Hubbard v. The Dial Corporation et al

Filing 12

ORDER granting 6 motion to remand. Signed on 8/1/17 by Chief District Judge Greg Kays. (Strodtman, Tracy)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
SHA’DARIUS HOUSLEY, by and through
his Next Friend, William Hubbard,
Plaintiff,
v.
THE DIAL CORPORATION, a Henkel
Company, AND DOMINIQUE HOUSLEY,
Defendants.

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No. 4:17-CV-00577-DGK

ORDER GRANTING MOTION TO REMAND
This lawsuit arises out of an accident where Plaintiff, a minor who suffers from mental
and physical disabilities, ingested a Purex Ultrapack laundry pod while at his mother Defendant
Dominique Housley’s (“Housley”), house and under her supervision. Plaintiff alleges as a result
of ingesting the laundry pod, he suffered serious health complications. On May 13, 2016,
Plaintiff filed suit against The Dial Corporation (“Dial”) for product liability and Housley for
negligent supervision, in the Circuit Court of Jackson County, Missouri.
Defendant Dial removed this case by invoking the Court’s diversity jurisdiction, 28
U.S.C. §§ 1332, 1441, and 1446, claiming Plaintiff fraudulently joined Missouri resident
Housley to prevent removal.
Now before the Court is Plaintiff’s Motion to Remand (Doc. 6). Finding Plaintiff may be
able to maintain a cause of action for negligence against Housley, the Court holds Dial has not
proven fraudulent joinder. Consequently, the motion is GRANTED.

Background
The state court petition alleges the following. Plaintiff is a minor child who suffers from
mental and physical disabilities. While Plaintiff was at Housley’s home, he gained access to a
container of laundry pods and ingested one or more of them. As a result, he sustained injury to
his trachea and airway. Due to his pre-existing disability, this new injury caused additional
injuries to his neurologic, respiratory, gastrointestinal, and vascular systems.
On May 13, 2016, Plaintiff filed suit in the Circuit Court of Jackson County, Missouri,
against Dial alleging claims of product liability, and Housley for negligent supervision. Dial, a
foreign corporation, then removed the action to this Court on July 13, 2017, based on the Court’s
diversity jurisdiction. At all times relevant to this suit, Plaintiff and Housley were residents of
Missouri.
In its notice of removal, Dial alleged Housley was fraudulently joined in order to destroy
diversity, and but for that fraudulent joinder, this Court possesses diversity jurisdiction over the
suit. Because this alleged improper joinder destroys complete diversity of citizenship, Dial
requests the Court disregard Housley’s citizenship when determining whether it possesses
subject matter jurisdiction over this case. Additionally, Dial argues their Notice of Removal was
timely because Plaintiff acted in bad faith concealing information with which Dial could
ascertain that the case was removable, and therefore the one year limitation in 28 U.S.C.
§ 1446(b)(3) is inapplicable. In response, Plaintiff argues Housley was properly joined as a
person subject to liability under Missouri law.
Standard of Review
An action may be removed by the defendant where the case falls within the original
jurisdiction of the district court. 28 U.S.C. § 1441(a). If the case is not within the original

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subject matter jurisdiction of the district court, the court must remand the case to the state court
from which it was removed. Id. § 1447(c). To invoke the court’s diversity jurisdiction the
parties must be citizens of different states and the amount in controversy must exceed $75,000.
Id. § 1332(a). Complete diversity between the parties is required; the presence of a single
plaintiff from the same state as a single defendant extinguishes federal jurisdiction. Exxon Mobil
Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 553 (2005).
The burden of establishing federal jurisdiction is on the party seeking removal. In re Bus.
Men’s Assurance Co. of Am., 922 F.2d 181, 183 (8th Cir. 1993). In considering a motion to
remand, removal statues are strictly construed, and the court resolves 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).
“Fraudulent joinder occurs when a plaintiff files a frivolous or illegitimate claim against a
nondiverse defendant solely to prevent removal.” In re Prempro Prod. Liab. Litig., 591 F.3d
613, 620 (8th Cir. 2010) (quoting Filla v. Norfolk S. Ry. Co., 336 F.3d 806, 809 (8th Cir. 2003)).
“Under the doctrine of fraudulent joinder, a court may disregard the citizenship of a non-diverse
defendant who was frivolously joined in an effort to defeat removal.” In re Genetically Modified
Rice Litig., 618 F. Supp. 2d 1047, 1052 (E.D. Mo. 2009).
Discussion
Dial has the burden to demonstrate diversity exists in this case. It can only do so by
showing diversity spoiling defendant Housley was fraudulently joined.

