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A.T. v. Newark Corp.

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

January 5, 2017

A.T., DENISE TRAVIS and REGINALD TIMOTHY TRAVIS Plaintiffs-Intervenors,
v.
NEWARK CORPORATION d/b/a ELEMENT14 Defendant.

          MEMORANDUM AND ORDER

          STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE

         This case comes before the Court on Plaintiffs-Intervenors' Motion to Amend the Complaint and add a defendant that would divest this Court of subject matter jurisdiction (#19). The matter has been fully briefed and is ready for disposition. For the following reasons, the motion will be denied.

         I. Factual Background

         On November 11, 2014, Marreo Travis (“decedent”) was tragically killed while working within the course of his employment as an assembly technician for Ferro Magnetics (“employer”). Defendant Newark Corporation d/b/a Element14 designed and manufactured the Tenma AC Power Source 72-7675, an electrical product that was used at the employer's place of business to perform volt breakdown testing on bias transformers. Decedent was fatally electrocuted while using the product. Decedent's father Reginald Timothy Travis (“Reginald”) and decedent's minor daughter (“A.T.”) originally brought suit in the Circuit Court of St. Louis County for strict products liability, negligence, breach of express warranty, breach of implied warranty of merchantability, negligence per se, and wrongful death against Newark. Defendant then properly removed the action to this Court under 28 U.S.C. § 1441(a), invoking this Court's diversity jurisdiction pursuant to 28 U.S.C. § 1332.

         Approximately a month later, decedent's mother, Denise Travis (“Denise”), intervened in the suit. Denise, as a plaintiff and intervenor, has moved to amend the original complaint to add a new claim of wrongful death against a new defendant ---decedent's co-employee and supervisor Craig Edward Hahn (“Hahn”).[1] The First Amended Complaint alleges that Hahn breached an individual and personal duty to decedent and by his affirmative negligent acts created an extra hazardous job environment beyond that normally encountered by decedent in his employment. Hahn, like the plaintiffs, is a citizen of Missouri. His addition would divest this Court of diversity jurisdiction and thus subject matter jurisdiction, and would require remand of the suit to the Circuit Court of St. Louis County, Missouri.

         Defendant Newark opposes Plaintiffs' Motion to Amend, arguing that Hahn's addition would be fraudulent joinder because Hahn is immune from liability under Missouri's Workers' Compensation Statute § 287.120 RSMo. Newark argues that the claims against Hahn are essentially that he failed to provide a safe work environment for the decedent and that under Missouri law it is solely the employer's nondelegable duty to provide a safe workplace. Newark further argues that in the absence of a separate and distinct legal duty owed to the decedent, Hahn is immune from liability as a co-employee under Missouri law.

         Plaintiffs allege that Hahn did have a separate and distinct duty owed to decedent and that he violated that duty. Plaintiffs' allegations against Hahn can be summarized as: (1) Hahn knew or should have known that the electrical product could cause significant injury or death to decedent because it was defective, (2) Hahn knew or should have known of the danger posed to decedent from using the product without proper safety precautions, (3) Hahn failed to place, or hire someone to place, proper safety equipment on the electrical product, (4) Hahn ordered decedent to perform electrical testing on the product even though Hahn allegedly knew of the danger posed by the product and that decedent was not qualified by training to work on it, (5) Hahn did not provide proper tools and equipment for decedent to work on the product, (6) Hahn did not enforce or train employees on safe electrical work practices, (7) Hahn ordered decedent to conduct the electrical testing in a location not set up safely, and finally (8) Hahn's acts described above violated several regulations.[2] The prevailing allegation is that Hahn knew or should have known of the dangers of instructing or allowing the decedent to work on the allegedly defective electrical product in the manner in which decedent did so, in the environment in which decedent did so.

         II. Fraudulent Joinder Standard

         Subject matter jurisdiction asserted under 28 U.S.C. § 1332 requires an amount in controversy greater than $75, 000 and complete diversity of citizenship among the litigants, meaning “where no defendant holds citizenship in the same state where any plaintiff holds citizenship.” Junk v. Terminix Intern. Co., 628 F.3d 439, 445 (8th Cir. 2010) (quoting In re Prempro Prods. Liab. Litig., 591 F.3d 613, 620 (8th Cir. 2010)); see also Herkenhoff v. Supervalu Stores, Inc., No. 4:13-CV-1974 SNLJ, 2014 WL 3894642 (E.D. Mo. Aug. 8, 2014). However, “in an exception to this rule, a district court may retain jurisdiction where a nondiverse defendant has been fraudulently joined.” Id.

         Fraudulent joinder is defined as “the filing of a frivolous or otherwise illegitimate claim against a non-diverse defendant solely to prevent removal.” Filla v. Norfolk Southern Ry. Co., 336 F.3d 806, 809 (8th Cir. 2003). The 8th Circuit fraudulent joinder standard, held in Filla, is that “joinder is fraudulent when there exists no reasonable basis in fact and law supporting a claim against the resident defendants.” Id. at 810 (quoting Wiles v. Capitol Indemnity Corp., 280 F.3d 868, 871 (8th Cir. 2002)). A plaintiff “cannot defeat a defendant's right of removal by joining a defendant who has ‘no real connection to the controversy.'” Herkenhoff, 2014 WL 3894642 at *2 (quoting Donner v. Alcoa, Inc., 709 F.3d 694, 697 (8th Cir. 2013)). “[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.” Filla, 336 F.3d at 810 (citing Iowa Public Service Co. v. Medicine Bow Coal Co., 556 F.2d 400, 406 (8th Cir. 1977) (emphasis in original)). However, if there is a “colorable” cause of action against the defendant, “that is, if the state law might impose liability on the resident defendant under the facts alleged” then there is no fraudulent joinder. Id.

         The Court “may look to materials in the record, including affidavits, to determine whether they establish facts supporting claims against the defendant.” Herkenhoff, 2014 WL 3894642 at *3. The Court's task is “limited to determining whether there is arguably a reasonable basis for predicting that the state law might impose liability based upon the facts involved. In making such a prediction, the district court should resolve all facts and ambiguities in the current controlling substantive law in the plaintiff's favor.” Id. at 811. “However, in its review of a fraudulent-joinder claim, the court has no responsibility to definitively settle the ambiguous question of state law.” Id. (emphasis in original). Finally, 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.” Id. (quoting Iowa Public Service Co., 556 F.2d at 406).

         III. Missouri Co-Employee Liability

         Plaintiffs' wrongful death claim, based in negligence against Hahn, requires analysis of co-employee liability under both Missouri's Workers' Compensation Statute § 287.120 RSMo and co-employee negligence principles under Missouri case law. Prior to August 28, 2012, immunity was not statutorily granted to employees for workplace negligence that resulted in injury or death to co-employees and instead was governed by common law principles of co-employee liability, including the “something more” test. The grant of ...


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