Green V. Arizona Cardinals Football Club, LLC et al
Filing
33
MEMORANDUM AND ORDER re: 14 MOTION to Remand Case to State Court to Circuit Court of the City of St. Louis filed by Plaintiff Jade Scott, Plaintiff Edward Scott, Plaintiff Monica Smith, Plaintiff Roy Green, Plaintiff John Thomas J.T . Smith. IT IS HEREBY ORDERED that plaintiffs' motion to remand [# 14] is granted, and the Clerk of the Court shall remand this action to the Circuit Court for the Twenty-Second Judicial Circuit, St. Louis, Missouri, from which it was removed. IT IS FURTHER ORDERED that defendants motion to stay proceedings [# 4] is denied. Terminate Case. Signed by District Judge Catherine D. Perry on May 14, 2014. (MCB)(Certified copy of the Memorandum and Order and docket sheet sent to: M. Jane Schweitzer, Clerk,Circuit Court of the City of St. Louis,State of Missouri,10 North Tucker,St. Louis, MO 63101 this date.)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ROY GREEN, et al.,
)
)
Plaintiffs,
)
)
vs.
)
)
ARIZONA CARDINALS FOOTBALL )
CLUB LLC,
)
)
Defendant.
)
Case No. 4:14CV461 CDP
MEMORANDUM AND ORDER
This matter involves a question of subject-matter jurisdiction after removal.
Three former professional football players and their wives brought claims for
negligence, negligent misrepresentation, fraudulent concealment, and loss of
consortium against the players‟ former employer, the National Football League
team now known as the Arizona Cardinals Football Club, LLC (the Team).1 The
Team removed the case to federal court on the grounds that the Labor Management
Relations Act preempts plaintiffs‟ state law claims. The Team asks that I stay all
proceedings in this matter pending a decision by the Judicial Panel on Multidistrict
Litigation as to whether the case should be transferred to the Eastern District of
Pennsylvania to become part of In re: National Football League Players’
1
The Team was formerly known as the St. Louis Football Cardinals, Inc., and should not be
confused with the similarly named St. Louis Cardinals, the baseball franchise that currently holds
the National League pennant.
Concussion Injury Litigation, No. 12-md-2323. Plaintiffs ask me to remand the
case to state court. Because the duties owed to the plaintiffs arise independently
from the collective bargaining agreements and because the merits of the plaintiffs‟
claims can be evaluated without interpreting any of the agreements‟ terms, I will
remand the case to state court.
Background
Plaintiffs include three former professional football players employed by the
Team during the following years: Roy Green from 1979 through 1987, John
Thomas “J.T.” Smith from 1985 through 1987, and Edward Scott in 1987 (the
Players). The other two plaintiffs are Jade Scott and Monica Smith, who are the
respective wives of Edward Scott and J.T. Smith (the Wives).
Green entered into two collective bargaining agreements (CBAs) with the
agent of the Team. The first CBA was entered into on March 1, 1977 and expired
on July 15, 1982 (the 1977 CBA). The second CBA was entered into on December
11, 1982, made effective July 16, 1982, and expired on August 31, 1987 (the 1982
CBA). Smith only entered into the 1982 CBA. Scott was never employed at a
time during which a CBA was in effect.
The Players allege that they suffered multiple concussive and subconcussive blows to the head between September 1, 1987 and December 1987.2
2
Scott alleges that his injuries occurred between September 1, 1987 and November 1987.
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They allege that the Team, as their employer, owed them several duties, including
the duties to maintain a safe working environment, not to expose employees to
unreasonable risks of harm, and to warn employees about the existence of
concealed dangers. The Players allege that although these risks were outside of
their own reasonable knowledge, the Team knew or should have known “for many
years” that the sort of brain trauma to which the Players were exposed can lead to
neurological impairments, including Chronic Traumatic Encephalopathy (CTE),
and that studies demonstrating that link were published as early as the 1920s.3
Despite this knowledge, the Team is alleged to have represented to the Players that
concussions are not “serious” and lack long term effects.
