United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE
decedent, Tyler Halsey, suffered a fatal heat stroke while
working on a tree trimming crew. Plaintiffs, who are the
decedent's parents, filed this lawsuit in Circuit Court
of Butler County, Missouri, against decedent's employer,
Townsend Tree Service Company, LLC,  and decedent's
supervisor, Jeff Richardson,  for wrongful death and
negligence. Defendants removed the case to this Court under
this Court's diversity jurisdiction pursuant to 28 U.S.C.
§ 1332(a)(1). Plaintiffs have moved to remand the matter
back to state court.
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)). No party
contests that the amount in controversy here exceeds $75,
000. As for diversity of citizenship between the parties,
plaintiffs are both citizens of Missouri; defendant Townsend
Tree - the decedent's employer - is a citizen of Indiana
(where it is incorporated and where it has its principal
place of business). Although defendant Jeff Richardson - a
co-employee of the decedent - is a citizen of Missouri,
defendants contend that he has been fraudulently joined to
this action to defeat diversity jurisdiction, and that the
motion to remand should be denied.
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).
"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.
Court "may look to materials in the record, including
affidavits, to determine whether they establish facts
supporting claims against the defendant."
Herkenhoffv. Supervalu Stores, Inc., No.
4:13-CV-1974 SNLJ, 2014 WL 3894642, at *3 (E.D. Mo. Aug. 8,
contend that Missouri state law would impose liability on
resident defendant Jeff Richardson in this case. Their theory
against defendant Richardson is that he was a co-employee and
supervisor of decedent who committed several affirmatively
negligent acts and who failed to enforce company safety
policies. Specifically, plaintiffs allege that Richardson
refused the decedent sufficient break periods, that he
directed decedent to work despite indications of heat
exhaustion, and that he disabled the air conditioning in the
trucks, which denied decedent a place to escape the heat
Defendants contend that Richardson is immune from suit
pursuant to Missouri's workers compensation statutes.
§ 287.120.1 RSMo. Under that statute, co-employees are
not liable for injury or death of a fellow employee unless
the employee "engaged in an affirmative negligent act
that purposefully and dangerously caused or increased the
risk of injury." Id. "The statutory
exception appears only to deny immunity to the co-employee,
rather than creating a new or different cause of action in
favor of the plaintiff.
the statute does not create an independent cause of action
against a co-employee, the Court must look to the common law
to determine whether a cause of action has been
alleged." AT. v. Newark Corp., No.
4:16-cv-448-SNLJ, 2017 WL 57251, at *3 (E.D. Mo. Jan. 5,
2017). A two-part inquiry is thus required: First, was the
co-employee engaged in "an affirmative negligent act
that purposefully and dangerously caused or increased the
risk of injury[?]" Id. If so, has plaintiff
"made allegations that otherwise establish a claim of
common law negligence[?]" Id.
state that even if plaintiffs satisfied the first question,
plaintiffs have not stated a claim for common law negligence
against Richardson. A common law negligence claim against a
co-employee requires that that the co-employee breached a
duty owed independently of the master-servant relationship -
that is, a duty separate and distinct from the employer's
nondelegable duties." Id. Such nondelegable
(1) the duty to provide a safe workplace, (2) the duty to
provide safe appliances, tools, and equipment for work, (3)
the duty to warn of dangers that employees might be and stay
reasonably ignorant of, (4) the duty to provide a sufficient
number of suitable fellow employees, and (5) the duty to
promulgate and enforce rules for employee conduct that would
maintain the safety of the workplace.
Id. (citing Peters v. Wady Indus., Inc.,
489 S.W.3d 784, 795 (Mo. banc 2016)). Each of the duties
alleged by plaintiffs here are nondelegable duties of the
employer. First, plaintiffs allege that defendant Richardson
failed to enforce the defendant employer's safety
policies, but the duty to "promulgate and enforce
rules.. .that would maintain the safety of the
workplace" is a non-delegable duty of the employer.
Id. Plaintiffs further allege that Richardson
directed the decedent to continue working. As this Court
explained in A. T., however, even if a supervisor
directs an employee to continue working despite knowing of a
danger to the employee's health or safety, that
co-employee is not liable to the plaintiff Id. at
*4; see also Peters, 489 S.W.3d at 799-800. Rather,
that implicates the employer's non-delegable duty to
provide a safe workplace. Id. Finally,
plaintiffs' allegation regarding Richardson's
responsibility for the air conditioning in trucks go to the
employer's non-delegable duty to provide safe equipment.
Peters case is controlling, and its facts are
comparable to those here. In Peters, a supervisory
co-employee was warned of the potential dangers of storing
and transporting stacked dowel baskets, but the supervisor
directed the injured employee to transport the stacked
baskets anyway. 489 S.W.3d at 799-800. The Missouri Supreme
Court held that although the supervisor "was allegedly
responsible for the unsafe manner in which the work was
routinely performed, " it was the employer's
"nondelegable duty to provide a safe work environment,
and it breaches that duty where it charged an employee with
the responsibility to provide a reasonably safe work
environment but the employee did not so provide."
Id. The analysis here is the same.
Court therefore holds there is no colorable cause of action
against Richardson. Richardson has thus been fraudulently
joined, there is complete diversity of citizenship, and the
plaintiffs motion to remand will be denied.
IT IS HEREBY ORDERED that plaintiffs' motion to ...