Livingston v. RehabCare Group East, Inc. et al

Filing 28

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Defendant MGMs Motion to Dismiss Plaintiffs Complaint (ECF No. 14 ) is GRANTED, and MGM is DISMISSED as a Defendant to this matter. IT IS FURTHER ORDERED that Plaintiffs Motion for Remand (ECF No. 18 ) is DENIED. Midwest Geriatric Management, LLC terminated. Signed by District Judge Jean C. Hamilton on 6/15/16. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CHERYL LIVINGSTON,
Plaintiff,
v.
REHABCARE GROUP EAST, INC.,
MIDWEST GERIATRIC MANAGEMENT,
LLC, and MARY ANN REIFSCHNEIDER,
Defendants.

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No. 4:16CV362 JCH

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MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s Motion for Remand, and Defendant
Midwest Geriatric Management, LLC’s (“MGM”) Motion to Dismiss Plaintiff’s Complaint.
(ECF Nos. 18, 14). The motions are fully briefed and ready for disposition. For the reasons set
forth below, the Motion to Dismiss shall be granted, and the Motion for Remand shall be denied.
BACKGROUND
On or about January 20, 2016, Plaintiff Cheryl Livingston filed a Petition for
Employment Discrimination in Violation of the Missouri Human Rights Act (hereinafter
“Complaint” or “Compl.”) against Defendants RehabCare Group East, Inc. (“RehabCare”),
MGM and Mary Ann Reifschneider (“Reifschneider”) in the Circuit Court of St. Louis County,
Missouri. (ECF No. 5). In her Complaint Plaintiff, a 54-year-old female, alleged that at all
relevant times she was a Licensed Physical Therapy Assistant with RehabCare.1 (Id., ¶¶ 3, 4).
As part of her duties Plaintiff worked at various facilities located in or around St. Louis,
including Bentwood Nursing Facility, an entity allegedly owned by MGM. (Id., ¶¶ 16, 17).

1 Plaintiff alleges she was hired by RehabCare in January of 2000. (Compl., ¶ 15).
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According to Plaintiff, during the three years preceding the filing of her Complaint, she
experienced severe loss circulation to her right foot. (Compl., ¶ 18). The condition ultimately
required multiple surgeries, but before she could have a second operation Plaintiff suffered a
heart attack on or about September 26, 2014. (Id., ¶¶ 18-20). While she awaited permission to
have the second surgery, Plaintiff’s foot was placed first in a cast, and later in a walking boot,
which required Plaintiff to utilize a walker and caused her to develop a distinctive limp. (Id., ¶¶
21-23). Plaintiff alleged that Department Head of Bentwood Nursing Sarah Woodward ridiculed
her for her limp, reprimanded her for not walking closer to a patient, and instructed her not to use
her walker. (Id., ¶¶ 26-27).
Plaintiff maintained that she requested accommodations from Defendants while her
mobility was limited, including that she not be assigned “home health2,” that she be transferred
to a closer facility, and that she receive assistance with heavyset patients or not be assigned such
patients, but that Defendants refused all such requests. (Compl., ¶¶ 31-37). Plaintiff further
alleged that RehabCare informed her she was required to work 30 hours per week in order to
retain her benefits, and thus she was forced to work weekends. (Id., ¶¶ 24-25).
Based on the foregoing allegations, Plaintiff asserted claims for disability discrimination,
age discrimination, and retaliation against all Defendants. On March 17, 2016, RehabCare
removed the case to this Court on the basis of diversity jurisdiction. (ECF No. 1). As grounds
for the removal, RehabCare noted that at all relevant times Plaintiff was a citizen and resident of
Missouri, RehabCare was a citizen of Kentucky and Delaware, and Reifschneider was a citizen
and resident of Illinois.

(Id., ¶¶ 18-20).

With respect to Defendant MGM, RehabCare

maintained that although it was a Missouri corporation, its citizenship should be ignored because

2 According to Plaintiff, “home health” requires that the physical therapy assistant travel to
patients’ homes to care for them. (Compl., ¶ 32).
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the allegations against it do not state a basis for recovery, and thus MGM’s joinder was
fraudulent and should not prevent removal. (Id., ¶¶ 21-35).
As noted above, MGM filed a Motion to Dismiss on April 5, 2016, asserting Plaintiff’s
claims against it must be dismissed for failure to state a claim upon which relief may be granted.
(ECF No. 14). In addition to responding to MGM’s motion, Plaintiff filed her Motion for
Remand on April 21, 2016. (ECF No. 18).
DISCUSSION
Generally, 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(a). Federal
district courts have original jurisdiction over civil actions where the matter is between citizens of
different states, and the amount in controversy is greater than $75,000.3 28 U.S.C. § 1332(a)(1).
Such cases thus may be removed, provided 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)(2). “Removal statutes are strictly construed, and any doubts about the propriety of
removal are resolved in favor of remand.” Byrd v. TVI, Inc., 2015 WL 5568454, at *1 (E.D. Mo.
Sept. 21, 2015) (citation omitted); see also In re Business Men's Assurance Co. of America, 992
F.2d 181, 183 (8th Cir. 1993).
In the instant case, as noted above both Plaintiff and Defendant MGM are citizens of the
State of Missouri. Complete diversity of citizenship therefore does not exist, and removal is
precluded unless Defendant MGM was fraudulently joined. See Knudson v. Systems Painters,
Inc., 634 F.3d 968, 976 (8th Cir. 2011) (internal quotation marks and citations omitted) (“[A]
plaintiff cannot defeat a defendant’s right of removal by fraudulently joining a defendant who
has no real connection with the controversy.”)

