Moore v. Southwestern Bell Telephone Company et al

Filing 37

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiffs Motion to Remand (Doc. No. 24 ) is GRANTED. IT IS FURTHER ORDERED that this matter is REMANDED to the Circuit Court for the Twenty-Second Judicial Circuit, St. Louis City, Missouri. A separate order of remand will accompany this Memorandum and Order. IT IS FURTHER ORDERED that Defendants' Motion for Sanctions (Doc. No. 30 ) is DENIED. Signed by District Judge John A. Ross on 5/10/16. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ROSALIND MOORE,
Plaintiff,

v.
SOUTHWESTERN BELL TELEPHONE
COMPANY, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

Case No. 4:15-CV-1510-JAR

MEMORANDUM AND ORDER

This matter is before the Court on Plaintiff's Motion for Remand (Doc. No. 24). The
Motion is fully briefed and ready for disposition. For the following reasons, Plaintiff's Motion .
will be GRANTED. Also before the Court is Defendants' Motion for Sanctions (Doc. No. 30);
Defendants' Motion will be denied.
I. BACKGROUND

On July 15, 2015, Plaintiff Rosalind Moore filed this action in the Circuit Court for the
City of St. Louis, Missouri, against Defendants Southwestern Bell Telephone Company
("SWBTC") and AT&T Corp., and individual Defendants Jennifer Mujkanovic, Jeffrey Taylor,
and Kevin Gonzalgo.

Mujkanovic was Plaintiff's former immediate supervisor; Taylor and

Gonzalgo were also former supervisors of Plaintiff. In her Petition, Plaintiff alleges that while
an employee of SWBTC, she did not receive an accommodation and was subsequently
discharged due to her disability, in violation of the Missouri Human Rights Act.
Defendant SWBTC removed this action to federal court on October 10, 2015, pursuant to
28 U.S.C. § 1332. On February 3, 2016, Plaintiff filed a Motion to Remand this case to the

1

Circuit Court for the City of St. Louis, Missouri, claiming the parties are not diverse because
Plaintiff and Defendants Mujkanovic and Taylor are citizens of the state of Missouri. Defendants
respond that Plaintiffs Motion to Remand should be denied because Defendants Mujkanovic and
Taylor were not properly named in the Missouri Commission on Human Rights ("MCHR")
charge of discrimination, and are therefore fraudulently joined.
After this action was removed to federal court, Plaintiffs previous counsel, Attorney
Peggy Hardge, who is not admitted to practice before this Court, withdrew her representation and
Plaintiff elected to proceed pro se. In Defendants' Motion for Sanctions, they allege that despite
purportedly appearing pro se, Plaintiff has continued to receive assistance and legal guidance
from Attorney Hardge, and therefore move for sanctions. Among other evidence, Defendants
cite to Plaintiffs interrogatory responses, in which she states that Attorney Hardge aided her in
preparing the responses. Plaintiff did not respond to Defendants' motion.
II. ANALYSIS

Plaintiffs Motion for Remand
Removal statutes are strictly construed, and any doubts about the correctness of removal
are resolved in favor of state court jurisdiction and remand. See Shamrock Oil & Gas Corp. v.

Sheets, 313 U.S. 100, 108-09 (1941); Jn re Bus. Men's Assurance Co. ofAm., 992 F.2d 181, 183
(8th Cir. 1993); 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 seeking removal and opposing remand has the burden of establishing
jurisdiction. Cent. Iowa Power Coop. v. Midwest lndep. Transmission Sys. Operator, 561 F.3d
904, 912 (8th Cir. 2009); City of Univ. City, Missouri v. AT&T Wireless Services, Inc., 229
F.Supp.2d 927, 929 (E.D. Mo. 2002). "A defendant may remove a state law claim to federal

2

court only if the action originally could have been filed there." In re Prempro Products Liability
Litigation, 591 F.3d 613, 619 (8th Cir. 2010) (citing Phipps v. FDIC, 417 F.3d 1006, 1010 (8th

