Holzer et al v. Athene Annuity & Life Assurance Company et al
ORDER entered by Judge Nanette K. Laughrey. Plaintiffs' motion to remand, Doc. 11 , is granted. Pursuant to 28 U.S.C. § 1447(c), the case is remanded to the Circuit Court of Jackson County. (Sreeprakash, Netra)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
JACK HOLZER and MARY BRUESHHOLZER,
ATHENE ANNUITY & LIFE
ASSURANCE CO., et al.,
Defendant Athene Annuity & Life Assurance Company (“Athene”) removed this case
from the Circuit Court of Jackson County, asserting federal diversity jurisdiction. Plaintiffs Jack
A. Holzer and Mary F. Bruesh-Holzer (the “Holzers”) promptly moved to remand this action to
state court, arguing that two defendants sharing Kansas citizenship with the Holzers destroy
diversity. Defendants insist that the two Kansas defendants were fraudulently joined, and that
removal therefore was proper.
Because the Holzers have a basis in law and fact for suing at least one Kansas-based
defendant, the Court lacks subject matter jurisdiction over this case and must remand it to state
The Holzers filed this action in the Circuit Court of Jackson County on September 12,
2016, alleging that Mr. Holzer contracted mesothelioma and asbestosis from his exposure to
asbestos fibers emanating from products manufactured, sold, distributed, and/or installed by the
defendants. The Holzers are residents of Kansas, but brought suit in Missouri because Mr.
Holzer allegedly was first exposed to asbestos while he worked in the state. Two of the
defendants named in the most recent state court petition, KCG, Inc. (“KCG”) and Fuhrco, Inc.
f/k/a Schutte Lumber Company (“Fuhrco”) are citizens of Kansas.
The other defendants,
including Athene, are citizens of other states.
Athene removed this case on the basis of diversity, asserting that the Holzers on the one
hand and the defendants on the other are citizens of different states, and that the amount in
controversy exceeds $75,000.
There is no dispute regarding the amount in controversy.
However, the Holzers insist that both KCG and Fuhrco, as fellow citizens of Kansas, destroy
diversity. Athene insists that the Holzers have no basis in fact or law to sue KCG, and that the
Holzers never intended to prosecute their claims against either KCG or Fuhrco. The Holzers
deny that they filed suit against either of the Kansas-based defendants with improper purpose and
maintain that they intend to seek a default judgment against Fuhrco.
A defendant in a state court action may, under certain conditions, remove to federal
district court a case over which the federal court has original jurisdiction. See 28 U.S.C. §
1441(a). A federal district court has diversity jurisdiction if (i) the amount in controversy
exceeds $75,000, and (ii) the plaintiffs’ state of citizenship is different from the state of
citizenship of each of the defendants. See 28 U.S.C. § 1332(a). “In a case with multiple
plaintiffs and multiple defendants, the presence in the action of a single plaintiff from the same
State as a single defendant deprives the district court of original diversity jurisdiction over the
entire action.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 553 (2005). The
Court must remand a case over which it lacks subject matter jurisdiction. See In re Prempro
Prod. Liab. Litig., 591 F.3d 613, 620 (8th Cir. 2010) (“[T]he case should be remanded if it
appears that the district court lacks subject matter jurisdiction.”) (citing 28 U.S.C. § 1447(c)).
If a non-diverse defendant was joined solely to prevent removal of a case from state
court, the joinder is fraudulent and will not destroy the court’s subject matter jurisdiction. See
Prempro, 591 F.3d at 620 (“Courts have long recognized fraudulent joinder as an exception to
the complete diversity rule. Fraudulent joinder occurs when a plaintiff files a frivolous or
illegitimate claim against a non-diverse defendant solely to prevent removal.”) (citations
omitted). However, if a plaintiff has a “colorable” claim against a non-diverse defendant, joinder
is not fraudulent. Filla v. Norfolk Southern. Ry. Co., 336 F.3d 806, 810 (8th Cir. 2003) (“[I]f
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.”).
