Byrd, III v. TVI, Inc. et al
MEMORANDUM AND ORDER TO SHOW CAUSE. (See Full Order.) IT IS HEREBY ORDERED that defendant TVI shall show cause why this case should not be remanded for the reasons set out herein no later than September 30, 2015. Plaintiff may file his opposition and/or a motion for remand by October 9, 2015. No further briefing or a hearing will be permitted. Signed by District Judge Catherine D. Perry on 9/21/2015. (CBL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
MYRTEN BYRD, III,
TVI, INC., et al.,
Case No. 4:15 CV 1439 CDP
MEMORANDUM AND ORDER TO SHOW CAUSE
This recently removed case is before me on my review for subject matter
jurisdiction. Defendant TVI removed this Missouri Human Rights Act
discrimination case to this Court on September 18, 2015, citing diversity
jurisdiction under 28 U.S.C. § 1332(a)(1). As alleged in the petition, plaintiff was
the store manager of a Savers thrift store in Crestwood, Missouri. Defendants
Tompkins and Baird were managerial employees at his store. Plaintiff alleges that
he was subject to adverse treatment and then suspended and terminated based on
his race. Plaintiff alleges that Baird was moved to his store and then acted as the
store manager even though plaintiff still held that title, and that Baird and
Tompkins worked together to get him suspended and fired. Plaintiff’s state court
petition names TVI (the owner of Savers), Tompkins, and Baird as defendants.
Although plaintiff, Baird, and Tompkins are all citizens of Missouri, TVI argues
that removal was nevertheless proper because Baird and Tompkins are fraudulently
joined. TVI’s basis for this argument is that these two defendants were not named
as employers in plaintiff’s charge of discrimination and they were technically not
his supervisors. According to TVI, Baird and Tompkins cannot be held liable
under the MHRA and must be dismissed from this lawsuit. This argument,
however, is not necessarily correct.
Plaintiff is a citizen of Missouri, TVI is a citizen of Washington, and
Tompkins and Baird are citizens of Missouri. “A defendant may remove a state
law claim to federal court only if the action originally could have been filed there.”
In re Prempro Products Liability Litigation, 593 F.3d 613, 619 (8th Cir. 2010).
“Diversity jurisdiction . . . requires an amount in controversy greater than $75,000
and complete diversity of citizenship among the litigants.” Id. at 619-20.
“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). Here, the parties are not diverse, as
plaintiff, Tompkins, and Baird are all citizens of Missouri. In addition, 28 U.S.C. §
1441(b) allows a defendant to remove a civil action from state court to federal
court based on diversity jurisdiction only if none of the properly joined defendants
are citizens of the state on which the original action was filed. Applying the socalled forum defendant rule here, there is no removal jurisdiction over this case if
one of the defendants is citizen of Missouri because “a defendant may not remove
to federal court on the basis of diversity if any of the defendants is a citizen of the
state where the action was filed.” Hurt v. Dow Chem. Co., 963 F.2d 1142, 1145
(8th Cir. 1992); 28 U.S.C. § 1441(b). TVI, as the party invoking jurisdiction, bears
the burden of proving that all prerequisites to jurisdiction are satisfied. See In re
Business Men’s Assur. Co. of America, 992 F.2d 181, 183 (8th Cir. 1993).
Removal statutes are strictly construed, and any doubts about the propriety of
removal are resolved in favor of remand. Transit Cas. Co. v. Certain Underwriters
at Lloyd’s of London, 119 F.3d 619, 625 (8th Cir. 1997).
As Tompkins and Baird are Missouri citizens and complete diversity of
citizenship does not exist, removal is precluded unless they are fraudulently joined.
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 controversy.” Id. (internal quotation
marks and citation 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). “However, if there is
a colorable cause of action – that is, if the state law might impose liability on the
resident defendant under the facts alleged – then there is no fraudulent joinder.”
Filla v. Norfolk S. Ry. Co., 336 F.3d 806, 810 (8th Cir. 2003) (internal quotation
marks and citation omitted). The standards for determining whether a resident
defendant is fraudulently joined are the same as the standards for determining
whether a diversity-destroying defendant is fraudulently joined. See id. 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.” Id. (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
Id. (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 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)).
