Herkenhoff v. Supervalu Stores, Inc. d/b/a Shop 'n Save et al

Filing 62

MEMORANDUM AND ORDER re: 40 MOTION to Remand Case to State Court to State Court filed by Plaintiff Katherine M. Herkenhoff, 26 MOTION for Leave to File Responses out of Time filed by Plaintiff Katherine M. Herkenhoff, 24 MOTION to Strike 23 Response to Motion to Dismiss filed by Defendant Shop 'N Save Warehouse Foods Inc., 35 MOTION to Dismiss :Count I of Plaintiff's Second Amended Petition filed by Defendant Lindsay Reel, 18 MOTION to Dismiss Party Supervalu Stores, Inc. d/b/a Shop 'n Save and Shop 'n Save Warehouse Foods, Inc. filed by Defendant Shop 'N Save Warehouse Foods Inc., Defendant Shop 'N Save Pharmacies, 41 MOTION for Leave to File Third Amended Petition filed by Plaintiff Katherine M. Herkenhoff, 36 MOTION to Dismiss :Plaintiff's Second Amended Petition filed by Defendant Lindsay Reel, 17 MOTION for More Definite Statement and MOTION to Strike 15 Amended Complaint, filed by Defendant Supervalu Pharmacies, Inc., 25 MOTION to Strike 20 Response to Motion to Dismiss Count I filed by Defendant Supervalu Pharmacies, Inc., 16 M OTION to Dismiss :Count I of Plaintiff's First Amended Petition filed by Defendant Supervalu Pharmacies, Inc. IT IS HEREBY ORDERED that the Motion to Dismiss Count I of the First Amended Complaint (#16), Motion for More Definite State ment and Motion to Strike (#17), Motion to Dismiss (#18), Motions to Strike (#24, #25), Motions for Leave to File Responses Out of Time (#26), Motions to Dismiss (#35, #36) are DENIED as moot. IT IS FURTHER ORDERED that the plaintiff's Motion to Remand (#40) is DENIED. IT IS FURTHER ORDERED that plaintiff's Motion for Leave to File Third Amended Complaint (#41) is GRANTED, but IT IS FURTHER ORDERED that defendants Shop n Save Warehouse Foods, Inc., Fred Tichy, and Lindsay Reel are DISM ISSED as having been fraudulently joined. IT IS FINALLY ORDERED that defendants shall have seven days from the date of this order either to file new Motions to Dismiss in light of the Third Amended Complaint, or to advise the Court and plaintiff that they wish to stand on the arguments made in the Motions to Dismiss (#49, #51) as they apply to the Third Amended Complaint. The plaintiff shall have seven days thereafter in which to file memoranda responding to the Motions to Dismiss and Motion for Sanctions. Defendant shall have seven days thereafter to file any reply memoranda. Signed by District Judge Stephen N. Limbaugh, Jr on 8/8/14. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KATHERINE HERKENHOFF,
Plaintiff,
v.
SUPERVALU STORES, INC. d/b/a
SHOP ‘N SAVE , et al.
Defendants.

)
)
)
)
)
)
)
)
)
)

Case No. 4:13CV1974 SNLJ

MEMORANDUM AND ORDER
On June 16, 2014, this Court ordered the parties to address this Court’s subject
matter jurisdiction in light of the addition of new defendants to the complaint. Plaintiff
responded with a motion to remand (#40) and a motion to file her third amended
complaint (#41). Defendants responded with oppositions to the plaintiff’s two motions
and five motions to dismiss (one for each defendant) (#s 47, 49, 51, 53, 54). In addition,
defendants have filed a motion for sanctions (#59). Because all the pending motions
preceding the motion to remand pertain to earlier versions of the complaint, the earlier
motions (#s 16, 17, 18, 24, 25, 26, 35, 36) will be denied as moot.
Plaintiff has not filed reply memorandums in support of its motion to remand and
motion for leave. Nor has plaintiff filed responses to the pending motions to dismiss or
motion for sanctions. The time for doing so has passed, however, so the Court will
proceed on the current record.

