Hatcher v. McJunkin Red Man Corporation et al
MEMORANDUM AND ORDER IT IS HEREBY ORDERED that defendant Puleo's motion to dismiss is DENIED. [Doc. 21] IT IS FURTHER ORDERED that defendant McJunkin's motion to strike plaintiff's claim for punitive damages or in the alternative for more definite statement remains pending for resolution by the state court following remand. [Doc. 23] An Order of Remand will accompany this Memorandum and Order. Signed by District Judge Charles A. Shaw on 3/14/2013. (NCL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
MCJUNKIN RED MAN CORPORATION,
No. 4:12-CV-1887 CAS
MEMORANDUM AND ORDER
This removed matter is before the Court on defendant Donna Puleo’s motion to dismiss and
defendant McJunkin Red Man Corporation’s (“McJunkin”) motion to strike plaintiff’s claim for
punitive damages or alternatively for more definite statement. Plaintiff Lynnette Hatcher opposes
the motions and they are fully briefed. Plaintiff filed a Petition for Wrongful Death in state court
that contained two wrongful death counts against defendant McJunkin and one against defendant
Puleo. Complete diversity was lacking on the face of the petition as both plaintiff and defendant
Puleo are citizens of the State of Missouri, but defendants removed the case to federal court claiming
that Puleo was fraudulently joined to defeat diversity jurisdiction.
For the following reasons, the Court finds that Puleo was not fraudulently joined as a
defendant and, as a result, the Court lacks subject matter jurisdiction over this action. Defendant
McJunkin’s motion will remain pending for determination by the state court following remand.
On August 23, 2012, plaintiff filed her Petition for Wrongful Death (“Petition”) in the Circuit
Court of the City of St. Louis, State of Missouri. The Petition alleged that on January 9, 2011,
plaintiff’s father, decedent Leonard Perry, died in a shed located on defendant McJunkin’s premises
located at 7400 South Broadway in the City of St. Louis (the “Premises”), when a fire broke out and
trapped him without a means to escape. Petition at 2, ¶¶ 5-7.
Counts I and II of the Petition were directed against defendant McJunkin and titled
“Wrongful Death - Licensee” and “Wrongful Death - Trespasser,” respectively. In these counts
plaintiff alleged that McJunkin was negligent in that the shed contained certain specified dangerous
and hazardous conditions and as a result was not reasonably safe, that McJunkin knew of one or
more of these conditions and that the shed was not reasonably safe, knew that persons such as the
decedent would not discover the conditions or realize the risk of harm, failed to use ordinary care
to either make the conditions reasonably safe or adequately warn of the dangerous conditions, and
as a result, the decedent was killed when a fire broke out in the shed. Count II is expressly pleaded
in the alternative to Count I. Petition, ¶ 18.
Count III of the Petition, titled “Wrongful Death - Negligence,” alleged that defendant Puleo
is the yard manager of the Premises and a co-employee of the decedent,1 and that Puleo was
negligent and exposed the decedent to an unreasonable danger and unreasonably anticipated risk of
harm by failing to (1) provide adequate smoke and fire detection devices in the shed, (2) provide fire
suppression devices and systems in the shed, (3) ensure there were adequate emergency fire exits
and points of emergency egress in the shed, (4) maintain adequate and/or non-defective coupling
between a space heater and the natural gas supply line; (5) prevent natural gas from flowing freely
into the shed, (6) warn of the dangerous conditions within the shed, and (7) exercise ordinary care
As defendants observe in the Notice of Removal, plaintiff did not allege that the decedent
was an employee of McJunkin the counts that seek relief against McJunkin.
to make the shed reasonably safe. Count III is expressly pleaded in the alternative to Counts I and
II. Petition, ¶ 30.
The defendants removed this action to federal court pursuant to 28 U.S.C. § 1441 on the
basis of diversity jurisdiction. McJunkin is a Delaware corporation with its principal place of
business in Texas, and plaintiff and defendant Puleo are citizens of Missouri. Although the common
citizenship of plaintiff and Puleo would normally destroy diversity and divest this Court of subject
matter jurisdiction, as stated above, defendants claim that plaintiff fraudulently joined Puleo and
therefore the Court has jurisdiction over this case.
