Caulfield et al v. Sig-Mo Assets, LLC et al

Filing 9

ORDER granting 4 motion to remand. Signed on 3/2/15 by District Judge Ortrie D. Smith. (Matthes, Renea)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
BARBARA CAULFIELD and
DAVID CAULFIELD,
Plaintiffs,
vs.
SIG-MO, LLC d/b/a TERRACE PARK
FUNERAL HOME, MARK BODICKY
And MICAH WYNES,
Defendants.

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Case No. 15-0039-CV-W-ODS

ORDER AND OPINION GRANTING PLAINTIFFS’ MOTION TO REMAND
Pending is Plaintiffs’ Motion to Remand. The Court concludes that diversity of
citizenship is lacking and at least one of the diversity-destroying defendants was not
fraudulently joined. Therefore, the motion (Doc. # 4) is granted and the case is
remanded.
Plaintiffs are citizens of Missouri. They have sued SIG-Mo Assets LLC, which
does business in Missouri as Terrace Park Funeral Home.1 Also named as defendants
are two individuals – Mark Bodicky and Micah Wynes – both of whom are citizens of
Missouri. Bodicky and Wynes are alleged to have been employed by the funeral home.
Petition, ¶¶ 4-5. Plaintiffs describe the course of discussions they had with Wynes and
another employee, (Jillian Little, who is not a defendant); these discussions related to

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Sig-Mo’s citizenship is unclear. Plaintiffs’ state-court Petition describes it as “a
foreign limited liability corporation.” Defendants’ Notice of Removal describes it as “a
Texas Corporation with its principal place of business in Houston, Texas.” However, the
designation of “LLC” suggests it is not a corporation, and citizenship of an LLC is
determined by the citizenship of all of its members and not the state of formation. E.g.,
GMAC Commercial Credit LLC v. Dillard Dep’t Stores, Inc., 357 F.3d 827, 828-29 (8th
Cir. 2004). However, for present purposes it does not matter that nobody has
established Sig-Mo’s citizenship: if it has a member who is a citizen of Missouri, the
case would have to be remanded anyway, and if it does not have a member who is a
citizen of Missouri the case has to be remanded because of the Court’s conclusion that
one of the diversity-destroying defendants is not fraudulently joined.