-1-

I.

Factual Background and Procedural History
According to the complaint, plaintiff is a Missouri citizen who, on April 4, 2012,

presented a written prescription for Lamotrigine 200mg pills to the defendant Supervalue
Stores, Inc. (d/b/a Shop ‘n Save Pharmacy) in Florrisant, Missouri. Defendant pharmacist
Fred Tichy signed off on the prescription and provided plaintiff with a prescription bottle
labeled Labetalol HCL 200 mg pills. Plaintiff ingested the pills and, on April 15 and 29,
2012, plaintiff experienced dizziness and fainted. Plaintiff fell to the ground both times
as a result.
On May 1, 2012, plaintiff visited her family doctor complaining of severe back
pain. On May 2, 2012, plaintiff received a refill prescription from the same Shop ‘n Save
Pharmacy. Defendant pharmacist Lindsay Reel signed off on a refill, and the prescription
bottle contained Labetalol HCL 200mg pills. Plaintiff again experienced dizziness and
fainted, falling to the ground a third time, on May 15, 2012
Plaintiff called Shop ‘n Save Pharmacy to refill her prescription on May 29, 2012.
Defendant pharmacist Lindsay Reel informed plaintiff that they had made a mistake in
filling her prescription, and defendant Reel told plaintiff to stop taking the Labetalol
medication.
Plaintiff continued to experience back pain. On or about June 14, 2012, Plaintiff
went to the emergency room at DePaul Hospital. Plaintiff was diagnosed with a fracture
of her tailbone.

-2-

Plaintiff filed this lawsuit in the Circuit Court of St. Louis City on July 19, 2103,
naming as defendants Supervalue Stores, Inc. and Shop ‘n Save Pharmacies, Inc..
Supervalue Stores does business as “Shop ‘n Save” and is a citizen of Minnesota and
Delaware. Supervalu Pharmacies, Inc. does business as “Shop ‘n Save Pharmacies” and
is a citizen of Minnesota. Defendants (then Supervalue Stores and Supervalue
Pharmacies) removed to this Court citing diversity jurisdiction under 28 U.S.C. § 1332.
The parties had complete diversity of citizenship because plaintiff is a citizen of Missouri
and defendants are citizens of Minnesota and Delaware. And the $75,000 amount in
controversy requirement was met because plaintiff sought at least $50,000 plus attorneys’
fees and punitive damages in her complaint; defendants also noted that she had demanded
$100,000 to settle the case.
Plaintiff filed a Second Amended Complaint on May 15, 2014. The amended
complaint included as defendants Shop ‘n Save Warehouse Foods, Inc., Fred Tichy, and
Lindsay Reel. Each of the new defendants is a citizen of Missouri.
II.

Motion to Remand (#40)
Federal courts are courts of limited jurisdiction. Diversity jurisdiction, relied upon

here by defendants, requires an amount in controversy greater than $75,000 and complete
diversity of citizenship among the litigants. 28 U.S.C. § 1332(a). In light of this Court’s
June 16, 2014 Order (#34), the plaintiff moved to remand her case back to the Circuit
Court for the City of St. Louis. Plaintiff contends that this Court lacks diversity subject
matter jurisdiction because (1) three of the defendants are Missouri citizens and thus
-3-

share citizenship with plaintiff, and (2) plaintiff seeks damages of well under the $75,000
amount-in-controversy requirement.
A.

Amount in Controversy

With respect to the amount in controversy, defendants contend that plaintiff may
not now attempt to deprive this Court of jurisdiction by amending her pleadings. Indeed,
it has long been the case that the amount in controversy is determined at the time of
removal, and events occurring afterwards to reduce the amount recoverable do not oust
jurisdiction. St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 290 (1938). A
plaintiff may not simply amend her pleading to seek damages below the statutory
threshold in order to secure remand. See, e.g., Johnson v. Texas Roadhouse Holdings,
LLC, No. 4:10cv36 CDP, 2010 WL 4177655, *2 (E.D. Mo. Oct. 20, 2010). Here,
plaintiff originally pleaded damages of $50,000 for each of her two counts, and she also
requested punitive damages and attorneys’ fees, easily meeting the statutory threshold.
Plaintiff also had demanded $100,000 to settle the matter. (See #1 at ¶ 7.) Thus, the
amount of controversy requirement has been met, and plaintiff’s attempts to limit her
recovery now do not defeat this Court’s subject matter jurisdiction.
B.

