Voisey v. Adams & Associates, Inc. et al

Filing 18

MEMORANDUM AND ORDER OF REMAND. IT IS HEREBY ORDERED that defendant Adams & Associates, Inc.'s Motion for Leave to File Sur-Reply #17 is GRANTED. IT IS FURTHER ORDERED that plaintiff Kevin Voisey's Motion to Remand #13 is GRANTED. IT IS FURTHER ORDERED that this case is remanded to the Circuit Court of the City St. Louis, Missouri, from which it was removed. IT IS FURTHER ORDERED that all pending motions are denied as moot and without prejudice to be refiled in the proper forum. Signed by District Judge Catherine D. Perry on 11/8/17. (EAB) (Copy of Order mailed to STL City Clerk on 11/8/17).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KEVIN VOISEY,
Plaintiff,
v.
ADAMS & ASSOCIATES, INC., et al.,
Defendants.

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Case No. 4:17 CV 2505 CDP

MEMORANDUM AND ORDER OF REMAND
This removed case is before me on plaintiff Kevin Voisey’s motion to
remand. Voisey previously worked at St. Louis Job Corps, an entity operated by
defendant Adams & Associates, Inc. In August 2017, Voisey filed this action in a
Missouri state court against Adams & Associates, its chief executive officer, and
three Job Corps employees, alleging that they violated Missouri public policy and
intended to cause injury when they terminated his employment in response to his
whistleblowing activity of reporting criminal or other unlawful conduct by Job
Corps staff members and employees. Invoking this Court’s federal diversity
jurisdiction, defendant Adams & Associates removed the case from state court on
September 29, 2017, with consent of its CEO, co-defendant Roy Adams. Adams
& Associates has not, however, met its burden of proving complete diversity of
citizenship among all the parties. I will therefore grant Voisey’s motion to remand.
District courts must “be attentive to a satisfaction of jurisdictional

requirements in all cases.” Sanders v. Clemco Indus., 823 F.2d 214, 216 (8th Cir.
1987). Because federal subject-matter jurisdiction involves a court’s power to hear
a case, it can never be waived. Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006).
Accordingly, federal courts have an independent obligation to determine whether
subject-matter jurisdiction exists, “even in the absence of a challenge from any
party.” Id.
“A defendant may remove a state law claim to federal court only if the
action originally could have been filed there.” In re Prempro Prods. Liab. Litig.,
591 F.3d 613, 619 (8th Cir. 2010) (citing Phipps v. FDIC, 417 F.3d 1006, 1010
(8th Cir. 2005)). Here, defendant Adams & Associates invokes this Court’s federal
diversity jurisdiction as its basis for removal. 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).
In removal cases, I must review the complaint or petition pending at the time
of removal to determine the existence of subject-matter jurisdiction. St. Paul
Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 291 (1938). I may also look to
the notice of removal to determine jurisdiction. 28 U.S.C. § 1446(c)(2)(A). The
removing defendant, as the party invoking jurisdiction, bears the burden of proving
by a preponderance of the evidence that all prerequisites to jurisdiction are
satisfied. In re Prempro, 591 F.3d at 620; Central Iowa Power Co-op. v. Midwest
Indep. Transmission Sys. Operator, Inc., 561 F.3d 904, 912 (8th Cir. 2009). “[A]ll
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doubts about federal jurisdiction must be resolved in favor of remand[.]” Central
Iowa Power, 561 F.3d at 912.
In his state-court petition, Voisey identifies himself and the three Job Corps
employee-defendants – namely, Redford Salmon, Michael W. Goodall, and Lydia
Hendrix – as “residents” of the State of Missouri. In its notice of removal, Adams
& Associates identifies itself and its CEO, defendant Roy Adams, as citizens of the
State of Nevada and, based on Voisey’s statement of his own residency in his
petition, avers that Voisey is a citizen of the State of Missouri. Adams &
Associates also avers that none of the three employee-defendants is a Missouri
citizen, but does not identify any State of citizenship for them. In its notice,
Adams & Associates contends that the diversity requirement is met in this case
because the employee-defendants have not been “properly joined and served” and
there exists “complete diversity of citizenship between Plaintiff and Adam &
Associates and Mr. Adams[.]”1
In his motion to remand, Voisey contends that since the filing of his statecourt petition, he has learned that none of the employee-defendants remain
employed at Job Corps. He contends that he has also learned that defendant
Goodall moved to Illinois, but that defendant Salmon continues to live in Missouri.
Voisey has submitted a record from the Missouri Department of Revenue showing
Salmon to have obtained a Missouri driver’s license in August 2016, with his
1

