Williams v. Central Transport International, Inc. et al
MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that plaintiffs motion to remand [Doc. # 10 ] is granted. IT IS FURTHER ORDERED that the Clerk of Court shall remand this action to the Twenty-Second Judicial Circuit (City of St. Louis) from which it was removed. Signed by District Judge Carol E. Jackson on 7/24/14. (KJS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CENTRAL TRANSPORT INT’L, INC.,
Case No. 4:14-CV-1003 (CEJ)
MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s motion to remand this action to the
Twenty-Second Judicial Circuit (City of St. Louis) from which it was removed.
Defendant Central Transport International, Inc. (Central Transport) has filed a
response in opposition and all issues are fully briefed.
From October 2012 until September 2013, plaintiff Glenn Williams worked as a
“spotter” at Central Transport’s St. Louis hub, where Bill Kincaid was the “terminal
Plaintiff alleges that Central Transport and Kincaid, acting as “joint
employers,” failed to properly compensate him and similarly-situated others for
overtime work and did not accurately record overtime hours. Plaintiff has filed two law
suits based on these allegations: On October 9, 2013, he filed a collective action
against Central Transport in this court, asserting claims under the Fair Labor Standards
Act (FLSA), 29 U.S.C. §§ 201 et seq. Williams v. Central Transport, 4:13CV2009
On November 27, 2013, he filed the instant class action against Central
Transport and Kincaid in state court, asserting violation of the Missouri Minimum Wage
Law (MMWL), Mo.Rev.Stat. §§ 290.500-290.530, and claims of breach of contract and
unjust enrichment. On May 19, 2014, the state court granted defendants’ motion to
dismiss plaintiff’s claims against defendant Kincaid for failure to plead facts that could
establish that he was an employer for the purposes of plaintiff’s claims. Def. Ex. C,
Mem. and Order at 11 [Doc. #17-3]. On May 27, 2014, plaintiff filed a motion for
leave to amend to state facts sufficient to establish Kincaid’s status as an employer.
On May 29, 2014, Central Transport removed the action to this court, based on
diversity jurisdiction pursuant to 28 U.S.C. § 1332. Plaintiff moves to remand, arguing
that removal was improper under the “voluntary-involuntary rule” and that the removal
A removing defendant bears the burden of establishing federal jurisdiction by
a preponderance of the evidence. Altimore v. Mount Mercy College, 420 F.3d 763, 768
(8th Cir. 2005). “All doubts about federal jurisdiction should be resolved in favor of
remand to state court.” In re Prempro Products Liability Litigation, 591 F.3d at 620
(citing Wilkinson v. Shackelford, 478 F.3d 957, 963 (8th Cir. 2007)). A case must be
remanded if at any time it appears that the district court lacks subject-matter
jurisdiction. 28 U.S.C. § 1447(c); Fed. R. Civ. P. 12(h)(3).
Title 28 U.S.C. § 1441(b)(2) permits a defendant to remove a civil action from
state court to federal court on the basis of diversity jurisdiction only if none of the
properly joined defendants are citizens of the state in which the action was filed.
Defendant Central Transport removed the matter as soon as Kincaid, a citizen of
Missouri, was dismissed from the case. However, under the “voluntary-involuntary”
rule, a case may nonetheless be non-removable depending on whether the diversitydestroying defendant was eliminated from the state action by voluntary or involuntary
dismissal. Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1166 (4th Cir.
1998). The Supreme Court developed the voluntary-involuntary rule for evaluating
removability in Powers v. Chesapeake & Ohio Ry., 169 U.S. 92, 99–101 (1898). The
rule requires that a case remain in state court unless a “voluntary” act by the plaintiff
brings about a change in circumstances that makes the suit removable. Power v.
Norfolk & W. Ry. Co., 778 F. Supp. 468, 469 (E.D. Mo. 1991) (citing Whitcomb v.
Smithson, 175 U.S. 635 (1900)).
[T]he voluntary-involuntary rule . . . establishes a bright line test for
evaluating removability. If the dismissal of a defendant in state court
creates complete diversity between all parties so that the case may be
removed to federal court, the propriety of removal is determined
according to whether the dismissal was voluntary or involuntary with
respect to the plaintiff. In other words, if the plaintiff voluntarily
dismisses the non-diverse defendant, the case may be removed. Removal
is improper, however, if the dismissal of that resident defendant was
In re Iowa Mfg. Co. of Cedar Rapids, Iowa, 747 F.2d 462, 463 (8th Cir. 1984).
