Kearns v. Beco Concrete Products, Inc. et al

Filing 19

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiff Brandon Kearnss Motion to Remand Defendants Notice of Removal, (ECF No. 9), is GRANTED, and this matter is REMANDED to the Circuit Court of St. Louis County, Missouri. A separate Order of Remand will accompany this Memorandum and Order.IT IS FURTHER ORDERED that Kearnss request for costs based on improper removal is DENIED. 9 Signed by District Judge Jean C. Hamilton on 7/7/15. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BRANDON KEARNS,

)
)
Plaintiff,
)
)
v.
)
)
BECO CONCRETE PRODUCTS, INC.
)
and
)
J.H. BERRA CONSTRUCTION CO., INC., )
)
Defendants.
)

Cause No.: 4:15-CV-00535 JCH

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff Brandon Kearns’s Motion to Remand
Defendant’s Notice of Removal. (ECF No. 9). The Motion has been fully briefed and is ready for
disposition.
Kearns initiated this action by filing a Petition in the Circuit Court for St. Louis County,
Missouri. (Petition, ECF No. 5). Defendants then timely removed the action to this Court.
(Removal Notice, ECF No. 1). In his Petition, Kearns alleges that he was employed by
Defendants as a laborer. (Petition ¶ 1). He injured his elbow while he was working and
underwent surgery for treatment. Id. ¶¶ 5-10. Kearns was eventually released by his doctors to
return to work. Id. ¶ 11. Despite that release, Defendants never again placed Kearns on the work
schedule or told him when he would be allowed to return. Id. ¶ 13. Kearns therefore claims in his
Petition that Defendants constructively discharged him in retaliation for Kearns’ use of
Missouri’s workers’ compensation statute. Id. ¶ 15.

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Kearns now seeks remand of this action because he brought his claim under Mo. Rev.
Stat. § 287.780, which establishes a cause of action in favor of Missouri workers who are
discriminated against for taking advantage of their workers’ compensation rights.
DISCUSSION
Citing 28 U.S.C. § 1445(c), Kearns correctly contends that actions “arising under” state
workers’ compensation law cannot be removed to federal courts. (Support Memo, ECF No. 10,
at 3). According to Kearns, this is such a case and remand therefore is necessary. Id. Defendants
respond that § 1445(c) does not bar removal in this case because Kearns’s claim has been
completely pre-empted by § 301 of the Labor Management Relations Act (“LMRA”). (Response,
ECF No. 12, at 7). The Court therefore has jurisdiction, and the case was properly removed. Id.
“Removal statutes are strictly construed, and any doubts about the propriety of removal
are resolved in favor of state court jurisdiction and remand.” Manning v. Wal-Mart Stores East,
Inc., 304 F. Supp. 2d 1146, 1148 (E.D. Mo. 2004) (citing Transit Cas. Co. v. Certain
Underwriters at Lloyd’s of London, 119 F.3d 619, 625 (8th Cir. 1997)). The party invoking
federal jurisdiction and seeking removal has the burden of establishing jurisdiction by a
preponderance of the evidence. Hartis v. Chicago Title Ins. Co., 656 F.3d 778, 781-82 (8th Cir.
2009); see also Nicely v. Wyeth, Inc., 2011 WL 2462060 at *2 (E.D. Mo. Jun. 17, 2011). Failure
to demonstrate the existence of federal jurisdiction results in remand. 28 U.S.C. § 1147(c).
The alleged basis for federal jurisdiction here is “federal question” jurisdiction. 28 U.S.C.
§ 1331. The federal question statute grants to district courts “original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the United States.” Id. “[T]he question
whether a claim ‘arises under’ federal law must be determined by reference to the ‘well-pleaded
complaint.’” Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 808 (1986) (citation omitted).

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The parties’ dispute centers on two legal principles that seem to be in tension with each
other. As Kearns notes, actions arising under state workers’ compensation laws are nonremovable. § 1445(c). To determine whether a claim arises under a state’s workers’
compensation law, the Eighth Circuit has adopted the principles of the “arising under” inquiry
used in relation to § 1331, i.e., “a right or immunity created by the Constitution or laws of the
United States must be an element, and an essential one, of the plaintiff’s cause of action . . . .”
Humphrey v. Sequentia, Inc., 58 F.3d 1238, 146 (8th Cir. 1995) (quoting Gully v. First Nat’l
Bank, 299 U.S. 109, 112-13 (1936)). A cause of action therefore arises under a state workers’
compensation statute if a right established by that statute is an essential element of the plaintiff’s
claim. Id. The question in Humphrey regarding § 1445(c) was whether a claim of discrimination
under § 287.780 could be said to arise under Missouri’s workers’ compensation law. The Eighth
Circuit held that it did.
The Eighth Circuit also held in Humphrey that the § 1445(c) rule is subject to the doctrine
of complete pre-emption. Humphrey, 58 F.3d at 1246. The Supreme Court has explained that
certain federal statutes have such force that they can convert a state law “‘complaint into one
stating a federal claim for purposes of the well-pleaded complaint rule.’” Id. at 1242 (quoting
Caterpillar Inc. v. Williams, 482 U.S. 386, 392-93 (1987)). Stated differently, “[o]nce an area of
state law has been completely pre-empted, any claim purportedly based on that pre-empted state
law is considered, from its inception, a federal claim . . . .” Id. at 1242 (quoting Williams, 482
U.S. at 392-93)). Thus, a claim that facially arises under a state workers’ compensation statute
would not be non-removable under § 1445(c) if the claim has been completely pre-empted
because it does not, in actuality, arise under state law. Instead, it is a federal claim at the outset.
One such situation is where a state-law claim is pre-empted by § 301 of the LMRA because the

