Tate v. Family Dollar Stores of Missouri, Inc. et al
MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiffs Motion for Remand (ECF No. 17) is GRANTED. IT IS FURTHER ORDERED that the Clerk of the Court shall REMAND this case to the Circuit Court of the County of St. Louis, Missouri, from which it was removed. An Order of Remand accompanies this Order. re: 17 MOTION to Remand Case to State Court to State Court filed by Plaintiff Robert Tate Signed by District Judge Ronnie L. White on 12/23/14. (JWJ)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
FAMILY DOLLAR STORES OF
MISSOURI, INC., et al.,
No. 4:14CV1534 RLW
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs Motion to Remand (ECF No. 17). Also
pending are Defendant Zebulan Boomgaarden's Motion to Dismiss, or in the Alternative, Motion
for Summary Judgment (ECF No. 7); Defendant Family Dollar Stores of Missouri, Inc.'s Motion
to Dismiss and Substitute Defendants (ECF No. 10); and Defendants' Motion to Stay Action and
Compel Arbitration (ECF No. 15). The motions are fully briefed and ready for disposition. For
the reasons set forth below, the Court will grant Plaintiffs Motion to Remand.
Plaintiff filed a Petition in St. Louis County, Missouri on July 29, 2014 and a First
Amended Petition on September 2, 2014 against Defendants Family Dollar Stores of Missouri,
Inc. ("Family Dollar") and Zebulan Boomgaarden. (Notice of Removal Exs. A and B, ECF Nos.
1-1, 1-2) In the First Amended Petition, Plaintiff alleges that he was employed by Family Dollar
Stores of Missouri, Inc. as an Area Loss Prevention Manager. (First Am.
4, ECF No. 4)
He claims that Defendants had a pattern and practice of discriminating against Plaintiff by
treating white employees differently than black employees. (Id.
6) Plaintiff maintains that
on July 19, 2013, he expressed his concerns regarding Family Dollar's treatment toward himself
and other minority team members to his direct supervisor Barney Carroll and the Regional
Supervisor, Defendant Boomgaarden. (Id. at iii! 7-8) Additionally, Plaintiff asserts that he was
previously placed on a Performance Improvement Plan, and on September 6, 2013 , Mr. Carroll
informed Plaintiff that his performance was worsening. (Id. at if 9) Out of frustration, Plaintiff
threw a small staple remover at a wall. (Id. at if 10) That day, Plaintiff informed Defendant
Boomgaarden of his frustration and about the staple remover incident, but Defendant
Boomgaarden told Plaintiff not to worry. (Id.) On September 12, 2003, Plaintiff met with Mr.
Carroll and Defendant Boomgaarden, who gave Plaintiff the option ofresignation or termination.
(Id. at if12) Plaintiff chose termination because he believed Defendants discriminated against
Plaintiff was discharged on September 12, 2013 , and he alleges that Defendants
discharged him based upon his race and in retaliation for complaining about racial and gender
discrimination. (Id. at if 13) He filed a Charge of Discrimination with the Missouri Human
Rights Commission ("MCHR") against Family Dollar Stores and Zeb Boomgaarden, claiming
that he was fired because of his African American race and because he complained about
conduct he believed was racially discriminatory. (Charge of Discrimination, ECF No. 22-2)
Plaintiff obtained a right to sue letter on June 23 , 2014. (First Am. Pet. if 14 and Ex. 1, ECF Nos.
4, 4-1) Plaintiff thereafter filed a Petition in the Circuit Court of St. Louis County, Missouri. On
September 2, 2014, the state court granted him leave to file a First Amended Petition, which
asserts that Defendants discriminated against Plaintiff by terminating his employment based on
his race, African American, and in retaliation for his allegations of race and gender
discrimination, resulting in lost wages and benefits, as well as emotional and punitive damages.
(Id. at iii! 15-18)
Defendants removed the action to federal court on September 8, 2014, claiming that this
Court has diversity jurisdiction over this action due to Plaintiffs fraudulent joinder of both
Family Dollar Stores of Missouri, Inc. and individual Defendant Boomgaarden. (Notice of
Removal iii! 7-24, ECF No. 1) Defendants maintain that Plaintiff named the wrong employer to
defeat diversity jurisdiction and that the proper Defendant employer is Family Dollar Operations,
Inc. , which is incorporated in the State of North Carolina and has its principal place of business
in North Carolina. (Id. at iii! 8-10) Defendants contend that the MHRA charge of discrimination
and the right to sue letter is against Family Dollar Stores, Inc. and not Family Dollar Stores of
Missouri, Inc. (Id. at iii! 6, 10) Further, Defendants argue that Defendant Boomgaarden was not
Plaintiffs immediate supervisor, did not evaluate Plaintiffs performance, and did not participate
in the decision making process that led to Plaintiffs discipline or ultimate termination. (Id. at iii!
13-23) Instead, Defendants maintain that the proper Defendant is Plaintiffs immediate
supervisor, Barney Carroll, who resides in the State of Kansas. (Id. at 14-15)
In response, Plaintiff filed a Motion to Remand, asserting that Defendants improperly
removed the action to federal court because even though Family Dollar Stores of Missouri, Inc.
was not named in the right to sue letter, Plaintiff did not fraudulently join that entity because
Plaintiff has a reasonable basis to believe that it was Plaintiffs employer. Further, Plaintiff
argues that Defendant Boomgaarden was involved in Plaintiffs employment, as Plaintiff had
discussed his job frustration and his termination directly with Boomgaarden. Plaintiff also
maintains that Defendant Boomgaarden provided input regarding Plaintiffs performance.
