Powers et al v. Union Pacific Railroad Company et al

Filing 25

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that that the motion of Plaintiffs to remand this case to state court is DENIED. (Doc. No. 7 .) IT IS FURTHER ORDERED that Plaintiffs' claim against Wireless Horizon, Inc. is hereby DISMISSED without prejudice. IT IS FURTHER ORDERED that the motion of Union Pacific Railroad Company for leave to conduct jurisdictional discovery is DENIED as moot. (Doc. No. 12.) Signed by District Judge Audrey G. Fleissig on November 20, 2015. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JODI LYNNE POWERS, individually and )
as next friend for D.A.P.,
)
)
Plaintiffs,
)
)
v.
)
)
UNION PACIFIC RAILROAD CO., et al., )
)
Defendants.
)

Case No. 4:15CV00955 AGF

MEMORANDUM AND ORDER
This matter is before the Court on the motion (Doc. No. 7) of Plaintiffs Jodi
Powers and D.A.P. to remand this case to state court, and the motion (Doc. No. 12) of
Defendant Union Pacific Railroad Company (“Union Pacific”) for leave to conduct
limited discovery on jurisdictional issues relating to the motion to remand. For the
reasons stated below, the Court will deny both motions.
BACKGROUND
This case is a wrongful death action regarding the collapse of a communications
tower on March 25, 2014, in Pottawatomie, Kansas, which killed decedent Martin Powers
and his co-worker Seth Garner. At the time of the collapse, decedent was employed by
Defendant Wireless Horizon, Inc. (“Wireless”), which was allegedly a subcontractor
working on behalf of Union Pacific to dismantle the tower. On March 27, 2015,
Plaintiffs Jodi Powers and D.A.P., decedent’s wife and daughter, brought suit in state

court against Union Pacific, Wireless, Sabre Industries, Inc., and Sabre Communications
Corp. (the latter two, collectively “Sabre”),1 as well as against five John Doe Defendants,
not yet identified, who were allegedly co-employees of decedent and Garner. The
complaint states claims for negligent supervision, against Union Pacific (Count I);
negligent hiring/selection, against Union Pacific (Count II); strict liability, against Sabre
and Union Pacific (Count III); negligent design, against Sabre and Union Pacific (Count
IV); co-employee liability, against the John Doe Defendants (Count V); and conduct with
the specific purpose of injury, against Wireless (Count VI).
On June 17, 2015, Union Pacific removed the action to this Court based on 28
U.S.C. § 1332(a) diversity jurisdiction.2 The notice of removal alleged that jurisdiction
was proper because the amount in controversy exceeds $75,000, and because Plaintiffs
are residents of Missouri, Union Pacific is a Delaware corporation with its principal place
of business in Nebraska, Sabre Industries, Inc. is a Delaware corporation with its
principal place of business in Texas, and Sabre Communications Corp. is an Iowa
corporation with its principal place of business in Iowa. In its notice of removal, Union
Pacific concedes that Wireless is a Missouri corporation with its principal place of
business in Missouri, but it argues that the citizenship of Wireless does not destroy
diversity and should be disregarded, in that it was fraudulently joined. In support of this
assertion, Union Pacific argues that there exists no basis in fact or law for the Court to
1

Plaintiffs allege that Sabre designed, tested, manufactured, marketed, sold, and/or
constructed the tower in question with Union Pacific.
2
Sabre consented to the removal by Union Pacific, but Wireless, which has yet to
appear before the Court, did not. Union Pacific contends that it does not need the consent
of Wireless to remove because Wireless was fraudulently joined.
2

exercise jurisdiction over Plaintiffs’ sole claim against Wireless, in that this claim is
subject to the exclusive jurisdiction of either the Missouri or Kansas workers’
compensation systems. In the alternative, Union Pacific argues that the joinder of
Wireless was fraudulent in that Plaintiffs fail to state a claim against it as a matter of law.
Union Pacific argues that Plaintiffs have not pleaded sufficient facts demonstrating that
Wireless acted “intentionally” or “purposely” in causing the death of decedent and his coworker.
On June 22, 2015, Plaintiffs moved to remand this case to state court due to a lack
of complete diversity between Plaintiffs and Defendants. Plaintiffs argue that Wireless
was not fraudulently joined under Missouri’s workers’ compensation statute. First,
Plaintiffs contend that the exclusivity provision of Missouri’s Workers’ Compensation
Act is not a jurisdictional bar, but rather, an affirmative defense which must be raised by
Wireless, as employer of decedent. As Wireless has not raised this defense, Plaintiffs
contend that it has been waived and that Union Pacific cannot raise the defense in its
place. Additionally, Plaintiffs argue that even if workers’ compensation exclusivity has
been implicated, the proper remedy is to stay the case pending the determination by the
workers’ compensation commission whether the tower collapse was accidental or not,
and if the collapse is found not to have been a total accident, Plaintiffs may then proceed
with their intentional tort claims against Wireless. Plaintiffs argue that because this Court
cannot make such a determination at this stage, Plaintiffs have a reasonable basis in fact
and law supporting Count VI, and that therefore Wireless was not fraudulently joined and

