Bock v. Liberty Restaurant Group, L.P. et al

Filing 23

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiff's motion to remand this case to the Circuit Court of the Twenty-First Judicial Circuit of Missouri is GRANTED. (Doc. No. 14.) IT IS FURTHER ORDERED that the Clerk of Court shall take all n ecessary steps to REMAND this case to the Circuit Court of the Twenty-First Judicial Circuit of Missouri where it was filed. IT IS FURTHER ORDERED that the removing Defendants motion to dismiss certain counts against them will be reserved for ruling by the state court. (Doc. No. 9.) Signed by District Judge Audrey G. Fleissig on 8/23/2013. (NCL)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DIANE BOCK,

)
)
Plaintiff,
)
)
v.
)
)
LIBERTY RESTAURANT GROUP, L.P., )
d/b/a BURGER KING #8482, et al.,
)
)
Defendants.
)

Case No. 4:13CV0781 AGF

MEMORANDUM AND ORDER
This employment discrimination case is before the Court on the motion of
Plaintiff Diane Bock to remand the case to the Circuit Court of the Twenty-First Judicial
Circuit of Missouri pursuant to 28 U.S.C. § 1447 and to recover its attorney’s fees, costs
and expenses associated with the removal of this action. For the reasons set forth below,
the motion to remand shall be granted.
Background
Plaintiff initiated this action on February 25, 2013, in the Circuit Court of the
Twenty-First Judicial Circuit, St. Louis County, Missouri, under the Missouri Human
Rights Act (“MHRA”), Mo.Rev.Stat. § 213.010, et seq. Plaintiff named her supervisor,
Barbara Yocks and Liberty Restaurant Group, L.P. d/b/a Burger King #8482 (“Burger
King”) and C2 Restaurants, LLC (“C2”) her former employer, as defendants. Plaintiff,
an African American, asserted claims of harassment, retaliation and constructive
discharge. Plaintiff and Yocks are citizens of Missouri. Burger King and C2 are

Delaware citizens. In her petition, Plaintiff alleged that Yocks was an “employer” within
the meaning of the MHRA, “because she was acting directly in the interest of Burger
King and directly participated in the unlawful discriminatory practices . . . .” Doc. No. 6,
¶8. Plaintiff further alleged, in detail, that Yocks harassed her, and that Plaintiff
complained to, and about, Yocks. Id., ¶¶ 13 & 15.
On April 24, 2013, Burger King and C2 removed the action to this Court asserting
federal subject matter jurisdiction based upon diversity of citizenship. Arguing that
Yocks had been fraudulently joined, Burger King and C2 claimed that Yocks did not
defeat the complete diversity requirement for diversity jurisdiction. The Defendants’
claim of fraudulent joinder was based on the assertion that the administrative charge
Plaintiff filed with the Missouri Commission on Human Rights (“MCHR”) and Equal
Employment Opportunity Commission on June 7, 2012 (Doc. No. 1–1) listed Burger
King and C2, but not Yocks, as respondents and discriminating parties. 1 Defendants
further asserted that Yocks did not receive notice or an opportunity to individually
respond and raise defenses to Plaintiff’s charge that Yocks was personally liable for the
alleged discriminatory acts. See Doc. No. 17-2, ¶¶ 2-4. In addition, Defendants contend
that Yocks had no opportunity to participate in any conciliation process at the
administrative level. See id. Finally, Defendants note that the MCHR issued Plaintiff a

