Prather v. Kindred Hospital et al

Filing 22

ORDER - plaintiff's Motion to Remand 8 is GRANTED; case is REMANDED to the Circuit Court of Jackson County, Missouri, at Kansas City; and all remaining motions 4 , 9 , 15 , 17 , and 20 are DENIED AS MOOT. Signed on 12/17/14 by District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
VANESSA PRATHER,

)
)
Plaintiff,
)
)
v.
)
)
KINDRED HOSPITAL, et al.,
)
)
Defendants. )

No. 14-0828-CV-W-FJG

ORDER
Pending before the Court are (1) Defendant Kindred’s1 Partial Motion to Dismiss
(Doc. No. 4); (2) Plaintiff’s Motion to Remand (Doc. No. 8); (3) Plaintiff’s Motion for
Extension of Time (Doc. No. 9); (4) Defendant Dixon’s Motion to Dismiss for Lack of
Jurisdiction (Doc. No. 15); (5) Plaintiff’s Motion for Extension of Time (Doc. No. 17); and
(6) the Parties’ Joint Motion for Protective Order (Doc. No. 20). All are considered,
below.
I.

Background
On September 16, 2014, plaintiff filed her Petition for Damages in the Circuit

Court of Jackson County, Missouri, at Kansas City. Plaintiff makes claims under the
Missouri Human Rights Act (“MHRA”) for (1) race discrimination, (2) racial harassment,
(3) retaliation, and (4) aiding, abetting, compelling, coercing, and inciting violations of

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Defendants indicate that although the Complaint names Kindred Hospital as the
Defendant, the proper entity is Kindred Hospitals East, L.L.C. d/b/a Kindred HospitalKansas City. The Court will hereafter refer to this defendant as Kindred.

the MHRA. Plaintiff is a citizen of the state of Kansas. Defendant Kindred is a citizen of
Delaware and Kentucky, and Defendant Patricia Dixon is a citizen of Missouri.
On September 18, 2014, just two days after the filing of the state court petition
and before any defendant had been served, Defendant Kindred filed a notice of removal
(Doc. No. 1). Defendant Kindred asserted that this action is removable pursuant to 28
U.S.C. § 1441(a) because it is within the United States District Court’s jurisdiction under
28 U.S.C. § 1332(a) in that the parties are citizens of different states, and the amount in
controversy exceeds $75,000. Doc. No. 1, p. 2. Defendant Kindred further indicated
that the Missouri citizenship of Defendant Dixon should not be considered because she
had not been served with process at the time of removal (two days after the case had
been filed), and therefore the forum defendant rule would not apply. See 28 U.S.C. §
1441(b)(2), which provides “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.”

In the notice of removal, Defendant Kindred did not argue that

Defendant Dixon was fraudulently joined as a defendant.
On October 22, 2014, plaintiff filed a motion to remand. Doc. No. 8. Defendant
Dixon was served on October 20, 2014.
II.

Plaintiff’s Motion for Remand (Doc. No. 8)
Plaintiff moves for an order remanding this case to the Circuit Court of Jackson

County, Missouri. Plaintiff asserts that removal is not appropriate under the forum
defendant rule. Plaintiff also asserts that Defendant Dixon is not fraudulently joined in
this action; however, the Court finds that since fraudulent joinder was not mentioned at

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all in the notice of removal, the Court need not consider that possible ground for
removal.2
A.

Standard

A defendant may remove an action from state court to federal court when the
case falls within the original jurisdiction of the federal courts. 28 U.S.C. § 1441(a). If the
case is not within the original subject matter jurisdiction of the district court, the court
must remand the case to the state court from which it was removed. 28 U.S.C. §
1447(c). Pertinent to the current set of facts, “The district courts shall have original
jurisdiction of all civil actions where the matter in controversy exceeds the sum or value
of $75,000, exclusive of interest and costs, and is between—(1) citizens of different
States.” 28 U.S.C. § 1332(a). Another restriction on the removal of diversity jurisdiction
cases is the “forum defendant rule,” found at 28 U.S.C. § 1441(b), which does not allow
removal based on diversity jurisdiction 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. 28
U.S.C. § 1441(b); Horton v. Conklin, 431 F.3d 602, 604 (8th Cir. 2005); Perez v. Forest
Laboratories, Inc., 902 F.Supp. 2d 1238, 1241 (E.D. Mo. 2012). “The violation of the
forum defendant rule is a jurisdictional defect and ‘not a mere procedural irregularity
capable of being waived.’” Horton, 431 F.3d at 605 (quoting Hurt v. Dow Chem. Co.,
963 F.2d 1142, 1146 (8th Cir. 1992)).
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See City of St. Louis v. Bindan Corp., 295 F.R.D. 392, 394 (E.D. Mo. 2013)(noting that
a notice of removal may be amended after the 30 day period during which a removal
may be filed, after that 30 day period has passed, the notice can only be amended to
add specific facts supporting the originally stated grounds for removal, and new grounds
for removal cannot be added once the 30 day period has expired). See also Lindsey v.
Dillard’s, Inc., 306 F.3d 596, 600 (8th Cir. 2002). Given that the time period to amend
the notice of removal to add grounds for removal jurisdiction has expired, the Court will
not consider any argument that Defendant Dixon was fraudulently joined.
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The burden of establishing federal jurisdiction is on the party seeking removal. In
re Bus. Men's Assurance Co. of Am., 992 F.2d 181, 183 (8th Cir.1993). On a motion to
remand, the district court must strictly construe the removal statute and resolve all
doubts in favor of remand. Transit Cas. Co. v. Certain Underwriters at Lloyd's of
London,119 F.3d 619, 625 (8th Cir.1997)(citing Bus. Men’s Assurance, 992 F.2d at
183).
B.