Defendants asserted in the Notice of Removal that under applicable Missouri law, a coemployee such as Puleo does not owe a fellow employee any duty to perform her employer’s nondelegable duty to provide a safe workplace, citing Hansen v. Ritter, 375 S.W.3d 201, 214 (Mo. Ct.
App. 2012), and can only be liable to an injured co-employee if she is alleged to have done
“something more” than breach one of the employer’s non-delegable duties, id. at 214-16 (citing
State ex rel. Badami v. Gaertner, 630 S.W.2d 175, 180 (Mo. Ct. App. 1982)), such that the “duty .
. . would exist independent of the master-servant relationship[.]” Id. at 217.
Defendants contended in the Notice of Removal that Count III fails to allege any duty of
defendant Puleo independent of the employer’s non-delegable duty to provide a safe workplace and,
as a result, Puleo is fraudulently joined in this action because no reasonable basis exists in law or
fact for the allegations against her. On the same day that defendants removed the case to this Court,
defendant Puleo filed a motion to dismiss the Petition asserting the same argument.
In response to Puleo’s motion to dismiss, plaintiff filed her First Amended Complaint for
Wrongful Death (“Complaint”). The Complaint asserts four counts against defendant McJunkin:
Wrongful Death–Invitee (Count I), Wrongful Death–Licensee (Count II), Wrongful Death–
Trespasser (Count III), and Wrongful Death–Punitive Damages (Count IV); and five counts against
defendant Puleo: Wrongful Death–Invitee (Count V), Wrongful Death–Licensee (Count VI),
Wrongful Death–Trespasser (Count VII), Wrongful Death–Co-Employee Negligence (Count VIII),
and Wrongful Death–Punitive Damages (Count IX). As Puleo notes in her motion to dismiss the
Complaint, plaintiff does not allege in the allegations common to all counts that the decedent was
an employee of McJunkin, and makes such an allegation only in Count VIII. As Puleo also notes,
the counts in the Complaint are not expressly pleaded in the alternative to each other.
The purpose of a motion to dismiss for failure to state a claim is to test the legal sufficiency
of the complaint. To survive a motion to dismiss pursuant to Rule 12(b)(6) for failure to state a
claim upon which relief can be granted, “a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937,
1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff need
not provide specific facts in support of her allegations, Erickson v. Pardus, 551 U.S. 89, 93 (2007)
(per curiam), but “must include sufficient factual information to provide the ‘grounds’ on which the
claim rests, and to raise a right to relief above a speculative level.” Schaaf v. Residential Funding
Corp., 517 F.3d 544, 549 (8th Cir.), cert. denied, 129 S. Ct. 222 (2008) (citing Twombly, 550 U.S.
at 555 & n.3). This obligation requires a plaintiff to plead “more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.
A complaint “must contain either direct or inferential allegations respecting all the material elements
necessary to sustain recovery under some viable legal theory.” Id. at 562 (quoted case omitted).
This standard “simply calls for enough fact to raise a reasonable expectation that discovery will
reveal evidence of [the claim or element].” Id. at 556.
On a motion to dismiss, the Court accepts as true all of the factual allegations contained in
the complaint, even if it appears that “actual proof of those facts is improbable,” id. at 556, and
reviews the complaint to determine whether its allegations show that the pleader is entitled to relief.
Twombly, 550 U.S. at 555-56; Fed. R. Civ. P. 8(a)(2). The principle that a court must accept as true
all of the allegations contained in a complaint is inapplicable to legal conclusions, however. Iqbal,
129 S. Ct. at 1949-50 (stating “[t]hreadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice”). Although legal conclusions can provide the
framework for a complaint, they must be supported by factual allegations. Id. at 1950. The
plausibility of the plaintiff’s claim is reviewed “as a whole, not the plausibility of each individual
allegation.” Zoltek Corp. v. Structural Polymer Grp., 592 F.3d 893, 896 n.4 (8th Cir. 2010).