the care and handling of Plaintiffs’ deceased relative, James Caulfield. Petition, ¶¶ 1115. These discussions are described as coercive, but there is no need to delve into the
allegations at this time.
At the conclusion of the conversations, Plaintiff Barbara Caulfield told Little not to
embalm James’s body until she had talked to other members of the family. Petition, ¶¶
20. When Barbara called back, Little advised that James’s body had already been
embalmed. Petition, ¶¶ 22-23. Plaintiffs contacted another funeral home to attend to
the arrangements, and Little told Plaintiffs they would have to pay a fee to transfer
James’s body to the new funeral home. Petition, ¶¶ 28-29. “Plaintiff then spoke to
Defendants’ funeral director, Mark Bodicky, who agreed to waive the $585 transfer fee.
Defendant Bodicky did not disclose that the face and neck of the deceased had been
severely burned by the embalming fluid.” Petition, ¶ 30. Plaintiffs did not learn of the
damage to the body until advised by the second funeral home. Petition, ¶ 31.
Plaintiffs assert three claims. Count I alleges a claim for breach of the right of
sepulcher, which is statutorily defined as “the right to choose and control the burial,
cremation, or other final disposition of a dead human body.” Mo. Rev. Stat. §
194.119.1. “The gist of the cause of action is the emotional distress and anguish to the
nearest kin from mistreatment of the body. The basis of the cause of action for
interference with the right of sepulchre is the mental anguish experienced by the person
claiming the right of sepulchre.” Sale v. Slitz, 998 S.W.2d 159, 163 (Mo. Ct. App. 1999).
Count II asserts a claim for negligent infliction of emotional distress. Both Counts I and
Counts II are based in part on Wyne and Little “[i]nsisting that Plaintiffs agree to use
Defendants’ services and coercing Plaintiff Barbara Caulfield into signing the paperwork
by stating that she could not leave unless arrangements were made for the body.”
Petition, ¶¶ 36(a), 41(a). Counts I and II are also predicated on the actual treatment of
the deceased’s body. Finally, Count III alleges a violation of the Missouri
Merchandising Practices Act because “Defendants employed deception, fraud, false
pretenses, misrepresentations, and unfair practices in connection with the sale of
funeral services to Plaintiffs . . . .” Petition, ¶ 49.
Plaintiffs contend the case must be remanded because federal jurisdiction is
lacking. As there are no federal issues in this case, jurisdiction exists if more than
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$75,000 is in controversy and there is complete diversity between the parties; that is,
that no defendant is a citizen of a state where any plaintiff is a citizen. 28 U.S.C. §
1332. Defendants removed this case to federal court, so they bear the burden of
demonstrating federal jurisdiction exists. E.g., 4:20 Communications, Inc. v. Paradigm
Co., 336 F.3d 775, 779 (8th Cir. 2003); In re Bus. Men=s Assurance Co. of Am., 992 F.2d
181, 183 (8th Cir. 1995) (per curiam) (citing Bor-Son Bldg. Corp. v. Heller, 572 F.2d
174, 181 n.13 (8th Cir. 1978)). Defendants attempt to meet this burden by contending
the two diversity-destroying defendants – Bodicky and Wynes – were fraudulently
joined. The Court concludes Wynes was not fraudulently joined, making it unnecessary
to consider whether Bodicky was.
The Eighth Circuit has articulated the fraudulent joinder standard as follows:
Where applicable state precedent precludes the existence of a cause of
action against a defendant, joinder is fraudulent. “[I]t is well established
that if 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.” Iowa
Pub. Serv. Co. v. Med. Bow Coal Co., 556 F.2d 400, 406 (8th Cir. 1977)
(emphasis added). However, if there is a “colorable” cause of action - that
is, if the state law might impose liability on the resident defendant under
the facts alleged - then there is no fraudulent joinder. See Foslip Pharm.,
Inc. v. Metabolife Int=l, Inc., 92 F. Supp.2d 891, 903 (N.D. Iowa 2000).
Filla v. Norfolk S. Ry. Co., 336 F.3d 806, 810 (8th Cir. 2003) (internal footnote omitted).
A[J]oinder is fraudulent when there exists no reasonable basis in fact and law supporting
a claim against the resident defendants.@ Wiles v. Capitol Indem. Corp., 280 F.3d 868,
871 (8th Cir. 2002). If there is a reasonable basis in fact and law that supports the
claim, joinder is not fraudulent. Filla, 336 F.3d at 810.
In conducting this inquiry, the Court must “resolve all facts and ambiguities in the
current controlling substantive law in the plaintiff=s favor,” but the Court has “no
responsibility to definitively settle the ambiguous question of state law.” Id. at 811
(citations omitted) (emphasis in original). “Instead, the court must simply determine
whether there is a reasonable basis for predicting that the state's law might impose
liability against the defendant.” Id. (emphasis added). Where the sufficiency of the
complaint against the non-diverse defendant is questionable, "the better practice is for
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the federal court not to decide the doubtful question in connection with a motion to
remand but simply to remand the case and leave the question for the state courts to
decide." Id. (quoting Iowa Pub. Serv. Co., 556 F.2d at 406).
Defendants provide additional facts of their own in an effort to prove that Wynes
“was not involved in the sale of arrangements for funeral services or embalming with
respect to any customers, including Plaintiffs. While present when [Little] explained
available funeral services to Plaintiffs, he said nothing.” Doc. # 7 at 2. Defendants
essentially ask the Court to decide their version of facts is correct and Plaintiffs’ version
is wrong, which misapprehends the Court’s ability to resolve factual disputes at this
juncture. The Court must accept the facts alleged in the state-court petition as true.
E.g., Wilkinson v. Shcackelford, 478 F.3d 957, 964 (8th Cir. 2007). “Fraudulent joinder
exists if, on the face of plaintiff’s state court pleadings, no cause of action lies against
the resident defendant.” Anderson v. Home Ins. Co., 724 F.2d 82, 84 (8th Cir. 2983).
To hold otherwise and entertain Defendants’ argument would allow defendants to allege
“fraudulent joinder” every time they can argue that the plaintiff’s factual allegations are
untrue – thereby turning the jurisdictional inquiry into a mini-assessment of the merits.
This places the cart before the horse: the Court must have jurisdiction before it can
address (much less attempt to resolve) competing factual averments.
Defendants insist – and the Court agrees – that there are no allegations
suggesting Wynes or Bodicky were personally involved in the embalming process. And,
the Court’s conclusion might be different if this were the only basis for Plaintiffs’ claims.
However, Wynes’ and Little’s alleged sales tactics are also alleged as a basis for each
of the three counts asserted, and Defendants have not contended these sales tactics
would not give rise to the three claims Plaintiffs have alleged. All Defendants have
done is attempted to prove that Wynes was not involved in the sale of goods or services
to Plaintiffs, but as stated above this is not an argument the Court can entertain at this
juncture.

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The Court concludes Wynes was not fraudulently joined. Wynes and Plaintiffs
are citizens of Missouri, so federal jurisdiction is lacking. The case is remanded to the
Circuit Court for Clay County, Missouri.
IT IS SO ORDERED.

/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

DATE: March 2, 2015

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