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the case should be remanded for lack of complete diversity. Plaintiffs further contend
that the complaint contains sufficient factual allegations to state a claim against Wireless.
In response to Plaintiffs’ motion to remand, Union Pacific argues that Kansas law,
rather than Missouri law, should control Plaintiffs’ claim against Wireless, as that is
where the incident occurred. Union Pacific argues that under Kansas law, workers’
compensation is the exclusive remedy for even intentional tort claims, and serves as a
total jurisdictional bar to tort recovery.3 Moreover, Union Pacific argues that even if
Missouri law applies, Missouri case law makes clear that workers’ compensation is the
exclusive remedy for Plaintiffs’ claim against Wireless. Union Pacific argues that the
availability of the workers’ compensation exclusivity defense hinges on whether the
incident at issue was accidental or intentional, an issue which is within the sole authority
of the workers’ compensation commission to decide. As in its notice of removal, Union
Pacific also argues that, workers’ compensation exclusivity notwithstanding, the
complaint fails to state an intentional tort claim against Wireless because it does not
allege sufficient facts in support, which constitutes a separate basis to establish fraudulent
joinder.
Alternately, Union Pacific asks the Court to stay its decision on Plaintiffs’ motion
to remand pending limited jurisdictional discovery. Union Pacific argues that it believes
that Plaintiffs have filed a workers’ compensation claim, but that it does not know
whether such a claim was filed in Missouri or Kansas, or the status of such claim. Union
3

Union Pacific notes that Plaintiffs do not address Kansas law whatsoever in their
motion to remand, and speculate that Plaintiffs may be assuming that Missouri law
applies because they may have filed a workers’ compensation claim in Missouri.
4

Pacific argues that because a workers’ compensation claim may have already determined
whether the incident was accidental or intentional, such information could be dispositive
of whether Plaintiffs can state a claim against Wireless, or whether Wireless was
fraudulently joined. Thus, Union Pacific contends that jurisdictional discovery into this
issue is appropriate.
Contemporaneously with its response brief, Union Pacific filed a motion to stay
the case and allow Union Pacific limited jurisdictional discovery. In addition to
reiterating its belief that Plaintiffs may have an existing workers’ compensation claim,
Union Pacific argues that Plaintiffs may have reached a settlement or other agreement
with Wireless, given that Wireless has not entered an appearance in this case, despite
having been served several months ago.4 Union Pacific argues that both of these issues
are critical to the determination of whether Plaintiffs have stated (and still have) a viable
claim against Wireless, and in turn whether the citizenship of Wireless should be
considered with respect to the Court’s diversity jurisdiction in this case.
Plaintiffs did not file a reply to Union Pacific’s brief in opposition to their motion
to remand, or a response to Union Pacific’s motion for jurisdictional discovery, and the
time to do so has passed.
On August 20, 2015, the Court ordered the parties to submit supplemental
memoranda briefing the Court on whether Missouri law or Kansas law controls Plaintiffs’
claim against Wireless, and how this choice of law impacts Union Pacific’s motion to

4

In its notice of removal, Union Pacific states that Wireless was served in this
matter “on or about May 15, 2015.” (Doc. No. 1 at 2.)
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remand. Plaintiffs, Sabre Communications Corp., and Union Pacific all submitted briefs
in response to this Order.
Plaintiffs construe the question as a conflict between the workers’ compensation
laws of Missouri and Kansas, important in that Missouri contains an exception to
workers’ compensation exclusivity in cases where injury results from intentional acts of
the employer, while Kansas law contains no such exception. Plaintiffs argue that, under
Missouri’s choice of law rules, Missouri’s workers’ compensation statute will control
because it contains a statutory directive that Missouri law shall apply to “all injuries
received and occupational diseases contracted outside of this state under contract of
employment made in this state.” Doc. No. 19 at 4 (quoting Mo. Rev. Stat. § 287.110(2)).
Plaintiffs contend that, though the incident occurred in Kansas, Wireless and decedent
entered into their employment contract in Missouri, and therefore Missouri law should
control.5 Alternately, Plaintiffs argue that under the “most significant relationship test”
followed by Missouri courts, Missouri law should still control because the conduct
causing the injury (the decisions made by Wireless) occurred at least partly in Missouri,
Wireless and decedent are both Missouri citizens, and the relationship between these two
parties is based in Missouri. Plaintiffs argue that under either analysis, Missouri law
should control and the case should be remanded to state court.
Union Pacific and Sabre construe the conflict as one between the wrongful death
laws of Missouri and Kansas. They argue that under Missouri law, the default rule is that

