United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
E. JACKSON UNITED STATES DISTRICT JUDGE
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
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].
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].
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]. 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. [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;
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.
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.
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);
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)).