Diversity of Citizenship

Although three of the named defendants are citizens of Missouri, defendants
contend that this Court should retain jurisdiction because the three non-diverse defendants
have been fraudulently joined. Under the fraudulent-joinder exception, a plaintiff cannot
defeat a defendant’s right of removal by joining a defendant who has “no real connection
-4-

with the controversy.” Donner v. Alcoa, Inc., 709 F.3d 694, 697 (8th Cir. 2013). “If a
plaintiff has no legally viable claim against a putative defendant, that party has no real
connection with the controversy.” Id. That is, where “applicable state precedent
precludes the existence of a cause of action against a defendant, joinder is fraudulent....
However, if there is a ‘colorable’ cause of action — that is, if the state law might impose
liability on the resident defendant under the facts alleged — then there is no fraudulent
joinder.” Filla v. Norfolk S. Ry. Co., 336 F.3d 806, 810 (8th Cir. 2003).
As an initial matter, the Court notes that to determine whether a resident has been
fraudulently joined to defeat diversity, a Court may look to materials in the record,
including affidavits, to determine whether they establish facts supporting claims against
the defendant. 13F Charles Alan Wright, Arthur Miller, & Edward Cooper, Federal
Practice and Procedure § 3641.1 (3d ed.2009); Dumas v. Patel, 317 F. Supp. 2d 1111,
1114 (W.D. Mo. 2004); Reeb v. Wal–Mart Stores, Inc., 902 F. Supp. 185, 187–88 (E.D.
Mo. 1995); see also Wilkinson v. Shackelford, 478 F.3d 957, 964 (8th Cir. 2007) (noting
that relevant inquiry for fraudulent joinder is whether plaintiff might have claim under
state law against defendant, not content of pleadings themselves); Bresee v. Wal-Mart
Stores E., L.P., 1:12-CV-160 SNLJ, 2013 WL 136457, *1 (E.D. Mo. Jan. 10, 2013).
1.

Shop ‘n Save Warehouse Foods

First, with respect to Shop ‘n Save Warehouse Foods, Inc., the defendants state
that plaintiff has not adequately connected Shop ‘n Save Warehouse Foods to her claim.
Shop ‘n Save Warehouse Foods is alleged to be “doing business...under the name Shop ‘n
-5-

Save Pharmacies” early in the complaint (#30 at ¶ 4), but, later, in the heading for Count
V, plaintiff does not include a “doing business as” designation for Shop ‘n Save
Warehouse Foods. Plaintiff does allege that each of the other two corporate defendants
(Supervalu and Supervalu Pharmacies) “[does] business...under the name Shop ‘n Shop
Pharmacies.” (#30 at ¶¶ 2, 3, and in heading for Count V.) In fact, according to an
affidavit supplied by defendants, the pharmacy where the malpractice is alleged to have
taken place was operated by Supervalu Pharmacies. The pharmacists who filled
plaintiff’s prescriptions were employed by Supervalu Pharmacies. Moreover, Shop ‘n
Save Warehouse Foods does not have a license to provide medications or distribute as a
pharmacy. To state a claim for malpractice, plaintiff must show, among other things, “an
act or omission by the defendant that failed to meet the requisite medical standard of
care.” Williams v. Daus, 114 S.W.3d 351, 359 (Mo. App. S. D. 2003) (quoting Wuerz v.
Huffaker, 42 S.W.3d 652, 655-56 (Mo. App. E.D. 2001). Here, plaintiff alleges that
“defendants, through its employees and agents,” caused the damages she suffered. (E.g.,
#30 at ¶¶ 24, 26, 29.) But Shop ‘n Save Warehouse Foods is not alleged to have made any
such act or omission, and in fact, Shop ‘n Save Warehouse Foods did not employ the
pharmacists who filled plaintiff’s prescription. There is no reasonable basis in fact or law
supporting a claim against Shop ‘n Save Warehouse Foods, and it appears to have been
added solely to defeat federal jurisdiction. It will therefore be dismissed.

