Vorwold v. American Signature, Inc.

Filing 21

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiff's Motion for Leave to File First Amended Complaint (ECF No. 16 ) is GRANTED, and Gregory Meyer is added as a Defendant to this action. IT IS FURTHER ORDERED that this case is REMANDED to the Circuit Court of St. Louis County, State of Missouri. An appropriate Order of Remand will accompany this Memorandum and Order. Signed by District Judge Jean C. Hamilton on 10/21/2020. (ANP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

DONNA VORWOLD,
Plaintiff,
vs.
AMERICAN SIGNATURE, INC.,
d/b/a VALUE CITY FURNITURE,
Defendant.

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Case No. 4:20CV856 JCH

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s Motion for Leave to File First Amended
Petition (hereinafter “Complaint”), filed September 23, 2020. (ECF No. 16). The motion is fully
briefed and ready for disposition.
By way of background, Plaintiff filed her original Complaint in this matter on or about
May 21, 2020, in the Circuit Court of St. Louis County, Missouri. (ECF No. 5). Plaintiff lodged
claims for premises liability and negligence against Defendant American Signature, Inc.
Defendant removed the action to this Court on June 29, 2020, on the basis of diversity
jurisdiction. (ECF No. 1). 1
On September 23, 2020, Plaintiff filed the instant Motion for Leave to File First
Amended Complaint, in which she requests leave to add Gregory Meyer as a Defendant in this
matter.

(ECF No. 16).

Plaintiff’s proposed First Amended Complaint alleges “Defendant

1 Plaintiff Donna Vorwold alleged in her Complaint that at all relevant times, she was a resident
of the State of Missouri. Defendant American Signature, Inc. is and was a citizen of Ohio for
purposes of diversity jurisdiction.
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Gregory J. Meyer (“Meyer”) is an individual and has been a citizen and resident of the State of
Missouri at all times pertinent hereto including at the time of filing of this action and the time of
removal of this action.” (See ECF No. 16-1, ¶ 3). According to Plaintiff, Mr. Meyer was a
manager of the Value City store in which Plaintiff suffered her injury, actively engaged in the
upkeep, repair and maintenance of the premises, and that as such, he may have caused or
contributed to cause the unsafe condition that led to Plaintiff’s fall. Plaintiff thus seeks to amend
her Complaint, to include a count for negligence against Mr. Meyer.
DISCUSSION
Fed.R.Civ.P. 15(a)(2) authorizes a plaintiff to amend her Complaint with the Court’s
leave, and the Court “should freely give leave when justice so requires.” 28 U.S.C. § 1447(e)
provides that, “[i]f after removal the plaintiff seeks to join additional defendants whose joinder
would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and
remand the action to the State court.”
In response to Plaintiff’s motion, Defendant notes that because the store manager who
Plaintiffs seeks to add as a party defendant was an employee of Defendant American Signature,
Inc., acting within the scope and course of his employment at the time of the incident, Defendant
could be held liable for his alleged negligence under the doctrine of respondeat superior.
Defendant therefore opposes the amendment, claiming Plaintiff’s sole intent in naming the store
manager as a Defendant is to destroy diversity jurisdiction and seek remand.
Missouri law recognizes certain circumstances under which an employee may be held
personally liable to a third party, as follows:
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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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.
State ex rel. Kyger v. Koehr, 831 S.W.2d 953, 956 (Mo. App. 1992) (citations omitted) (quoted
in Gilmore v. Lowe’s Home Centers, Inc., No. 1:12CV47 SNLJ, 2012 WL 5351594, at *3 (E.D.
Mo. Oct. 30, 2012)).
Upon consideration of the foregoing, the Court finds that with her First Amended
Complaint, Plaintiff here has adequately pleaded a state law claim against the resident
Defendant. See Gilmore, 2012 WL 5351594, at *3. In other words, Plaintiff alleges (and
Defendant does not dispute) that Mr. Meyer personally engaged in negligent behavior, by
“choosing not to use reasonable care to remedy, barricade, guard against, mark or warn of the
dangerous condition, when Defendant [Meyer] knew or in the exercise of reasonable or ordinary
care could have known about the dangerous conditions; choosing not to carefully inspect the
floor for dangerous conditions, such as the one presented by the wooden support slats causing a
tripping hazard; and choosing to allow there to be wooden support slats on the floor where
invitees normally walk, causing Plaintiff to trip, fall, and suffer injuries.” (See First Amended
Complaint, ¶ 27). Mr. Meyer therefore might be liable under Missouri law for having been
“negligent with respect to something over which he did have control,” Kyger, 831 S.W.2d at 956,
and so the Court will grant Plaintiff’s motion for leave to amend her Complaint in order to join
Mr. Meyer as a Defendant.

Further, because his joinder destroys complete diversity of

citizenship and subject matter jurisdiction, the Court will remand the case to the Court from
which it was removed pursuant to 28 U.S.C. § 1447(e). See Halilovic v. Krinninger, No.
4:17CV1794 RWS, 2017 WL 3581601, at *3 (E.D. Mo. Aug. 18, 2017).

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CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Leave to File First Amended
Complaint (ECF No. 16) is GRANTED, and Gregory Meyer is added as a Defendant to this
action.
IT IS FURTHER ORDERED that this case is REMANDED to the Circuit Court of St.
Louis County, State of Missouri.

An appropriate Order of Remand will accompany this

Memorandum and Order.

Dated this 21st Day of October, 2020.

/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

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