United States District Court, W.D. Missouri, Western Division
FERNANDO J. GAITAN, JR. UNITED STATES DISTRICT JUDGE
before the Court are (1) Plaintiff's Motion for Remand
(Doc. No. 14); and (2) Defendant Zenith Education Group
Inc.'s Motion to Dismiss (Doc. No. 8). Both are
Kimesha Embry is an African-American citizen of the State of
Missouri. She worked at Everest College for nearly three
years, until May 5, 2014, when her employment was terminated.
(Petition, Doc. No. 6, ¶¶ 13, 23). Plaintiff filed
her Charge of Discrimination on October 30, 2014. The Charge
of Discrimination and Notice of Right to Sue name only
“Corinthian Colleges, Inc. d/b/a Everest College”
as the Respondent. Doc. No. 8, Exs. A and B. Corinthian
Colleges Inc. (“CCI”) submitted a position
statement in response to Embry's Charge on December 3,
2014. In its position statement, CCI affirmed that it was the
parent corporation of Everest College, Plaintiff's
employer. Notably, in 2014, when she filed her charge, Zenith
had not yet acquired Everest College. Plaintiff asserts that
Zenith was planning to acquire Everest College from
Corinthian as early as November 2014, after Plaintiff filed
her charge of discrimination in October and before CCI
submitted its position statement in December. Plaintiff
states, however, that during the pendency of her charge she
did not know Zenith was intending to acquire Everest College,
and did not know that Zenith had acquired Everest College
until immediately before she filed this lawsuit. In May 2015,
during the pendency of the Commission's investigation,
Corinthian filed for bankruptcy. See In re: Corinthian
Colleges, Inc. et al., 15-10952 KJC, United States Bankruptcy
Court District of Delaware (bankruptcy initiated May 4,
requested a right-to-sue letter in January 2016 as more than
180 days had passed since her charge was filed and her 2 year
statute of limitations was approaching. After receiving her
right-to-sue letter, on May 3, 2016, Embry filed this lawsuit
for race discrimination under the MHRA in the Circuit Court
of Jackson County, Missouri.
claims that this case was filed against three interrelated
companies, all of whom managed, operated and controlled
Everest College. However, as noted by defendant, the
caption of the underlying state court Petition names only two
defendants: Everest College and Zenith Education Group, Inc.
In state court, plaintiff requested service of process for
(1) Everest College, as a subsidiary of Florida Metropolitan
University, (2) Corinthian Colleges, Inc.
(“CCI”), and (3) Zenith Education Group, Inc. See
Doc. No. 6, pp. 1, 8-9. Zenith Education Group was served
with process on May 13, 2016. Everest College has not been
served with process; it appears from the record that there is
no Missouri entity named “Everest College, ” and
that “Everest College” is a fictitious d/b/a
name. See Doc. No. 15, p. 2. On June 8, 2016, plaintiff's
counsel sent correspondence to the Clerk of Court for Jackson
County requesting service on Florida Metropolitan University.
Doc. No. 6, p. 23. In response, the Jackson County Clerk
wrote: “Your request for service cannot be completed at
this time. ‘Florida Metropolitan University, Inc.'
is not listed on the Petition as a defendant in this case.
Everest College is the defendant who is a subsidiary thereof.
If service is to be obtained on ‘FMUI' an amended
Petition is needed listing them as a defendant to the
case.” Doc. No. 6, p. 24. With respect to CCI, service
of process was not accomplished, as the company Plaintiff
served, CT Corporation Systems, is no longer the registered
agent for CCI. See Doc. No. 6, p. 19.
13, 2016, Defendant Zenith Education Group removed this
action to federal court. Plaintiff has now moved to remand,
arguing that not all defendants consented to removal and
defendant Zenith Education Group has not demonstrated that
the amount in controversy has been met. Defendant Zenith
Education Group has moved to dismiss, arguing that is was not
named in the Charge of Discrimination and this first notice
it had of this action was the filing of the lawsuit.
Motion to remand
defendant may remove an action from state court to federal
court when the case falls within the original jurisdiction of
the federal courts. 28 U.S.C. § 1441(a). If the case is
not within the original subject matter jurisdiction of the
district court, the court must remand the case to the state
court from which it was removed. 28 U.S.C. § 1447(c).
Pertinent to the current set of facts, “The district
courts shall have original jurisdiction of all civil actions
where the matter in controversy exceeds the sum or value of
$75, 000, exclusive of interest and costs, and is between-(1)
citizens of different States.” 28 U.S.C. §
1332(a). The burden of establishing federal jurisdiction is
on the party seeking removal. In re Bus. Men's
Assurance Co. of Am., 992 F.2d 181, 183 (8th Cir.1993).
On a motion to remand, the district court must strictly
construe the removal statute and resolve 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)(citing Bus. Men's Assurance, 992 F.2d at 183).
Federal courts are to resolve all doubts regarding federal
jurisdiction in favor of remand, and are to strictly construe
legislation permitting removal. Dahl v. R.J. Reynolds
Tobacco Co., 478 F.3d 965, 968 (8th Cir.2007). In a
civil action with multiple defendants, all defendants must
join in the notice to remove unless they are nominal
defendants. Thorn v. Amalgamated Transit Union, 305
F.3d 826, 833 (8th Cir.2002). The general removal statute, 28
U.S.C. § 1446(b), permits a notice of removal be filed
within 30 days after receipt of the pleading and has been
interpreted to require that all defendants must consent to
removal. Pritchett v. Cottrell, Inc., 512 F.3d 1057,
1062 (8th Cir.2008). “If defendants are served at
different times, and a later-served defendant files a notice
of removal, any earlier-served defendant may consent to the
removal even though that earlier-served defendant did not
previously initiate or consent to removal.” 28 U.S.C.
§ 1446(b)(2)(C). Although each defendant need not
necessarily sign the notice of removal, there must “be
some timely filed written indication from each served
defendant, ” or someone authorized to act on the
defendant's behalf, indicating the defendant actually
consents to the removal. Pritchett, 512 F.3d at 1062.
Norco v. Miles Excavating, Inc., No.
14-CV-6040-SJ-FJG, 2014 WL 3400989, at *1 (W.D. Mo. July 10,
Motion to Dismiss
ruling a motion to dismiss, the court must accept
plaintiff's factual allegations as true and construe them
in the light most favorable to the plaintiff. Patterson
Oil Co. v. VeriFone, Inc., No. 2:15-cv-4089, 2015 U.S.
Dist. LEXIS 141635, at *9 (W.D. Mo. Oct. 19, 2015) (citing
Schaaf v. Residential Funding Corp., 517 F.3d 544,
549 (8th Cir. 2008)). A pleading must contain a “short
and plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). “The
pleading standard Rule 8 announces does not require
‘detailed factual allegations, ' but it demands
more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal,556 U.S. 662,
677-678 (2009) (quoting Bell Atlantic Corp. v.
Twombly,550 U.S. 544, 555, (2007)). In order for a
claim to survive a motion to dismiss, ‘a complaint must
contain sufficient factual matter, accepted as true, to
"state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. ...