United States District Court, W.D. Missouri, Western Division
SHA'DARIUS HOUSLEY, by and through his Next Friend, William Hubbard, Plaintiff,
THE DIAL CORPORATION, a Henkel Company, AND DOMINIQUE HOUSLEY, Defendants.
ORDER GRANTING MOTION TO REMAND
KAYS UNITED STATES DISTRICT JUDGE.
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.
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.
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
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.
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.
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.
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).
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).
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).
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 ...