Discussion

In her motion to remand, plaintiff argues that Defendant Kindred’s act of
removing this case just two days after it was filed is an act of gamesmanship. Plaintiff
notes that this type of gamesmanship has been rejected by federal district judges in the
Western District of Missouri on the same facts. See Perfect Output of Kansas City, LLC
v. Ricoh Americas Corporation, et al., No.: 12-0189-CV-W-SOW, 2012 WL 2921852, at
*2 (W. D. Mo. July 17, 2012); Herling v. Thyssenkrup Access Corp., No. 10-1107-CV-WODS, 2011 WL 649021, at *1 (W.D. Mo. Feb. 11, 2011). See also Perez v. Forest
Laboratories, Inc., 902 F.Supp. 2d 1238 (E.D. Mo. 2012). In Perfect Output, Judge
Wright explained:
Courts have noted that the rationale for the “joined and
served” requirement is “to prevent a plaintiff from blocking
removal by joining as a defendant a resident party against
whom it does not intend to proceed, and whom it does not
even serve.” When interpreting statutes, however, the Court
must give words their plain meaning unless doing so would
frustrate the statutory scheme, lead to absurd results, or
contravene clear legislative intent.
Here, defendants’
interpretation of the removal statute would frustrate both the
courts’ and Congress’ efforts to determine diversity of
citizenship based on the genuine interests of the parties.

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Perfect Output, 2012 WL 2921852, *2 (internal citations omitted). “Combining the
permission granted in 28 U.S.C. § 1446(b) for defendants to file a notice of removal
before being served with the joined and served requirement of 28 U.S.C. § 1441(b) to
allow a defendant to remove a case before a plaintiff even has a chance to serve him
would provide a vehicle for defendants to manipulate the operation of the removal
statutes. Allowing either party to do that would be against what the courts have long
understood to be Congress’ intent.” Id. (citing Vivas v. Boeing Co., 486 F.Supp. 2d 726,
734 (N.D. Ill. 2007)). Judge Wright went on to note, “if defendants were allowed to
remove any suit based on diversity before service, lawyers or their agents could camp
out at the courthouse and monitor state court filings so that they could remove state
actions before service could ever be effectuated on defendants. This is surely not what
Congress intended.” Id. at n.3. In Herling v. Thyssenkrup Access Corp., Judge Smith
similarly indicated that the lack of service on the forum defendant “does not create the
loophole the Defendants seek to utilize,” and it made no sense to allow the case to
remain “in federal court on the off-chance that the plaintiff did not serve the forum
defendant.” Herling, 2011 WL 649021, at *1.
Plaintiff Prather indicated in her motion to remand that she intended to serve
Defendant Dixon, and in fact it appears she served Defendant Dixon on October 20,
2014 (just over one month after the case had been filed). Plaintiff, therefore, argues
that the Court should reject Defendant Kindred’s gamesmanship of monitoring Missouri
Case Net in order to file removal before service of process is even issued, as plaintiff
ought to at least be given a reasonable chance to serve the forum defendant under a
proper construction of 28 U.S.C. § 1441(b).

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In response, Defendant Kindred argues that the majority of federal courts,
including this Court, have held that the Court must apply 28 U.S.C. § 1441(b) as written.
See Wallace v. Tindall, No. 09-00775-CV-W-FJG, 2009 WL 4432030 (W.D. Mo., Nov.
30, 2009). See also Johnson v. Emerson Elec. Co., No. 4:13-CV-1240-JAR, 2013 WL
5442752 (E.D. Mo. Sept. 30, 2013); Taylor v. Cottrell, Inc., No. 4:09CV536 HEA, 2009
WL 1657427 (E.D. Mo. June 10, 2009); Brake v. Reser’s Fine Foods, Inc., No.
4:08CV1879JCH, 2009 WL 213013 (E.D. Mo. Jan. 28, 2009); and Johnson v. Precision
Airmotive, LLC, No. 4:07CV1695 CDP, 2007 WL 4289656 (E.D. Mo. Dec. 4, 2007). In
particular, Defendant Kindred argues that the language of the statute itself should
control, and notes a recent Eastern District of Missouri opinion finding that, “[T]he Eighth
Circuit is clear that absent some ambiguity in the language of a statute, a court’s
analysis must end with the statute’s plain language . . . . Based on this principle of
statutory interpretation, as well as the weight of case law addressing this issue,
including in this District, this Court must apply the statute as written, Because the
Missouri citizen . . . was not served at the time of removal, the limitation on removal in §
1441(b) does not apply.” Johnson, 2013 WL 5442752, at *4.
Upon review of the parties’ arguments, the Court acknowledges that various
district courts have reached different conclusions on this issue, as discussed by the
parties. The Court finds, however, that plaintiff’s rationale is better supported, as
Congress could not have intended the result sought by defendant. The Court concurs
with the analysis in Perez v. Forest Laboratories, Inc., 902 F.Supp.2d 1238 (E.D.Mo.
2012), wherein the court noted that removal based on diversity jurisdiction “is premised
on protecting non-resident litigants from prejudice in state court.” 902 F.Supp. 2d at

