Brownlee v. Casino One Corporation et al

Filing 24

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiff's Motion to Remand 14 is GRANTED. This matter shall be remanded to the Twenty Second Circuit of Missouri in City of St. Louis, Missouri for further proceedings. An order of remand accompanies this Order.. Signed by District Judge John A. Ross on 7/7/14. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
)
)
NATASHA BROWNLEE,
)
)
Plaintiff,
) No. 4:14-CV-857 JAR
)
v.
)
)
CASINO ONE CORPORATION, et al.,
)
)
Defendants.
)
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s Motion to Remand (ECF No. 14). This
matter is fully briefed and ready for disposition.
LEGAL STANDARD
Removal statutes are strictly construed, and any doubts about the correctness of removal
are resolved in favor of state court jurisdiction and remand. See Shamrock Oil & Gas Corp. v.
Sheets, 313 U.S. 100, 108-09 (1941); In re Bus. Men’s Assurance Co. of Am., 992 F.2d 181, 183
(8th Cir. 1993); Manning v. Wal-Mart Stores East, Inc., 304 F. Supp. 2d 1146, 1148 (E.D. Mo.
2004) (citing Transit Cas. Co. v. Certain Underwriters at Lloyd’s of London, 119 F.3d 619, 625
(8th Cir. 1997)). The party seeking removal and opposing remand has the burden of establishing
jurisdiction. Cent. Iowa Power Coop. v. Midwest Indep. Transmission Sys. Operator, 561 F.3d
904, 912 (8th Cir. 2009); City of Univ. City, Missouri v. AT & T Wireless Services, Inc., 229 F.
Supp. 2d 927, 929 (E.D. Mo. 2002).
A civil action brought in state court may be removed to the proper district court if the
district court has original jurisdiction of the action. 28 U.S.C. § 1441(a). Federal district courts
have original jurisdiction in all civil actions between citizens of different states if the amount in

controversy exceeds $75,000.00, exclusive of interest and costs. Manning, 304 F.Supp.2d at
1148 (citing 28 U.S.C. § 1332(a)(1)).
BACKGROUND
On March 25, 2013, Natasha Brownlee (“Brownlee”) filed this action in the Circuit Court
of the City of St. Louis, alleging claims for violation of the Missouri Human Rights Act
(“MHRA”) for hostile work environment and sexual harassment (Count I), violation of the
MHRA based upon sex (Count II), retaliation in violation of the MHRA (Count III), violation of
the MHRA for hostile work environment (Count IV), and violation of the MHRA for race
discrimination (Count V). (Petition for Damages (“Petition,” ECF No. 5). Brownlee named
Casino One, Pinnacle Entertainment, Inc., Michael Bechard (“Bechard”), and John Doe Entity A
as defendants in her Petition.
Defendant Casino One Corporation d/b/a Lumiere Place Casino & Hotels (“Casino One”)
removed this action to this Court on May 5, 2014, asserting diversity jurisdiction pursuant to 28
U.S.C. §§1332, 1446. (Notice of Removal, ECF No. 1). Casino One contends that, at the time
of the filing of the underlying action, Brownlee was a citizen of Missouri (id., ¶14), Casino One
was a resident of Mississippi with its principal place of business in Nevada (id., ¶15), Pinnacle
was a resident of Delaware and its principal place of business was in Nevada (id., ¶16), and
Bechard was a resident of Missouri (id., ¶17). Casino One maintains that this action is between
citizens of different states and the amount in controversy exceeds $75,000, exclusive of interests
and costs. Casino One suggests that individual defendant Bechard was fraudulently joined to
this suit as a co-defendant and his citizenship should not be considered for purposes of
determining diversity jurisdiction. (Id., ¶17).

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DISCUSSION
Defendant Casino One removed this action, asserting diversity jurisdiction. The only
issue before the Court is whether complete diversity of the parties exists.
As stated, Casino One claims that there is complete diversity because Bechard is not a
necessary party to this action. Casino One claims that Brownlee did not name Bechard as a party
or respondent in her Charge of Discrimination with the Missouri Commission on Human Rights
(“MCHR”) and, therefore, Brownleee did not exhaust her claims against him and he must be
dismissed as a party.
In support of her Motion to Remand, Brownlee asserts that she exhausted her
administrative remedies against Bechard and he was not fraudulently joined. Brownlee notes
that in the “particulars” section of her Charge of Discrimination she states that Bechard was one
of the perpetrators of the racial discrimination, sex discrimination and retaliation she suffered.
(Plaintiff’s Suggestions in Support of her Motion to Remand (“Suggestions”), ECF No. 15 at 2
(citing ECF Nos. 15-1 and 15-2).
In response, Casino One claims that Brownlee was required to name Bechard as a
respondent in a Charge of Discrimination in order for him to be named as a defendant in this
litigation. (ECF No. 17 at 5 (citing Hill v. Ford Motor Co., 277 S.W. 3d 659, 669 (Mo. 2009)).
Casino One claims that Brownlee naming Bechard in a list of others in the “particulars” section
of the Charge is insufficient because it resulted in actual prejudice to him. (ECF No. 17 at 6-7).
In an affidavit in support of his Motion to Dismiss, Bechard asserts that he was not notified of
Brownlee’s Charge of Discrimination filed with the MCHR and EEOC and did not participate in
the conciliation process with the MCHR or the EEOC. (ECF No. 13-2). He claims that he only
learned of Brownlee’s claims when she filed the instant litigation. (Id.) Thus, Bechard asserts

