Moore v. Taser International, Inc. et al

Filing 22

OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiff's Motion to Remand, [Doc. No. 9], is granted. IT IS FURTHER ORDERED that this case is remanded to the Circuit Court of St. Louis County, State of Missouri. 9 Signed by District Judge Henry Edward Autrey on 8/7/15. cc: St. Louis(CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
TINA MOORE,
Plaintiff,
vs.
TASER INTERNATIONAL, INC., et al.,
Defendants.

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Case No. 4:14CV1841 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff's Motion to Remand. [Doc. No.
9]. Conversely, Defendant Ed Roehr Auto Radio Co., d/b/a Ed Roehr Safety
Products, Co., has filed a Motion to Dismiss for Failure to State a Claim, [Doc. No.
11]. The parties oppose the other’s Motion. For the following reasons, the motion
to remand will be granted.
Facts and Background
On September 16, 2014, Plaintiff filed her original Petition in this wrongful
death products liability action in the Circuit Court of St. Louis County, Twenty–
First Judicial Circuit, naming Taser International, Inc. and Roehr. Defendants
removed the case on October 31, 2014 based on diversity jurisdiction pursuant to
28 U.S.C. §§ 1332, 1441 and 1446. Plaintiff seeks remand to state court based
upon a lack of diversity since Roehr is a Missouri citizen. Roehr opposes remand

