Hughes v. K-V Pharmaceutical Company

Filing 20

MEMORANDUM AND ORDER. (see order for details) Plaintiff will be granted seven days, up to and including April 2, 2012, within which to withdraw her motion to amend her complaint and for remand. Plaintiff is expressly cautioned that a failure to do so will be interpreted as a stipulation to the three conditions set forth by K-V as a basis for its failure to object to a remand and that the doctrine of judicial estoppel will foreclose any change in position on the three conditions when again in s tate court. Should Plaintiff fail to withdraw her motion to amend her complaint and for remand on or before April 2, 2012, her motion will be granted and her case will be remanded on the basis that she has agreed to K-V's three conditions. (Response to Court due by 4/2/2012.) Signed by Magistrate Judge Thomas C. Mummert, III on 03/26/2012. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MELISSA HUGHES,
Plaintiff,
vs.
K-V PHARMACEUTICAL CO.,
Defendants.

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Case No. 4:11cv2044 TCM

MEMORANDUM AND ORDER
This case began when a complaint was filed in the St. Louis County Circuit Court for
the State of Missouri by Melissa Hughes against K-V Pharmaceutical Company (K-V) in
August 2011. After K-V prevailed on a motion to dismiss, the complaint was amended and
then removed by K-V to federal court on the grounds of federal question jurisdiction.
Specifically, K-V contended that Plaintiff's allegations that she is owed damages arising from
her inability to exercise her stock purchase options under K-V's incentive stock option plan
are claims under the Employer Retirement Income Security Act of 1974 ("ERISA"), 29
U.S.C. § 1001-1461.
Moving to remand, Plaintiff argued that her claims do not arise under, or require an
interpretation of, ERISA. In its memorandum opposing the motion, K-V "expressly denie[d]
that the disputed stock options are ERISA benefits and that they are subject to an ERISA
plan." (Def. Mem. at 6, ECF No. 11.) Rather, the stock options are governed by the Internal
Revenue Code. (Id.) K-V agreed, however, to consent to a remand if Plaintiff stipulates that
(1) the disputed stock options are not ERISA benefits, (2) the stock incentive plan is not an

ERISA plan, and (3) Plaintiff will not seek to avoid the terms of the General Release based
on any such arguments "and/or paragraph 4(c) of the General Release."1 (Id. at 7.)
Noting that Plaintiff had failed to file a memorandum in support of her motion, as
required by Local Rule 7-401(A), the Court granted Plaintiff up to and including February
27, 2012, within which to do so. Instead, Plaintiff filed a motion to amend her complaint and
to remand, again failing to file a supporting memorandum. Plaintiff argues in her motion that
her proposed amended complaint complies with K-V's proffered stipulation and "dispenses
with the suggestion that Plaintiff's stock option claims is [sic] a claim under ERISA." (Pl.
Mot. ¶ 3, ECF No. 18.)
K-V counters that, based on Plaintiff's representations, it does not oppose Plaintiff's
motion if an order remanding the case makes it clear that, by requesting a remand, Plaintiff
is stipulating to the three concessions outlined by K-V. (Def. Mem. at 2-3, ECF No. 19.)
Plaintiff has requested a remand on the grounds that her allegations do not implicate
any ERISA rights and that her amended complaint complies with the conditions K-V has
placed on its consent to a remand. As noted by K-V, Plaintiff has not unambiguously
stipulated to those conditions. Absent a clear indication by Plaintiff that she is stipulating
to the conditions, the Court declines to include them in an order of remand. On the other
hand, Plaintiff will not be permitted to seek a remand on one position and then alter that
position to K-V's detriment when again in state court.

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The General Release is not included in the court file.
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Accordingly, Plaintiff will be granted seven days, up to and including April 2, 2012,
within which to withdraw her motion to amend her complaint and for remand. Plaintiff is
expressly cautioned that a failure to do so will be interpreted as a stipulation to the three
conditions set forth by K-V as a basis for its failure to object to a remand and that the
doctrine of judicial estoppel will foreclose any change in position on the three conditions
when again in state court. See Owens v. ContiGroup Cos., Inc., 344 S.W.3d 717, 727 (Mo.
Ct. App. 2011) ("[J]udicial estoppel is in essence utilized to prevent a party from taking
contradictory positions in situations where the party has actually received some sort of
outcome or resolution (whether it be beneficial or merely decided on the merits in a prior
proceeding)."). See also In re Contest of Primary Election Candidacy of Fletcher, 337
S.W.3d 137, 146 (Mo. Ct. App. 2011) ("Missouri courts in particular have consistently
refused to allow litigants to take contrary positions in separate proceedings to ensure the
integrity of the judicial process.").
Should Plaintiff fail to withdraw her motion to amend her complaint and for remand
on or before April 2, 2012, her motion will be granted and her case will be remanded on the
basis that she has agreed to K-V's three conditions.
SO ORDERED.

/s/ Thomas C. Mummert, III
THOMAS C. MUMMERT, III
UNITED STATES MAGISTRATE JUDGE
Dated this 26th day of March, 2012.

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