Ibn'rad v. Pam Transportation, et al
MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that plaintiffs motion to remand [ECF No. 20 ] is denied. IT IS FURTHER ORDERED that plaintiffs motion to amend [ECF No. 21 ] is granted. IT IS FURTHER ORDERED that the motion of defendant P.A.M. Trans port, Inc. to dismiss [ECF No. 11 ] is granted. IT IS FURTHER ORDERED that plaintiffs motion to proceed in formapauperis [ECF No. 15 ] is moot. IT IS FURTHER ORDERED that plaintiffs motion for appointment of counsel [ECF No. 16 ] is denied. An Order of Partial Dismissal will be filed with this Memorandum and Order. Signed by District Judge Carol E. Jackson on 1/28/13. (KJS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
PAM TRANSPORTATION, et al.,
No. 4:12CV2257 CEJ
MEMORANDUM AND ORDER
Plaintiff initiated this action in the St. Louis City Circuit Court, asserting a
claim under the Americans with Disabilities Act, 42 U.S.C. § 12132, and a claim of
libel. Defendants P.A.M. Transport, Inc., and HireRight Solutions, Inc., removed the
action based on federal question and diversity jurisdiction.
Plaintiff alleges that defendant P.A.M. Transport falsely accused him of lying
on his employment application about his history of mental illness. According to the
complaint, plaintiff was detained in a mental facility but there was no determination
that he suffered from a mental defect. Attached to the complaint is a 2007 state court
order granting plaintiff unconditional release from the Department of Mental Health.1
It appears that plaintiff, who is also known as Lorne L. Wray, was committed
to the Department of Mental Health after pleading not guilty by reason of mental
disease or defect to an unspecified offense. See Missouri v. Wray, 20R039702116-01
Plaintiff alleges that P.A.M. Transport reported to HireRigh that plaintiff falsified his
application and, as a result, plaintiff has been unable to find a job as a truck driver.
Plaintiff has filed a motion to remand and a motion to amend his complaint.
Defendant P.A.M. Transport has filed a motion to dismiss.
Plaintiff’s Motion to Remand
In support of his motion to remand, plaintiff asserts that the state court is
capable of adjudicating his case and that the defendants employed removal as a tactic
to get the case dismissed. The defendants’ reasons for seeking to have the case heard
in a federal court as opposed to a state court are not relevant. Because the
requirements of 28 U.S.C. § 1441 and § 1446 have been met, removal is proper in this
case. Plaintiff’s argument is without merit and his motion to remand will be denied.
Plaintiff’s Motion to Amend
Plaintiff moves to amend the complaint by withdrawing his ADA claim.
Plaintiff states that he “has never suffered a disability or handicap (mentally or
physically) nor received any benefits in relation to.”
“To state a prima facie claim under [Title II of] the ADA, a plaintiff must show:
1) he is a person with a disability as defined by statute; 2) he is otherwise qualified
for the benefit in question; and 3) he was excluded from the benefit due to
discrimination based upon disability.” Randolph v. Rodgers, 170 F.3d 850, 858 (8th
Cir. 1999); see 42 U.S.C. § 12132. Because plaintiff does not allege that he has a
disability, he does not allege a prima facie case under the ADA. Thus, the motion to
amend will be granted and plaintiff’s ADA claim will be withdrawn.
Defendant P.A.M. Transport’s Motion to Dismiss
Defendant P.A.M. moves to dismiss plaintiff’s claims under Fed. R. Civ. P.
12(b) for lack of personal jurisdiction and for failure to state a claim upon which
relief can be granted.2
Defendant P.A.M. is incorporated in the State of Arkansas and maintains its
principal place of business within the State of Arkansas. Defendant does not have
any offices or employees in Missouri, and defendant does not transact any business
in Missouri, other than to deliver freight to customers who may be located in
Missouri. Any contract for delivery of freight to customers in Missouri is negotiated
and executed by defendant at its offices in Arkansas.
When a defendant raises the issue of personal jurisdiction in a motion to
dismiss, it is the plaintiff’s burden to show that the trial court’s exercise of
jurisdiction is proper. Romak USA, Inc. v. Rich, 384 F.3d 979, 983 (8th Cir. 2004).