and has filed a motion to dismiss, arguing that it was named as a defendant to
destroy diversity.
Plaintiff’s Complaint alleges Plaintiff’s decedent died as a result of being
tased with Defendant Taser’s Model X26 ECD electrical weapon by a member of
the Ferguson Police Department. Plaintiff contends the product was unreasonably
dangerous, was defectively designed, and that defendants failed to warn the
Ferguson Police Department of the defects in the device, were negligent for
supplying a dangerous instrumentality for their business purposes, intentionally
misrepresented material facts about the X26, fraudulently concealed and deceived
the Ferguson Police Department and other law enforcement agencies material and
important facts about the X26, and negligently misrepresented material facts.
Discussion
For diversity jurisdiction to exist under 28 U.S.C. § 1332(a)(1), there must
be complete diversity of citizenship between all plaintiffs and all defendants.
Buckley v. Control Data Corp., 923 F.2d 96, 97, n.6 (8th Cir.1991). “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). The removing party bears the burden of
establishing federal jurisdiction by a preponderance of the evidence. Carey v. JP
Bushnell Packing Supply Co., 2011 WL 6415178, at *2 (E.D.Mo. December 21,
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2011) (citing In re Business Men's Assur. Co. of America, 992 F.2d 181, 183 (8th
Cir.1991)). A district court is required to resolve all doubts about federal
jurisdiction in favor of remand to state court. In re Business Men's Assur. Co., 992
F.2d at 183; Transit Cas. Co. v. Certain Underwriters at Lloyd's of London, 119
F.3d 619, 625 (8th Cir.1997). 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).
The party invoking jurisdiction bears the burden of proof that all
prerequisites to jurisdiction are satisfied. See McNutt v. General Motors
Acceptance Corp. of Ind., Inc., 298 U.S. 178, 189 (1936). Thus, in a removed
case, the removing defendant bears the burden of proving that all prerequisites to
jurisdiction. Central Iowa Power Co-op. v. Midwest Indep. Transmission Sys.
Operator, Inc., 561 F.3d 904, 912 (8th Cir.2009). Removal statutes are strictly
construed, and any doubts about the propriety of removal are resolved in favor of
state court jurisdiction and remand. Nichols v. Harbor Venture, Inc., 284 F.3d 857,
861 (8th Cir.2002).
A state civil action may be removed to the proper district court if the district
court has original jurisdiction over 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 v. Wal–Mart Stores East, Inc., 304 F.Supp.2d 1146,
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1148 (E.D.Mo.2004) (citing 28 U.S.C. § 1332(a)(1)). Actions where jurisdiction is
predicated solely on diversity of citizenship are not removable “if any of the parties
in interest properly joined and served as defendants is a citizen of the State in
which such action is brought.” 28 U.S.C. § 1441(b)(2). The diversity jurisdiction
statute has been interpreted to require complete diversity of citizenship, which
“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). Here, Defendant Roehr argues that it was fraudulently joined to defeat
diversity jurisdiction.
“Courts have long recognized fraudulent joinder as an exception to the
complete diversity rule.” In re Prempro, 591 F.3d at 620 (citing 14B Charles Alan
Wright, et al., Federal Practice and Procedure § 3723 at 788–89 (4th ed.2009)).
“Fraudulent joinder occurs when a plaintiff files a frivolous or illegitimate claim
against a non-diverse defendant solely to prevent removal.” Id. (cited case
omitted).
Fraudulent joinder is an exception to the rule that complete diversity of
citizenship must exist both when the state petition is filed and when the petition for
removal is filed. Knudson v. Systems Painters, Inc., 634 F.3d 968, 976 (8th
Cir.2011). “[A] plaintiff cannot defeat a defendant's ‘right of removal’ by
fraudulently joining a defendant who has ‘no real connection with the
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controversy.’” Id. (quoted case omitted). “The purpose of this exception is to strike
a balance between the plaintiff's right to select a particular forum and the
defendant's right to remove the case to federal court.” Id. (cited source omitted).
“Ordinarily, to prove that a plaintiff fraudulently joined a diversitydestroying defendant, [the Eighth Circuit has] required a defendant seeking
removal to prove that the plaintiff's claim against the diversity-destroying
defendant has ‘no reasonable basis in fact and law.’” Knudson, 634 F.3d at 977
(quoting Filla v. Norfolk S. Ry. Co., 336 F.3d 806, 810 (8th Cir .2003)). Under this
standard, “if it is clear under governing state law that the complaint does not state a
cause of action against the non-diverse defendant, the joinder is fraudulent and
federal jurisdiction of the case should be retained.” Filla, 336 F.3d at 810 (internal
quotation marks omitted). Joinder is not fraudulent where “there is arguably a
reasonable basis for predicting that the state law might impose liability based upon
the facts involved.” Id. at 811.
As the Eighth Circuit explained in Filla,
[T]he district court's task is limited to determining whether there is
arguably a reasonable basis for predicting that the state law might impose
liability based upon the facts involved. In making such a prediction, the
district court should resolve all facts and ambiguities in the current
controlling substantive law in the plaintiff's favor. However, in its review of
a fraudulent-joinder claim, the court has no responsibility to definitively
settle the ambiguous question of state law. Id. at 811 (citations omitted). The
Eighth Circuit instructed that “where the sufficiency of the complaint against
the non-diverse defendant is questionable, ‘the better practice is for the
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federal court not to decide the doubtful question ... but simply to remand the
case and leave the question for the state courts to decide.’”
Id. (quoting Iowa Pub. Serv. Co. v. Medicine Bow Coal Co., 556 F.2d 400, 406
(8th Cir.1977)). In deciding whether joinder is fraudulent, the court may not
step from the threshold jurisdictional issue into a decision on the merits. Boyer
v. Snap–On Tools Corp., 913 F.2d 108, 122 (3rd Cir.1990) (reversing district
court's order denying remand), cert. denied, 498 U.S. 1085 (1991); see Filla,
336 F.3d at 811 (“Like the district court, we have no power to decide the merits
of a case over which we have no jurisdiction.”).
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.” Junk v. Terminix Int'l Co., 628 F.3d 439, 446 (8th Cir.2010)
(citation omitted). In order to establish fraudulent joinder, the defendant
must “do more than merely prove that the plaintiff's claim should be
dismissed pursuant to a Rule 12(b)(6) motion” since “we do not focus on the
