United States District Court, W.D. Missouri, St. Joseph Division
ANTRA D. ZENO, JR. Plaintiff,
JOHNSON CONTROLS, INC. and ESSEY BANKS, Defendants.
FERNANDO J. GAITAN, Jr., District Judge.
Currently pending before the Court is defendant Essey Bank's Motion to Dismiss (Doc. # 7) and plaintiff's Motion to Remand (Doc. # 12).
Plaintiff filed a charge of discrimination with the Missouri Commission on Human Rights ("MCHR") on November 24, 2013. On September 3, 2014, the MCHR issued its Notice of Right to Sue. In his charge of discrimination, plaintiff named only his employer, Johnson Controls, Inc. On December 2, 2014, plaintiff filed a petition in Platte County Circuit Court against his employer, Johnson Controls, Inc. and his supervisor, Essey Banks, alleging racial discrimination in violation of the Missouri Human Rights Act. In his petition, plaintiff states that on June 24, 2013, he had an argument with another employee. On June 27, 2013, plaintiff alleges that he was called into the office for a meeting about the incident. He was later suspended, pending an investigation. Plaintiff filed a union grievance challenging the suspension and was allowed to return to work without back pay. However, he was subsequently terminated shortly after returning to work. Plaintiff alleges that management was aware of the situation and should have prevented it from escalating. He also asserts that similarly situated white employees who were involved in a physical altercation were not subjected to any disciplinary action.
Plaintiff is a Missouri resident. Defendant Johnson Controls, Inc. is a Wisconsin corporation with its principal place of business in Wisconsin. Defendant Essey Banks is also a Missouri resident. If defendant Essey Banks is considered to be properly joined, there is no diversity amongst the parties and the Court would not have jurisdiction. Defendants argue that Essey Banks has been fraudulently joined as a party in order to destroy diversity.
In Filla v. Norfolk Southern Railway Company, 336 F.3d 806 (8th Cir. 2003), the Court articulated the standard for determining whether a party has been fraudulently joined:
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....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.... As we recently stated in Wiles [v. Capitol Indemnity Corp., 280 F.3d 868, 871 (8th Cir. 2002)], joinder 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.
Id. at 810 (internal citations and quotations omitted). In Barnes v. Dolgencorp, Inc., No. 06-0632-CV-W-ODS, 2006 WL 2664443, (W.D.Mo. Sept. 14, 2006), the Court stated:
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.... 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.... Where the sufficiency of the complaint against the non-diverse defendant is questionable, the better practice is for 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.... Finally, the party seeking removal and opposing remand has the burden of demonstrating that federal jurisdiction exists.
Id. at *1 (internal citations and quotations omitted).
Plaintiff argues that this case should be remanded because there is not complete diversity amongst the parties and the amount in controversy requirement has not been met. A defendant may remove a state court action to federal court based on diversity of citizenship when the matter in controversy exceeds $75, 000 exclusive of interest and costs and is between citizens of different states. See 28 U.S.C. § 1332(a)(1). A corporation is a citizen of its state of incorporation and also of the state where it has its principal place of business. 28 U.S.C. § 1332(c)(1). It is defendant's burden to prove that removal is proper and that all prerequisites are satisfied. See generally Hatridge v. Aetna Cas. & Sur. Co., 415 F.2d 809, 814 (8th Cir. 1969). The removal statute is to be narrowly construed, and any doubt about the propriety of removal is resolved in favor of state court jurisdiction. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941); In re Business Men's Assur. Co. Of America, 992 F.2d 181, 183 (8th Cir. 1993).
The Eighth Circuit has held that where a complaint alleges no specific amount of damages or an amount under the jurisdictional minimum, the removing party "must prove by a preponderance of the evidence that the amount in controversy exceeds $75, 000." Eg., In re Minnesota Mut. Life Ins. Co. Sales Practices Litig., 346 F.3d 830, 834 (8th Cir. 2003); Drobnak v. Andersen Corp., 561 F.3d 778, 786 (8th Cir. 2009); James Neff Kramper Family Farm Partnership v. IBP, Inc., 393 F.3d 828, 831 (8th Cir. 2005); State of Mo. ex rel. Pemiscot County, Mo. v. Western Sur. Co., 51 F.3d 170, 173 (8th Cir. 1995) (citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936)). To satisfy the preponderance of the evidence standard, the party seeking removal must offer "some specific facts or evidence demonstrating ...