Defendant Boomgaarden, on the other hand, maintains that the claim is frivolous because he
never took any adverse against Plaintiff and that Plaintiff joined Boomgaarden as a Defendant
solely to defeat diversity jurisdiction.
Under 28 U.S.C. § 1441(a), "any civil action brought in a State court of which the district
courts of the United States have original jurisdiction, may be removed by the defendant or the
defendants, to the district court of the United States for the district and division embracing the
place where such action is pending." District courts "have original jurisdiction of all civil
actions where the matter in controversy exceeds the sum or value of $75,000, .. . , and is
between citizens of different States." 28 U.S.C. § 1332(a)(l). The removing party has the
burden of establishing that diversity jurisdiction exists by a preponderance of the evidence. In re
Prempro Prod. Liab. Litig., 591 F.3d 613 , 620 (8th Cir. 2010) (citation omitted). "All doubts
about federal jurisdiction should be resolved in favor ofremand to state court." Id. (citation
Fraudulent joinder is an exception to the complete diversity rule, and it occurs "when a
plaintiff files a frivolous or illegitimate claim against a non-diverse defendant solely to prevent
removal." Id. (citation omitted). "Fraudulentjoinder 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 '/ Co., 628 F.3d 439, 446 (8th Cir. 2010)); see also Wilkinson v. Shackelford, 478
F.3d 957, 964 (8th Cir. 2007) ("The relevant inquiry in analyzing fraudulent joinder, however,
focuses only on whether a plaintiff 'might' have a ' colorable' claim under state law against a
fellow resident ... not on the artfulness of the pleadings.") (internal citation omitted). " [W]here
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. "'
Filla v. Norfolk S. Ry. Co., 336 F.3d 806, 811 (8th Cir. 2003) (quoting Iowa Pub. Serv. Co. v.
Med. Bow Coal Co., 556 F.2d 400, 406 (8th Cir. 1977)). Further, in determining whether joinder
of a defendant is fraudulent, "' the court may not step from the threshold jurisdictional issue into
a decision on the merits." ' Messmer v. Kindred Hosp. St. Louis, No. 4:08-CV-749 CEJ, 2008
WL 4948451, at *2 (E.D. Mo. Nov. 10, 2008) (quoting Manning v. Wal-Mart Stores East, Inc.,
304 F. Supp. 2d 1146, 1148 (E.D. Mo. 2004)).
In the instant case, Defendant Boomgaarden maintains that no reasonable basis exists for
the Court to find that Plaintiff could sue Mr. Boomgaarden individually under the Missouri
Human Rights Act ("MHRA") because he does not allege that Mr. Boomgaarden took any
adverse action against Plaintiff. The Court disagrees and finds that the case should be remanded
to the state court.
Under the MHRA, it is unlawful for an employer to discharge or otherwise discriminate
"against any individual with respect to his compensation, terms, conditions, or privileges of
employment" because of that individual' s race or color. Mo. Rev. Stat. § 213.055.l(l)(a). The
Act defines an employer as "any person directly acting in the interest of an employer." Mo. Rev.
Stat. § 213.010(7). Thus, an employee serving in a supervisory or managerial capacity may be
individually liable for an MHRA violation." Messmer, 2008 WL 4948451 , at *2.
Here, the Court finds that Defendant Boomgaarden may be subject to liability because the
Petition sufficiently alleges that Plaintiff complained to Mr. Boomgaarden directly regarding
racially discriminatory treatment toward black employees at Family Dollar Stores, including
against Plaintiff. (First Am. Pet.
Plaintiff further alleges, that shortly after this
discussion, he was terminated during a meeting which Defendant Boomgaarden attended. (Id. at
Plaintiff avers that Mr. Boomgaarden was involved in the performance evaluation process.
(Pl.'s Mot. to Remand Ex. 2 ~ 1, ECF No. 17-2) Finally, Plaintiff contends that, based on
Plaintiffs many years of employment with Family Dollar Stores and experience with the
termination process, Defendant Boomgaarden was consulted about and approved employee
While Defendant invites the Court to make a determination regarding the sufficiency of
the complaint against Mr. Boomgaarden, the better practice is for this Court to remand the case
and allow the state court to decide. Filla, 336 F.3d at 811. Plaintiffs First Amended Petition
claims that Defendant Boomgaarden was involved in allegedly discriminatory acts in his
capacity as Plaintiffs supervisor. Therefore, Plaintiff has asserted a colorable claim against Mr.
Boomgaarden based on the MHRA such that his joinder is not fraudulent. Moss v. Defender
Servs., Inc., No. 1:08-CV-88 CAS, 2009 WL 90136, at *3 (E.D. Mo. Jan. 14, 2009); Messmer,
2008 WL 4948451 , at *3. As a result, federal jurisdiction based on diversity does not exist in
this case. Moss, 2009 WL 90136, at *3.
Because this Court lacks jurisdiction, the Court is precluded from ruling on the
remaining substantive motions filed by the Defendants. Id. Defendant Zebulan Boomgaarden's
Motion to Dismiss, or in the Alternative, Motion for Summary Judgment; Defendant Family
Dollar Stores of Missouri, Inc. ' s Motion to Dismiss and Substitute Defendants; and Defendants'
Motion to Stay Action and Compel Arbitration are appropriately left for the state court to
IT IS HEREBY ORDERED that Plaintiffs Motion for Remand (ECF No. 17) is
IT IS FURTHER ORDERED that the Clerk of the Court shall REMAND this case to
the Circuit Court of the County of St. Louis, Missouri, from which it was removed. An Order of
Remand accompanies this Order.
Dated this 23rd day of December, 2014.
RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE
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