United States District Court, W.D. Missouri, Southern Division
ROSEANN A. KETCHMARK, UNITED STATES DISTRICT COURT JUDGE
the Court is Plaintiff's Motion to Remand. (Doc. 9.)
Defendants Lawing Financial, Inc. (“Lawing
Financial”) and Kerry Lawing (“Lawing”)
oppose the motion. (Doc. 14.) For the reasons stated below,
the motion will be GRANTED.
filed his Petition (doc. 1-1) in the Circuit Court of Greene
County, Missouri on January 24, 2017. In the Petition,
Plaintiff states that he was an employee of Lawing Financial.
(Id. at ¶ 8.) He claims that during said
employment, Lawing Financial sued Plaintiff's former
employer, Nadia Cavner (“Ms. Cavner”).
(Id. at ¶ 6.) Plaintiff alleges that John Shaw
(“Mr. Shaw”), Defendants' attorney,
interviewed him regarding said lawsuit. (Id. at
¶¶ 5, 18.) According to Plaintiff, Mr. Shaw, acting
on behalf of both Defendants as their agent,
“vigorously interrogated [him] and repeatedly sought to
induce [him] to testify falsely about Ms. Cavner…
.” (Id. at ¶ 19.) He claims that
“Mr. Lawing and Lawing Financial used their position of
power and authority to coerce and intimidate [him] to give
false statements so they could maintain and support”
the lawsuit against Ms. Cavner. (Id. at ¶ 15.)
Plaintiff alleges he “feared for his job and well-being
while being interrogated, ” and “due to the
extreme stress and anxiety being imposed upon [him] at that
time by Mr. Shaw and others acting on behalf of the
Defendants” he “suffered a massive heart
attack.” (Id. at ¶ 20.) The Petition
raises four counts in tort against both Defendants as
follows: (1) intentional infliction of emotional distress;
(2) negligent infliction of emotional distress; (3)
negligence per se violation of RSMo § 575.270, witness
tampering; and (4) negligence.
March 6, 2017, Defendants removed the action to this Court
based on diversity jurisdiction, claiming Plaintiff, a
Missouri resident, fraudulently joined Lawing, also a
Missouri resident, to prevent removal. Plaintiff now moves
for remand to state court, arguing this Court lacks
courts are courts of limited jurisdiction. Ark. Blue
Cross & Blue Shield v. Little Rock Cardiology Clinic,
P.A., 551 F.3d 812, 816 (8th Cir. 2009). A party may
remove an action to federal court if there is complete
diversity of the parties and the amount in controversy
exceeds $75, 000. 28 U.S.C. §§ 1332(a) and 1441(a).
A party seeking removal and opposing remand carries the
burden of establishing federal subject-matter jurisdiction by
a preponderance of the evidence. In re Prempro Prods.
Liab. Litig., 591 F.3d 613, 620 (8th Cir. 2010).
Furthermore, any doubts about the propriety of removal should
be resolved in favor of remand. In re Bus. Men's
Assurance Co. of Am., 992 F.2d 181, 183 (8th Cir. 1993)
plaintiff has named a non-diverse party as a defendant, the
defendant may avoid remand only by showing that the
non-diverse party was fraudulently joined. Filla v.
Norfolk S. Ry. Co., 336 F.3d 806, 809 (8th Cir. 2003)
(citation omitted). Joinder is fraudulent “[w]here
applicable state precedent precludes the existence of a cause
of action against a defendant.” Id. at 10.
“However, if there is a colorable cause of action -
that is, if the state law might impose liability on
the resident defendant under the facts alleged - then there
is no fraudulent joinder.” Id. (citation and
internal quotations omitted). Therefore, joinder is
fraudulent “when there exists no reasonable basis in
fact and law supporting a claim against the resident
defendants.” Wiles v. Capitol Indemnity Corp.,
280 F.3d 868, 871 (8th Cir. 2002) (citation omitted).
contends that the facts alleged in the Petition support his
causes of action against Lawing, and as a result, complete
diversity is lacking. Thus, according to Plaintiff, the Court
lacks subject-matter jurisdiction over the case, which must
be remanded to state court. Defendants counter that there is
no factual basis to support a claim against Lawing, because
neither Mr. Shaw nor Lawing Financial were the agent of
Lawing. In support, Defendants have provided the Declarations
of Lawing (doc. 1-2) and Mr. Shaw (doc. 1-3) stating that Mr.
Shaw did not personally represent Lawing during the relevant
time period. Essentially, Defendants have provided additional
facts of their own in an effort to show that Plaintiff's
claims against Lawing are factually unsupported.
in determining whether subject-matter jurisdiction exists
following removal, the Court “must accept the facts
alleged in the state court Petition as true.”
Hragyil v. Walmart Stores East LP, No.
15-6015-CV-SJ-ODS, 2015 WL 12843193 at *2 (W.D. Mo. Mar. 31,
2015) (citing Wilkinson v. Shackleford, 478 F.3d
957, 964 (8th Cir. 2007)). Joinder is fraudulent “if,
on the face of plaintiff's state court pleadings, no
cause of action lies against the resident defendant.”
Anderson v. Home Ins. Co., 724 F.2d 82, 84 (8th Cir.
1983). Here, the Petition alleges that “[a]t all times
herein pertinent, attorney John Shaw was acting within the
scope of his agency as legal counsel for Defendant Lawing
Financial and/or Lawing.” (Doc. 1-1 at ¶ 5.) The
Petition further claims:
[b]oth Lawing and Lawing Financial were personally and
financially interested in the successful outcome of the 
lawsuit and retained counsel, Mr. Shaw, to among other
things, investigate, file and prosecute the  lawsuit [and]
intended that Mr. Shaw interview witnesses and obtain from
them favorable testimony in support of Lawing Financial's
(Id. at ¶ 13.) Thus, Plaintiff has set forth
factual assertions in support of his claim that Mr. Shaw was
acting as the agent for both Lawing Financial and Lawing.
Although Defendants disagree with these factual assertions,
the Court lacks the authority to resolve such a dispute
unless and until it has subject-matter jurisdiction. See
e.g. Hragyil, 2015 WL 12843193 at *2.
and irrespective of Lawing's relationship with Mr. Shaw
and/or Lawing Financial, the Petition alleges that “Mr.
Lawing…coerce[d] and intimidate[d] the Plaintiff to
give false statements… .” (Doc. 1-1 at ¶
15.) Accordingly, the Court finds Defendants have failed to
show there is no reasonable basis in fact and law supporting
Plaintiff's claims against Lawing, and as a result,
Lawing was not fraudulently joined. Accordingly, because both
Plaintiff and Lawing are ...