“The purpose of this [fraudulent joinder]

3 Plaintiff does not dispute that the amount in controversy here is greater than $75,000.
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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. (citation omitted).
Joinder of a defendant is fraudulent where there exists no reasonable basis in law or fact
to support the claim asserted against it. Hubbard v. Federated Mut. Ins. Co., 799 F.3d 1224,
1227 (8th Cir. 2015). “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.”
Waller v. Blast Fitness Group, LLC, 2015 WL 7737298, at *3 (E.D. Mo. Dec. 1, 2015) (internal
quotation marks and citations omitted). The question turns on whether the plaintiff might have a
“colorable” claim against the non-diverse or resident defendant. Junk v. Terminix Int'l Co., 628
F.3d 439, 446 (8th Cir. 2010), cert. denied, 132 S.Ct. 94 (2011). If not, the joinder is fraudulent
and dismissal of the defendant is proper. See Thompson v. R.J. Reynolds Tobacco Co., 760 F.3d
913, 918 (8th Cir. 2014); Filla v. Norfolk Southern Ry. Co., 336 F.3d 806, 810 (8th Cir. 2003)
(internal quotation marks and citation omitted) (“[I]f 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.”). At all times Defendant
RehabCare, as the removing party alleging fraudulent joinder, bears the burden of proving the
alleged fraud. Waller, 2015 WL 7737298, at *3.
Applying the foregoing standards to the instant case, the Court finds that for Plaintiff to
survive Defendants’ fraudulent joinder challenge, there must be “a reasonable basis for believing
Missouri might impose liability against” Defendant MGM for disability discrimination, age
discrimination, and/or retaliation. See Wilkinson v. Shackelford, 478 F.3d 957, 964 (8th Cir.
2007). All of Plaintiff’s claims are brought under the Missouri Human Rights Act (“MHRA”),
which provides in relevant part as follows:
1. It shall be an unlawful employment practice:
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(1) For an employer, because of the….age or disability of any individual:
(a) To fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such
individual’s….age or disability…
It shall be an unlawful discriminatory practice:….
(2) To retaliate or discriminate in any manner against any other person
because such person has opposed any practice prohibited by this chapter
or because such person has filed a complaint, testified, assisted, or
participated in any manner in any investigation, proceeding or hearing
conducted pursuant to this chapter.
See Mo.Rev.Stat. §§ 213.055, 213.070. Under the MHRA, an “employer” is defined as “…any
person employing six or more persons within the state, and any person directly acting in the
interest of an employer…” Mo.Rev.Stat. § 213.010(7). Although the term “employee” is not
expressly defined by the MHRA, Missouri courts have signaled an intention to utilize a
definition similar to those used in analogous federal statues, such as the ADA and ADEA, which
both define “employee” as “an individual employed by an employer…” See 42 U.S.C. §
12111(4); 29 U.S.C. § 630(f); see also Sloan v. Bankers Life & Cas. Co., 1 S.W.3d 555, 562
(Mo. App. 1999). The MHRA thus applies only to employer-employee relationships, and so the
Court must determine whether Plaintiff had an employer-employee relationship with MGM.
Sloan, 1 S.W.3d at 562; see also Sowers v. Gatehouse Media Missouri Holdings, Inc., 2010 WL
1633389, at *12 (E.D. Mo. Apr. 22, 2010) (citations omitted) (“Only an ‘employer’ may be
liable under the ADEA or MHRA.”).
Upon consideration, the Court finds that Plaintiff’s own submissions defeat her claim for
employment discrimination on Defendant MGM’s part. Specifically, the Court notes that in her
Complaint Plaintiff asserts she was hired by RehabCare, and assigned to work at a nursing
facility owned by MGM. (Compl., ¶¶ 15-17). While Plaintiff argues in her Motion to Remand
that MGM qualifies as an employer under the MHRA, she does not plead or assert that MGM
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was her employer. Instead, Plaintiff attempts to rely on a purported relationship between MGM
and RehabCare, apparently in the nature of a joint venture, but she offers no evidence to support
the existence of such an affiliation. Under these circumstances, there exists no reasonable basis
in law or fact for Plaintiff’s claims of employment discrimination against MGM, and thus
RehabCare and MGM have met their burden of showing MGM was fraudulently joined. See
Coleman v. Carnahan, 312 S.W.3d 377, 380 (Mo. App. 2010) (dismissing the plaintiff’s claims
under Mo.Rev.Stat. § 213.070 because he failed to “allege any potential or actual
employer/employee relationship between the parties”). MGM’s Motion to Dismiss will therefore
be granted, and Plaintiff’s Motion for Remand will be denied.4
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendant MGM’s Motion to Dismiss Plaintiff’s
Complaint (ECF No. 14) is GRANTED, and MGM is DISMISSED as a Defendant to this
matter.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Remand (ECF No. 18) is
DENIED.

Dated this 15th

Day of June, 2016.

\s\ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

4 Plaintiff remains free to file a motion to amend her complaint, with a copy of the proposed
amended complaint attached. If the Court grants leave to file the amended complaint, Plaintiff
then may renew her motion for remand if she believes the circumstances so warrant.
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