As the party seeking to remove the case, Athene bears the burden of establishing that the
Court has subject matter jurisdiction over this case. See Griffioen v. Cedar Rapids & Iowa City
Ry. Co., 785 F.3d 1182, 1192 (8th Cir. 2015) (“The party seeking removal has the burden to
establish federal subject matter jurisdiction . . . .”) (quotation marks and citation omitted). Any
doubt concerning whether the Court has jurisdiction “must be resolved in favor of remand.”
Cent. Iowa Power Co-op. v. Midwest Indep. Transmission Sys. Operator, Inc., 561 F.3d 904, 912
(8th Cir. 2009).
Athene does not contend that the Holzers’ claims against Fuhrco are without a factual or
legal basis.1 See Defendant Athene’s Amended Suggestions Opposing Plaintiff’s Motion to
Remand, Doc. 31 at 14 (“To be clear, Athene is not asserting that Fuhrco, Inc. was fraudulently
joined under the Filla prong.”). Instead, Athene argues that the Holzers have no intention of
In contrast, Athene argues that the Holzers have no basis in fact for suing KCG, but because the
Court concludes that Fuhrco’s joinder was not fraudulent, and Fuhrco’s inclusion in this suit
deprives the Court of diversity jurisdiction, the Court need not address Athene’s arguments
prosecuting their claims against Fuhrco. In other words, Athene does not argue that the Holzers
cannot prosecute their claims against Fuhrco; Athene argues merely that the Holzers will not
prosecute those claims.
Under Filla, however, the Holzers’ intention is irrelevant; the
fraudulent-joinder determination turns only on the legal and factual basis for the Holzers’ claims.
See Filla, 336 F.3d at 810. If the Holzers have a reasonable basis for their claims against Fuhrco,
joinder of Fuhrco was not fraudulent.
Athene argues that Filla addresses only one of two factors considered in assessing
whether joinder was fraudulent, and that an 80-year old Eighth Circuit case requires the Court to
consider not just whether there is a legal and factual basis for a claim against a non-diverse
defendant, but also “whether there is a real intention on the part of the plaintiff to secure a joint
judgment . . . .” Leonard v. St. Joseph Lead Co., 75 F.2d 390, 396-97 (8th Cir. 1935). However,
the intent-focused language in Leonard that Athene quotes is mere dicta. In Leonard, the Eighth
Circuit affirmed the denial of a motion to remand because there was no basis in law or fact for
the allegations against the non-diverse defendants. See id. at 395 (“[I]t is clear that the court
properly held that [the directors] were fraudulently joined . . . . [T]he directors had nothing to do
with the management, operation, manner of conducting or controlling the work of the plaintiff,
knew nothing of the conditions under which he worked, and had nothing to do with the actual
working of the mine. The general rule governing the personal liability of an officer or director of
a corporation for torts committed by the corporation is that he is not liable where he has not
participated therein, nor had any knowledge of, nor given any content to the act or transaction.”);
id. at 396-97 (“It is conceivable that under the law of Missouri, the two corporations might have
been jointly liable to plaintiff if the negligence of both concurred in producing his injury, but . . .
in fact, it conclusively appears that there was no such concurrent negligence.”). Leonard did not
turn on the plaintiff’s intent. Thus, the holding of Leonard is in essence no different from the
holding in Filla.
Compare Leonard, 75 F.2d at 396 (noting that “the record justifies the
conclusion of the lower court that this allegation is without foundation in fact and fraudulent in
law”) with Filla, 336 F.3d at 810 (“[J]oinder is fraudulent when there exists no reasonable basis
in fact and law supporting a claim against the resident defendants. Conversely, if there is a
reasonable basis in fact and law supporting the claim, the joinder is not fraudulent.”) (quotation
marks and citation omitted).