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that he was prejudiced by Brownlee’s failure to name him as a respondent in her Charge of
Discrimination.
“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. 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 (quoting Filla v. Norfolk
S. Ry. Co., 336 F.3d 806, 811 (8th Cir.2003) (citation omitted)).
As noted in Bock v. Liberty Rest. Grp., L.P., 4:13CV0781 AGF, 2013 WL 4504375
(E.D. Mo. Aug. 23, 2013), 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.” Id., at *2 (quoting Hill, 277
S.W.3d at 662). Casino One encourages the Court to utilize the Hill Court’s four factor test to
determine 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 EEOC complaint; 2)
whether, under the circumstances, the interests of a named 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 EEOC
proceedings; 3) whether its absence from the EEOC proceedings resulted in actual
prejudice to the interests of the unnamed party; 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.

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Hill, 277 S.W.3d at 669-70 (citing Glus v. G.C. Murphy Co., 562 F.2d 880, 888 (3rd Cir. 1977)).
Casino One urges this Court to apply this four factor test as the Court did in Borders v. Trinity
Marine Prods., Inc., No. 1:10CV 146 HEA, 2010 WL 5139343, *2 (E.D. Mo. Dec. 9, 2010) to
analyze whether there is a “substantial identity of interest” between the parties sued and those
actually named in the administrative charge in order to determine whether joinder was proper.
See Borders, 2010 WL 5139343, at *2-3 (finding no identity of interest and denying remand
based upon a finding of fraudulent joinder).

However, several courts in this district have

declined to adopt the four-factor “substantial identity of interest” test because “the Eighth Circuit
in Filla mandated that the Court's inquiry is limited only to determining whether there is arguably
a reasonable basis for predicting that the state law might impose liability based upon the facts
involved, not to definitively settle the ambiguous question of state law.” Jones v. Valspar Corp.,
4:11-CV-00379-NKL, 2011 WL 3358141, at *3 (W.D. Mo. Aug. 3, 2011).
Applying the Eighth Circuit’s charge in Filla, the Court holds that “there is arguably a
reasonable basis for predicting that the state law might impose liability” on Bechard in this case.
Bock, 2013 WL 4504375, at *3 (citing Block, 665 F.3d at 948). The Court finds that Bechard,
the General Manager, was identified in the Charge of Discrimination as one of Brownlee’s
harassers. (ECF No. 15-2). The Court holds that this evidence provides an arguably reasonable
basis for predicting that the state courts would find that this sufficiently exhausted Brownlee’s
claims against Bechard. See Hill, 277 S.W.3d at 670 (emphasis in original)(quoting Glus, 562
F.2d at 888)(“equally important is the availability of complete redress of legitimate grievances
without undue encumbrance by procedural requirements especially when demanding full and
technical compliance would have no relation to the purposes for requiring those procedures in
the first instance.”); Jones, 2011 WL 3358141, at *3 (quoting Cobb v. Stringer, 850 F.2d 356,

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359 (8th Cir. 1988)(“‘[b]ecause persons filing charges with the [administrative agencies]
typically lack legal training, those charges must be interpreted with the utmost liberality in order
not to frustrate the remedial purposes of [the statute].’”). Thus, the Court follows the clear
precedent in this district that the issue of whether Brownlee’s claim against Bechard can proceed
is better left for review by the state court. See Bock, 2013 WL 4504375, at *3; Junk, 628 F.3d at
446; Filla, 336 F.3d at 811. Fernandez v. GMRI, Inc., 4:11CV00244 AGF, 2011 WL 6884797,
at *3 (E.D. Mo. Dec. 29, 2011); Jameson v. Gough, 4:09CV2021RWS, 2010 WL 716107, at *4
(E.D. Mo. Feb. 24, 2010).
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion to Remand [14] is GRANTED.
This matter shall be remanded to the Twenty Second Circuit of Missouri in City of St. Louis,
Missouri for further proceedings. An order of remand accompanies this Order.

Dated this 7th day of July, 2014.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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