artfulness of the plaintiff's pleadings.” Knudson 634 F.3d at 980. In
fraudulent joinder cases, some courts examine material beyond the
complaint's allegations to “determine if there is any factual support” for the
claims against the allegedly fraudulently joined defendant. See Masepohl v.
Am. Tobacco Co., Inc., 974 F.Supp. 1245, 1250 (D.Minn.1997). “All doubts
about federal jurisdiction should be resolved in favor of remand to state
court.” In re Prempro Prods. Liab. Litig., 591 F.3d 613, 620 (8th Cir.2010).
Block v. Toyota Motor Corp., 665 F.3d 944, 948 (8th Cir.2011).
Vang v. PNC Mortg., Inc., 517 Fed.Appx. 523, 524 -525 (8th Cir. 2013).
Defendant argues that Plaintiff’s single allegation against Defendant Roehr
is that it “sold” the X26 to the Ferguson Police Department, and that Roehr did not
“sell” the taser, rather, it received payment from the Ferguson Police Department
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and in turn made payment to Taser. Indeed, it further argues that it did not even
take physical possession of the taser, which shipped directly from Taser to the
Ferguson Police Department. Defendant argues that its involvement in the sale of
the Taser was merely administratively handling the sale processing an invoice,
receiving funds from the Ferguson Police Department for payment of the taser, and
then in turn paying Taser for the Product. Defendant does, however, admit that it
is in the business of selling and distributing Taser products to law enforcement in
Missouri.
Plaintiff argues essentially that Roehr is utilizing form over substance in its
possession argument. But for the fact that Roehr did not have this specific Taser in
its inventory, it would have shipped the taser directly to the Ferguson Police
Department. The real question, therefore, is whether Roehr falls within the
perimeters of a seller/distributor in the stream of commerce.
The common thread among Missouri products liability cases is that an entity
must have “’ plac[ed] a defective product in the stream of commerce.’” Bailey v.
Innovative Mgmt. & Inv., Inc., 916 S.W.2d 805, 807-08 (MoCt.App. 1995)(quoting
Gunderson v. Sani-Kem Corp., 674 S.W.2d 665, 668 (Mo.Ct.App. 1984)….”’[I]t is
the defendant’s participatory connection, for his personal profit or other benefit,
with the injury-producing product and with the enterprise that created consumer
demand for and reliance upon the product which calls for the imposition of strict
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liability…’” Bailey, 916 S.W.2d at 807-08 (quoting Gunderson, 674 S.W.2d at
668) Ford v. GACS, Inc., 265 F.3d 670, 680 (8th Cir. 2001)(emphasis in original).
Plaintiff alleges that Roehr was the sole distributor of Tasers to the Ferguson
Police Department and that it profited by its actions regarding this particular taser.
A Missouri court might well determine that plaintiff may pursue his claims against
this defendant. Although the issue is debatable, the Eighth Circuit has instructed
that “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 ... but simply to remand the case and leave the question for the state
courts to decide.’” Filla, 336 F.3d at 811. (quoting Iowa Pub. Serv. Co. v.
Medicine Bow Coal Co., 556 F.2d 400, 406 (8th Cir.1977)). See Bock v. Liberty
Restaurant Group, No. 4:13–CV–781, 2013 WL 4504375, at *3 (E.D.Mo. Aug.
23, 2013)(J. Fleissig); Hall v. Avis Budget Car Rental, LLC., No. 4:12–CV–738,
2012 WL 2191620, at *3 (E.D. Mo. June 14, 2012) (J. Fleissig); Dones v. Sensient
Colors, LLC, No. 4:12–CV216, 2012 WL 1802438, at *3 (E.D.Mo. May 17, 2012)
(J. Fleissig); Huye v. Life Care Centers of Am., Inc., No. 4:12–CV–111, 2012 WL
1605250, *3 (E.D.Mo. May 8, 2012) (J. Jackson); Fernandez v. GMRI, Inc., No.
4:11–CV–244, 2011 WL 6884797, at *3 (E.D.Mo. Dec. 29, 2011) (J. Fleissig);
Jameson v. Gough, No. 4:09–CV–2021, 2010 WL 716107, at *4 (E.D.Mo. Feb. 24,
2010) (J. Sippel); Moss v. Defender Servs., Inc., 1:08–CV–88, 2009 WL 90136, at
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*3 (E.D.Mo. Jan. 14, 2009) (J. Shaw) (same); Messmer v. Kindred Hosp. St. Louis,
No. 4:08–CV–749, 2008 WL 4948451, at *3 (E.D.Mo. Nov. 10, 2008); (J.
Jackson); Peterson v. Concentra, Inc., 4:07–CV–387, 2007 WL 1459826, at *2
(E.D.Mo. May 16, 2007) (J. Stohr); see also Speraneo v. Zeus Tech., Inc., 4:12–
CV–578, 2012 WL 2885592, at *6 (E.D.Mo. Jul. 13, 2012) (J. Ross.) (denying
Rule 12 motion to dismiss); Breidenbach v. Shillington Box Co., LLC, 4:11–CV–
1555, 2012 WL 85276, at *7 (E.D.Mo. Jan. 11, 2012) (J. Hamilton) (same);
Shivers v. City of University City, 4:09–CV–630, 2010 WL 431791, at * 5
(E.D.Mo. Feb. 2, 2010) (J. Limbaugh Jr.) (same); but see Warren v. Dr.
Pepper/Seven Up Mfg. Co., 4:13–CV–526, 2013 WL 4507846, at *3 (E.D.Mo.
Aug. 23, 2013) (J. Webber) (denying motion to remand); Borders v. Trinity Marine
Products, Inc., No. 1:10–CV–146, 2011 WL 1045560, at *1–2 (E.D.Mo. Mar. 17,
2011) (J. Autrey) (same, based on older case law).
The merits of the Plaintiff’s action are not before the court. Rather, at this
stage of the litigation the court must determine whether “there is even a possibility
that a state court would find that the complaint states a cause of action against any
one of the resident defendants....” Boyer v. Snap–On Tools Corp., 913 F.2d 108,
111 (3d Cir.), cert. denied, 498 U.S. 1085 (1991); 913 F.2d at 111 (citation
omitted). In so doing, the court has “resolve[d] all contested issues of substantive
fact in favor of the plaintiff and [has] resolve[d] any uncertainties as to the current
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state of controlling substantive law in favor of the plaintiff.” Id. (citations omitted).
“[J]oinder is fraudulent ‘where there is no reasonable basis in fact or colorable
ground supporting the claim against the joined defendant, or no real intention in
good faith to prosecute the action against the defendant or seek a joint judgment.’ ”
Id. (citation omitted).
Conclusion
Plaintiff’s Petition sets out her theory of Defendant Roehr’s involvement and
participation in the distribution of the taser. Moreover, Plaintiff details her belief
that Roehr was aware of the alleged dangers of this product and failed to take steps
to warn users of the dangers. As such, Plaintiff has stated a claim against Roehr
for the purposes of the motion to remand. Defendant is free to challenge the
sufficiency of these allegations in the state court. This Court, however, is without
jurisdiction over the matter for lack of complete diversity.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff's Motion to Remand, [Doc. No. 9], is
granted.
IT IS FURTHER ORDERED that this case is remanded to the Circuit Court of

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St. Louis County, State of Missouri.
Dated this 7th day of August, 2015.

________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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