If Housley was

fraudulently joined, the Court must then determine whether Dial timely removed this action to
federal Court.

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Dial argues Housley was fraudulently joined primarily because it claims Plaintiff has no
real intention of prosecuting his claim against Housley. Dial points to a series of circumstances
it alleges demonstrates collusion between Housley and Plaintiff. For example, Plaintiff’s counsel
represented Housley and her husband regarding Plaintiff’s ingestion of the laundry pod before
Plaintiff filed this case. In addition, Dial asserts Plaintiff has not actively litigated his case
against Housley. For example: Plaintiff did not serve discovery on Housley; Plaintiff did not
notice Housley for a deposition; during Dial’s deposition of Housley, Plaintiff did not ask any
questions of Housley; and Plaintiff filed motions in limine to prevent Dial from introducing
evidence regarding Housley’s fault, which would be favorable to Plaintiff’s claim against
Housley. Dial also asserts Housley has no intention of defending herself in this case. For
example: Housley did not assert any affirmative defenses in her answer to Plaintiff’s petition; she
did not serve Plaintiff with any discovery requests; and Housley filed a motion to strike Dial’s
expert witness whose testimony was expected to reduce the potential damages for which Ms.
Housley could be liable. Also notable, during Dial’s deposition of Housley, Housley stated she
did not know what she was accused of doing as it related to the lawsuit, and that she did not
know what it meant to be a defendant in the lawsuit. Based on this, Dial claims Housley is really
a plaintiff in this case and not a defendant.
Plaintiff contends he is actively litigating this case against Housley, but that fact is
immaterial to the issue of remand. As to remand, Plaintiff asserts the negligent supervision
count in his petition against Housley has a reasonable basis in law and fact, thus, Housley was
properly joined in this lawsuit.

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Since the Eighth Circuit does not consider a plaintiff’s intention of prosecution and a
Missouri court might impose liability on Housley for negligence, the Court holds Housley was
not fraudulently joined in the lawsuit.
The Court first addresses the factors considered in determining whether a diversity
destroying defendant is fraudulently joined. Joinder is fraudulent where “the applicable state
precedent precludes the existence of a cause of action against the defendant.” Filla, 336 F.3d at
810. “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.”
Id. at 810-11 (citation omitted) (emphasis added). Thus, “joinder is fraudulent when there exists
no reasonable basis in fact and law supporting a claim against the resident defendants.” Id. at
811 (quoting Wiles v. Capitol Indem. Corp., 280 F.3d 868, 871 (8th Cir. 2002)).
Dial relies on Reeb v. Wal-Mart Stores, Inc., 902 F. Supp. 185, 187 (E.D. Mo. 1995), to
argue fraudulent joinder can also be established if the “court finds the plaintiff has no real
intention of prosecuting the action against the resident defendant.” Def’s. Sugg. in Supp. at 11
(Doc. 10). However, the Filla court did not include consideration of the plaintiff’s intention to
follow through with claims against the resident defendant. Filla only analyzed fraudulent joinder
with respect to the reasonable basis for the claim against the resident defendant under state law.
See, e.g., Knudson v. Systems Painters, Inc., 634 F.3d 968, 980 (8th Cir. 2011) (“[J]oinder is not
fraudulent where ‘there is arguably a reasonable basis for predicting that the state law might
impose liability based upon the facts involved.’” (quoting Filla, 336 F.3d at 811)).
Dial also argues Filla articulates only one aspect of the fraudulent joinder standard. It
cites to Aguayo v. AMCO Ins. Co., 59 F. Supp. 3d 1225 (D.N.M. Oct. 31, 2014), to support their
argument fraudulent joinder can also exist when “a plaintiff collude[es] with a non-diverse

