Moore v. Helget Gas Products, Inc. et al

Filing 25

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiffs motion to remand [Doc. #9] is denied. Signed by District Judge Carol E. Jackson on 11/21/2014. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

HERBERT L. MOORE,
Plaintiff,
vs.
HELGET GAS PRODUCTS, INC., et al.,
Defendants.

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Case No. 4:14-CV-1292 (CEJ)

MEMORANDUM AND ORDER
This matter is before the court on plaintiff’s motion to remand the action to the
Missouri state court from which it was removed. Defendant Helget Gas Products, Inc.
(Helget) has filed a response in opposition to the motion.
I.

Background

Plaintiff initiated this action in the state court, asserting claims for discrimination
in violation of the Missouri Human Rights Act (MHRA), §§ 213.010 et seq., and the
Missouri Workers’ Compensation Act (WCA), § 287.780. Plaintiff alleges that defendant
Helget improperly terminated his employment based on his race and color and in
retaliation for filing a workers’ compensation claim. Plaintiff also asserts claims against
two Helget employees, defendants Steve Blassingame and Jack Mertens.
The defendants removed the case to this court, invoking jurisdiction based on
diversity of citizenship. See 28 U.S.C. § 1332. Plaintiff is a citizen of Missouri and
Helget is a Nebraska corporation with its principal place of business in Nebraska.
Individual defendants Mertens and Blassingame are citizens of Missouri.

II.

Legal Standard

“A defendant may remove a state law claim to federal court only if the action
originally could have been filed there.” In re Prempro Products Liability Litigation, 591
F.3d 613, 619 (8th Cir. 2010) (citing Phipps v. FDIC, 417 F.3d 1006, 1010 (8th Cir.
2005)). The 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 anytime, it appears that the district court lacks subject-matter
jurisdiction. 28 U.S.C. § 1447(c); Fed. R. Civ. P. 12(h)(3).
III.

Discussion

Diversity of citizenship jurisdiction under 28 U.S.C. § 1332 requires an amount
in controversy greater than $75,000 and complete diversity of citizenship among the
litigants. 28 U.S.C. § 1332(a). “Complete diversity of citizenship exists where no
defendant holds citizenship in the same state where any plaintiff holds citizenship.”
OnePoint Solutions, LLC v. Borchert, 486 F.3d 342, 346 (8th Cir. 2007). In this case,
plaintiff and defendants Mertens and Blassingame are citizens of Missouri. In its notice
of removal, Helget argues that the citizenship of the individual defendants should be
ignored because they had not been served with summons and a copy of the complaint
at the time of removal. Helget subsequently filed an amended notice of removal
stating that defendants Mertens and Blassingame were fraudulently joined.
“Courts have long recognized fraudulent joinder as an exception to the complete
diversity rule.” In re Prempro, 591 F.3d at 620; Witherspoon v. Bayer Healthcare

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Pharmaceuticals Inc., 2013 WL 6069009, *2 (E.D. Mo. Nov. 18, 2013). Under the
doctrine of fraudulent joinder, a court may disregard the citizenship of a non-diverse
defendant who was frivolously joined in an effort to defeat removal. In re Genetically
Modified Rice Litig., 618 F. Supp. 2d 1047, 1052 (E.D. Mo. 2009).

“Joinder is

fraudulent and removal is proper when there exists no reasonable basis in fact and law
supporting a claim against the resident defendants.” Wiles v. Capitol Indem. Corp.,
280 F.3d 868, 871 (8th Cir. 2002). Fraudulent joinder requires a showing that the
claim involving the nondiverse party has “no reasonable basis in fact and law.”
Knudson v. Systs. Painters, Inc., 634 F.3d 968, 980 (8th Cir. 2011). Thus, it must be
“clear under governing state law that the complaint does not state a cause of action
against the non-diverse defendant” and there is no “arguably [] reasonable basis for
predicting that the state law might impose liability based upon the facts involved.”
Witherspoon, 2013 WL 6069009, at *2. When a district court reviews a fraudulent
joinder claim, “the court has no responsibility to definitively settle the ambiguous
question of state law.” Filla v. Norfork Southern Ry. Co., 336 F.3d 806, 810 (8th Cir.
2003).
Defendant Helget contends that plaintiff’s MHRA claim against the individual
defendants cannot succeed because he failed to name them as respondents in his
charge of discrimination. Under the MHRA, individuals may be held liable in their
individual capacities. Hill v. Ford Motor Co., 277 S.W.3d 659, 669 (Mo. 2009) (en
banc). However, a person claiming relief under the MHRA must exhaust administrative
remedies by filing an administrative complaint, “which shall state the name and
address of the person alleged to have committed the unlawful discriminatory practice.”
Mo.Rev.Stat. § 213.075(1) (emphasis added). The purpose of these administrative