ECF #1, Notice of Removal at paras. 6, 16, 17.
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address and residence listed in St. Louis, Missouri. As to defendant Hendrix,
Voisey asserts his belief that she continues to reside in Missouri, but he does not
know her whereabouts.
In response to Voisey’s motion to remand, Adams & Associates submitted a
declaration of the human resources manager for St. Louis Job Corps, declaring that
Salmon’s last known address listed in their records indicates a home address in
Illinois. While the declarant makes no statement regarding defendant Hendrix,
Adams & Associates avers in its brief that it believes Hendrix resides in Georgia.
In sur-reply,2 Adams & Associates submits the declaration of defendant Salmon,
declaring that he was a resident and citizen of Illinois from December 2016 to June
2017; moved to Washington, D.C. in June 2017, where he is currently a resident
and citizen; and has no plan to move back to Missouri. Adams & Associates
makes no additional submission regarding the citizenship of defendant Hendrix. It
argues, however, that Hendrix’s citizenship is not “at issue” and that, regardless,
the citizenship of any unserved employee-defendant is not relevant here because
“non-served defendants are not considered in the diversity analysis.”3
Defendant’s argument about whether the employee-defendants have been
“properly joined and served” is misplaced. It is the citizenship of the defendants,

2

Because I am considering the arguments made and evidence submitted with this sur-reply, I am
granting Adams & Associates leave to file it.
3

ECF #17-1, Sur-Reply at p. 2, n.1; p. 4.
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not whether they have been served, that determines whether diversity jurisdiction
exists.
The basic requirement of 28 U.S.C. §1332(a)(1) that parties in diversity
actions must be citizens of different States must not be confused with what is
sometimes referred to as the “forum-defendant rule” under 28 U.S.C. § 1441(b)(2).
See Pecherski v. General Motors Corp., 636 F.2d 1156, 1160 (8th Cir. 1981).
Section 1441(b)(2) provides that “[a] civil action otherwise removable solely on
the basis of the jurisdiction under section 1332(a) of this title may not be removed
if any of the parties in interest properly joined and served as defendants is a citizen
of the State in which such action is brought.” (Emphasis added.) Where there is
no complete diversity between the parties in an action, it cannot be “otherwise
removable” under § 1332(a), regardless of whether or not service has occurred.
“[T]he existence of diversity is determined from the fact of citizenship of the
parties named and not from the fact of service.” Pecherski, 636 F.2d at 1060
(quoting Clarence E. Morris, Inc. v. Vitek, 412 F.2d 1174, 1176 (9th Cir. 1969)).
I may not ignore the citizenship of a defendant for the sole reason that the
defendant was not served at the time of removal. “[T]he mere failure to serve a
defendant who would defeat diversity jurisdiction does not permit a court to ignore
that defendant in determining the propriety of removal.” Pecherski, 636 F.2d at
1160. Accordingly, “in determining the propriety of removal based on diversity of
citizenship, [I] must consider all named defendants, regardless of service.” Id. at
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1160-61.
That being said, I accept Voisey’s concession that defendant Goodall is a
citizen of Illinois, and the evidence submitted by Adams & Associates shows that
defendant Salmon was a citizen of Washington, D.C. at the time of removal and
continues to be. Adams & Associates has not demonstrated, however, that
defendant Hendrix is not a citizen of Missouri. Its mere belief that Hendrix
“resides” in Georgia, with nothing more, does not satisfy the jurisdictional
requirement of complete diversity between plaintiff Voisey and this defendant.
See Hargett v. RevClaims, LLC, 854 F.3d 962, 965 (8th Cir. 2017) (a party’s mere
“residency” in a State does not establish its “citizenship” there). Adams &
Associates’ argument that Voisey has failed to provide any evidence of Hendrix’s
Missouri citizenship is unavailing since the burden is on the removing defendant to
show by a preponderance of the evidence that all jurisdictional requirements are
met. In re Prempro, 591 F.3d at 620. Nor do I accept Adams & Associates’
argument that Voisey “waived” any argument challenging complete diversity.
Arbaugh, 546 U.S. at 514.
Where a Missouri citizen sues a Missouri citizen, complete diversity of
citizenship does not exist as required by 28 U.S.C. § 1332. On the information
before the Court, I am not satisfied that this jurisdictional requirement is met.
Accordingly, as the removing defendant, Adams & Associates has failed to
demonstrate by a preponderance of the evidence that complete diversity of
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citizenship exists among all parties in this action. Considering further that I must
resolve all doubt in favor of remand, I find that remand is warranted in the
circumstances of this case.
Accordingly,
IT IS HEREBY ORDERED that defendant Adams & Associates, Inc.’s
Motion for Leave to File Sur-Reply [17] is GRANTED.
IT IS FURTHER ORDERED that plaintiff Kevin Voisey’s Motion to
Remand [13] is GRANTED.
IT IS FURTHER ORDERED that this case is remanded to the Circuit
Court of the City St. Louis, Missouri, from which it was removed.
IT IS FURTHER ORDERED that all pending motions are denied as moot
and without prejudice to be refiled in the proper forum.

___________________________________
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

Dated this 8th day of November, 2017.

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