Johnson v. Stokes Contractor Services, L.L.C.

Filing 25

MEMORANDUM AND ORDER REMANDING CASE TO STATE COURT ; IT IS HEREBY ORDERED that the motion of plaintiff Damone Johnson to remand (Doc. 8 ) is sustained. The case is remanded to the Circuit Court of St. Louis County. IT IS FURTHER ORDERED that all other pending motions are deferred to the Missouri state courts.. Signed by Magistrate Judge David D. Noce on 9/10/14. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

DAMONE JOHNSON,
Plaintiff,
v.
STOKES CONTRACTOR SERVICES L.L.C.,
Defendant.

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No. 4:14 CV 1052 DDN

MEMORANDUM AND ORDER
REMANDING CASE TO STATE COURT
This action is before the court on the motions of defendant Stokes Contractor Services
L.L.C. to quash service of process (Doc. 5) and to dismiss (Doc. 6), and on the motion of
plaintiff Damone Johnson to remand (Doc. 8). The parties have consented to the exercise of
plenary authority by the undersigned United States Magistrate Judge pursuant to 28 U.S.C. §
636(c). (Doc. 17.) A hearing on the motion to quash service of process was held on August 7,
2014. On August 20, 2014, plaintiff filed an amended complaint in this court. (Doc. 23.)

I. BACKGROUND
On January 16, 2014, plaintiff Damone Johnson commenced this action against defendant
Stokes Contractor Services L.L.C. in the Circuit Court of St. Louis County. (Doc. 2.) On June
6, 2014, defendant removed the action to federal court under 28 U.S.C. § 1441(b), invoking
federal question jurisdiction under 28 U.S.C. § 1331. (Doc. 1.)
According to the original petition filed in the state court and the amended complaint filed
in this court, the following occurred. Plaintiff Damone Johnson resides in Missouri. (Doc. 2 at ¶
1; Doc. 23 at ¶ 1.) Defendant Stokes Contractor Services L.L.C. is a Missouri corporation with
its principal place of business in Missouri. (Doc. 2 at ¶ 2; Doc. 23 at ¶ 2)
Plaintiff commenced employment at $28.91 per hour with defendant. (Doc. 2 at ¶ 4;
Doc. 23 at ¶ 5.)

Soon afterwards, defendant instructed plaintiff to remove ceilings for a

demolition project. (Doc. 2 at ¶ 5; Doc. 23 at ¶ 6.) Plaintiff noticed asbestos in the ceilings that

defendant instructed him to remove. (Id.) Plaintiff informed the project manager, who informed
defendant’s owner, Bruce Stokes. (Doc. 2 at ¶ 6; Doc. 23 at ¶ 7.)
After his shift on July 30, 2013, plaintiff informed Bruce Stokes that only specialized
teams should work with asbestos and that his coworkers did not qualify. (Doc. 2 at ¶ 7; Doc. 23
at ¶ 8.) He also inquired regarding the failure to inform employees about the presence of
asbestos. (Id.) Bruce Stokes told plaintiff that he would mark the areas containing asbestos with
red paint. (Doc. 2 at ¶ 8; Doc. 23 at ¶ 9.) Plaintiff also discussed the employees’ harmful
exposure to asbestos. (Doc. 2 at ¶ 7.) Bruce Stokes terminated plaintiff with the stated purpose
of avoiding an uproar about but added that he would not issue a written reason for the
termination. (Id. at ¶ 9.) Since his termination, plaintiff has been unemployed. (Id. at ¶ 11.) As
a result of defendant’s actions, plaintiff has suffered lost wages, emotional distress,
embarrassment, pain, and suffering. (Id. at ¶ 13.)
Citing 29 Code of Federal Regulations § 1926.1101, plaintiff alleges in his original state
court petition that defendant wrongfully discharged him in violation of the public policy of
Missouri. (Doc. 2 at ¶¶ 10-12.) Plaintiff further alleges that Mo. Rev. Stat. § 510.265, which
places limitations on punitive damage awards, violates the Missouri Constitution. (Id.) Plaintiff
requests actual damages, punitive damages, and costs. (Id. at 4.) In his amended complaint,
plaintiff alleges his termination violated the public policy of Missouri and cites Revised Statutes
of Missouri 643.225, Missouri Regulations 10 Code of State Regulations 10-6.241(3)(B) and 106.250(3), and the previously cited section of the Code of Federal Regulations. (Doc. 23 at ¶ 11.)