Cir. 2005)). Diversity jurisdiction under 28 U.S.C. § 1332 requires an amount in controversy
greater than $75,000 and complete diversity of citizenship among the litigants. 28 U.S.C. §
1332(a). "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).
There is no dispute that Plaintiff and Defendants Mujkanovic and Taylor are citizens of
the State of Missouri, defeating diversity jurisdiction. However, Defendants contend that this
Court has jurisdiction because Plaintiff failed to name Defendants Mujkanovic and Taylor in her
MCHR complaint and, therefore, they cannot properly be sued and have been fraudulently
joined. In response, Plaintiff argues (in her motion for remand) that (1) Defendants Mujkanovic
and Taylor were mentioned, if not formally named, in her administrative complaints, and (2) the
individual Defendants share a substantial identity of interest with Defendant AT&T Corp., which
was formally named in the administrative complaints.
"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."' Block v.
Toyota Motor Corp., 665 F.3d 944, 948 (8th Cir. 2011) (quoting Junk v. Terminix Int'[ Co., 628

F.3d 439, 446 (8th Cir. 2010)). "'[I]n situations 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 in connection with a motion to remand but simply to remand the case and
leave the question for the state courts to decide."' Junk, 628 F.3d at 446 (quoting Filla v. Norfolk
S. Ry. Co., 336 F.3d 806, 811 (8th Cir. 2003) (citation omitted)).

3

In Hill v. Ford Motor Company, 277 S. W.3d 659 (Mo. 2009), the Missouri Supreme
Court acknowledged that a failure to name an individual defendant in MHRC administrative
proceedings does not bar the individual defendant from being named in the subsequent lawsuit in
every circumstance. Instead, the Missouri Supreme Court explained that "the failure to make [an
individual] a party at the administrative action before the EEOC or the Missouri Commission on
Human Rights ... will bar suit against him only if it resulted in prejudice." Hill, 277 S.W.3d/at
662. "Because Hill holds that there are circumstances under which the case can proceed, despite
the failure to name an individual defendant in the administrative charge, district courts have
concluded that there is a reasonable basis for predicting that the state's law might impose
liability against the defendant." Parker v. Pinnacle Entm't, Inc., No. 4:14 CV 791 RWS, 2014
WL 3827232, at *2 (E.D. Mo. Aug. 4, 2014) (listing cases) (internal quotations omitted). Thus,
in light of the sufficiency of the complaint against non-diverse Defendants Mujkanovic and
Taylor, there is a reasonable basis for prediction that state court jurisdiction is proper, and the
Court will grant Plaintiffs Motion to Remand (Doc. No. 24).
Defendants' Motion for Sanctions

Next, the Court will address Defendants' motion for sanctions due to the unauthorized
practice of law. This Court's local rules state that the Court "may impose sanctions.pursuant to
the Court's inherent authority, Fed. R. Civ. P. 11, 16 or 37, or any other applicable authority, and
/

may initiate civil or criminal contempt proceedings against an attorney appearing in an action in
this Court." E.D.Mo. L.R. 83-12.02. Notably, however, Attorney Hardge does not formally
appear in this action, as she is not authorized to practice law before this Court. As such, while
counsel's actions-such as failing to respond to communications from the Clerk of Court, and
allegedly continuing to assist Plaintiff despite being unauthorized to practice before this Court-

4

may be improper and inappropriate, the Court will not sanction Plaintiff for the actions of her
former attorney. Therefore, without addressing the scope of this Court's authority to sanction
Attorney Hardge, the Court will elect not to impose any sanction at this time.

III. CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs Motion to Remand (Doc. No. 24) 1s
GRANTED.
IT IS FURTHER ORDERED that this matter is REMANDED to the Circuit Court for

the Twenty-Second Judicial Circuit, St. Louis City, Missouri. A separate order of remand will
accompany this Memorandum and Order.
IT IS FURTHER ORDERED that Defendants' Motion for Sanctions (Doc. No. 30) is
DENIED.

Dated this 10th day of May, 2016.

.ROSS
D STATES DISTRICT JUDGE

5