The Players further allege that the Team increased the risk of exposure to
brain trauma by forcing the Players to return to work after they were concussed
and by installing AstroTurf, a playing surface that yields faster, more dangerous
play and increases the risk of concussion.
The Players brought suit in state court against the Team for negligence,
negligent concealment, and fraudulent concealment. The Wives brought claims for
loss of consortium.4
3
For the sake of brevity, I will refer to all the neurological impairments collectively as CTE.
These claims are derivative of the Players‟ claims. Plaintiffs concede that the claims do not
require independent preemption analysis. See Johnson v. Anheuser Busch, Inc., 876 F.2d 620,
625 (8th Cir. 1989).
4
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The Team argues that any duties owed by the Team to the Players, and the
degree to which the discharge of those duties was reasonable, must be determined
by interpreting the CBAs. The Team argues that the following sections of the 1982
CBA require interpretation in order to resolve the plaintiffs‟ claims:
Section 1. Club Physician: Each club will have a board certified
orthopedic surgeon as one of its club physicians. The cost of medical
services rendered by Club physicians will be the responsibility of the
respective clubs. If a Club physician advises a coach or other Club
representative of a player‟s physical condition which could adversely
affect the player‟s performance or health, the physician will also
advise the player.
Section 2. Club Trainers: All full-time head trainers and assistant
trainers hired after the date of execution of this Agreement will be
certified by the National Athletic Trainers Association. All part-time
trainers must work under the direct supervision of a certified trainer.
Section 3. Player’s Right to a Second Medical Opinion: A player
will have the opportunity to obtain a second medical opinion. . . .5
The 1982 CBA also incorporates a standard player contract that was used for
players signed after that year. That contract has a paragraph governing injuries:
9.
INJURY. If Player is injured in the performance of his services
under this contract and promptly reports such injury to the Club
physician or trainer, then Player will receive such medical and
hospital care during the term of this contract as the Club‟s physician
may deem necessary, . . .
5
1982 CBA, Art. XXXI.
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Legal Standards
Any civil action brought in a state court over which the federal district courts
have original jurisdiction may be removed to the proper district court. 28 U.S.C.
§ 1441(a). “The presence of even one federal claim gives the defendant the right
to remove the entire case to federal court.” Williams v. Ragnone, 147 F.3d 700,
703 (8th Cir. 1998) (alteration and citation omitted). If the district court
determines it does not have subject-matter jurisdiction over a removed action, it
must remand the action to state court where it originated. 28 U.S.C. § 1447(c).
Removal statutes are strictly construed, and any doubts about the propriety of
removal must be resolved in favor of remand. In re Bus. Men’s Assurance Co. of
Am., 992 F.2d 181, 183 (8th Cir. 1993). As the party invoking jurisdiction, the
defendant has the burden of establishing that prerequisites to jurisdiction have been
satisfied. Id.; Hatridge v. Aetna Cas. & Sur. Co., 415 F.2d 809, 814 (8th Cir.
1969). Generally, when determining whether removal was proper, the court must
look to the plaintiff‟s pleadings at the time of removal. Pullman Co. v. Jenkins,
305 U.S. 534, 537–38 (1939). The basis for federal jurisdiction must be apparent
from the face of the plaintiff‟s properly pleaded complaint. Caterpillar, Inc. v.
Williams, 482 U.S. 386, 392 (1987).
Section 301 of the Labor Management Relations Act states that federal law
governs “suits for violation of contracts between an employer and a labor
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organization.” 29 U.S.C. § 185(a). Section 301 completely preempts state law
claims that are “substantially dependent upon analysis” of a CBA, Allis-Chalmers
Corp. v. Lueck, 471 U.S. 202, 220 (1985), because “the application of state law . . .
might lead to inconsistent results since there could be as many state law principles
as there are States.” Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 406
(1988); see also Williams v. National Football League, 582 F.3d 863, 874 (8th Cir.
2009). Where a complaint raises issues to which federal law applies with complete
preemptive force, the Court must look beyond the face of the complaint in
determining whether remand is proper. Williams, 582 F.3d at 874.