In resolving defendant Puleo’s motion to dismiss, the Court is mindful of the procedural
posture of this case, in that complete diversity of citizenship does not appear on the face of the
removed Petition or the Complaint. “The propriety of removal to federal court depends on whether
the claim comes within the scope of the federal court’s subject matter jurisdiction.” Peters v. Union
Pacific R. Co., 80 F.3d 257, 260 (1996) (citing 28 U.S.C. § 1441(b)). “A claim may be removed
only if it could have been brought in federal court originally.” Id. “Critically, the party seeking
removal has the burden to establish federal subject matter jurisdiction; all doubts about federal
jurisdiction must be resolved in favor of remand[.]” Central Iowa Power Co-op. v. Midwest Indep.
Transmission Sys. Operator, Inc., 561 F.3d 904, 912 (8th Cir. 2009) (internal citation and cited case
For diversity jurisdiction to exist under 28 U.S.C. § 1332(a)(1), there must be complete
diversity of citizenship between plaintiffs and defendants. Buckley v. Control Data Corp., 923 F.2d
96, 97, n.6 (8th Cir. 1991). “It is settled, of course, that absent complete diversity a case is not
removable because the district court would lack original jurisdiction.” Exxon Mobil Corp. v.
Allapattah Servs., Inc., 545 U.S. 546, 564 (2005) (cited case omitted). Where complete diversity
of citizenship does not exist, 28 U.S.C. § 1447(c) requires a district court to remand the case to state
court for lack of subject matter jurisdiction.
Fraudulent joinder is an exception to the rule that complete diversity of citizenship must exist
both when the state petition is filed and when the petition for removal is filed. Knudson v. Systems
Painters, Inc., 634 F.3d 968, 976 (8th Cir. 2011). “[A] plaintiff cannot defeat a defendant’s ‘right
of removal’ by fraudulently joining a defendant who has ‘no real connection with the controversy.’”
Id. (quoted case omitted). “The purpose of this exception is to strike a balance between the
plaintiff’s right to select a particular forum and the defendant’s right to remove the case to federal
court.” Id. (cited source omitted).
“Ordinarily, to prove that a plaintiff fraudulently joined a diversity-destroying defendant,
[the Eighth Circuit Court of Appeals has] required a defendant seeking removal to prove that the
plaintiff’s claim against the diversity-destroying defendant has ‘no reasonable basis in fact and
law.’” Knudson, 634 F.3d at 977 (quoting Filla v. Norfolk S. Ry. Co., 336 F.3d 806, 810 (8th Cir.
2003)). Under this standard, “if it is clear under governing state law that the complaint does not
state a cause of action against the non-diverse defendant, the joinder is fraudulent and federal
jurisdiction of the case should be retained.” Filla, 336 F.3d at 810 (internal quotation marks
omitted). Joinder is not fraudulent where “there is arguably a reasonable basis for predicting that
the state law might impose liability based upon the facts involved.” Id. at 811.
As the Eighth Circuit explained in Filla,
[T]he 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. However, in its review of a fraudulent-joinder claim, the court has no
responsibility to definitively settle the ambiguous question of state law.
Id. at 811 (citations omitted). The Eighth Circuit instructed that “where the sufficiency of the
complaint against the non-diverse defendant is questionable, ‘the better practice is for the federal
court not to decide the doubtful question . . . but simply to remand the case and leave the question
for the state courts to decide.’” Id. (quoting Iowa Pub. Serv. Co. v. Medicine Bow Coal Co., 556
F.2d 400, 406 (8th Cir. 1977)).
Puleo argues that she is fraudulently joined because the Complaint fails to assert any
personal duty owed by her to decedent Leonard Perry independent of her employer’s non-delegable
duties of workplace safety, and thus fails to assert a duty that exists outside of the master-servant
relationship. Puleo argues that as a result, the Complaint cannot survive a motion to dismiss for
failure to state a clause of action for negligence, citing Hansen, 375 S.W.3d at 217.