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The Court observes that the MCHR Charge Form is itself a bit misleading in this
regard as it requests the naming of the “Employer, Labor Organization, Employment
Agency, Apprenticeship Committee, or State or Local Government Agency That I
Believe Discriminated Against Me or Others,” and nowhere suggests that a charging
party also name individuals, such as supervisors.
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Notice of Right to Sue that named only Burger King and C2 as respondents. See Doc.
No. 6, ¶ 27.
On May 6, 2013, Plaintiff filed a motion to remand, arguing that the removing
Defendants could not demonstrate complete diversity because Yocks’ citizenship had
been ignored; that Yocks’ joinder was not fraudulent; and that in any event, the question
of whether Yocks’ joinder was fraudulent should be determined by the state court.
Plaintiff points out that she identified Barbara Yocks by name and identified her as a
supervisor in the body of her charge of discrimination. See Doc. No. 1-5. In addition,
Plaintiff notes that she identified Yocks as her “most recent supervisor” and identified her
as “General Manager” for Burger King. Id. Plaintiff then alleged that Yocks
discriminated against her on the basis of race and sex. Id.
Applicable Law
Under 28 U.S.C. § 1332(a)(1), diversity jurisdiction exists when the parties are
citizens of different states and the amount in controversy exceeds $75,000. In addition,
under 28 U.S.C. § 1441(b)(2), in order to remove a matter to federal court on the basis of
diversity jurisdiction, no defendant may reside in the forum state. “A plaintiff cannot
defeat a defendant’s right of removal by fraudulently joining a defendant who has no real
connection with the controversy.” Knudson v. Sys. Painters, Inc., 634 F.3d 968, 976 (8th
Cir. 2011) (citation omitted).
“Fraudulent joinder does not exist where ‘there is arguably a reasonable basis for
predicting that the state law might impose liability based upon the facts involved.’”
Block v. Toyota Motor Corp., 665 F.3d 944, 948 (8th Cir. 2011) (quoting Junk v.
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Terminix Int’l Co., 628 F.3d 439, 446 (8th Cir. 2010)). ‘“[I]n situations 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 in connection with a
motion to remand but simply to remand the case and leave the question for the state
courts to decide.’” Junk, 628 F.3d at 446 (noting the Eighth Circuit’s continued reliance
on this standard where fraudulent joinder is asserted) (quoting Filla v. Norfolk S. Ry. Co.,
336 F.3d 806, 811 (8th Cir. 2003) (citation omitted).
The reasonableness standard, upon which the Eighth Circuit relies, requires “the
defendant to do more than merely prove that the plaintiff’s claim should be dismissed
pursuant to a Rule 12(b)(6) motion.” Knudson, 634 F.3d at 980; Junk, 628 F.3d at 445
(noting that the Fed.R.Civ.P. 12(b)(6) standard is “more demanding” than the Filla
standard applied in the fraudulent joinder context). Further, in making a prediction as to
whether state law might impose liability based on the facts alleged, “the district court
should resolve all facts and ambiguities in the current controlling substantive law in the
plaintiff’s favor,” and should not “step from the threshold jurisdictional issue into a
decision on the merits.” Manning v. Wal–Mart Stores East, Inc., 304 F. Supp. 2d 1146,
1148 (E.D. Mo. 2004).
Under Missouri law, “[t]he MHRA permits suit to be brought against supervisory
employees . . . not just against the company itself, and the failure to make [a supervisory
employee] a party at the administrative action before the . . . MHRC will bar suit against
[a supervisory employee] only if it resulted in prejudice.” Hill v. Ford Motor Co., 277
S.W.3d 659, 662 (Mo. 2009). The Missouri Supreme Court further explained in Hill that
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the purpose of requiring an individual to be named in the administrative charge is “to
give notice to the charged party and to provide an avenue for voluntary compliance
without resort to litigation. . . .” Id. at 669. The Missouri Supreme Court identified four
factors a court should consider when determining if the failure of a plaintiff to name a
defendant in the administrative charge is fatal to a later judicial claim against that
defendant:
1) whether the role of the unnamed party could through
reasonable effort by the complainant be ascertained at the time of
the filing of the [administrative] complaint; 2) whether, under the
circumstances, the interests of a named [party] are so similar as
the unnamed party’s that for the purpose of obtaining voluntary
conciliation and compliance it would be unnecessary to include
the unnamed party in the [administrative] proceedings; 3)
whether its absence from the [administrative] proceedings
resulted in actual prejudice to the interests of the unnamed party;
and 4) whether the unnamed party has in some way represented
to the complainant that its relationship with the complainant is to
be through the named party.
Id. at 669–70 (citation omitted).
Upon consideration of these factors, the Court is satisfied that “there is arguably a
reasonable basis for predicting that the state law might impose liability” on Yocks in this
case. Block, 665 F.3d at 948 (internal quotation omitted). Furthermore, the clear
precedent in this District is that this determination is a question better left for review by
the state court. See Fernandez v. GMRI, Inc., No. 4:11CV00244 AGF, 2011 WL
6884797, at *3 (E.D. Mo. Dec. 29, 2011); Jameson v. Gough, No 4:09CV2021 RWS,
2010 WL 716107, at *4 (E.D. Mo. Feb. 24, 2010); Messmer v. Kindred Hosp. St. Louis,
No. 4:08–CV–749 CEJ, 2008 WL 4948451, at *3 (E.D. Mo. Nov. 10, 2008); see also

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Jones v. Valspar Corp., No. 4:11–cv–00379–NKL, 2011 WL 3358141, at *3 (W.D. Mo.
Aug. 3, 2011).
Defendants rely on two cases from this District as contrary authority. The first,
Jackson v. Mills, No.4:11CV419SNLJ, 2011 WL 3607920, at* 2-3(E.D. Mo. Aug. 12,
2011), is inapposite. That case addresses a motion to dismiss pursuant to Fed. R. Civ. P.
12(b)(6) rather than an assertion of fraudulent joinder in the context of removal. Id. As
noted above, the Filla standard applicable to fraudulent joinder is more rigorous than the
standard applicable to a motion to dismiss under Rule 12(b)(6). See, e.g., Knudson, 634
F.3d at 980 (noting that fraudulent joinder does not exist where “there is arguably a
reasonable basis for predicting that the state law might impose liability based upon the
facts involved”). In the second case, Borders v. Trinity Marine Products, Inc., No.
1:10CV00146 HEA, 2011 WL 1045560, at *1-2 (E.D. Mo. Mar. 17, 2011) the Honorable
Henry E. Autrey, District Judge, applying the factors in Hill, concluded that three
individual defendants had been fraudulently joined. In this case, however, the Court
finds that application of Filla comports with the present weight of authority in this
District and declines to apply the analysis in Borders.
With respect to Plaintiff’s request for costs and expenses, including attorney’s
fees, Title 28 U.S.C. § 1447(c) provides that an order “remanding the case may require
payment of just costs and any actual expenses, including attorney fees, incurred as a
result of the removal.” Under the statute, this Court has discretion to award costs and
expenses where “the removing party lack[s] an objectively reasonable basis for seeking
removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). Moreover, the
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statute “does not require a finding that the state court action was removed in bad faith as
a prerequisite to an award of attorney’s fees and costs.” Lytle v. Lytle, 982 F.Supp. 671,
674 (E.D. Mo. 1997).
Although the Court does not believe removal here was appropriate, in light of the
contrary authority discussed above, the Court declines to exercise its discretion to award
costs and expenses, including attorney’s fees, associated with the removal.
Conclusion
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s motion to remand this case to the
Circuit Court of the Twenty-First Judicial Circuit of Missouri is GRANTED. (Doc. No.
14.)
IT IS FURTHER ORDERED that the Clerk of Court shall take all necessary
steps to REMAND this case to the Circuit Court of the Twenty-First Judicial Circuit of
Missouri where it was filed.
IT IS FURTHER ORDERED that the removing Defendants’ motion to dismiss
certain counts against them will be reserved for ruling by the state court. (Doc. No. 9.)

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 23rd day of August, 2013.

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