Because plaintiff’s ADA claim is withdrawn, it is unnecessary to address the
motion to dismiss with respect to that claim.
To subject a non-resident defendant to the long arm jurisdiction of Missouri, the
plaintiff must plead and prove that the suit arose from any of the activities
enumerated in the Missouri long arm statute and that the defendant has sufficient
minimum contacts with Missouri to satisfy due process requirements. Stanton v. St.
Jude Medical, Inc., 340 F.3d 690, 693 (8th Cir. 2003). Missouri’s long-arm statute
provides that the cause of action must arise from (1) the transaction of any business
within the state; (2) the making of any contract within the state; (3) the commission
of a tortious act within the state; (4) the ownership, use, or possession of any real
estate situated in the state; or (5) the contracting to insure any person, property or risk
located within the state at the time of contracting. See Mo. Rev. Stat. § 506.500.
In this action, plaintiff has not alleged any facts indicating that defendant
P.A.M. engaged in any activity covered by Missouri’s long arm statute. Indeed,
plaintiff does not allege that defendant P.A.M. had any contacts at all with the State
Because plaintiff has failed to show the existence of personal
jurisdiction, defendant P.A.M. will be dismissed from this action.
Failure to State a Claim
Defendant P.A.M. argues that plaintiff’s libel claim fails because the language
that is claimed to be libelous is not set forth in the complaint as required by Missouri
law. “In order to state a claim for libel or slander the specific words claimed to be
defamatory must be alleged in the petition or complaint.”Angelina Cas. Co. v.
Pattonville-Bridgeton Terrace Fire Protection Dist., 706 S.W.2d 483, 485 (Mo. Ct.
App. 1986); Missouri Church of Scientology v. Adams, 543 S.W.2d 776, 777 (Mo.
1976) (“A petition seeking recovery for libel per se should recite in the petition the
specific words or statements alleged to be libelous.”). Where such allegations fail to
appear in a complaint, the complaint fails to state a cause of action for libel. Angelina
Cas. Co., 706 S.W.2d at 485.
Plaintiff did not include the statement(s) he claims to be libelous in the
complaint, and therefore, the complaint does not state a cause of action for libel.
Accordingly, the motion to dismiss will be granted.
Plaintiff’s Motion to Proceed In Forma Pauperis
Plaintiff’s motion to proceed in forma pauperis is moot. Plaintiff was given
permission to proceed in forma pauperis by the state court and he is not required to
pay a filing fee in the district court.
Plaintiff’s Motion for Appointment of Counsel
There is no constitutional or statutory right to appointed counsel in civil cases.
Nelson v. Redfield Lithograph Printing, 728 F.2d 1003, 1004 (8th Cir. 1984). In
determining whether to appoint counsel, the Court considers several factors,
including (1) whether the plaintiff has presented non-frivolous allegations supporting
his or her prayer for relief; (2) whether the plaintiff will substantially benefit from the
appointment of counsel; (3) whether there is a need to further investigate and present
the facts related to the plaintiff’s allegations; and (4) whether the factual and legal
issues presented by the action are complex. See Johnson v. Williams, 788 F.2d 1319,
1322-23 (8th Cir. 1986); Nelson, 728 F.2d at 1005.
After considering these factors, the Court finds that the facts and legal issues
involved are not so complicated that the appointment of counsel is warranted at this
IT IS HEREBY ORDERED that plaintiff’s motion to remand [ECF No. 20]
IT IS FURTHER ORDERED that plaintiff’s motion to amend [ECF No. 21]
IT IS FURTHER ORDERED that the motion of defendant P.A.M. Transport,
Inc. to dismiss [ECF No. 11] is granted.
IT IS FURTHER ORDERED that plaintiff’s motion to proceed in forma
pauperis [ECF No. 15] is moot.
IT IS FURTHER ORDERED that plaintiff’s motion for appointment of
counsel [ECF No. 16] is denied.
An Order of Partial Dismissal will be filed with this Memorandum and Order.
Dated this 28th day of January, 2013.
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
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