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Lifrak v. Boy Scouts of America

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

April 6, 2017

ALICIA LIFRAK, Plaintiff,
v.
BOY SCOUTS OF AMERICA, et al., Defendants.

          MEMORANDUM AND ORDER

          CAROL E. JACKSON UNITED STATES DISTRICT JUDGE

         This matter is before the Court on plaintiff's motion to remand the action to the state court from which it was removed, pursuant to 28 U.S.C. § 1447(c). [Doc. #19]. Defendants have responded in opposition, and the issues are fully briefed.

         I. Background

         Plaintiff Alicia Lifrak worked for defendant Boy Scouts of America (BSA) from November 1, 1994, to January 31, 2016. [Doc. #20 at 2; Doc. #20-6 at 2]. Beginning in February 2009, she served as the Chief Executive Officer of defendant Lewis & Clark Council, Inc. (LCC), a regional affiliate of defendant BSA. Id. In her capacity as CEO, she reported to defendant Michael McCarthy (McCarthy), a BSA area director, and to the Board of Directors of defendant LCC. Id. On January 30, 2016, plaintiff was terminated from her position at LCC. [Doc. #20-6 at 7].

         Plaintiff claims that her “sex or gender was a contributing factor” in her suspension and subsequent termination. [Doc. #20-6 at 8]. She also claims that the defendants perpetrated a series of discriminatory acts against her between 2011 and 2016, ultimately culminating in her termination. [Doc. #20 at 16]. Specifically, plaintiff alleges that defendant McCarthy made negative statements about women in the workplace and other derogatory comments, and that he discriminatorily lowered plaintiff's performance ratings. [Doc. #20-6 at 3-4; Doc. #37 at 3]. Plaintiff alleges that she complained to supervisors at BSA about the alleged discriminatory behavior, but they failed to conduct a meaningful investigation of her claims. [Doc. #20-6 at 4]. Instead, plaintiff says, she became the target of multiple audits and suffered other adverse employment actions, such as exclusion from leadership conferences and other professional development opportunities; defendant McCarthy purportedly “played a role, ” in these decisions. [Doc. #20-6 at 4-6]. Finally, Plaintiff claims that defendants retaliated and committed their final discriminatory act in terminating her employment under false pretenses. [Doc. #20 at 2]. Defendants, for their part, assert that plaintiff was terminated because she filed fraudulent expense reports. [Doc. #37 at 2]. Plaintiff denies submitting fraudulent expense reports and argues that defendants' stated reason for terminating her employment is a pretext for discrimination. She asserts that “other similarly-situated executives of [d]efendants have fraudulently or inadvertently submitted incorrect or improper expense reports but were not terminated or disciplined.” [Doc. #20 at 2].

         II. Procedural Background

         After plaintiff's termination, on March 22, 2016, she filed a discrimination claim with the Missouri Commission on Human Rights. [Doc. #20 at 3; Doc. #20-1].[1] Then, on November 1, 2016, defendant LCC filed an action against plaintiff in the United States District Court for the Southern District of Illinois, alleging violations of the Computer Fraud and Abuse Act, 18 U.S.C. §§ 1030, et seq., as well as common law conversion, unjust enrichment, breach of fiduciary duty, and breach of duty of loyalty claims.[2] [Doc. #37 at 2; Doc. #20-4]. Plaintiff asserted her gender discrimination claims as counterclaims in that action, under the Missouri Human Rights Act (MHRA), Mo. Rev. Stat §§ 213.010, et seq. See Fed. R. Civ. P. 13(a); [Doc. #20 at 3; Doc. #20-5].

         Plaintiff then filed this action against defendant McCarthy in the Circuit Court of St. Louis County, Missouri on November 9, 2016, asserting MHRA violations. [Doc. #20 at 3; Doc. #20-6]. She amended the complaint to add defendants BSA and LCC on December 15, 2016. [Doc. #1-2]. On December 19, 2016, defendant BSA removed the action to this Court on the basis of diversity jurisdiction, 28 U.S.C. § 1332. [Doc. #1]. Plaintiff had not yet served the amended complaint on defendants at the time of removal.[3]

         Plaintiff moves to remand the case, arguing that complete diversity of citizenship is absent. Plaintiff is a citizen of Illinois. [Doc. #20 at 11]. Defendant LCC is an Illinois citizen. Id. Defendant McCarthy is a citizen of Missouri. Id. And defendant BSA is a District of Columbia congressionally-chartered corporation, with its principal place of business in Texas. Id. Plaintiff also argues that because defendant McCarthy is a “forum defendant, ” removal is barred by 28 U.S.C. § 1441(b)(2). Defendants argue that the fact that the plaintiff and defendant LLC are both Illinois citizens should be disregarded, because LLC was fraudulently joined to defeat diversity. [Doc. #37 at 1-2]. Defendants also argue that § 1441(b)(2) is inapplicable.

         III. Legal Standard

         “A defendant may remove a state law claim to federal court only if the action originally could have been filed there.” In re Prempro Prods. Liab. Litig., 591 F.3d 613, 619 (8th Cir. 2010) (citing Phipps v. FDIC, 417 F.3d 1006, 1010 (8th Cir. 2005)). Moreover, the removing defendant bears the burden of establishing federal jurisdiction by a preponderance of the evidence. Altimore v. Mount Mercy Coll., 420 F.3d 763, 768 (8th Cir. 2005). “All doubts about federal jurisdiction should be resolved in favor of remand to state court.” In re Prempro, 591 F.3d at 620 (citing Wilkinson v. Shackelford, 478 F.3d 957, 963 (8th Cir. 2007)). A case must be remanded if, at anytime, it appears that the district court lacks subject-matter jurisdiction. 28 U.S.C. § 1447(c); Fed.R.Civ.P. 12(h)(3).

         “It is axiomatic that a court may not proceed at all in a case unless it has jurisdiction.” Crawford v. F. Hoffman-La Roche Ltd., 267 F.3d 760, 764 (8th Cir. 2001). “The requirement that jurisdiction be established as a threshold matter ‘spring[s] from the nature and limits of the judicial power of the United States, ' and is ‘inflexible and without exception.'” Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998) (quoting Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 379, 382 (1884)).

         IV. Discussion

         A. Fraud ...


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