Waller v. Blast Fitness Group, LLC et al

Filing 45

MEMORANDUM AND ORDER...IT IS HEREBY ORDERED that Plaintiffs motion to remand is DENIED. (Doc. No. 16 .) IT IS FURTHER ORDERED that the motion of Defendants Annette Miller and Blast Fitness Jefferson, LLC, to dismiss the complaint against them for failure to state a claim is GRANTED. (Doc. No. 11 .) (BLAST FITNESS JEFFERSON, LLC and ANNETTE MILLER terminated.) Signed by District Judge Audrey G. Fleissig on 12/1/2015. (NEB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
TERRY WALLER,
Plaintiff,
v.
BLAST FITNESS GROUP, LLC, et al.,
Defendants.

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Case No. 4:15CV00586 AGF

MEMORANDUM AND ORDER
This employment discrimination matter is before the Court on Plaintiff Terry
Waller’s motion to remand the case to state court, and the motion of Defendants Blast
Fitness Jefferson, LLC, and Annette Miller to dismiss to complaint as to them for failure
to state a claim. For the reasons set forth below, the motion to remand shall be denied,
and the motion to dismiss shall be granted.
BACKGROUND
On February 20, 2015, Plaintiff filed a three-count petition in Missouri state court
asserting state law claims against five corporate Defendants (Blast Fitness Group, LLC
(“BFG”); Blast Fitness Group Personal Training, LLC; Blast Fitness Acquisition, LLC;
Blast Fitness Jefferson, LLC; and World Gym Fitness & Aerobics of West Hartford, Inc.
(“World Gym”) and two individual Defendants (Edgar Thompson and Annette Miller).
Plaintiff’s petition asserted that “Blast Fitness Group owns and operates health club
facilities under the trade name Blast Fitness . . . .” and that the five corporate Defendants
“were doing business jointly and in concert with each other as ‘Blast Fitness,’ which is a

health club located [on Dorsett Road, Maryland Heights, Missouri, where the] unlawful
employment acts took place.” (Doc. No. 3 at ¶¶ 6, 11.) Miller is the general manager of
the Dorsett facility, and Thompson was the regional manager of a region that included
that facility.
Plaintiff alleges the following, which the Court accepts as true in for the purposes
of both motions under consideration: On February 10 or 11, 2013, he signed a gym
membership with “Defendants” at their health club on Dorsett Road, and was asked by
Miller, the general manager of the facility, if he still wanted a job pursuant to his
employment application completed in 2012. Plaintiff interviewed for the position on
February 12, 2013, and was offered the job “on the spot” by Thompson. The next day,
Thompson called Plaintiff and told him to “bring his paperwork in,” which Plaintiff did
“immediately.” On February 21, 2015, after not hearing about his “start date,” Plaintiff
texted Thompson to try to get a start date for his employment with “Defendants.”
Thompson asked him some sexually explicit questions and when Plaintiff told Thompson
he needed a job, Thompson alluded, and then explicitly told Plaintiff that he would get
the job only in return for sexual favors. Plaintiff did not accede, but rather on February
27, 2013, filed a charge of sexual harassment and retaliation with the Missouri Human
Rights Commission and the Equal Employment Opportunity Commission.
Plaintiff listed the discriminating employer as “Blast Fitness” on Dorsett Road.
(Doc. No. 11-2.) The only involvement of Miller noted in the charge of discrimination is
that she copied Plaintiff’s paperwork that he brought in to the Dorsett Road gym on
February 14, 2013. Upon receipt of a right-to-sue letter, Plaintiff filed the present action