In applying the § 301 complete preemption doctrine, the court begins with
the “claim itself,” Trs. of the Twin City Bricklayers Fringe Benefit Funds v.
Superior Waterproofing, Inc., 450 F.3d 324, 331 (8th Cir. 2006), and applies a
two-step approach in order to determine if the claim is sufficiently “independent”
to survive complete preemption. Williams, 582 F.3d at 874. First, a state law
claim is preempted if it is “based on” a provision of the CBA, meaning that “the
CBA provision is at issue” and “it actually sets forth the right upon which the
claim is based.” Id. Second, § 301 complete preemption applies where a state law
claim “is dependent upon an analysis of the relevant CBA,” meaning that the
resolution of plaintiff‟s state law claim requires interpretation of a provision of the
CBA. Id. The Eighth Circuit in Williams reiterated that § 301 preemption only
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applies to claims that “require interpretation or construction of the CBA” as
opposed to “those which only require reference to it” or where “the CBA need only
be consulted during its adjudication.” Id. at 876 (quoting Superior Waterproofing,
450 F.3d at 33). Purely factual inquiries into an employer‟s conduct or motives
that do not require construction of a CBA will not necessitate preemption. Gore v.
Trans World Airlines, 210 F.3d 944, 949 (8th Cir. 2000).
“The fact that a defendant might ultimately prove that a plaintiff‟s claims are
preempted . . . does not establish that they are removable to federal court.”
Caterpillar, 482 U.S. at 398. This is because § 301 preemption does not override
the basic principle that the plaintiff is the master of the complaint. Id. at 398–99.
Courts must be careful to ensure that interpretation of a CBA is required by the
plaintiff‟s claim itself and not by a defense injected by the defendant. Id. at 399.
Discussion
As a preliminary matter, I will not stay ruling on remand. “A putative
transferor court need not automatically postpone rulings on pending motions, or in
any way generally suspend proceedings, merely on grounds that an MDL transfer
motion has been filed.” Tortola Rests., L.P. v. Kimberly-Clark Corp., 987 F. Supp.
1186, 1188–89 (N.D. Cal. 1997) (citing Manual for Complex Litigation 3d §
31.131, p. 252 (3d ed. 1995)). This is especially true where, as here, the pending
motion is one for remand and goes to the Court‟s subject-matter jurisdiction. See
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Thompson v. Apple, Inc., No. 3:11-CV-03009-PKH, 2011 WL 2671312, at *4
(E.D. Ark. July 8, 2011).
Plaintiffs argue that because their claims are restricted to the time during
which no CBA was in effect (referred to as the “gap year”), § 301 cannot provide
the jurisdictional anchor. See Lumber Prod. Indus. Workers Local No. 1054 v. W.
Coast Indus. Relations Ass’n, Inc., 775 F.2d 1042, 1046 (9th Cir. 1985) (“[A] an
expired agreement cannot serve as the basis for a proper exercise of jurisdiction
under section 301(a).”); see also Derrico v. Sheehan Emergency Hosp., 844 F.2d
22, 25 (2d Cir. 1988) (collecting cases). Though the Team admits that Scott was
not subject to a CBA during the tenure of his employment, it contends that the
other Players cannot – or, alternatively, failed to – narrow the time frame of their
complaint to the 1987 “gap year.”
The plaintiffs allege that from the 1920s to the 1990s the Team knew of the
hazards of repetitive head trauma but failed to warn the plaintiffs. Am. Pet. ¶ 43.
Thus, at least one of the plaintiffs‟ claims arose while the CBAs operated.
Moreover, Smith‟s and Green‟s injuries cannot realistically be restricted to the gap
year, given that they were employed when CBAs were in effect and that they
allege that symptoms of CTE “may not appear until months, years, or even decades
after the last traumatic impact.” Am. Pet. ¶ 27; see Duerson v. Nat’l Football
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League, Inc., No. 12 C 2513, 2012 WL 1658353 at *3 (N.D. Ill. May 11, 2012).6
The plaintiffs cannot limit the facts of their case to the gap year, and so their claims
are subject to a preemption analysis.
