Young v. White Castle System, Inc. et al

Filing 15

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Plaintiffs Motion to Remand (ECF No. 7 ) is GRANTED. IT IS FURTHER ORDERED that all other pending motions are DENIED as moot. IT IS FURTHER ORDERED that this case is REMANDED to the Circuit Court of St. Louis City, Missouri. A separate Order of Remand will accompany this Signed by District Judge Jean C. Hamilton on 6/9/16. (KJS)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MYKEL YOUNG,
Plaintiff,
v.
WHITE CASTLE SYSTEM, INC.,
et al.,
Defendants.

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Case No. 4:16-cv-00553-JCH

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff Mykel Young’s Motion to Remand, filed May
12, 2016. (ECF No. 7.) Defendant White Castle System, Inc. (“White Castle”) has filed a
Response (ECF No. 10), and the matter is ready for disposition.
BACKGROUND
On August 5, 2014, Plaintiff, a Missouri resident, filed this wrongful death action in the
Circuit Court of St. Louis City, Missouri naming as defendants White Castle and Missouri
residents Frances Moore and Christopher Spates.

In her Complaint, Plaintiff alleges the

following with respect to White Castle and Moore. On or about August 23, 2011, Plaintiff’s
mother was assaulted and shot by Spates at a White Castle restaurant located at 3524 North
Kingshighway in the City of St. Louis (hereinafter, the “Restaurant”). The shooting resulted in
the death of Plaintiff’s mother. At the time, the Restaurant was possessed and controlled by
White Castle and Moore. Moore was the General Manager for White Castle and was responsible
for ensuring that the Restaurant was operated in a safe manner, which included the provision of
adequate security for the protection of all invitees. (ECF No. 1.1 at 1-2.) White Castle and
Moore knew, or through the exercise of ordinary care should have known, that the Restaurant

was the scene of numerous violent crimes during the five years preceding Plaintiff’s mother’s
death, and that the Restaurant therefore was not reasonably safe. “In light of the numerous,
recent and violent crimes at the Restaurant, Defendants White Castle and Moore owed a duty to
provide reasonable security to protect their guests and/or invitees, including Plaintiff’s mother,
from criminal attacks.” Id. at 2-3. The presence of “an adequately trained security force or some
combination of other reasonable security precautions for the [Restaurant] would have deterred
and/or prevented the shooting of [Plaintiff’s mother].” Id. at 3.
Plaintiff asserts that White Castle and Moore were negligent by reason of one or more of
the following acts or omissions, which directly and proximately resulted in the death of her
mother:
(a) Defendants failed to provide competent and reasonably trained security for
the [Restaurant];
(b) Defendants failed to properly monitor the [Restaurant] through adequate
video surveillance and/or employing adequate security personnel;
(c) Defendants failed to properly hire, train, and/or supervise their employees
responsible for monitoring, patrolling or providing security at the [Restaurant];
(d) Defendants failed to have a comprehensive security analysis performed by
competent security professionals for the [Restaurant]; or
(e) Defendants failed to adequately warn their guests and invitees of the
increased danger of violent crime at the [Restaurant] based on the numerous,
recent, and violent criminal history.
Id. at 4.
On April 20, 2016, White Castle removed the action to this Court. In its Notice of
Removal, White Castle, a citizen of Ohio, asserts that Moore was fraudulently joined and her
presence should be disregarded, and that this Court has diversity jurisdiction over the matter.
(ECF No. 1.) White Castle further asserts that removal is timely because it seeks to remove this
case pursuant to the “bad faith” provision of 28 U.S.C. § 1446(c)(1), based upon Plaintiff’s
recent voluntary dismissal of her claim against Spates. Id. at 4. Defendant Moore did not join in