To pursue a claim under the MHRA, the statute requires that “[a]ny person
claiming to be aggrieved by an unlawful discriminatory practice” must file a
charge of discrimination “which shall state the name and address of the person
alleged to have committed the unlawful practice and which shall set forth the
particulars thereof.” Mo. Rev. Stat. § 213.075(1). In addition, a “claimant must
exhaust administrative remedies by timely filing an administrative complaint and
either adjudicating the claim through the MCHR or obtaining a right-to-sue letter.”
Tart v. Hill Behan Lumber Co., 31 F.3d 668, 671 (8th Cir. 1994)(citing Mo. Rev.
Stat. §§ 213.075, 213.111(1)). “[A]dministrative complaints are interpreted
liberally in an effort to further the remedial purposes of legislation that prohibits
unlawful employment practices.” Id .
In general, a plaintiff must exhaust his or her administrative remedies by
naming all of those alleged to be involved in the discriminatory behavior in the
administrative charge. See Hill v. Ford Motor Co., 277 S.W.3d 659, 669 (Mo.
2009). But the failure to name a supervisor in the discrimination charge does not
necessarily bar suit against the supervisor. Id. In the Hill decision, the Missouri
Supreme Court wrote that the purpose of naming a party in the charge of
discrimination is “to give notice to the charged party and to provide an avenue for
voluntary compliance without resort to litigation, such as through the EEOC’s
conciliation process.” Id. at 669 (citing Glus v. G.C. Murphy Co., 562 F.2d 880,
888 (3rd Cir. 1977)). It noted that “[t]hese requirements are met when there is a
substantial identity of interest between the parties sued and those charged . . . .” Id.
According to the Missouri Supreme Court, determining whether a sufficient
identity of interest exists requires consideration of the following factors:
(1) whether the role of the unnamed party could through reasonable
effort by the complainant be ascertained at the time of the filing of the
[administrative charge]; (2) whether, under the circumstances, the
interests of a named [party] are so similar as the unnamed party’s that
for the purpose of obtaining voluntary conciliation and compliance it
would be unnecessary to include the unnamed party in the
[administrative] proceedings; (3) whether its absence from the
[administrative] proceedings resulted in actual prejudice to the
interests of the unnamed party; [and] (4) whether the unnamed party
has in some way represented to the complainant that its relationship
with the complainant is to be through the named party.
Id. at 669–70 (citation omitted). In Hill, the Missouri Supreme Court reversed and
remanded the cause of action to the trial court for it to “consider whether the
factors permitting suit to proceed against [the individual], despite failure to join
him during the administrative portion of the process, are satisfied.” Id. at 670.
Therefore, under Missouri law there are certain factual circumstances under
which a plaintiff may pursue a claim against an individual defendant, even though
that defendant was not named as an “employer” in the charge of discrimination.
Here, the Court is unable to determine at this juncture whether a Missouri court
might determine that plaintiff may pursue his claims against the diversitydestroying resident defendants who were not respondents but who were named in
the charge of discrimination. In his charge of discrimination, plaintiff names both
Tompkins and Baird and describes their roles in the allegedly discriminatory
conduct. As TVI bears the burden of establishing all prerequisites for jurisdiction,
I will order it show cause by September 30, 2015, why this case should not be
remanded under the standards set out above. Plaintiff should file his opposition to
defendant’s response and/or a properly supported motion for remand by no later
than October 9, 2015. This Court is mindful that it must not engage in an
intensive factual analysis, as when determining jurisdiction the Court’s “task is
limited to determining whether there is arguably a reasonable basis for predicting
that the state law might impose liability upon the facts involved” and it must
resolve all facts in the plaintiff's favor. Filla, 336 F.3d at 811; Allen v. DAL Global
Services, LLC, 2014 WL 2118007, at * 5 (E.D. Mo. May 21, 2014). The Court
should not step from the threshold jurisdictional issue into a decision on the merits.
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.”). If the issue is debatable,
“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.”
