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Sha'darius Housley v. The Dial Corp.

United States District Court, W.D. Missouri, Western Division

August 1, 2017

SHA'DARIUS HOUSLEY, by and through his Next Friend, William Hubbard, Plaintiff,



         This lawsuit arises out of an accident where Plaintiff, a minor who suffers from mental and physical disabilities, ingested a Purex Ultrapack laundry pod while at his mother Defendant Dominique Housley's (“Housley”), house and under her supervision. Plaintiff alleges as a result of ingesting the laundry pod, he suffered serious health complications. On May 13, 2016, Plaintiff filed suit against The Dial Corporation (“Dial”) for product liability and Housley for negligent supervision, in the Circuit Court of Jackson County, Missouri.

         Defendant Dial removed this case by invoking the Court's diversity jurisdiction, 28 U.S.C. §§ 1332, 1441, and 1446, claiming Plaintiff fraudulently joined Missouri resident Housley to prevent removal.

         Now before the Court is Plaintiff's Motion to Remand (Doc. 6). Finding Plaintiff may be able to maintain a cause of action for negligence against Housley, the Court holds Dial has not proven fraudulent joinder. Consequently, the motion is GRANTED.


         The state court petition alleges the following. Plaintiff is a minor child who suffers from mental and physical disabilities. While Plaintiff was at Housley's home, he gained access to a container of laundry pods and ingested one or more of them. As a result, he sustained injury to his trachea and airway. Due to his pre-existing disability, this new injury caused additional injuries to his neurologic, respiratory, gastrointestinal, and vascular systems.

         On May 13, 2016, Plaintiff filed suit in the Circuit Court of Jackson County, Missouri, against Dial alleging claims of product liability, and Housley for negligent supervision. Dial, a foreign corporation, then removed the action to this Court on July 13, 2017, based on the Court's diversity jurisdiction. At all times relevant to this suit, Plaintiff and Housley were residents of Missouri.

         In its notice of removal, Dial alleged Housley was fraudulently joined in order to destroy diversity, and but for that fraudulent joinder, this Court possesses diversity jurisdiction over the suit. Because this alleged improper joinder destroys complete diversity of citizenship, Dial requests the Court disregard Housley's citizenship when determining whether it possesses subject matter jurisdiction over this case. Additionally, Dial argues their Notice of Removal was timely because Plaintiff acted in bad faith concealing information with which Dial could ascertain that the case was removable, and therefore the one year limitation in 28 U.S.C. § 1446(b)(3) is inapplicable. In response, Plaintiff argues Housley was properly joined as a person subject to liability under Missouri law.

         Standard of Review

         An action may be removed by the defendant where the case falls within the original jurisdiction of the district court. 28 U.S.C. § 1441(a). If the case is not within the original subject matter jurisdiction of the district court, the court must remand the case to the state court from which it was removed. Id. § 1447(c). To invoke the court's diversity jurisdiction the parties must be citizens of different states and the amount in controversy must exceed $75, 000. Id. § 1332(a). Complete diversity between the parties is required; the presence of a single plaintiff from the same state as a single defendant extinguishes federal jurisdiction. Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 553 (2005).

         The burden of establishing federal jurisdiction is on the party seeking removal. In re Bus. Men's Assurance Co. of Am., 922 F.2d 181, 183 (8th Cir. 1993). In considering a motion to remand, removal statues are strictly construed, and the court resolves all doubts in favor of remand. Transit Cas. Co. v. Certain Underwriters at Lloyd's of London, 119 F.3d 619, 625 (8th Cir. 1997).

         “Fraudulent joinder occurs when a plaintiff files a frivolous or illegitimate claim against a nondiverse defendant solely to prevent removal.” In re Prempro Prod. Liab. Litig., 591 F.3d 613, 620 (8th Cir. 2010) (quoting Filla v. Norfolk S. Ry. Co., 336 F.3d 806, 809 (8th Cir. 2003)). “Under the doctrine of fraudulent joinder, a court may disregard the citizenship of a non-diverse defendant who was frivolously joined in an effort to defeat removal.” In re Genetically Modified Rice Litig., 618 F.Supp.2d 1047, 1052 (E.D. Mo. 2009).


         Dial has the burden to demonstrate diversity exists in this case. It can only do so by showing diversity spoiling defendant Housley was fraudulently joined. If Housley was fraudulently joined, the Court must then ...

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