Puleo contends that all of plaintiff’s allegations against her arise solely out of her employer’s
non-delegable duty to provide a safe workplace. Puleo states that the “Allegations Common to All
Counts” portion of the Complaint establishes that plaintiff’s allegations are made in the context of
the employment relationship between McJunkin and Puleo, and Puleo’s relationship to the decedent,
as plaintiff specifically alleges that Puleo was employed as the Yard Manager of McJunkin’s
Premises, and that Puleo had the duty to keep the Premises and the shed thereon in a reasonably safe
condition. (Complaint at 3, ¶¶ 7-9).
Puleo argues that under Hansen, it is clear a co-employee such as herself does not owe a
personal duty of care to provide a safe workplace and cannot be sued in negligence for acting or
failing to act in breach of such a duty, so plaintiff’s general allegations that (1) Puleo was acting in
her capacity as an employee of defendant McJunkin, and (2) Puleo’s resultant duty was to provide
decedent Perry with a safe workplace, are contrary to Hansen’s holding.
Puleo notes that in Counts V, VI and VII, she is alleged to have breached certain duties
assumed as a result of her employment with McJunkin, which are identical to those plaintiff alleges
against McJunkin in Counts I, II and III:
• Failure to install and maintain smoke detectors and/or smoke alarms in the Shed;
• Failure to install any fire suppression devices or systems in the Shed;
• Failure to provide and maintain proper emergency exits and points of emergency egress;
• Failure to adequately warn decedent Perry of the dangerous conditions.
Puleo states that in Count VIII, plaintiff alleges that Puleo owed decedent Perry a “personal
duty of ordinary care,” perhaps in an effort to establish a duty independent from her employer, and
tries to establish that Puleo acted outside of her employment relationship by alleging that Puleo
performed three “affirmative negligent acts”:
• Puleo allegedly undertook to make the Shed free to fire hazards, but failed to use ordinary
care in her undertaking;
• Puleo allegedly provided decedent Perry access to enter and/or occupy the Shed when
knew of an unreasonable and increased risk; and
• Puleo failed to warn decedent Perry of an unreasonable and increased risk.
Puleo contends that the three alleged “affirmative negligent acts” are not independent acts
at all, but rather fall squarely within the scope of the employer’s non-delegable duty to provide a
safe workplace, and cannot be separated from Puleo’s assumption or undertaking of duties which
were part and parcel of her employment for defendant McJunkin.
Plaintiff responds that Puleo’s reliance on Hansen is misguided, because it is not the
controlling precedent and is distinguishable from the instant case, and that even if Hansen were
controlling, she has pleaded a duty of care against Puleo under a co-employee theory of liability that
was independent of the duty to provide a safe workplace that would satisfy Hansen’s standard.
Plaintiff contends that the controlling standard is set forth in Logsdon v. Duncan, 293 S.W.2d 944,
949 (Mo. 1956) (en banc), in which the Missouri Supreme Court held that co-employees owe one
another a duty of ordinary care in the prosecution of their work duties.
Plaintiff further responds that Counts V, VI and VII are premises liability counts against
Puleo, and are not pleaded under a theory of co-employee negligence, but that Puleo’s motion to
dismiss contests these counts based only on a misplaced argument concerning co-employee
negligence. Plaintiff states that Puleo cites no legal authority suggesting that the co-employee
negligence standard of Hansen is applicable to premises liability claims. Plaintiff contends that she
pleaded her premises liability counts in the alternative to the co-employee liability count, and that
the law governing co-employee liability is inapplicable to those counts. Plaintiff notes that in the
“Allegations Common to All Counts” portion of the Complaint, she did not allege that decedent
Perry was acting in the course and scope of his employment when he was permitted to use and was
injured in the shed on McJunkin’s Premises, and states that in Counts V-VII, she specifically
pleaded that he was present as an invitee, licensee, or trespasser. Thus, plaintiff contends that for
purposes of Counts V, VI and VII, there is no allegation that Puleo breached a duty owed to the
decedent as a co-employee.
