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Johnson v. Stokes Contractor Services LLC

United States District Court, E.D. Missouri, Eastern Division

September 10, 2014



DAVID D. NOCE, Magistrate Judge.

This action is before the court on the motions of defendant Stokes Contractor Services L.L.C. to quash service of process (Doc. 5) and to dismiss (Doc. 6), and on the motion of plaintiff Damone Johnson to remand (Doc. 8). The parties have consented to the exercise of plenary authority by the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Doc. 17.) A hearing on the motion to quash service of process was held on August 7, 2014. On August 20, 2014, plaintiff filed an amended complaint in this court. (Doc. 23.)


On January 16, 2014, plaintiff Damone Johnson commenced this action against defendant Stokes Contractor Services L.L.C. in the Circuit Court of St. Louis County. (Doc. 2.) On June 6, 2014, defendant removed the action to federal court under 28 U.S.C. § 1441(b), invoking federal question jurisdiction under 28 U.S.C. § 1331. (Doc. 1.)

According to the original petition filed in the state court and the amended complaint filed in this court, the following occurred. Plaintiff Damone Johnson resides in Missouri. (Doc. 2 at ¶ 1; Doc. 23 at ¶ 1.) Defendant Stokes Contractor Services L.L.C. is a Missouri corporation with its principal place of business in Missouri. (Doc. 2 at ¶ 2; Doc. 23 at ¶ 2)

Plaintiff commenced employment at $28.91 per hour with defendant. (Doc. 2 at ¶ 4; Doc. 23 at ¶ 5.) Soon afterwards, defendant instructed plaintiff to remove ceilings for a demolition project. (Doc. 2 at ¶ 5; Doc. 23 at ¶ 6.) Plaintiff noticed asbestos in the ceilings that defendant instructed him to remove. (Id.) Plaintiff informed the project manager, who informed defendant's owner, Bruce Stokes. (Doc. 2 at ¶ 6; Doc. 23 at ¶ 7.)

After his shift on July 30, 2013, plaintiff informed Bruce Stokes that only specialized teams should work with asbestos and that his coworkers did not qualify. (Doc. 2 at ¶ 7; Doc. 23 at ¶ 8.) He also inquired regarding the failure to inform employees about the presence of asbestos. (Id.) Bruce Stokes told plaintiff that he would mark the areas containing asbestos with red paint. (Doc. 2 at ¶ 8; Doc. 23 at ¶ 9.) Plaintiff also discussed the employees' harmful exposure to asbestos. (Doc. 2 at ¶ 7.) Bruce Stokes terminated plaintiff with the stated purpose of avoiding an uproar about but added that he would not issue a written reason for the termination. (Id. at ¶ 9.) Since his termination, plaintiff has been unemployed. (Id. at ¶ 11.) As a result of defendant's actions, plaintiff has suffered lost wages, emotional distress, embarrassment, pain, and suffering. (Id. at ¶ 13.)

Citing 29 Code of Federal Regulations § 1926.1101, plaintiff alleges in his original state court petition that defendant wrongfully discharged him in violation of the public policy of Missouri. (Doc. 2 at ¶¶ 10-12.) Plaintiff further alleges that Mo. Rev. Stat. § 510.265, which places limitations on punitive damage awards, violates the Missouri Constitution. (Id.) Plaintiff requests actual damages, punitive damages, and costs. (Id. at 4.) In his amended complaint, plaintiff alleges his termination violated the public policy of Missouri and cites Revised Statutes of Missouri 643.225, Missouri Regulations 10 Code of State Regulations 10-6.241(3)(B) and 10-6.250(3), and the previously cited section of the Code of Federal Regulations. (Doc. 23 at ¶ 11.)


Plaintiff moves to remand the action to state court for lack of subject matter jurisdiction, arguing that his sole claim arises under the Missouri common law and presents no federal question. Defendant responds that plaintiff's claim raises questions of federal law due to its reliance on 29 C.F.R. § 1926.1101. (Doc. 8.)


Removal statutes are strictly construed, and any doubts about the propriety of removal are resolved in favor of state court jurisdiction and remand. Transit Cas. Co. v. Certain Underwriters at Lloyd's of London , 119 F.3d 619, 625 (8th Cir. 1997). Courts must be "mindful that the nature of federal removal jurisdiction-restricting as it does the power of the states to resolve controversies in their own courts-requires strict construction of the legislation permitting removal." Nichols v. Harbor Venture, Inc. , 284 F.3d 857, 861 (8th Cir. 2002). "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, " the case must be remanded to the state court from which it was removed. 28 U.S.C. § 1447(c).

The propriety of removal to federal court depends on whether the claim comes within the scope of the federal court's subject matter jurisdiction. See 28 U.S.C. § 1441(b). The party invoking jurisdiction bears the burden of proof that all prerequisites to jurisdiction are satisfied. Knudson v. Sys. Painters, Inc. , 634 F.3d 968, 975 (8th Cir. 2011). Federal courts have "original jurisdiction of all civil actions arising under the Constitution, laws, or treats of the United States." 28 U.S.C. § 1331.

"The presence or absence of federal-question jurisdiction is governed by the wellpleaded complaint rule, ' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar Inc. v. Williams , 482 U.S. 386, 392 (1987). "There is no single, precise definition of [the arising under'] concept; rather, the phrase arising under' masks a welter of issues regarding the interrelation of federal and state authority and the proper management of the federal judicial system." Merrell Dow Pharm. Inc. v. Thompson , 478 U.S. 804, 808 (1986). Federal question jurisdiction applies to state law claims that "necessarily raise a stated federal issue, actually disputed and substantial, which a federal forum ...

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