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the Notice of Removal or provide her consent thereto until after Plaintiff moved for remand.
(ECF Nos. 1, 9.) As mentioned above, White Castle opposes Plaintiff’s Motion to Remand.
(ECF No. 10.)
DISCUSSION
“The propriety of removal to federal court depends on whether the claim comes within
the scope of the federal court’s subject matter jurisdiction.” Peters v. Union Pac. R. Co., 80 F.3d
257, 260 (8th Cir. 1996) (citing 28 U.S.C. § 1441(b)). “A claim may be removed only if it could
have been brought in federal court originally.” Id. Diversity jurisdiction “requires an amount in
controversy greater than $75,000 and complete diversity of citizenship among the litigants.”
OnePoint Solutions, LLC v. Borchert, 486 F.3d 342, 346 (8th Cir. 2007) (citing 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.” Id. “Critically, the party seeking removal has
the burden to establish federal subject matter jurisdiction,” and “all doubts about federal
jurisdiction must be resolved in favor of remand.” Cent. Iowa Power Co-op. v. Midwest Indep.
Transmission Sys. Operator, Inc., 561 F.3d 904, 912 (8th Cir. 2009) (citations omitted).
In her Motion and supporting Memorandum, Plaintiff argues that removal was
procedurally defective because Moore did not join in the Notice of Removal as required by 28
U.S.C. § 1446(b)(2)(A), and that removal was untimely because Plaintiff’s dismissal of Spates
did not constitute bad faith. Plaintiff also argues that removal was improper because Moore was
not fraudulently joined. (ECF Nos. 7, 8.) As to the latter argument, White Castle counters that
Moore was fraudulently joined because Plaintiff fails to state a cause of action against her under
Missouri law. White Castle urges the Court to consider the affidavit of Nicholas W. Zuk—the
Senior Vice President, General Counsel, and Secretary of White Castle—which White Castle

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attached to its Notice of Removal, and which discusses Moore’s employment duties at the
Restaurant. (ECF Nos. 1.2; 10.)1
Even assuming that removal here was timely, the Court concludes that Moore was not
fraudulently joined and that removal was improper. 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). Put another way, the court must decide
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). Thus, a defendant asserting fraudulent
joinder must “prove that the plaintiff’s claim against the diversity destroying defendant has no
reasonable basis in fact and law.” Knudson v. Sys. Painters, Inc., 634 F.3d 968, 977 (8th Cir.
2011) (quotation and citation omitted).

“[T]he district court should resolve all facts and

ambiguities in the current controlling substantive law in the plaintiff’s favor.” Filla, 336 F.3d at
811. In addition, in resolving a fraudulent-joinder issue, courts in this district have considered
materials outside the pleadings. See, e.g., In re Genetically Modified Rice Litig., 618 F. Supp. 2d
1047, 1052 (E.D. Mo. 2009) (collecting cases); Petersen v. Rusch, Inc., No. 4:05CV01328ERW,
2006 WL 83492, at *2 (E.D. Mo. Jan. 12, 2006).
Under Missouri law, in certain instances an employee may be held personally liable to a
third party.
First, when an employee has or assumes full and complete control of his
employer’s premises, his liability to the public or to invitees is the same as that of
his employer. A second situation involves liability on the part of the employee