II. MOTION TO REMAND
Plaintiff moves to remand the action to state court for lack of subject matter jurisdiction,
arguing that his sole claim arises under the Missouri common law and presents no federal
question. Defendant responds that plaintiff’s claim raises questions of federal law due to its
reliance on 29 C.F.R. § 1926.1101. (Doc. 8.)

III. DISCUSSION
Removal statutes are strictly construed, and any doubts about the propriety of removal are
resolved in favor of state court jurisdiction and remand. Transit Cas. Co. v. Certain Underwriters
at Lloyd's of London, 119 F.3d 619, 625 (8th Cir. 1997). Courts must be “mindful that the
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nature of federal removal jurisdiction--restricting as it does the power of the states to resolve
controversies in their own courts--requires strict construction of the legislation permitting
removal.” Nichols v. Harbor Venture, Inc., 284 F.3d 857, 861 (8th Cir. 2002). “If at any time
before final judgment it appears that the district court lacks subject matter jurisdiction,” the case
must be remanded to the state court from which it was removed. 28 U.S.C. § 1447(c).
The propriety of removal to federal court depends on whether the claim comes within the
scope of the federal court’s subject matter jurisdiction. See 28 U.S.C. § 1441(b). The party
invoking jurisdiction bears the burden of proof that all prerequisites to jurisdiction are satisfied.
Knudson v. Sys. Painters, Inc., 634 F.3d 968, 975 (8th Cir. 2011). Federal courts have “original
jurisdiction of all civil actions arising under the Constitution, laws, or treats of the United
States.” 28 U.S.C. § 1331.
“The presence or absence of federal-question jurisdiction is governed by the ‘wellpleaded complaint rule,’ which provides that federal jurisdiction exists only when a federal
question is presented on the face of the plaintiff's properly pleaded complaint.” Caterpillar Inc.
v. Williams, 482 U.S. 386, 392 (1987). “There is no single, precise definition of [the ‘arising
under’] concept; rather, the phrase ‘arising under’ masks a welter of issues regarding the
interrelation of federal and state authority and the proper management of the federal judicial
system.” Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 808 (1986). Federal question
jurisdiction applies to state law claims that “necessarily raise a stated federal issue, actually
disputed and substantial, which a federal forum may entertain without disturbing any
congressionally approved balance of federal and state judicial responsibilities.” Grable & Sons
Metal Products, Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 314 (2005).
Plaintiff’s sole claim of wrongful termination is a Missouri common law claim. (Docs. 2,
23.) Under Missouri law, “[a]n at-will employee may not be terminated (1) for refusing to
violate the law or any well-established and clear mandate of public policy as expressed in the
constitution, statutes, regulations promulgated pursuant to statute, or rules created by a
governmental body or (2) for reporting wrongdoing or violations of law to superiors or public
authorities.” Fleshner v. Pepose Vision Inst., P.C., 304 S.W.3d 81, 92 (Mo. 2010). “[A]
wrongful discharge action must be based on a constitutional provision, a statute, a regulation
based on a statute or a rule promulgated by a governmental body.” Margiotta v. Christian Hosp.
Ne. Nw., 315 S.W.3d 342, 346 (Mo. 2010). Plaintiff's state court petition bases his wrongful
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termination claim on 29 C.F.R. § 1926.1101. (Doc. 2.) Determining whether defendant violated
29 C.F.R. § 1926 is substantial and necessary to plaintiff’s claim and a disputed issue. Plaintiff
argues that whether defendant violated the regulation is not necessary because wrongful
discharge actions may be brought in the absence of a violation and based solely on the belief that