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requirements is “to give notice to the charged party and to provide an avenue for
voluntary compliance without resort to litigation[.]” Hill, 277 S.W.3d at 669.
Plaintiff acknowledges that he did not name the individual defendants in his
charge of discrimination.

He asserts that he nonetheless properly exhausted his

administrative remedies against them because he identified them in his intake
questionnaire. Pl. Ex. 1 [Doc. #12-1]. The MHRA requires an aggrieved person to file
a verified complaint in writing, made under penalty of perjury. § 213.075.1; Mo. Code
Regs. Ann. tit. 8, § 60-2.025. Plaintiff’s unverified intake questionnaire does not
satisfy the MHRA’s requirements. Franklin v. Union Elec. Co., No. 4:05CV1569-SNL,
2006 WL 1026945, at *2 (E.D. Mo. Apr. 13, 2006). The intake questionnaire does not
satisfy plaintiff’s obligation to exhaust his remedies with respect to the individual
defendants.
Plaintiff next argues that there is a “substantial identity of interest” between the
individual defendants and Helget. See Hill, 277 S.W.3d at 669 (purposes of notice and
chance to participate in prelitigation conciliation can be satisfied if there is substantial
identity of interests).

Whether a substantial identity of interest exists requires

consideration of the following factors:
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; [and] 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.
Id. at 669-70 (citation omitted).

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After considering the parties’ arguments1 and applying these factors to the facts
of this case, the court concludes that plaintiff cannot establish identity of interest
between the individual defendants and Helget for the purposes of the MHRA’s
exhaustion requirement. First, plaintiff’s intake questionnaire demonstrates that he
had notice of the role Mertens and Blassingame played in the alleged discrimination
when he filed his charge. [Doc. #12-1]. As to the second factor, nothing in the record
indicates that the interests of Helget and the individual defendants are so similar that
it would be unnecessary to include them in the administrative proceedings.

See

Warren v. Dr. Pepper/Seven Up Mfg. Co., 413CV00526 ERW, 2013 WL 4507846, at *4
(E.D. Mo. Aug. 23, 2013) (given “the vast difference in economic positions” between
the corporate and individual defendants, the individual defendants “clearly have a
greater incentive to initiate conciliatory proceedings or voluntarily correct any allegedly
illegal behavior”). Because there is no evidence that the individual defendants suffered
actual prejudice, the third factor is neutral. However, there is also no evidence that
Mertens and Blassingame told plaintiff that they were to be dealt with solely through
Helget. Plaintiff has failed to establish that there was an identity of interests such that
naming Helget in the administrative charge satisfied the exhaustion requirement with
respect to the individual defendants. Plaintiff has failed to state a colorable claim for
relief against Mertens and Blassingame under the MHRA.
Plaintiff argues for the first time in his reply that removal is barred by the
inclusion of Mertens and Blassingame in his claim under the Workers’ Compensation
Act. Under the WCA an “employer” is someone using the “service of another for pay”

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Plaintiff cites Hill and identifies the “substantial identity” test, but fails to identify
the factors or apply them to the facts of this case.
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and having five or more employees. § 287.010. The Missouri courts have held that
a fellow employee cannot be an “employer” under the Act, because a “co-employee
would not fall within this statutory definition of an employer as a person . . . using the
service of another for pay and hav[ing] five or more employees.” Wyman v. Missouri
Dep’t of Mental Health, 376 S.W.3d 16, 25 (Mo. Ct. App. 2012) (alteration in original,
citations and internal quotations omitted). Thus, plaintiff fails to state a colorable claim
against the individual defendants under the WCA.
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For the foregoing reasons, the court finds that the individual defendants were
fraudulently joined. It is unnecessary to address defendant’s alternative argument that
removal was proper because the nondiverse defendants had not been served with
summons and a copy of the complaint at the time of removal.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to remand [Doc. #9] is
denied.

___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE

Dated this 21st day of November, 2014.

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