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White Castle also asserts that Plaintiff has demonstrated that she has no interest in litigating her
case against Moore. (ECF No. 10 at 13.) However, White Castle does not cite to any evidence
in the record in support of this allegation. See Knudson v. Sys. Painters, Inc., 634 F.3d 968, 977
(8th Cir. 2011) (citation omitted) (burden is on defendant to show fraudulent joinder).
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who does not have complete control of the premises but may be liable for injury
to third persons when he breaches some duty which he owes to such third person.
The test is whether he has breached his legal duty or been negligent with respect
to something over which he did have control.
Augustine v. Target Corp., 259 F. Supp. 2d 919, 921 (E.D. Mo. 2003) (quoting State ex rel.
Kyger v. Koehr, 831 S.W.2d 953, 956 (Mo. Ct. App. 1992)). In addition, the Missouri Supreme
Court has recognized that a duty to protect invitees from criminal attacks of unknown third
persons may arise “depending upon the facts and circumstances of a given case”; for example, “a
duty of care arises out of circumstances in which there is a foreseeable likelihood that particular
acts or omissions will cause harm or injury.” Madden v. C&K Barbecue Carryout, Inc., 758
S.W.2d 59, 61-62 (Mo. 1988) (en banc) (in wrongful death action, allegations of history of prior
crimes occurring on defendants’ property were sufficient to establish duty of care on part of
defendants to take reasonable measures to protect invitees from third party attacks); see also
L.A.C. ex rel. D.C. v. Ward Parkway Shopping Ctr. Co., L.P., 75 S.W.3d 247, 256-59 (Mo.
2002) (en banc) (owners and managers of mall had duty to take reasonable care to protect
business invitees from criminal activity; discussing Madden). Thus, there is a reasonable basis in
law supporting Plaintiff’s claim against Moore.
In determining whether there exists a reasonable basis in fact supporting Plaintiff’s claim,
the Court considers the allegations in Plaintiff’s Complaint, as well as Mr. Zuk’s affidavit. As
set forth above, Plaintiff alleges that Moore was the General Manager of the Restaurant and was
responsible for ensuring it was operated in a safe manner; that, because Moore knew or should
have known that the Restaurant was the scene of numerous violent crimes, she owed a duty to
provide reasonable security to protect invitees; and that she, among other things, failed to
properly monitor the Restaurant for security-related risks and to adequately warn invitees. In his
affidavit, Mr. Zuk attests that at all times relevant to this action Moore was the General Manager
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of the Restaurant; that she was not present or on duty during the relevant time of the incident at
issue; that her “job related duties included scheduling, hiring, firing, training, and directing
White Castle employees and only White Castle employees at the [Restaurant]”; and that she was
not responsible for, and did not have authority with respect to, “implementing new security
measures, removing existing security measures, directing security personnel, or changing
security measures at the [Restaurant].” (ECF No. 1.2 at 1-2.)
Although Mr. Zuk’s affidavit indicates that Moore was not responsible for and did not
have authority to implement, remove, or change security measures at the Restaurant, the affidavit
does not provide an exhaustive list of Moore’s responsibilities as the General Manager of the
Restaurant. Without additional evidence demonstrating the entire scope of Moore’s employment
duties, the Court cannot determine whether Moore was responsible for, among other things,
monitoring security measures or reporting any security-related deficiencies she detected.
Similarly, although Mr. Zuk attests that Moore was not responsible for directing security
personnel, his affidavit does not indicate whether Moore was responsible for monitoring the
performance of the security personnel, or for communicating any relevant information to them in
order to assist them in providing adequate security for the Restaurant.

Resolving these

ambiguities in favor of Plaintiff, as the Court must do, Filla, 336 F.3d at 811, the Court finds that
there is a there is a reasonable basis in fact supporting Plaintiff’s claim against Moore, see
Wilkinson v. Shackelford, 478 F.3d 957, 964 (8th Cir. 2007) (fraudulent-joinder analysis focuses
only on whether plaintiff might have colorable claim under state law, not on artfulness of
pleadings).
Because the Court finds that White Castle has not sufficiently proved that Plaintiff’s
claim against Moore has no reasonable basis in law and fact, the Court concludes that Moore was

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not fraudulently joined. See Filla, 336 F.3d at 811 (in its review of fraudulent-joinder claim,
court has no responsibility to definitely settle ambiguous question of state law; if state law might
impose liability on resident defendant based upon facts involved, then there is no fraudulent
joinder); see also Knudson, 634 F.3d at 980 (defendant must do more than merely prove
plaintiff’s claim should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6); Rule
12(b)(6) standard is “more demanding than Filla standard”).
Considering Moore’s presence in this case, it appears that the Parties’ citizenship is not
completely diverse, and that this Court does not have subject matter jurisdiction over the action.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion to Remand (ECF No. 7) is
GRANTED.
IT IS FURTHER ORDERED that all other pending motions are DENIED as moot.
IT IS FURTHER ORDERED that this case is REMANDED to the Circuit Court of St.
Louis City, Missouri. A separate Order of Remand will accompany this Memorandum and
Order.

Dated this 9th day of June, 2016.

/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

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