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defendant to defeat removal.” Aguayo, 59 F. Supp. 3d at 1251. Aguayo is not binding authority
on this court. In addition, Filla seems to articulate the entire fraudulent joinder standard in the
Eighth Circuit, not one aspect of it as Dial argues.1
Accordingly, the Court will not apply the “no real intention of prosecuting the action”
element in finding fraudulent joinder from Reeb, or consider whether Plaintiff colluded with
Housley under Aguayo, but instead will utilize the approach applied in Filla and the other more
recent Eighth Circuit decisions.
Next, the Court must determine whether there is a reasonable basis for the claim against
Housley, that is, whether a minor child could maintain a cause of action against his mother for
negligent supervision.
Negligent supervision of a child is a recognized cause of action in Missouri. E.g., Smith,
by & through Smith v. Archbishop of St. Louis on behalf of Archdioceses of St. Louis, 632
S.W.2d 516, 522, 532, n.2 (Mo. Ct. App. 1982) (outlining the elements of negligent supervision);
O.L. v. R.L., 62 S.W.3d 469, 474 (Mo. Ct. App. 2001) (explaining the difference between
negligent supervision of a child and negligent supervision of an adult). Since the abrogation of
parental immunity, a minor child may maintain a negligence cause of action against his parent.
Hartman by Hartman v. Hartman, 821 S.W.2d 852 (1991) (abrogating parental immunity and
imposing a reasonable parent standard). Thus, under Missouri law, a minor child could maintain
a cause of action against his parent for negligent supervision.
Missouri courts explain the duty of care in negligent supervision of a child includes
protecting the child against harm by instrumentalities or conditions of land or personal property.
1

“Where applicable state precedent precludes the existence of a cause of action against a defendant, joinder is
fraudulent. . . . Conversely, if there is a reasonable basis in fact and law supporting the claim, the joinder is not
fraudulent. . . . [T]he court must simply determine whether there is a reasonable basis for predicting that the state’s
law might impose liability against the defendant.” Filla, 336 F.3d at 810-11.

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See Smith, 632 S.W.2d at 518-19 (child injured when costume set afire by burning candle on
teacher’s desk). The duty of care also includes protecting the child from self-imposed injury.
See Rogger v. Voyles, 797 S.W.2d 844, 846 (Mo. Ct. App. 1990) (13-year-old child drove
automobile and lost control). “Proof of the necessary predicate relationship [between the child
and tortfeaser], . . . establishes . . . the existence of a duty of care.” O.L. 62 S.W.3d at 475.
Here, a reasonable basis in fact and law exists to support Plaintiff’s claim of negligent
supervision against Housley. The petition claims Housley is Plaintiff’s mother, she breached her
duty to exercise ordinary care, thereby causing Plaintiff’s injuries.

It is reasonable under

Missouri negligence law that a court may impose liability on a parent for failing to use
reasonable care in the supervision of her child. Thus, this Court cannot conclude Plaintiff
fraudulently joined Housley to this suit since a reasonable basis exists to support this claim.2 For
purposes of diversity, Housley’s citizenship is not ignored, and diversity is not met under 28
U.S.C. § 1332(a), making remand proper. Even if the Court were unsure whether Plaintiff
properly presented a claim against Housley, any ambiguity or doubt as to whether removal was
proper warrants remand. Finding the Court lacks diversity jurisdiction, the Court does not
address the parties’ arguments as to whether Dial timely removed this action.
Conclusion
Because a Missouri court might impose liability on Housley for negligence, Dial has not
carried its heavy burden of proving fraudulent joinder. Housley’s continued presence in this
lawsuit destroys complete diversity of citizenship, thus subject matter jurisdiction does not exist
under 28 U.S.C. § 1332.

Accordingly, Plaintiff’s Motion is GRANTED, and this case is

remanded to state court pursuant to 28 U.S.C. § 1447(c).
2

The facts surrounding the initiation of this lawsuit and vigor with which Housley has defended herself, create a
concern for the Court.

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IT IS SO ORDERED.
Date: August 1, 2017

/s/ Greg Kays
GREG KAYS, JUDGE
UNITED STATES DISTRICT COURT

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