not, in fact, the decedent’s
employer. Plaintiff asserts that, as a result, Oakley Missouri was not decedent’s employer within
the meaning of the LHWCA and that the LHWCA is not the sole source of remedy against
Oakley Missouri. Thus, plaintiff asserts that it is proper to reinstate her claims against Oakley
Missouri, and she seeks leave to amend her complaint to add Oakley Missouri. (#24.) In
addition, plaintiff moves to remand this matter to state court because Oakley Missouri destroys
the complete diversity of citizenship of the parties. (#25.)
Defendants respond that plaintiff should not be permitted to join Oakley Missouri to this
action and that, even if Oakley Missouri is joined, that the Court should retain jurisdiction.
I.

Motion to Amend Complaint
Federal Rule of Civil Procedure 15(a) provides that leave to amend a pleading “shall be

freely given with justice so requires.” Fed. R. Civ. P. 15(a)(2). “However, there is no absolute
right to amend.” Doe v. Cassel, 403 F.3d 986, 990-91 (8th Cir. 2005). The following factors
apply to the Court’s consideration: (1) whether amendment would cause undue delay, (2) the
presence of bad faith or dilatory motive, (3) whether there has been repeated failure to cure
deficiencies by amendments previously allowed, (4) whether there would be undue prejudice to
the non-moving party, and (5) whether the amendment would be futile. Id. However, “[d]elay

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alone is not enough to deny a motion to amend; prejudice to the nonmovant must also be
shown.” Bediako v. Stein Mart, Inc., 354 F.3d 835, 841 (8th Cir. 2004).
Special consideration should also be made when, as here, the plaintiff seeks to add a
defendant which would destroy diversity. See Bailey v. Bayer CropScience L.P., 563 F.3d 302,
307 (8th Cir. 2009). “If after removal the plaintiff seeks to join additional defendants whose
joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder
and remand the action to the State court.” 28 U.S.C. § 1447(e). “Joinder would be required if the
plaintiff satisfied Fed. R. Civ. P. 19 by showing that the new parties are necessary and
indispensable to a full resolution of the case.” Bailey v. Bayer CropScience L.P., 563 F.3d 302,
308 (8th Cir. 2009). Plaintiff seems to acknowledge that Oakley Missouri is not indispensable.
When the party to be joined is not necessary and indispensable, permissive joinder may be
allowed under Federal Rule of Civil Procedure 20(a)(2), which states that a defendant “may be
joined...if...any right to relief is asserted against them jointly, severally, or in the alternative with
respect to or arising out of the same transaction, occurrence, or series of occurrences” and “any
question of law or fact common to all defendants will arise in the action.” Of course, here,
Oakley Missouri was named as a defendant in the state action originally, and no one contests that
joinder would be proper generally speaking. However, the procedural posture of this case gives
rise to a host of other issues, starting with the fact that re-joining Oakley Missouri to this action
would destroy this Court’s diversity jurisdiction.
The Eighth Circuit instructs that, “[i]n this situation, justice requires that the district court
consider a number of factors to balance the defendant’s interests in maintaining the federal
forum with the competing interests of not having parallel lawsuits.” Bailey, 563 F.3d at 309