In Gore v. Trans World Airlines, 210 F.3d 944 (8th Cir. 2000), the Eighth
Circuit found that claims by an airline employee were preempted under a doctrine
“virtually identical” to the LMRA. Id. at 949. After another employee reported
that Gore had made death threats against his coworkers, Gore was detained, his
locker was searched, co-employees were warned he was dangerous, and he was
prevented from returning to work. Id. at 947. Gore brought claims against the
airline for false arrest, libel and slander, invasion of privacy, and negligence. Id.
Gore had entered a CBA that included contractual provisions prohibiting threats
against employees, reserving for the airline the right to inspect employee lockers
where there was “reason to believe” they contained contraband, and requiring the
airline to protect the safety of its employees and promptly handle safety
complaints. Id. at 947–98. Gore‟s negligence claim – that the airline employees
negligently investigated the threat – was preempted because the CBA was the
source of the airline employees‟ duty. Id. at 951. Each of Gore‟s other claims was
found to have at least one element that required an interpretation of the CBA. For
example, as part of his false arrest claim, Gore had to prove that the airline acted
6
The Team also cites to filings by Green and Smith in the MDL that allege the two players
suffered multiple concussions “throughout” their careers.
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“without legal justification” – an element determined by interpreting the CBA
provisions requiring the airline to maintain a safe working environment. Id. at 950.
Gore‟s claims were either created by or depended upon an interpretation of the
CBA, and so removal was proper. See id. at 951.
Keeping in mind the two-step approach to preemption, I must now evaluate
whether the CBA is the source of plaintiffs‟ claims or whether the claims are
substantially dependent upon an interpretation of the CBAs.
Negligence Claims
“In any action for negligence, the plaintiff must establish that the defendant
had a duty to protect the plaintiff from injury, the defendant failed to perform that
duty, and the defendant‟s failure proximately caused injury to the plaintiff.” L.A.C.
ex rel. D.C. v. Ward Parkway Shopping Ctr. Co., L.P., 75 S.W.3d 247, 257 (Mo.
banc 2002) (citation omitted). Plaintiffs‟ negligence claims are premised upon the
common law duties to maintain a safe working environment, not to expose
employees to unreasonable risks of harm, and to warn employees about the
existence of dangers of which they could not reasonably be expected to be aware.
See Carman v. Wieland, 406 S.W.3d 70, 76–77 (Mo. Ct. App. 2013) (listing
employer‟s non-delegable duties as including “1) to provide a safe workplace; 2) to
provide safe equipment in the workplace; 3) to warn employees of the existence of
dangers of which the employees could not reasonably be expected to be aware; 4)
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to provide a sufficient number of competent fellow employees; and 5) to
promulgate and enforce rules governing employee conduct for the purpose of
enhancing safety”). The scope of the duty “is measured by „whether a reasonably
prudent person would have anticipated danger and provided against it.‟” Smith v.
Dewitt & Assoc., 279 S.W.3d 220, 224 (Mo. Ct. App. 2009) (citing Cupp v. Nat’l
R.R. Passenger Corp., 138 S.W.3d 766, 772 (Mo. Ct. App. 2004)).
The Team argues that an analysis of the CBA and its incorporated
documents is necessary to determine the scope of the above duties. The Team
points to paragraph 9 of the standard player contract, which sets forth conditions
under which the Team is obligated to provide medical care. But the Players do not
claim that they were not treated when contractually entitled to the care; rather, they
claim that they were not informed of long-term risks inherent in their employment.
The Team also argues that the duty to warn players of health risks arise from the
CBA‟s requirement that the Team provide a pre-season physical examination and
from language in Article XXXI: “[i]f a Club physician advises a coach or other
Club representative of a player‟s physical condition which could adversely affect
the player‟s performance or health, the physician will also advise the player.” As
discussed above, the duties at issue exist independent of the CBAs.