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claiming in Count I, sexual harassment in violation of the Missouri Human Right Act
(“MHRA”). He alleges that all Defendants “failed to prevent and/or stop the sexual
harassment of Plaintiff.” In Count II Plaintiff asserts a hostile work environment claim
under the MHRA against all Defendants, and in Count III, he asserts a claim for negligent
infliction of emotional distress, against Thompson only.
Plaintiff is a resident of Missouri. Blast Fitness Group Personal Training, LLC;
and Blast Fitness Acquisition, LLC, are wholly owned by BFG, none of whose members
are citizens of Missouri. Thompson is a Georgia resident. Miller and Blast Fitness
Jefferson, LLC, are citizens of Missouri.
On April 6, 2015, Blast Fitness Group, LLC, and Blast Fitness Acquisition, LLC,
removed the case to this Court based on diversity jurisdiction. They stated in the Notice
of Removal that the only proceedings that occurred in the case to the date of removal
were service of the petition on March 9, 2015, on Blast Fitness Acquisition, LLC, and
Blast Fitness Jefferson, LLC; service of the petition on Miller on March 12, 2015; and
service of the petition on World Gym on March 14, 2015. The removing Defendants
argued that the two Missouri Defendants – Miller and Blast Fitness Jefferson, LLC, –
were not proper parties and therefore are not considered for purposes of diversity, under
the doctrine of fraudulent joinder. According to the removing Defendants, Blast Fitness
Jefferson, LLC, “is not the fitness club at issue in Plaintiff’s charge of discrimination or
in the Petition. Rather, this is simply another fitness club also owned by Blast Fitness
Group, LLC in Missouri;” and “[b]ased upon Plaintiff’s allegations in the petition,
Annette Miller did not have any involvement in the alleged harassing conduct at issue.”
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The removing Defendants noted that the two Missouri Defendants were not named in the
administrative charge.
On April 30, 2015, Miller and Blast Fitness Jefferson, LLC, jointly moved for
dismissal of the complaint as to them for failure to state a claim. On the same day,
Plaintiff voluntarily dismissed World Gym (without prejudice). On May 5, 2015,
Plaintiff moved to remand the case to state court, arguing that Miller and Blast Fitness
Jefferson, LLC, were not fraudulently joined, and thus there is not complete diversity.
Plaintiff asserts that the failure to name Miller in the administrative charge does not
preclude his claim against her because she had actual notice of the charge and an
opportunity to participate in the proceedings. Plaintiff submits Miller’s affidavit dated
June 3, 2013, that was part of the Missouri Human Rights Commission’s record in
investigating Plaintiff’s charge. Miller attests that “[A]t no time did [Plaintiff] tell [her
that] Thompson had said or done anything inappropriate.” (Doc. No. 16-6.)
With respect to a possible claim against the other Missouri citizen, Blast Fitness
Jefferson, LLC, Plaintiff argues as follows:
As Regional Manager of Blast Fitness, he was the supervisory employee of
Blast Fitness over both Blast Fitness Dorsett Location and Blast Fitness
Jefferson, LLC. As such, he had the power and authority to put the
Plaintiff in either working environment, or both. It is alleged that
Defendant Thompson would not start Plaintiff’s employment or work
schedule with any of the Defendants, including Blast Fitness Jefferson,
LLC, until the quid pro quo sexual favors were completed.
(Doc. No. 16 at 8.)