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(quoting Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir. 1987)). The balancing test
entails weighing (1) the extent to which the joinder of the nondiverse party is sought to defeat
federal jurisdiction, (2) whether the plaintiff has been dilatory in asking for amendment, and (3)
whether the plaintiff will be significantly injured if amendment is not allowed. Bailey, 563 F.3d
at 309.
As to the first factor, “if there is a reasonable basis in fact and law supporting the claim,
the joinder is not fraudulent.” Filla v. Norfolk S. Ry. Co., 336 F.3d 806, 810 (8th Cir. 2003).
Although defendants insist that plaintiff seeks to re-join Oakley Missouri only to defeat federal
jurisdiction, plaintiff responds that she is merely remedying Oakley Missouri’s improper
dismissal from the original state action, which she says was made under factually incorrect
representations of employment to the state court by Oakley Missouri. Plaintiff suggests that the
defendants have delayed discovery in this matter in order to prevent the revelation of the
decedent’s actual employer. Further, she states that the Oakley entities intend to use the
confusion over decedent’s employer as a shield for all of them. Finally, plaintiff says that
substantial evidence shows that Bruce Oakley, not Oakley Missouri, employed decedent. The
evidence submitted by plaintiff includes documents related to plaintiff’s hiring, including
employment applications, W-4 tax forms, drug testing forms, and company policies. Each of
those documents indicates Bruce Oakley, Inc. was decedent’s employer. In addition, deposition
testimony by decedent’s supervisor suggests there was some confusion over who was decedent’s
employer. In addition, the supervisor stated that he was an employee of Bruce Oakley, Inc., and
that he was paid by Bruce Oakley, Inc., and that the decedent was in the same situation. The
supervisor testified that Oakley Missouri does not have a payroll. Thus plaintiff asserts that the

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decedent was not employed by Oakley Missouri as it represented to the state court and that
plaintiff therefor has a reasonable basis in pursuing a claim against Oakley Missouri for premises
liability, as opposed to workers compensation.
Defendants essentially respond that the workers compensation settlement between
decedent’s father (who lived with decedent and declared himself a partial dependent on
decedent) and Oakley Missouri is dispositive: that because Oakley Missouri settled the workers
compensation matter for a $7,000 lump sum, Oakley Missouri is the “employer” and there is no
question about it. Defendants state that Oakley Missouri’s status as employer was effectively
litigated in state court (both in this case and in the workers compensation claim), so plaintiff is
precluded from relitigating that matter now. However, plaintiff argues that, with respect to the
workers compensation matter, she was not a party to that action, and therefore she is not
collaterally estopped from challenging that issue. Although plaintiff makes no specific argument
pertaining to the effect of Oakley Missouri’s earlier dismissal in this matter, the Court notes that
Dismissal without prejudice usually is not an adjudication on the merits of the
claim and does not affect the plaintiff’s right to refile the action. Rule 67.01;
Mahoney v. Doerhoff Surgical Services, 807 S.W.2d 503, 506 (Mo. banc 1991).
In certain circumstances, however, a dismissal without prejudice may be
considered a judgment on the merits of issues, such as jurisdiction, that are
actually litigated and decided. Healy v. Atchison, Topeka & Santa Fe Railroad,
287 S.W.2d 813, 815 (Mo. 1956).
Sexton v. Jenkins & Associates, Inc., 152 S.W.3d 270, 273 (Mo. 2004). None of the parties
raises, much less discusses, those matters, however. In addition, plaintiff herself had alleged that
Oakley Missouri was the decedent’s employer in her original complaint, though she was not
afforded discovery on who actually employed the decedent until well after the motion to dismiss
based on the LWHCA was decided. Thus plaintiff may be able to proceed against Oakley

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Missouri as a non-employer for premises liability relating to the decedent’s death resulting from
his fall from Oakley Missouri’s catwalk.
The second factor for the Court’s consideration is whether the plaintiff has been dilatory
in asking for amendment. Bailey, 563 F.3d at 309. Defendants maintain that plaintiff was
dilatory because plaintiff received the information in question on July 25 and August 6, 2013.
Plaintiff moved to amend her complaint in state court on August 9, 2013 — the motion added the
current defendants to the case — and that motion was granted on August 14, 2013. Defendants
criticize plaintiff for not adding Oakley Missouri back to the complaint at that time.
Plaintiff responds that she did not add Oakley Missouri to the second amended complaint
on August 9 because she was at that time more concerned about the statute of limitations
deadline, which was to run against defendants Agrico Sales, Bruce Oakley, and Oakley Fertilizer
on September 6, 2013. (The deadline did not apply to Oakley Missouri because it had been
previously named as a defendant.) Plaintiff states that including Oakley Missouri in the second
amended complaint would have complicated and jeopardized the motion when there was no time
for delay. Agrico Sales, Bruce Oakley, and Oakley Fertilizer removed this case on September
12, 2013, and plaintiff moved to amend and remand on October 10, 2013, soon after her attorney
was granted leave to appear pro hac vice. Defendants rely on another case in this District in
which the plaintiff, soon after removal, moved to join a new party he said was his true employer.
See Brooks v. Kelly, 4:11CV01510 AGF, 2011 WL 6009657 (E.D. Mo. Dec. 1, 2011). There,
the Court denied the motion to amend and remand because the motions were filed shortly after
removal and because the record established the originally-named defendant was plaintiff’s
employer. Id. at *3. Here, the plaintiff seeks to re-join Oakley Missouri, and she has ample