-6-

2.

Pharmacists

Defendants contend that plaintiff has no colorable claim against the two
pharmacists because the statute of limitation has run. The statute of limitations for
medical malpractice is two years from the date of the negligent act. RSMo § 516.105.
Defendant Tichy filled plaintiff’s prescription on April 4, 2012. Defendant Reel refilled
the prescription on May 2, 2012. Plaintiff did not file suit against Tichy and Reel until
May 16, 2014 — more than two years after either negligent act. Notably, plaintiff does
not respond to the defendants’ argument that she lacks a colorable claim in any way.1
Although this Court recently rejected a statute of limitations argument in another case in
which fraudulent joinder was alleged, it is apparent from the face of the complaint itself
that the two-year statute of limitations bars plaintiff’s claim. Cf. McGee v. Fresenius
Med. Care N. Am., Inc., 4:14-CV-967 SNLJ, 2014 WL 2993755, *4 (E.D. Mo. July 3,
2014) (observing that state law might impose liability even in light of the statute of
limitations arguments). Plaintiff thus has no colorable claim against the two pharmacists,
and they will be dismissed as having been fraudulently joined. See Shepherd v. Baptist
Health, 916 F. Supp. 2d 891, 897 (E.D. Ark. 2012).
III.

Motions to Dismiss
The Court need not address the motions to dismiss filed by the three nondiverse

parties (#s 47, 53, 55), as the dismissal of those parties was determined above. The Court

1

Plaintiff’s joinder of the two pharmacists is particularly suspicious in light of her
late amendment — plaintiff learned the identity of the two pharmacists on November 26,
2013, nearly six month before joining them as parties.
-7-

will grant leave to file the Third Amended Complaint; however, the Court will
contemporaneously dismiss the three nondiverse defendants. The remaining defendants
may, if they choose, file new Motions to Dismiss. However, as discussed below, the
defendants may advise the Court that they wish to apply the arguments made in the
pending Motions to Dismiss (#49, #51) to the Third Amended Complaint. The plaintiff
will be permitted time to file responsive memoranda to those and to the pending Motion
for Sanctions (#59).
Accordingly,
IT IS HEREBY ORDERED that the Motion to Dismiss Count I of the First
Amended Complaint (#16), Motion for More Definite Statement and Motion to Strike
(#17), Motion to Dismiss (#18), Motions to Strike (#24, #25), Motions for Leave to File
Responses Out of Time (#26), Motions to Dismiss (#35, #36) are DENIED as moot.
IT IS FURTHER ORDERED that the plaintiff’s Motion to Remand (#40) is
DENIED.
IT IS FURTHER ORDERED that plaintiff’s Motion for Leave to File Third
Amended Complaint (#41) is GRANTED, but
IT IS FURTHER ORDERED that defendants Shop ‘n Save Warehouse Foods,
Inc., Fred Tichy, and Lindsay Reel are DISMISSED as having been fraudulently joined.
IT IS FINALLY ORDERED that defendants shall have seven days from the date
of this order either to file new Motions to Dismiss in light of the Third Amended
Complaint, or to advise the Court and plaintiff that they wish to stand on the arguments

-8-

made in the Motions to Dismiss (#49, #51) as they apply to the Third Amended
Complaint. The plaintiff shall have seven days thereafter in which to file memoranda
responding to the Motions to Dismiss and Motion for Sanctions. Defendant shall have
seven days thereafter to file any reply memoranda.

Dated this 8th day of August, 2014.
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

-9-