As to the duty to maintain a safe work environment and to warn of
unforeseen dangers, the Team cites an Article within the CBAs that establishes a
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“Joint Committee on Player Safety and Welfare”7 and a clause granting players the
right to obtain a second medical opinion at the Team‟s expense.8 Mere reference
to part of a CBA is insufficient for preemption; the relevant inquiry is whether the
resolution of the claim depends upon the meaning of the CBA. Williams, 582 F.3d
at 876 (citation omitted). The Team does not show how the interpretation of either
of these sections is essential to plaintiffs‟ case.
The Team argues that the collectively bargained requirement that the head
trainer be certified by the National Athletic Trainers Association9 must be
interpreted because that certification may have included training on the risks of
CTE. This argument yet again fails to distinguish between the need to interpret the
meaning of the CBA and the need to merely reference its substance. The Players
are not suing for the failure to employ “certified” trainers. Any question as to the
content of the trainers‟ certification programming is one of fact and does not
require a court to interpret the CBA.
The Team finally points to provisions within the NFL Constitution and
Bylaws that it alleges must be interpreted in order to determine whether the Team
acted reasonably when returning concussed players to play: “All determinations of
7
1982 CBA, Art. XI; 1977 CBA, Art. XI. This Article establishes a joint committee of club and
union representatives may meet to discuss potential rule changes, but will not have the power to
bind any of the signatories to the CBA.
8
1982 CBA, Art. XXXI § 3.
9
1982 CBA, Art. XXXI § 2.
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recovery time for major and minor injuries must be made by the club‟s medical
staff and in accordance with the club‟s medical standards.”10 This section exists
solely as part of the documentation required by the NFL related to the
“Reserve/Injured” list, which pertains to club roster size. The Team does not
articulate how the plaintiffs‟ claims are “substantially dependent” upon an
interpretation of this language, and so it fails in its burden of persuasion.
Unlike the negligence claim in Gore, here the duties arise out of the
common law based upon the employer-employee relationship and not out of any
particular terms in the CBAs. The reasonableness of the Team‟s actions towards
Scott cannot depend upon an interpretation of a CBA, as Scott was never bound by
the contract. It stands to reason, then, that the other plaintiffs‟ negligence claims
do not necessarily depend upon an interpretation of the CBAs, so far as the duties
owed them and the standards applied to their claims derive from the same source
as for Scott.
The Team hypothesizes that the CBAs could establish a contractually agreed
upon standard of reasonableness less stringent than what would be applied in the
absence of the contracts. But even were that the case, the terms of the CBAs
would not be part of the plaintiffs‟ claims, which derive from and can be adjudged
10
NFL Constitution and Bylaws, Art. XVII sup. (1982). By definition, a minor injury is “one
which renders a player physically unable to play for any period of less than four weeks” from the
date he is added to Reserve/Injured, and a major injury must last at least four weeks. Players
placed on the list for a minor injury may not be reactivated during the season.
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in accordance with standards set forth in the Missouri common law. Rather, they
would be a defense to liability, since the operation of the CBAs would be a “reason
why the plaintiff should not recover.” See DEFENSE, Black’s Law Dictionary
(9th ed. 2009) (quoting Edwin E. Bryant, The Law of Pleading Under the Codes of
Civil Procedure 240 (2d ed. 1899)). Though there exists some conflicting case law
on this issue, I agree with the Ninth Circuit‟s position. Contrast Hendy v. Losse,
925 F.2d 1470 (9th Cir. 1991) (unpublished table decision) (“If the Chargers argue
[the CBA] limits their duty to exercise care in the hiring and retention of the team
physician, the argument is in the nature of a defense and does not alter the statelaw nature of Hendy‟s claim.”) with Duerson, 2012 WL 1658353 at *5 (rejecting
Hendy as “unfounded” after holding that contractual limit on standard of care is not
a defense). Because the interpretation of the CBA would only be implicated by
the defense, and not by the complaint itself, it could not serve as a basis for
removal. See Caterpillar, 482 U.S. at 398–99 (holding that the presence of a § 301
question in a defensive argument “does not overcome the paramount policies
embodied in the well-pleaded complaint rule”); see also Williams, 582 F.3d at 879
n.13 (distinguishing between plaintiff‟s claim and a defense to liability).