Puleo replies that plaintiff has taken the holding of Logsdon out of context, as Logsdon
cannot properly be read to “sweep a specific duty to perform an employer’s non-delegable duties
into the general duty an employee owes fellow employees to exercise reasonable care in the
performance of the employee’s work,” Puleo Reply at 3, and “stands only for the proposition that
an employee can proceed against a co-employee in situations involving an independent act by an
employee that increased the risk of injury to a fellow employee and did not implicate the employer’s
duty to maintain a safe workplace.” Id. at 4, citing Hansen, 375 S.W.3d at 217-18.
Puleo further replies that regardless of how plaintiff pleaded negligence against Puleo in her
Complaint, whether in premises liability or as a general negligence count, the basis for the
allegations against her arise from her status as a co-employee to decedent Perry, and therefore
plaintiff fails to state a claim upon which relief can be granted. In support, Puleo cites the Missouri
Court of Appeals’ statements in Hansen that when an injured worker seeks to bring a negligence
action against his co-employee, “as in other common-law actions, the threshold matter is to establish
the existence of a duty owed by the co-employee,” id. at 208 (quoted case omitted), and it “is not
simply the existence of a duty on the part of the co-employee, but the nature of the duty involved
which is key in determining whether the co-employee may be held liable.” Id. (quoted case
Puleo argues that the duties plaintiff ascribes to her are identical to those she ascribes to the
employer, defendant McJunkin, and that plaintiff has not alleged specific acts of negligence by
Puleo that are not subsumed within the non-delegable duty of Puleo’s employer to provide a safe
workplace. Puleo concludes that the “analysis remains the same, regardless of whether Plaintiff
labels her allegations” as “Premises Liability” or “Co-Employee Negligence.” Reply at 6.
In surresponse, plaintiff argues that she pleaded a personal duty of care owed by Puleo to
decedent Perry, because in Count VIII of the Complaint she alleges that “Puleo owed Decedent
Perry a personal duty of ordinary care to protect Decedent Perry from reasonably anticipated harm,”
Complaint at 19, ¶ 78, and that Puleo breached her personal duty of care through affirmative acts
of negligence that go beyond the scope of the employer’s duty to provide a safe workplace, such as
providing Perry with access to the shed, even though she knew, in her supervisory capacity as Yard
Manager, of an unreasonably and increased danger present in the shed. Complaint at 21, ¶ 7 & 20,
¶ 81. Plaintiff emphasizes that the premises liability counts do not allege that Perry was within the
course and scope of his employment when he died, that the shed was his workplace, or that Puleo
was his co-employee, and therefore Puleo’s arguments concerning co-employee non-delegable
duties to provide a safe workplace are misplaced.
In surreply, Puleo argues that plaintiff’s use of the word “personal” in Count VIII of the
Complaint is insufficient to allege a duty independent of the employer’s non-delegable safety duties,
and that the negligent acts she ascribes to Puleo cannot and do not arise from a personal duty, but
rather could only arise from Puleo’s duties as a co-employee of defendant McJunkin and its duty to
provide a safe workplace. Puleo also argues that plaintiff did not expressly plead any counts in the
alternative in the Complaint, and therefore she and the Court could reasonably expect to read the
Complaint as generally alleging that Puleo and Perry were co-employees for all counts against
The question for the Court is not whether state law will impose liability on Puleo, but
whether state law might impose liability. Filla, 336 F.3d at 810. The Court is mindful that
McJunkin and Puleo have the burden to establish federal subject matter jurisdiction, and that “all
doubts about federal jurisdiction must be resolved in favor of remand.” Central Iowa Power Co-op.,
561 F.3d at 912. The Court is also mindful that to establish fraudulent joinder, the defendants must
prove plaintiff’s claim against Puleo has “no reasonable basis in fact and law.” Filla, 336 F.3d at
810. In conducting this analysis, the Court “has no responsibility to definitively settle [an]
ambiguous question of state law.” Id. at 811.