a violation occurred. See Kelly v. Bass Pro Outdoor World, LLC, 245 S.W.3d 841, 848-49 (Mo.
Ct. App. 2007). However, plaintiff alleges that defendant knowingly violated 29 C.F.R. §
1926.1101, an allegation that necessarily entails the issue of whether defendant violated 29
C.F.R. § 1926.1101, keeping in mind that plaintiff later alleged that his termination also violated
Missouri statutory and regulatory laws.
Thus, the sole remaining question before the court is whether the court may entertain the
claim without disturbing the balance of federal and state judicial responsibilities. In Merrell
Dow, consumers claimed negligence against a drug manufacturer and alleged that the branding
of a drug violated the Federal Food, Drug, and Cosmetic Act. 478 U.S. at 805-06. The Supreme
Court of the United States found no federal question jurisdiction, concluding that “a complaint
alleging a violation of a federal statute as an element of a state cause of action, when Congress
has determined that there should be no private, federal cause of action for the violation, does not
state a claim ‘arising under the Constitution, laws, or treaties of the United States.’” Merrell
Dow Pharm. Inc., 478 U.S. at 817. By contrast, in Grable & Sons, an individual brought a quiet
title action, arguing that title to a land parcel was invalid due to the failure of the Internal
Revenue Service to notify the individual of its seizure of the land parcel as required by Internal
Revenue Code. 545 U.S. 308, 310-11. The Court found federal question jurisdiction, noting that
the meaning of the Internal Revenue Code was the sole disputed issue, that the interpretation of a
federal statute belongs in federal court, and that the government has a strong interest in the
collection of taxes. Id. at 314-15. The Court contrasted Grable & Sons from Merrell Dow,
emphasizing that negligence claims raised the concern of a significant increase in the volume of
federal litigation due to frequent invocations of federal law in negligence actions and that such
concern did not lie with quiet title actions. Id. at 316-20.
Here, under Missouri law, whether or not Bruce Stokes terminated plaintiff in actual
violation of the cited federal regulation, plaintiff may make a case based upon his belief that
defendant thereby violated federal law. Kelly v. Bass Pro Outdoor World, LLC, 245 S.W.3d at
848-49; Dunn v. Enterprise Rent-A-Car Co., 170 S.W.3d 1, 11-12 (Mo. Ct. App. 2005). Plaintiff
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grounds his cause of action upon Missouri state law; the actual violation of the cited federal
regulation is not essential to the state law claim, especially now that plaintiff has cited
alternative, Missouri state laws. Furthermore, Occupation Safety and Health Administration
regulations, such as the one cited by plaintiff, do not contain a private right of action. Chew v.
American Greetings Corp., 754 F.3d 632, 637 (8th Cir. 2014). Violations of federal regulations
may serve as evidence, but unless clearly indicated by Congress, they do not “independently
create private rights of action” and therefore do not constitute a claim arising under the
Constitution, laws, or treaties of the United States. Id. Under plaintiff's allegations, the balance
of federal and state judicial responsibilities is heavily tipped to the state judiciary. Therefore,
this court is without subject matter jurisdiction over this action. Plaintiff’s motion to remand
must be sustained.

IV. CONCLUSION
For the reasons stated above,
IT IS HEREBY ORDERED that the motion of plaintiff Damone Johnson to remand
(Doc. 8) is sustained. The case is remanded to the Circuit Court of St. Louis County.
IT IS FURTHER ORDERED that all other pending motions are deferred to the
Missouri state courts.

/S/ David D. Noce
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UNITED STATES MAGISTRATE JUDGE

Signed on September 10, 2014.

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