Id. (internal quotation marks and citation omitted); Walters v. Sensient Colors,
LLC, No. 4:14CV1241, 2015 WL 667986, at *4-*5 (E.D. Mo. Feb. 17, 2015) (J.
Autrey); Bock v. Liberty Restaurant Group, No. 4:13CV781, 2013 WL 4504375, at
*3 (E.D. Mo. Aug. 23, 2013) (J. Fleissig); Hall v. Avis Budget Car Rental, LLC.,
No. 4:12CV738, 2012 WL 2191620, at *3 (E.D. Mo. June 14, 2012) (J. Fleissig);
Dones v. Sensient Colors, LLC, No. 4:12CV216, 2012 WL 1802438, at *3 (E.D.
Mo. May 17, 2012) (J. Fleissig); Huye v. Life Care Centers of Am., Inc., No.
4:12CV111, 2012 WL 1605250, at *3 (E.D. Mo. May 8, 2012) (J. Jackson);
Fernandez v. GMRI, Inc., No. 4:11CV244, 2011 WL 6884797, at *3 (E.D. Mo.
Dec. 29, 2011) (J. Fleissig); Jameson v. Gough, No. 4:09CV2021, 2010 WL
716107, at *4 (E.D. Mo. Feb. 24, 2010) (J. Sippel); Moss v. Defender Servs., Inc.,
1:08CV88, 2009 WL 90136, at *3 (E.D. Mo. Jan. 14, 2009) (J. Shaw) (same);
Messmer v. Kindred Hosp. St. Louis, No. 4:08CV749, 2008 WL 4948451, at *3
(E.D. Mo. Nov. 10, 2008) (J. Jackson); Peterson v. Concentra, Inc., 4:07CV387,
2007 WL 1459826, at *2 (E.D. Mo. May 16, 2007) (J. Stohr).
In addition, TVI alleges that the amount in controversy claimed by plaintiff
exceeds $75,000. To remove a case from a state court to a federal court, a
defendant must file in the federal forum a notice of removal “containing a short
and plain statement of the grounds for removal.” 28 U.S.C. ' 1446(a). When
removal is based on diversity of citizenship, an amount-in-controversy requirement
must be met. Ordinarily, “the matter in controversy [must] excee[d] the sum or
value of $75,000.” 28 U.S.C. ' 1332(a). “When the plaintiff’s complaint does not
state the amount in controversy, the defendant’s notice of removal may do so.” 28
U.S.C. ' 1446(c)(2)(a). “[W]hen a defendant seeks federal-court adjudication, the
defendant’s amount-in-controversy allegation should be accepted when not
contested by the plaintiff or questioned by the court.” Dart Cherokee Basin
Operating Co., LLC v. Owens, 135 S. Ct. 547, 553 (U.S. Dec. 15, 2014)
(emphasis supplied). “Evidence establishing the amount in controversy is required
by ' 1446(c)(2)(B) only when . . . the court questions the defendant’s allegation.”
Id. at 554. Here, the Court questions defendant’s allegation regarding the amount
in controversy because plaintiff’s state court petition does not plead an amount in
damages exceeding $75,000.00. Defendant’s Notice of Removal alleges that
plaintiff’s claims exceed the jurisdictional minimum by pointing to plaintiff’s
request for lost wages and rote “Wherefore” clauses in the petition seeking
punitive damages, attorneys’ fees, and costs, but at this point defendant has come
forward with no evidence in the form of discovery responses or settlement offers to
suggest that these damages might be awarded in this case or that, even if so, they
reasonably may exceed the jurisdictional amount. See Jackson v. Fitness Resource
Group, Inc., No. 4:12CV986, 2012 WL 2873668, at *2 (E.D. Mo. July 12, 2012)
(court may consider settlement offers in determining amount in controversy).
IT IS HEREBY ORDERED that defendant TVI shall show cause why this
case should not be remanded for the reasons set out above no later than September
30, 2015. Plaintiff may file his opposition and/or a motion for remand by October
9, 2015. No further briefing or a hearing will be permitted.
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 21st day of September, 2015.
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