Under Missouri law, what constitutes an affirmative negligent act in the context of coemployee negligence is not “susceptible of reliable definition” and must be determined on a “caseby-case basis with close reference to the facts in each individual case.” State ex rel. Taylor v.
Wallace, 73 S.W.3d 620, 622 (Mo. 2002) (en banc), overruled on other grounds by McCracken v.
Wal-Mart Stores East, LP, 298 S.W.3d 473, 479 (Mo. 2009) (en banc)). In Wallace, the Missouri
Supreme Court noted the differing results obtained in various Missouri co-employee negligence
cases. It compared Sexton v. Jenkins & Assocs., Inc., 41 S.W.3d 1 (Mo. Ct. App. 2000) (no liability
for employees who designed and built an elevator shaft railing); Felling v. Ritter, 876 S.W.2d 2 (Mo.
Ct. App. 1994) (no liability for managers who failed to install a “deadman’s switch” on a wire
rewinding machine that would allegedly have prevented death of plaintiff); Kelley v. DeKalb Energy
Co., 865 S.W.2d 670, 672 (Mo. 1993) (en banc) (no liability for various employees who allegedly
misdesigned and misinstalled a dangerous “corn flamer”), with Hedglin v. Stahl Specialty Co., 903
S.W.2d 922 (Mo. Ct. App. 1995) (liability for supervisor who directed an employee to venture onto
a makeshift crane above a vat of scalding water); and Tauchert v. Boatmen’s Nat’l Bank of St.
Louis, 849 S.W.2d 573 (Mo. 1993) (en banc) (liability for supervisor who allegedly designed and
built a makeshift hoist, which caused an elevator to crash with an employee inside). Taylor, 73
S.W.3d at 622, n.7.
In the Taylor case itself, an employee driving a truck ran into a mailbox, which caused the
plaintiff co-employee to fall. The Missouri Supreme Court concluded this failure to drive carefully
did not constitute the “purposeful, affirmatively dangerous conduct that Missouri courts have
recognized as moving a fellow employee outside the protection of the Workers’ Compensation
Law’s exclusive remedy provisions” and was “not an allegation of ‘something more’ than a failure
to provide a safe working environment,” as would be necessary to support a negligence action
against the co-employee driver. Id. at 622.
The Missouri Supreme Court further described its interpretation of the affirmatively
negligent act of a co-employee as follows:
Consistent with the Badami/Taylor line of cases, the notion of an
affirmatively negligent act—the “something more”—can best be described as an
affirmative act that creates additional danger beyond that normally faced in the
job-specific work environment. This description satisfies the concern that although
there must be an independent duty to the injured co-employee, that duty cannot arise
from a mere failure to correct an unsafe condition and must be separate and apart
from the employer’s non-delegable duty to provide a safe workplace.
Burns v. Smith, 214 S.W.3d 335, 338 (Mo. 2007) (en banc) (emphasis added).
The Court believes that the Hansen case on which Puleo relies accurately states the law in
Missouri on co-employee negligence, but the general principles it articulates are not necessarily
dispositive of the allegations in this case. As an initial matter, the Court does not give any weight
to the Complaint’s conclusory allegation that Puleo owed a personal duty to the decedent. See Iqbal,
129 S. Ct. at 1949-50. Puleo is correct that plaintiff’s allegations against her in the co-employee
negligence count (Count VIII) are identical to the allegations against the employer, McJunkin.
Further, it does not readily appear that Count VIII alleges purposeful, affirmatively dangerous
conduct by Puleo that creates additional danger. The Court need not decide whether Count VIII fails
to state a claim, however, because it finds for the reasons discussed below that Puleo has failed to
establish her entitlement to dismissal of Counts V-VII as a matter of law.