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documentation suggesting the earlier dismissal based on Oakley Missouri’s status as employer
was inaccurate. The defendants have not submitted any evidence tending to show that Oakely
Missouri was decedent’s employer except vague, contradictory testimony and the nowquestionable workers compensation settlement, to which plaintiff was not a party.
The third factor is whether the plaintiff will be significantly injured if amendment is not
allowed. See Bailey, 563 F.3d at 309. Plaintiff states that, if forced to litigate against Oakley
Missouri separately, she will have to litigate the same facts and legal issues twice, resulting in
unnecessary expense. She argues that the defendants will blame each other, possibly resulting in
conflicting outcomes and confusion. The Court notes that if indeed Oakley Missouri never
should have been dismissed from the state court action because Oakley Missouri was not the
decedent’s true employer, then that matter must be remedied. The defendants have not
sufficiently responded either in fact or law to the testimony and documents evidencing that
Bruce Oakley, Inc., and not Oakley Missouri, was decedent’s employer. Although this may be a
close matter factually, this Court is not the proper forum for the dispute at hand. The Court
concurs that plaintiff’s injury would be significant if she is not permitted to re-join Oakley
Missouri.1
II.

Motion to Remand
As discussed above, the defendants contend that this Court possesses both diversity and

federal question jurisdiction over this matter. Having determined that plaintiff should be

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However, the Court notes that plaintiff’s third amended complaint is inconsistent with
the arguments in her memoranda. She states in her reply memorandum that Bruce Oakley, Inc.
was decedent’s employer. But in her proposed amended complaint, she states that decedent
“was not an employee of Defendants Bruce Oakley, Inc., Oakley Missouri, Inc., or Oakley
Fertilizer, Inc. at any relevant time herein.” (#24-1 at ¶ 2.)
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permitted to add a non-diverse defendant to her case, the Court must determine whether federal
question jurisdiction in fact exists.
Defendants contend that the Court’s federal question jurisdiction is based upon the
LHWCA. In their Notice of Removal, defendants Bruce Oakley, Oakley Fertilizer, and Vance
state simply that “the question of whether the LWCA applies to a work related injury is
exclusively a federal question which Congress never intended a state court to resolve.” (#1 at 5.)
Setting aside for the moment whether such an issue actually exists here, the Court notes that
federal question jurisdiction exists if “the federal question is presented on the face of the
plaintiff’s properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987).
However in “the ordinary case, federal preemption is merely a defense to a plaintiff’s state-law
claim, and it does not alter the jurisdiction of the federal court.” Chapman v. Lab One, 390 F.3d
620, 625 (8th Cir. 2004) (citing Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987)).
Only where an area of state law has been “completely preempted” by federal law does the
federal law provide a basis for removal of an action to federal court. Chapman, 390 F.3d at 625.
None of the parties fully address the LHWCA or how it provides this Court with subject
matter jurisdiction over the instant controversy.2

The defendants apparently would have the

Court liken the LHWCA to such federal statutes as the Labor Management Relations Act of
1947 (“LMRA”) and the Employee Retirement Security Act of 1974 (“ERISA”), for which
“Congress intended for the federal courts to fashion a body of ‘federal common law’ that would