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claim “requires the interpretation of a collective-bargaining agreement.” Lingle v. Norge Div. of
Magic Chef, Inc., 486 U.S. 399, 413 (1988).
The tension in this case must be resolved in favor of Kearns under Eighth Circuit
precedent. In Johnson v. AGCO Corp., 159 F.3d 1114 (8th Cir. 1998), an assembly line worker
suffered two work-related injuries and filed claims for worker’s compensation based on each. Id.
at 1115. The worker returned to work while his claims were still pending. Id. After a dispute with
his employer about settling those claims, the employer instructed him to take an unpaid leave of
absence. Id. The worker then filed suit in state court under § 287.780. Id. The employer removed
the case to federal court, and the district court found it had jurisdiction over the claim based on
the complete pre-emption doctrine because the outcome would depend on interpretation of
“provisions of the collective bargaining agreement concerning job requirements, ability, and
fitness for duty . . . .” Id. at 1116. The Eighth Circuit reversed. It noted first that an earlier panel
had rejected a similar claim in Humphrey. It also relied on the Supreme Court’s holding in
Williams, 482 U.S. at 398-99, for the rule that “‘[t]he presence of a federal question, even a
§ 301 question, in a defensive argument’ does not render a cause removable . . . .” Id.
This case is substantially indistinguishable from Johnson. Kearns, like the worker in
Johnson, has brought a discrimination claim under § 287.780. One element of this cause of
action is that a plaintiff’s exercise of his workers’ compensation rights was a “contributing
factor” to his employer’s decision to take action against him. Templemire v. W & M Welding,
Inc., 433 S.W.3d 371, 382-84 (Mo. 2014). Defendants contend that this causation inquiry will
inherently involve interpretation of their authority to allow Kearns to return to work, particularly
in relation to the controlling CBA’s “Seniority” provision. (Response at 8). This argument is
mistaken. Defendants have not made a showing that Kearns’s claim depends on such an

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interpretation, only that their defense to his claim will require this interpretation. Under Johnson
and Williams, this does not amount to § 301 pre-emption.
This inadequacy is highlighted through comparison to the primary case on which
Defendants rely, Davis v. Johnson Controls, Inc., 21 F.3d 866 (8th Cir. 1994). In Davis, a
production worker at a manufacturing company suffered a back injury. Id. at 867. About one
year later, the production worker’s physician said he could return to work. Id. The manufacturing
company did not allow the worker to return, and the production worker brought suit under the
Missouri Human Rights Act (“MHRA”), which involved a causation inquiry similar to a
§ 287.780 claim’s inquiry. Id. The manufacturing company contended the production worker’s
claim was pre-empted by § 301 since interpretation of a CBA was necessary. Id. at 868. This was
so, according to the manufacturer, because the production worker made a claim that he was
discriminated against based on a “handicap.” Id. To show the existence of a handicap under the
MHRA requires demonstration of a condition “‘which with or without reasonable
accommodation does not interfere with performing the job.’” Id. (emphasis in original) (quoting
Mo. Rev. Stat. § 213.010(10)). The Eighth Circuit ultimately agreed with the manufacturing
company that interpretation of a seniority provision in the CBA would be necessary because the
seniority provision related directly to the reasonable accommodation inquiry.
There is therefore a critical distinction between this case and Davis. The production
worker in Davis was required under the MHRA to prove that the manufacturing company could
have made a reasonable accommodation to return him to work. This was not merely a defense to
his claim, but an element of the claim itself. Defendants’ arguments are defensive arguments.
They have not attempted show that Kearns’s claim, as pled, depends on an interpretation of the
CBA. The claim therefore is not pre-empted by § 301 under Williams, Johnson, and Humphrey.

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Accordingly,
IT IS HEREBY ORDERED that Plaintiff Brandon Kearns’s Motion to Remand
Defendant’s Notice of Removal, (ECF No. 9), is GRANTED, and this matter is REMANDED
to the Circuit Court of St. Louis County, Missouri. A separate Order of Remand will accompany
this Memorandum and Order.
IT IS FURTHER ORDERED that Kearns’s request for costs based on improper
removal is DENIED.

Dated this 7th day of July, 2015.

/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

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