The record before the Court is not clear as to why the decedent was present in the shed when
the fire broke out, or at what time the fire occurred. In the premises liability counts, plaintiff has
pleaded, among other things, that the decedent was a constant trespasser in the shed, that he
“customarily used, entered, and/or occupied” the shed, and that part of the shed “served as a shelter
for constant trespassers and contained a space heater, Sterno cans and cooking materials, among
other things.” In those counts, plaintiff has omitted any allegation that the decedent was acting in
the scope of his employment at the time.2 Construing the Complaint in the light most favorable to
plaintiff, and granting all reasonable inferences in her favor, plaintiff is alleging that Puleo knew the
decedent was staying in the shed, which presumably would not be within the scope of his
employment, but failed to warn him that this was unreasonably dangerous because of conditions in
the shed of which she was aware but he was not. It could also be reasonable to infer that the shed
The Court agrees with Puleo that plaintiff did not explicitly plead any counts of the
Complaint in the alternative. The Federal Rules of Civil Procedure allow parties to plead two or
more statements of a claim alternatively or hypothetically, regardless of consistency. See Rule
8(d)(2), (3), Fed. R. Civ. P. This Court has stated that the “liberal policy reflected in Rule 8(d)
mandates that courts not construe a pleading as an admission against another alternative or
inconsistent pleading in the same case.” Franke v. Greene, 2012 WL 3156577, at *5 (E.D. Mo. Aug.
2, 2012) (quotation marks and quoted case omitted) (Hamilton, J.). In Franke, the Court found that
while the defendant’s quantum meruit counterclaim was not explicitly pleaded in the alternative to
his breach of contract counterclaim, it was clear the defendant had intended it to be alternative. The
Court stated it would not “require hypertechnicality in pleading these claims in the alternative,” and
refused to dismiss the quantum meruit claim based on the defendant’s “failure to use more precise
wording.” Id. Here, it is clear from the context of the Complaint that plaintiff intended to plead her
various counts alternatively. While the better practice is to explicitly plead inconsistent counts in
the alternative, in this specific instance the Court will decline Puleo’s invitation to read the
Complaint as generally alleging that Puleo and Perry were co-employees for all counts against
might have been safe as a workplace, but not as a place to cook, eat and stay, presumably after
working hours when no work was being performed in the shed. Thus, the Complaint arguably
contains allegations against Puleo that are separate and apart from a failure to carry out the
employer’s non-delegable duty to provide a safe workplace.
Puleo has not cited any case law or other authority supporting the application of Hansen’s
co-employee negligence principles to premises liability allegations of the type pleaded in the
Complaint. Puleo has not, therefore, established that it is clear under governing state law that the
Complaint does not state a cause of action against her, and that there is no reasonable basis in fact
and law for any of the claims. Although the sufficiency of the Complaint against Puleo is
questionable, the Court will be guided by the Eighth Circuit’s counsel that “the better practice is for
the federal court not to decide the doubtful question . . . but simply to remand the case and leave the
question for the state courts to decide.” Filla, 336 F.3d at 811 (quoted case omitted). Accordingly,
Puleo’s motion to dismiss should be denied as to Counts V, VI and VII. As a result, the Court lacks
subject matter jurisdiction over this action.
For the foregoing reasons, defendant Puleo’s motion to dismiss should be denied. Defendant
McJunkin’s motion to strike plaintiff’s claim for punitive damages or in the alternative for more
definite statement remains pending for resolution by the state court following remand. Because the
Court concludes that defendant Puleo was not fraudulently joined, the Court lacks subject matter
jurisdiction over this action as complete diversity of citizenship does not exist and no federal claims
are pleaded in the complaint. Consequently, the case must be remanded to state court pursuant to
28 U.S.C. § 1447(c).
IT IS HEREBY ORDERED that defendant Puleo’s motion to dismiss is DENIED. [Doc.
IT IS FURTHER ORDERED that defendant McJunkin’s motion to strike plaintiff’s claim
for punitive damages or in the alternative for more definite statement remains pending for resolution
by the state court following remand. [Doc. 23]
An Order of Remand will accompany this Memorandum and Order.
CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE
Dated this 14th day of March, 2013.
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