The other cases that Athene cites in support of the argument that the Court should
consider the Holzers’ “real intention” in determining whether joinder was fraudulent also turned
not on the question of intent, but on whether there was a reasonable basis for the claims. See
Walker v. Lanoga Corp., No. 06-0148, 2006 WL 1594451, at **4–5 (W.D. Mo. June 9, 2006)
(denying motion to remand because plaintiff was “unable to state a cognizable claim” against the
non-diverse defendant); Starman v. Peoples Ben. Life Ins. Co., No. 05-0018, 2005 WL 2123727,
at *3 (E.D. Mo. Sept. 1, 2005) (denying motion to remand because “Plaintiff fail[ed] to state a
cause of action against [the non-diverse] [d]efendant”); Garner v. Union Pac. R.R. Co., No. 1500733, 2015 WL 7352281, at *7 (E.D. Mo. Nov. 20, 2015) (finding fraudulent joinder
“[b]ecause there is no reasonable basis for predicting that Kansas law might impose liability on
[in-state defendant] based upon the facts Plaintiffs allege”); Scientific Computers, Inc. v.
Edudata Corp., 596 F. Supp. 1290, 1292-93 (D. Minn. 1984) (finding, where plaintiff could have
obtained full relief without joinder of the in-state defendant, and where the in-state defendant
was the only one of several brokers to be named in the suit, that joinder was fraudulent). Indeed,
in two of the cases that Athene cites, Jameson v. Gough, No. 09-2021, 2010 WL 716107 (E.D.
Mo. Feb. 24, 2010) and Maddux v. Great Am. Ins. Co., No. 08-0461, 2009 WL 10671556 (W.D.
Mo. Mar. 20, 2009), the court found that there was a basis for the claims against the non-diverse
defendants and remanded the proceedings. See Jameson, 2010 WL 716107, at *6 (remanding
the case because plaintiff had “a reasonable basis for naming [the resident] as a defendant” and
doubts should be resolved in favor of remand); Maddux, 2009 WL 10671556, at *3 (remanding
case after finding that “it cannot be said that . . . no cause of action lies against” the non-diverse
Two recent decisions from this District already have rejected the contentions that Athene
makes here. In Housley v. The Dial Corp., No. 17-577, 2017 WL 3269386 (W.D. Mo. Aug. 1,
2017), the defendant seeking removal, like Athene, argued that the “Plaintiff ha[d] no real
intention of prosecuting his claim against” the non-diverse defendant. See id., at *2. The district
court held that the defendant was not fraudulently joined because “the Eighth Circuit does not
consider a plaintiff’s intention of prosecution and a Missouri court might impose liability on [the
non-diverse defendant] for negligence . . . .” Id. Similarly, in LaManno v. Wal-Mart Stores,
Inc., No. 17-cv-0256-HFS, Dkt. 17 (W.D. Mo. Aug. 11, 2017), the defendant argued that the
non-diverse defendant was fraudulently joined because the plaintiffs had “no interest in
pursuing” that defendant. Id. at **7-8. The district court concluded that “there [wa]s no reason
for considering plaintiffs’ ‘true intent’” because there were “reasonable bases in fact and law for
naming [him] as a defendant . . . .” Id. at *8.
Thus, notwithstanding Athene’s arguments, the law is settled. The Holzers’ intent to
prosecute Fuhrco is irrelevant in light of the undisputed fact that they have a reasonable basis in
fact and law to sue Fuhrco.
Because the Court finds that Fuhrco was not fraudulently joined, the Court lacks subject
matter jurisdiction over this action and must remand it.2
For the reasons set forth above, the Court GRANTS the Holzers’ motion to remand.
Pursuant to 28 U.S.C. § 1447(c), the case is REMANDED to the Circuit Court of Jackson
/s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: October 3, 2017
Jefferson City, Missouri
Even if the Holzers’ intent to prosecute Fuhrco were relevant, Athene has failed to establish
that the Holzers do not intend to pursue their claims against Fuhrco. Plaintiff’s counsel states
that “Plaintiffs intended to” seek a default judgment against Fuhrco before this case was
removed. Any doubts regarding whether the Court has jurisdiction must be resolved in favor of
remand. See Dahl v. R.J. Reynolds Tobacco Co., 478 F.3d 965, 968 (8th Cir. 2007) (“Federal
courts are to resolve all doubts about federal jurisdiction in favor of remand and are strictly to
construe legislation permitting removal.”) (quotation marks and citation omitted). Thus, even if
the Holzers’ intent were relevant, the Court would remand the case.
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