Defendant concedes that the dismissal of Kincaid by the state court was “involuntary”
for the purposes of this rule.
Fraudulent joinder of a nondiverse defendant for the purposes of defeating
federal jurisdiction is “a well established exception to the voluntary-involuntary rule.”
Riverdale Baptist Church v. Certainteed Corp., 349 F. Supp. 2d 943, 946 (D. Md. 2004)
(citing Mayes v. Rapoport, 198 F.3d 457, 461 n. 9 (4th Cir. 1999) and Insinga v.
LaBella, 845 F.2d 249, 254 (11th Cir. 1988)). Joinder is fraudulent if “it is clear under
governing state law that the complaint does not state a cause of action against the
non-diverse defendant.” Filla v. Norfolk S. Ry. Co., 336 F.3d 806, 810 (8th Cir. 2003)
(quoting Iowa Public Service Co. v. Medicine Bow Coal Co., 556 F.2d 400, 406 (8th Cir.
1977). “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. Id. (citing Foslip Pharmaceuticals, Inc. v. Metabolife Intern.,
Inc., 92 F. Supp. 2d 891, 903 (N.D. Iowa 2000)). Joinder is fraudulent “when there
exists no reasonable basis in fact and law supporting a claim against the resident
defendants.” Wiles v. Capitol Indemnity Corp., 280 F.3d 868, 871 (8th Cir. 2002).
Defendant Central Transport argues that Kincaid was fraudulently joined, noting
that the state court found that plaintiff “failed to plead even a single specific factual
allegation that might reasonably suggest that Mr. Kincaid was an ‘employer’ for
purposes of any of Plaintiff’s claims.” Deft. Mem. in Opp, Ex. C, p. 10 (ECF # 17-3).
Ultimately, however, this court does not need to determine the propriety of Kincaid’s
joinder, because Central Transport’s removal was untimely.
Under 28 U.S.C. § 1446(b), a defendant must file a notice of removal “within 30
days after the receipt . . . of the initial pleading setting forth the claim for relief.” In
the fraudulent joinder context, a defendant must remove within 30 days of “the time
[it] can first ascertain that a party has been fraudulently joined.” Day v. Liberty Mut.
Fire Ins. Co., No. 1:13CV16, 2013 WL 1890725 at *5 (N.D.W. Va. May 6, 2013
(quoting Delaney v. Viking Freight, Inc., 41 F. Supp. 2d 672, 674 n.2 (E.D. Tex. 1999);
see also Riverdale Baptist Church, 349 F. Supp. 2d at 952 (removal based on
fraudulent joinder untimely); Simpson v. Union Pac. R. Co., 282 F. Supp. 2d 1151,
1157 (N.D. Cal. 2003) (removal untimely where defendants could have determined
fraudulent joinder from complaint). The dispositive issue is when the defendant was
first able to ascertain that the case was removable, “not when the state court first put
its stamp on the matter.” Riverdale Baptist Church, 349 F. Supp. 2d at 953-54.
Defendants could have ascertained fraudulent joinder from the face of plaintiff’s
complaint. Indeed, they successfully argued for the dismissal of the claims against
Kincaid, asserting the same arguments they now put forth to establish that his joinder
in this matter was fraudulent.
“Permitting such ‘fraudulent joinder by hindsight’
removal petitions would serve both to undermine 28 U.S.C. § 1446(b)’s thirty-day limit
and . . . render meaningless the long-held distinction between voluntary and
involuntary dismissals of non-diverse parties in creating removability.” Deming v.
Nationwide Mut. Ins. Co., No. Civ. A. 3:03CV1225, 2004 WL 332741 at *5 (D. Conn.
Feb. 14, 2004).
IT IS HEREBY ORDERED that plaintiff’s motion to remand [Doc. #10] is
IT IS FURTHER ORDERED that the Clerk of Court shall remand this action to
the Twenty-Second Judicial Circuit (City of St. Louis) from which it was removed.
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 24th day of July, 2014.
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