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Embry v. Everest College

United States District Court, W.D. Missouri, Western Division

September 6, 2016

KIMESHA EMBRY, Plaintiff,
v.
EVEREST COLLEGE, a subsidiary of FLORIDA METROPOLITAN UNIVERSITY, INC. and CORINTHIAN COLLEGES, INC. and ZENITH EDUCATION GROUP, INC. Successor in Interest to CORINTHIAN COLLEGES, INC., Defendants.

          ORDER

          FERNANDO J. GAITAN, JR. UNITED STATES DISTRICT JUDGE

         Pending 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 considered, below.

         I. Background

         Plaintiff 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, 2015).

         Plaintiff 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.

         Plaintiff claims that this case was filed against three interrelated companies, all of whom managed, operated and controlled Everest College.[1] 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.

         On June 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.

         II. Standard

         A. Motion to remand

         A 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, 2014).

         B. Motion to Dismiss

         When 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. ...


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