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On October 5, 2015, while the motion to dismiss and the motion to remand were
pending, the Clerk of Court entered default against Thompson and the four remaining
corporate Defendants.1
DISCUSSION
A defendant may remove an action from state court to federal court if the federal
court would have had original jurisdiction over the action. 28 U.S.C. § 1441. For federal
diversity jurisdiction to exist under 28 U.S.C. § 1332(a)(1), there must be complete
diversity of citizenship between the defendants and plaintiffs. “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 addition, actions where jurisdiction is predicated solely on diversity are
removable only if none “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).
Removal statutes are strictly construed, and any doubts about the propriety of removal are
resolved in favor of remand. In re Business Men’s Assurance Co. of Am., 992 F.2d 181,
183 (8th Cir. 1993); Byrd v. TVI, Inc., No. 4:15 CV 1439 CDP, 2015 WL 5568454, at *1
(E.D. Mo. Sept. 21, 2015).
The doctrine of fraudulent joinder is an exception to the complete diversity rule.
Under this doctrine, a defendant’s right to remove an action based on diversity
jurisdiction cannot be defeated by the fraudulent joinder of a non-diverse or resident

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The four corporate Defendants were deemed in default after counsel who was
representing them withdrew, and no new counsel entered an appearance on their behalf.
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defendant. Knudson v. Sys. 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 controversy.”) Joinder of a defendant is fraudulent where “no
reasonable basis in law or fact” exists to support claims asserted against that defendant; in
such a situation, dismissal of the defendant is proper. Thompson v. R.J. Reynolds
Tobacco Co., 760 F.3d 913, 918 (8th Cir. 2014) (citation omitted). Defendant, as the
removing party alleging fraudulent joinder bears the burden of proving the alleged fraud.
See Orrick v. Smithkline Beecham Corp., No. 4:13CV2149 SNLJ, 2014 WL 3956547, at
*3 (E.D. Mo. Aug. 13, 2014); Manning v. Wal–Mart Stores East, Inc., 304 F. Supp. 2d
1146, 1148 (E.D. Mo. 2004).
In determining whether a defendant was fraudulently joined, the district court must
decide “whether there is arguably a reasonable basis for predicting that the state law
might impose liability based upon the facts involved.” Filla v. Norfolk S. Ry. Co., 336
F.3d 806, 811 (8th Cir. 2003). This question turns on whether the plaintiff might have a
“colorable” claim against the resident defendant. Junk v. Terminix Int’l Co., 628 F.3d
439, 446 (8th Cir. 2010). If not, the joinder is fraudulent. Id. This reasonableness
standard requires “the defendant to do more than merely prove that the plaintiff’s claim
should be dismissed pursuant to a Rule 12(b)(6) motion.” Knudson, 634 F.3d at 980; see
also Sikeston Outlet Mall, LLC v. CB Richard Ellis, Inc., No. 4:10-CV-1419 DDN, 2010
WL 4386810, at *1 (E.D. Mo. Oct. 29, 2010) (same).
Further, in making a prediction as to whether state law might impose liability
based on the facts alleged, “the district court should resolve all facts and ambiguities in
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the current controlling substantive law in the plaintiff’s favor,” and should not “step from
the threshold jurisdictional issue into a decision on the merits.” Hudgins v. First Student,
Inc., 853 F. Supp. 2d 883, 886 (E.D. Mo. 2012) (citation omitted). Thus, here, for
Plaintiff to survive Defendants’ fraudulent joinder challenge, there must be “a reasonable
basis for believing Missouri might impose liability against” Blast Fitness Jefferson, LLC,
or Miller under the MHRA or state tort law. See Wilkinson v. Shackelford, 478 F.3d 957,
964 (8th Cir. 2007).
The MHRA makes it an unlawful employment practice to “fail or refuse to hire or
to discharge any individual, or otherwise to discriminate against any individual . . .
because of such individual’s . . . sex . . . .” Mo. Rev. Stat. § 213.055.1. The MHRA
applies to the corporate employer and any person acting in the employer’s interest,
including supervisors. Hill v. Ford Motor Co., 277 S.W.3d 659, 669 (Mo. 2009).
However, such liability only applies to supervisors where they “directly oversaw or were
actively involved in the discriminatory conduct.” Reed v. McDonald’s Corp., 363
S.W.3d 134, 139 (Mo. Ct. App. 2012) (citations omitted).
Plaintiff is correct that the failure to name an entity or supervisor in the
administrative discrimination charge does not necessarily bar suit under the MHRA
against such parties when there is there is “a substantial identity of interest between the
parties sued and those charged.” Hill, 277 S.W. 3d at 669. Federal removal courts will
often leave this determination to the state court. See, e.g., Walters v. Sensient Colors,
LLC, No. 4:14CV1241 HEA, 2015 WL 667986, at *3 (E.D. Mo. Feb. 17, 2015); Tate v.
Family Dollar Stores of Mo., Inc., No. 4:14CV1534 RLW, 2014 WL 7345156, *4 (E.D.
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Mo. Dec. 23, 2014); Parker v. Pinnacle Entertainment, Inc., No. 4:14CV791 RWS, 2014
WL 3827232, *2 E.D. Mo. Aug. 4, 2014).
Here, however, there is no reasonable basis in law or fact for including Blast
Fitness Jefferson, LLC, as a Defendant in this litigation. Put another way, the complaint
is devoid of facts that state a “colorable” claim against this party. The fact that
Thompson could have hired Plaintiff to work at the Fitness Jefferson, LLC, facility does
not suffice for Plaintiff to join this party as a Defendant in this action.
The Court also concludes that the complaint falls short of stating a colorable claim
against Miller. The only actions she allegedly took were asking Plaintiff on February 10
or 11, 2013, if he wanted a job, and copying his paper work for the job when he brought
it in. There is no allegation or hint that she knew about the alleged quid pro quo sexual
harassment by Thompson, or that she was in any way involved in it. For similar reasons,
Plaintiff has not shown that he has a colorable claim these Missouri Defendants for
intentional infliction of emotional distress.
In sum the Court concludes that Defendants have met their burden of showing that
Blast Jefferson, LLC, and Miller were fraudulently joined in this action, and further that
the complaint fails to state a claim against them. Thus Plaintiff’s motion to remand will
be denied, and these Defendants will be dismissed.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s motion to remand is DENIED.
(Doc. No. 16.)
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IT IS FURTHER ORDERED that the motion of Defendants Annette Miller and
Blast Fitness Jefferson, LLC, to dismiss the complaint against them for failure to state a
claim is GRANTED. (Doc. No. 11.)

________________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 1st day of December, 2015.

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