Negligent Misrepresentation and Fraudulent Concealment Claims
The elements of negligent misrepresentation are “(1) the speaker supplied
information in the course of his business; (2) because of the speaker‟s failure to
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exercise reasonable care, the information was false; (3) the information was
intentionally provided by the speaker for the guidance of limited persons in a
particular business transaction; (4) the hearer justifiably relied on the information;
and (5) due to the hearer‟s reliance on the information, the hearer suffered a
pecuniary loss.” Renaissance Leasing, LLC v. Vermeer Mfg. Co., 322 S.W.3d 112,
134 (Mo. banc 2010). The elements of fraudulent misrepresentation are: “(1) a
false, material representation; (2) the speaker‟s knowledge of its falsity or his
ignorance of its truth; (3) the speaker‟s intent that it should be acted upon by the
hearer in the manner reasonably contemplated; (4) the hearer‟s ignorance of the
falsity of the representation; (5) the hearer‟s reliance on its truth; (6) the hearer‟s
right to rely thereon; and (7) the hearer‟s consequent and proximately caused
injury.” White v. Bowman, 304 S.W.3d 141, 147 (Mo. Ct. App. 2009) (quotation
marks and citation omitted). Where the speaker owes a duty of disclosure,
however, the failure to disclose a material fact provides a substitute for reliance.
Lafarge N. Am., Inc. v. Discovery Group LLC, 574 F.3d 973, 983 n.5 (8th
Cir. 2009) (citing Osterberger v. Hites Const. Co., 599 S.W.2d 221, 227 (Mo. Ct.
App. 1980)).
The Team argues that the clauses of the CBAs establishing the Joint
Committee on Player Safety and Welfare and granting its employees the
“opportunity to obtain a second medical opinion” must be interpreted in order to
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determine whether the Players justifiably relied upon any statement by the Team as
to the effects of concussions. The Team also argues that it might have delegated
its duty to warn the Players of health risks to the club physician, and so any
reliance upon the Team would have been misplaced or would require an inquiry
into the meaning of the CBAs‟ terms.
An employer owes a duty “to inform himself of those matters of scientific
knowledge” that relate to the hazards of his business and to relay that knowledge to
his employees. Marsanick v. Luechtefeld, 157 S.W.2d 537 (Mo. Ct. App. 1942)
(collecting cases). The duty to warn is nondelegable. Carman, 406 S.W.3d at 76.
An employee, in turn, has the right to rely on any absence of warning as a “tacit
assurance” that no unusual danger exists. Marsanick, 157 S.W.2d at 542 (citations
omitted). The Players allege that the Team knew of the risks of CTE, represented
to the Players that concussions posed no long-term risks, the Players could not
reasonably have been aware of the risks, and the Players relied upon the
representations. Contrary to the Team‟s position, the Players‟ “right to rely”
derives from their status as employees and not from any terms in the CBA that
would require a court‟s construction. Any contractual terms that alter these
common law rights would take the form of a defense and could not serve as the
basis for removal. See Hendy, 925 F.2d 1470 at *2. As with their negligence
claims, the plaintiffs‟ negligent misrepresentation and fraudulent concealment
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actions arise independent of the CBAs as a function of the common law and thus
are not preempted. Cf. Anderson v. Ford Motor Co., 803 F.2d 953, 959 (8th Cir.
1986) (holding fraudulent and negligent misrepresentation claims not preempted as
they “arise in state common law and are measured by standards of conduct and
responsibility completely separate from and independent of a collective bargaining
agreement”).
Because the plaintiffs‟ claims can be determined without interpreting the
CBAs, I do not have subject-matter jurisdiction over this case. I need not reach the
parties‟ arguments relative to Missouri‟s worker‟s compensation laws.
Accordingly,
IT IS HEREBY ORDERED that plaintiffs‟ motion to remand [# 14] is
granted, and the Clerk of the Court shall remand this action to the Circuit Court for
the Twenty-Second Judicial Circuit, St. Louis, Missouri, from which it was
removed.
IT IS FURTHER ORDERED that defendant‟s motion to stay proceedings
[# 4] is denied.
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 14th day of May, 2014.
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