5

Plaintiffs have not submitted any evidence regarding decedent’s employment
contract, and no such facts were pleaded in their complaint.
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the state where the injury occurred determines the rights and liabilities of the parties,
unless some other state has a more significant relationship with the occurrence and the
parties. These Defendants argue that there is no reason to disturb the presumption that
Kansas law controls, and that in any event, Kansas has the most significant relationship to
this case, in that the injury occurred in Kansas, the conduct causing the injury (the
deconstruction of the tower) occurred in Kansas, and the relationship between the parties
in this case is centered in Kansas, where the deconstruction was to occur. Moreover,
Union Pacific and Sabre argue that Kansas has a stronger interest in its law governing
this case than Missouri does because the incident and the conduct leading up to it both
occurred within its borders. Finally, these Defendants argue that because Kansas law
applies, the Court must recognize the exclusivity of Kansas’ workers’ compensation law
as a jurisdictional bar, meaning that Plaintiffs’ claim against Wireless fails as a matter of
law and that Wireless was fraudulently joined. Therefore, Union Pacific and Sabre argue
that the Court should deny Plaintiffs’ motion to remand the case.
DISCUSSION
This Court has recently addressed the arguments presented by the parties here, in
the context of another wrongful death case brought by the survivors of decedent’s coworker Seth Garner, involving nearly identical issues to those presented here, Garner v.
Union Pacific Railroad Co., No. 4:15-CV-00733-AGF, Doc. No. 31 (E.D. Mo.
November 20, 2015). The Court concluded in that case that the workers’ compensation
laws of Missouri and Kansas conflicted, and that it was necessary to first determine

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which state’s law controlled the plaintiffs’ claim against Wireless before deciding
whether Wireless was fraudulently joined.
The Court applied the choice-of-law rules of Missouri, which utilizes the “most
significant relationship” test stated in the Restatement (Second) of Conflicts of Law. See
Kennedy v. Dixon, 439 S.W.2d 173, 184 (Mo. 1969). The Court noted that although the
Garner plaintiffs and Wireless were all Missouri citizens and the employment
relationship between Wireless and the decedent was based in Missouri, the place of injury
and the place of Wireless’s alleged misconduct were both in Kansas. Garner, Doc. No.
31 at 11. Based on these contacts, the Court concluded in Garner that Missouri did not
have a more significant relationship with the case than Kansas, and that therefore the law
of Kansas, as the place where the injury occurred, controlled the plaintiffs’ claim against
Wireless, and that the claim was barred to the extent it would be so under Kansas law.
Id. at 13-14; see also Anderson v. Commerce Constr. Servs., Inc., 531 F.3d 1190, 119798 (10th Cir. 2008) (finding that a worker’s personal injury suit against his general
contractor was barred by Kansas law, which applied because Kansas law had the most
significant relationship with the parties and the incident, which occurred in Kansas).
The Court determined in Garner that under the law of Kansas, because the
plaintiffs could have brought a claim under Kansas’ workers’ compensation statute, the
plaintiffs were barred from bringing a tort claim against Wireless and could only obtain
recovery through the state’s workers’ compensation system. The Court cited several
cases supporting its finding in Garner that Kansas’ workers’ compensation statute acted
as a complete bar to the plaintiff’s tort claim against Wireless. See Anderson, 531 F.3d at
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1197-98; Beam v. Concord Hospitality, Inc., 873 F. Supp. 491, 497-98 (D. Kan. 1994);
Robinett v. Haskell Co., 12 P.3d 411, 414 (Kan. 2000). The Court held in Garner that
Wireless was fraudulently joined, because there was no reasonable basis for predicting
that Kansas law might impose liability on Wireless based on the facts the plaintiffs
alleged. Garner, Doc. No. 31 at 15. As a result, the Court denied the plaintiffs’ motion
to remand in Garner, and denied Union Pacific’s motion for jurisdictional discovery as
moot. Furthermore, the Court in Garner followed the approach of the Eighth Circuit and
this District, and sua sponte dismissed the plaintiffs’ claim against the fraudulently joined
Wireless for lack of subject matter jurisdiction, pursuant to Federal Rule of Civil
Procedure 12(b)(1). See Wivell v. Wells Fargo Bank, N.A., 773 F.3d 887, 896 (8th Cir.
2014); Block v. Toyota Motor Corp., 665 F.3d 944, 951 (8th Cir. 2011); Wichmann v.
Proctor & Gamble Mfg. Co., No. 4:05CV1095 HEA, 2005 WL 2176922, at *3 (E.D. Mo.
Sept. 8, 2005).
Upon review of the record in the present case, including the parties’ arguments
and supplemental authority, the Court will follow the approach taken in Garner.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that that the motion of Plaintiffs to remand this case
to state court is DENIED. (Doc. No. 7.)
IT IS FURTHER ORDERED that Plaintiffs’ claim against Wireless Horizon,
Inc. is hereby DISMISSED without prejudice.

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IT IS FURTHER ORDERED that the motion of Union Pacific Railroad
Company for leave to conduct jurisdictional discovery is DENIED as moot. (Doc. No.
12.)

_________________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 20th day of November, 2015

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