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1242. The purpose of 28 U.S.C. § 1441(b) is to prevent plaintiffs from engaging in
procedural gamesmanship by improperly joining a forum defendant or joining a forum
defendant who plaintiffs have no intention of serving. Id. The Court in Perez found that
pre-service removal by means of monitoring an electronic docket, such as what
Defendant Kindred did in the present case, “smacks more of forum shopping by a
defendant, than it does of protecting the defendant from the improper joinder of a forum
defendant that plaintiff has no intention of serving.” Id. at 1243. The Court in Perez
further found that although the plain language of a statute is generally the best indicator
of intent, “adherence to plain language can lead to results which could not possibly have
been the intent of the drafters.” Id. at 1245, citing U.S. v. Am. Trucking Ass’ns, 310 U.S.
435, 542-43 (1940). When that is the case, the courts “must look beyond the plain
meaning of the statutory language.” Perez, 902 F.Supp.2d at 1245. The Perez Court
found that strict adherence to the plain wording of Section 1441(b)(2), allowing
defendants to remove cases with forum defendants present prior to plaintiffs having any
opportunity to effect service, runs counter to the legislative intent in the removal
statutes. Id. at 1246. This Court agrees that such close monitoring of dockets so that
removal is done before plaintiff has an opportunity to serve a forum defendant is counter
to the intent of Congress.
Here, plaintiff did not have a chance to serve any party before the case was
removed, and Defendant Kindred did not wait for service on itself before removing. See
also Rogers v. Boeing Aerospace Operations, Inc., 13 F.Supp. 3d 972, 977 (E.D. Mo.
2014) (finding that the “joined and served” language in Section 1441(b)(2) contemplates
removal only where at least one out-of-state defendant has been served, and thereby

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distinguishing Rogers (where the removing defendant had been served and the court
retained jurisdiction) from Perez (where the removing defendant had not been served
and the court remanded)). For the same reasons as discussed in Rogers, Plaintiff
Prather’s case is distinguishable from Wallace v. Tindall, No. 09-00775-CV-W-FJG,
2009 WL 4432030 (W.D. Mo., Nov. 30, 2009). In Wallace, out-of-state defendants were
served with copies of plaintiffs’ amended petition prior to removal; however, the forum
defendant was not served with a copy of the amended petition. Id. at *1. The out-ofstate defendants waited until nearly 30 days after service to remove the case. Id.3 Still,
the forum defendant had not been served with a copy of the amended petition, and had
not been served at the time the Court denied the motion to remand. The alleged forum
defendant was finally served three weeks after the Court denied the motion to remand;
however, as it turned out, the alleged forum defendant was a Kansas citizen once he
was served.

See Wallace v. Tindall, No. 09-00775-CV-W-FJG, 2010 WL 1485714

(W.D. Mo., April 13, 2010) (denying plaintiffs’ motion for reconsideration of the Court’s
order denying the motion to remand).
As noted by the Eighth Circuit, “The violation of the forum defendant rule is a
jurisdictional defect and ‘not a mere procedural irregularity capable of being waived.’”
Horton, 431 F.3d at 605 (quoting Hurt v. Dow Chem. Co., 963 F.2d 1142, 1146 (8th Cir.
1992)). Given this directive from the Eighth Circuit, the Court believes that a case such
as this, where the only reason the forum defendant had not been served was that the

3

Although the Court’s November 30, 2009 order indicates that the removing defendant
was served a copy of the Amended Petition on August 20, 2009, that date appears to
be a typographical error, and service was accomplished on August 26, 2009. The case
was removed on September 24, 2009.
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out-of-state defendant removed the case before anyone could be served, must be
remanded. Such gamesmanship on the part of defendants will not be rewarded.
III.

Conclusion
Therefore, for the foregoing reasons, (1) Plaintiff’s Motion to Remand (Doc. No.

8) is GRANTED; (2) this case is REMANDED to the Circuit Court of Jackson County,
Missouri, at Kansas City; and (3) all remaining motions (Doc. Nos. 4, 9, 15, 17, and 20)
are DENIED AS MOOT.
IT IS SO ORDERED.

Date: December 17, 2014
Kansas City, Missouri

S/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
United States District Judge

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