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Agrico Sales states in its memorandum that, for “further discussion” of the federal
question matter, the Court should refer to briefing by Vance, Oakley Fertilizer, and Bruce
Oakley. (#28 at 7.) However, the Court notes that those defendants do not discuss the LHWCA
substantively except to cite to one inapposite Fourth Circuit case (see #1 at 5; see also #27 at 9).
Plaintiff does not address the LHWCA at all.
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govern disputes arising under the federal statutes.” Id. at 629. Those statutes provide complete
pre-emption of any state law claims and thus provide a source of federal question jurisdiction for
removal. Id. at 625. However, unlike those statutes, the “LHWCA contains no civil
enforcement provision” nor does it contain a specific jurisdictional grant as do the ERISA and
FMLA statutes. Aaron v. Nat’l Union Fire Ins. Co. of Pittsburg, Pa., 876 F.2d 1157, 1165 (5th
Cir. 1989). Notably, no party has provided any substantive argument pertaining to whether
federal question jurisdiction may be hinged on the LHWCA. It is illuminating that this Court
recently observed in another case that, should the LHWCA apply to that plaintiff’s claim, “the
case must be dismissed because [plaintiff] must seek a remedy for his injury with the Department
of Labor.” Demay v. Norfolk S. Ry. Co., 4:09CV276 RWS, 2009 WL 1109435, *2 (E.D. Mo.
Apr. 24, 2009) aff’d sub nom. In re Norfolk S. Ry. Co., 592 F.3d 907 (8th Cir. 2010).
Defendants’ sole citation in support of federal question jurisdiction is for the proposition that the
“question of whether the LHWCA applies to a work-related injury is exclusively a federal
question which Congress never intended for state courts to resolve.” In re CSX Transp., Inc.,
151 F.3d 164, 167 (4th Cir. 1998). However, in that case, the sole matter for resolution was
whether the LHWCA provided coverage to an injured employee; when the answer was yes, the
Fourth Circuit observed that
While [plaintiff’s] claim arises under the laws of the United States, see 28 U.S.C.
§ 1331, it is not an action over which the district courts have original jurisdiction.
An LHWCA claim must be filed with the Department of Labor where it is
assigned to an administrative law judge whose decision is reviewed by the
Benefits Review Board. 33 U.S.C. §§ 910(a), 921(b). Review by the courts is
authorized through a petition for review, which may be filed only in the courts of
appeals, not in the district court. 33 U.S.C. § 921(c).

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Id. at 171. Here, of course, the matter at hand is a wrongful death claim against defendants
plaintiff says is responsible for the death of her son. The Court does not have subject matter
jurisdiction over that claim unless diversity jurisdiction is present.
As for diversity jurisdiction, first, defendants argue that because complete diversity
existed at the time of removal, this Court retains subject matter jurisdiction even if plaintiff is
allowed to add a non-diverse defendant. Defendants misunderstand the application of the rule
they cite. As discussed in the preceding section, the removal statute itself states, “If after
removal the plaintiff seeks to join additional defendants whose joinder would destroy subject
matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the
State court.” 28 U.S.C. § 1447(e). Defendants rely on caselaw that does not speak to attempts to
add defendants after removal; rather, defendants’ authority refers to determinations of diversity
of citizenship before removal occurred. See, e.g., Knudson v. Sys. Painters, Inc., 634 F.3d 968,
975 (8th Cir. 2011); Blakemore v. Missouri Pac. R. Co., 789 F.2d 616, 618 (8th Cir. 1986).
Because the Court determined that justice requires that plaintiff be allowed to re-join
Oakley Missouri to her lawsuit, complete diversity of citizenship is no longer present, and the
Court must remand this matter to the Circuit Court of Mississippi County, Missouri.
IV.

Conclusion
Plaintiff’s motions to amend and remand will be granted.
Dated this 15th day of January, 2014.
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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